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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JACOBSEN,

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Plaintiff,

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v.

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MALDINADO,

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ORDER DISCHARGING ORDER TO SHOW
CAUSE WHY DOE DEFENDANTS SHOULD
NOT BE DISMISSED
(ECF No. 15)

Defendant.

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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

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

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magistrate judge jurisdiction. (ECF No. 4.)

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On June 8, 2017, the Court issued a screening order finding that Plaintiff had stated a

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cognizable claim against Defendants Maldinado, Doe #1, Doe #2, and Doe #3 and directing

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Plaintiff to provide the Court with written notice identifying Doe Defendants with enough

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information to locate defendants for service of process. (ECF No. 8.) When Plaintiff failed to

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provide such written notice, the Court issued an order requiring Plaintiff to show cause why Doe

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Defendants should not be dismissed for failure to prosecute. (ECF No. 15.)

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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
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Court granted Plaintiff a final opportunity to file written notice identifying Doe Defendants or a

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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

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order to show cause. (ECF No. 21.) Plaintiff states that he has no way of discovering the names

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of the Doe Defendants until discovery is open in this case, and once discovery is open he will be

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able to obtain the names of the Doe Defendants through discovery requests to the Defendant.

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Plaintiff further states that he believes good cause exists to extend the time to identify the Doe

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Defendants until 60 to 90 days after discovery begins. (Id.) The Court directed the U.S. Marshals

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Service to serve Defendant Maldinado on September 29, 2017, the day Plaintiff submitted the

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appropriate service documents. Thus, the deadline for service by the U.S. Marshals Service is

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January 2, 2018. (ECF No. 20.)

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The burden is on Plaintiff to discover the identity of the Doe Defendants, and to amend his

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complaint to substitute a name for each of the unnamed correctional officers. At this time, the

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Court declines to wait until Defendant Maldinado is served to seek the identity of the Doe

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Defendants, and disagrees that their names are “unattainable” until that time.

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Therefore, Plaintiff will be permitted forty-five (45) days to either file a motion to

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substitute the Doe Defendants, or file a status report explaining the actions he took to locate the

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name of Doe Defendants. Any extension of that period will require a showing of good cause, and

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a failure to comply with that order shall result in a dismissal of the Doe Defendants. Thus,

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Plaintiff should seek to discover the identity of Doe Defendants and move to substitute their

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names into the case as soon as possible. Plaintiff may be able to locate names from incident

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reports, Rules Violation Reports, his central file, or other documents available for Plaintiff to

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review.

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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
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b. File a status report explaining the actions he took to locate the names of Doe

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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.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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