Recino v. Unknown

Filing 33

ORDER DISCHARGING 28 Order to Show Cause Why Action Should Not be Dismissed; ORDER Finding Service of Third Amended Complaint Appropriate as to Plaintiff's Claims Against Unknown Correctional Officers; and ORDER Requiring Plaintiff to Substitute Doe Defendant(s) or File Status Report Within Forty-Five (45) Days signed by Magistrate Judge Barbara A. McAuliffe on 7/27/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT R. RECINO,

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Plaintiff,

ORDER DISCHARGING ORDER TO SHOW
CAUSE WHY ACTION SHOULD NOT BE
DISMISSED
(ECF No. 28)

Defendant.

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Case No. 1:15-cv-00362-LJO-BAM (PC)

ORDER FINDING SERVICE OF THIRD
AMENDED COMPLAINT APPROPRIATE
AS TO PLAINTIFF’S CLAIMS AGAINST
UNKNOWN CORRECTIONAL OFFICERS
(ECF No. 30)

v.
UNKNOWN,

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ORDER REQUIRING PLAINTIFF TO
SUBSTITUTE DOE DEFENDANT(S) OR
FILE STATUS REPORT
FORTY-FIVE (45) DAY DEADLINE

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Plaintiff Robert R. Recino (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff originally filed this

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matter in the U.S. District Court for the Central District of California, and it was transferred to

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this Court on March 6, 2015.

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I.

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Order to Show Cause
On June 14, 2016, the Court issued an order requiring Plaintiff to either file a third

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amended complaint or notify the Court of his willingness to proceed only on the cognizable

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claims identified in that order. (ECF No. 27.) Plaintiff was required to comply with that order on

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or before July 18, 2016. Having not received any response by that date, the Court issued an order

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requiring Plaintiff to show cause why this action should not be dismissed for failure to prosecute

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and failure to obey a court order. (ECF No. 28.)

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In the meantime, Plaintiff elected to file a third amended complaint, dated July 12, 2016.

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(ECF No. 30.) It appears Plaintiff’s third amended complaint and this Court’s order to show cause

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crossed in the mail. Since Plaintiff has timely complied with the Court’s June 14, 2016 order, the

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Court finds it appropriate to discharge its previously-issued order to show cause.

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II.

Service of Third Amended Complaint

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The Court finds that Plaintiff’s third amended complaint, filed on August 31, 2015, states

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a cognizable claim against Plaintiff sufficiently states a cognizable claim against each of the two

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unknown correctional officer defendants for allegedly failing to intercede as he was beaten by

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other inmates, and for delaying in obtaining medical treatment for him after the beating, in

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violation of the Eighth Amendment. 28 U.S.C. 1915(e)(2)(B).1 According to Plaintiff, the two

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correctional officers’ names have not been revealed to him. “As a general rule, the use of ‘John

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Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

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1980). Although the use of Doe defendants is acceptable to withstand dismissal of the complaint

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at the screening stage, those person or persons cannot be served with process in this action until

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they are identified by their names.

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The burden is on Plaintiff to discover the identity of these defendants, and amended his

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complaint to substitute a name for each of the two unnamed correctional officers. Therefore,

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Plaintiff will be permitted forty-five (45) days to either file a motion to substitute the Doe

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By separate order, the Court has issued findings and recommendations that Plaintiff’s claims for
deliberate indifference to serious medical needs in violation of the Eighth Amendment against Defendants
Neubarth, Nair, Klarich, and Howden be dismissed from this action.
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Defendant(s), or file a status report explaining the actions he took to locate the name of Doe

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Defendant(s). Any extension of that period will require a showing of good cause, and a failure to

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comply with that order shall result in a recommendation to dismiss the action. Thus, Plaintiff

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should seek to discover the identity of Doe Defendant(s) and move to substitute him/them into the

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case as soon as possible. Plaintiff may be able to locate names from incident reports, Rules

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Violation Reports, his central file, or other documents available for Plaintiff to review.

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III.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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DISCHARGED;

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2.

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The Order to Show Cause issued on July 25, 2016 (ECF No. 28), is

Within forty-five (45) days from the date of service of this order, Plaintiff SHALL

either:

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a.

File a file a motion to substitute the identifies of the Doe Defendant(s), or

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b.

File a status report explaining the actions he took to locate the name of Doe

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Defendant(s);
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Any extension of the deadline set in this order must be sought from the Court

before the deadline expires, and must be supported by a showing of good cause;
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If Plaintiff fails to comply with this order, the Court will recommend

dismissal of this action for failure to obey a court order and failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 27, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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