Thomas v. Lewis et al

Filing 15

ORDER THAT PLAINTIFF'S 12 FIRST AMENDED COMPLAINT STATES A COGNIZABLE CLAIM AND THAT THE ACTION PROCEED ON PLAINTIFF'S DELIBERATE INDIFFERENCE CLAIM AS FOR JOHN DOE DEFENDANT; ORDER THAT ALL OTHER CLAIMS AND DEFENDANTS ARE DISMISSED AND ORDER REQUIRING IDENTIFICATION OF DOE DEFENDANT WITHIN 90 DAYS signed by Magistrate Judge Erica P. Grosjean on 11/2/2016. (Lundstrom, T).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY C. THOMAS,

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Plaintiff,

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vs.

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J. LEWIS, et al.,

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Defendants.

1:16-cv-00524-EPG-PC
ORDER THAT PLAINTIFF’S FIRST
AMENDED COMPLAINT STATES A
COGNIZABLE CLAIM AND THAT THE
ACTION PROCEED ON PLAINTIFF=S
DELIBERATE INDIFFERENCE CLAIM AS
FOR JOHN DOE DEFENDANT
(ECF. NO. 12)

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ORDER THAT ALL OTHER CLAIMS AND
DEFENDANTS ARE DISMISSED

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ORDER REQUIRING IDENTIFICATION OF
DOE DEFENDANT WITHIN 90 DAYS

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Johnny C. Thomas (“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.

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complaint on April 14, 2016. (ECF No. 1). On October 6, 2016, this Court issued a screening

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order pursuant to 28 U.S.C. ' 1915A and found that it states a cognizable claim against

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defendant John Doe, unknown surgeon at KVSP, for deliberate indifference to serious medical

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needs in violation of the Eighth Amendment. (ECF No. 13.) The Court also found that Plaintiff

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failed to sate any other cognizable claims. (Id.)

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Plaintiff filed his initial

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Plaintiff was granted leave to file an amended complaint or notify the Court that he is

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willing to proceed only on the claims found cognizable by the Court, subject to an order that

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the non-cognizable claims be dismissed from the action. (Id.) On October 31, 2016, Plaintiff

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filed a notice informing the Court that he is willing to proceed only on the cognizable Eighth

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Amendment claim for deliberate indifference to serious medical needs against the John Doe

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Defendant. (ECF No. 14.)

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Plaintiff also notified the Court that although he believes he may have learned of the

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name of the John Doe defendant, he needs additional time to confirm the name. (Id.)

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Accordingly, service of the First Amended Complaint is not appropriate at this time because

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the John Doe defendant has not yet been identified.

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The Court will allow Plaintiff sixty (90) days to identify the John Doe defendant.1 In

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order to identify the John Doe defendant, Plaintiff has leave to request issuance of any third

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party subpoenas, including on the California Department of Corrections and Rehabilitation

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(“CDCR”).

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To issue a subpoena on the CDCR, or any other third-parties, Plaintiff must file a

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request for the issuance of a subpoena duces tecum with the Court. If the Court approves the

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request, it may issue Plaintiff a subpoena duces tecum, commanding the production of

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documents from a non-party, and may command service of the subpoena by the United States

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Marshal Service. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d).

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Once the John Doe defendant is identified, Plaintiff shall file a Second Amended

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Complaint that substitutes the name of the John Doe defendant with the name of the actual

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defendant. Failure to follow these instructions with result in dismissal of this case.

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Based on the foregoing, it is HEREBY ORDERED that:

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KVSP, on Plaintiff’s deliberate indifference to serious medical needs claim;

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This action proceeds only against the John Doe defendant, unknown surgeon at

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All remaining claims and Defendants be dismissed from this action; and

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If Plaintiff is unable to identify the John Doe defendant within 90 days despite diligent efforts, Plaintiff
may file a motion for extension of time requesting additional time for good cause.

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3.

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name of the John Doe defendant with the name of the actual defendant.
4.

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Plaintiff shall file a Second Amended Complaint within 90 days that replaces the

Plaintiff has leave to conduct discovery, including requesting third party
subpoenas, to ascertain the identity of the John Doe defendant.

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Failure to file an amended complaint identifying the John Doe defendant within
90 days will result in dismissal of this case without prejudice.

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IT IS SO ORDERED.
Dated:

November 2, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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