Jacobsen v. Maldinado

Filing 22

ORDER,Discharging Order to Show Cause Why Doe Defendants Should Not Be Dismissed 15 ; ORDER REQUIRING Plaintiff to Substitute Doe Defendants or File Status Report Within 45 Days, signed by Magistrate Judge Barbara A. McAuliffe on 10/6/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JACOBSEN, 12 Plaintiff, 13 v. 14 MALDINADO, 15 ORDER DISCHARGING ORDER TO SHOW CAUSE WHY DOE DEFENDANTS SHOULD NOT BE DISMISSED (ECF No. 15) Defendant. 16 17 18 Case No. 1:17-cv-00101-BAM (PC) ORDER REQUIRING PLAINTIFF TO SUBSTITUTE DOE DEFENDANTS OR FILE STATUS REPORT WITHIN FORTY-FIVE (45) DAYS Plaintiff Michael Jacobsen (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to 20 magistrate judge jurisdiction. (ECF No. 4.) 21 On June 8, 2017, the Court issued a screening order finding that Plaintiff had stated a 22 cognizable claim against Defendants Maldinado, Doe #1, Doe #2, and Doe #3 and directing 23 Plaintiff to provide the Court with written notice identifying Doe Defendants with enough 24 information to locate defendants for service of process. (ECF No. 8.) When Plaintiff failed to 25 provide such written notice, the Court issued an order requiring Plaintiff to show cause why Doe 26 Defendants should not be dismissed for failure to prosecute. (ECF No. 15.) 27 28 In the meantime, Plaintiff filed a response to the Court’s order to show cause regarding service of process on Defendant Maldinado. (ECF No. 17.) Pursuant to that submission, the 1 1 Court granted Plaintiff a final opportunity to file written notice identifying Doe Defendants or a 2 response stating why he is unable to do so. (ECF No. 19.) On October 5, 2017, Plaintiff filed the instant response to the Court’s September 21, 2017 3 4 order to show cause. (ECF No. 21.) Plaintiff states that he has no way of discovering the names 5 of the Doe Defendants until discovery is open in this case, and once discovery is open he will be 6 able to obtain the names of the Doe Defendants through discovery requests to the Defendant. 7 Plaintiff further states that he believes good cause exists to extend the time to identify the Doe 8 Defendants until 60 to 90 days after discovery begins. (Id.) The Court directed the U.S. Marshals 9 Service to serve Defendant Maldinado on September 29, 2017, the day Plaintiff submitted the 10 appropriate service documents. Thus, the deadline for service by the U.S. Marshals Service is 11 January 2, 2018. (ECF No. 20.) 12 The burden is on Plaintiff to discover the identity of the Doe Defendants, and to amend his 13 complaint to substitute a name for each of the unnamed correctional officers. At this time, the 14 Court declines to wait until Defendant Maldinado is served to seek the identity of the Doe 15 Defendants, and disagrees that their names are “unattainable” until that time. 16 Therefore, Plaintiff will be permitted forty-five (45) days to either file a motion to 17 substitute the Doe Defendants, or file a status report explaining the actions he took to locate the 18 name of Doe Defendants. Any extension of that period will require a showing of good cause, and 19 a failure to comply with that order shall result in a dismissal of the Doe Defendants. Thus, 20 Plaintiff should seek to discover the identity of Doe Defendants and move to substitute their 21 names into the case as soon as possible. Plaintiff may be able to locate names from incident 22 reports, Rules Violation Reports, his central file, or other documents available for Plaintiff to 23 review. 24 25 26 27 28 Based on the foregoing, it is HEREBY ORDERED that: 1. The Order to Show Cause issued on September 21, 2017 (ECF No. 15), is DISCHARGED; 2. Within forty-five (45) days from the date of service of this order, Plaintiff SHALL either: a. File a file a motion to substitute the identities of the Doe Defendants, or 2 1 b. File a status report explaining the actions he took to locate the names of Doe 2 3 4 5 6 Defendants; 3. 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; 4. If Plaintiff fails to comply with this order, the Court will dismiss the Doe Defendants for failure to obey a court order and failure to prosecute. 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara October 6, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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