Smith v State of California [CA Dept. of Corrections and Rehabilitation]
ORDER Adopting 14 Findings and Recommendations and Granting Defendants' Motion to Dismiss 7 , signed by Chief Judge Lawrence J. O'Neill on 11/29/17. Amended Complaint Due Within Ten Days. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:17-cv-01058-LJO-SAB
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO DISMISS
STATE OF CALIFORNIA [CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
(ECF Nos. 7, 14)
TEN DAY DEADLINE
Plaintiff Earlene Smith filed the complaint in this action on August 8, 2017.
19 December 29, 2017, Defendant California Department of Corrections and Rehabilitation
20 (“CDCR”) filed a motion to dismiss that was referred to a United States Magistrate Judge
21 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 24, 2017, the Magistrate Judge filed a findings and recommendations, which
23 was amended on November 8, 2017.
The amended findings and recommendations
24 recommended granting Defendant’s motion to dismiss. The findings and recommendations was
25 served on the parties and contained notice that any objections to the findings and
26 recommendations were to be filed within fourteen days (14) days from the date of service. The
27 period for filing objections has passed and no objections have been filed.
The Court notes that this action was filed on August 8, 2017, and the complaint named
1 doe defendants. The Federal Rules of Civil Procedure include no provision “permitting the use
2 of fictitious defendants.” McMillan v. Department of Interior, 907 F.Supp. 322, 328 D. Nev.
3 1995, aff’d, 87 F.3d 1320 (9th Cir. 1996), cert. denied, 519 U.S. 1132 (1997); see also Fifty
4 Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir. 1970). “As a general rule, the
5 use of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637,
6 642 (9th Cir. 1980). Nonetheless, a plaintiff must be afforded an opportunity to identify the
7 unknown defendants through discovery, unless it is clear that discovery will not reveal their
8 identities or the complaint must be dismissed for other reasons. Id. “While Doe pleading is
9 disfavored, it is not prohibited in federal practice.” Lopes v. Vieira, 543 F.Supp.2d 1149, 1152
10 (E.D. Ca. 2008). The inclusion of Doe defendants under these circumstances is permissible, as a
11 plaintiff may amend the complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure
12 once the identity of defendants is known through discovery or other means, Merritt v. Los
13 Angeles, 875 F.2d 765, 768 (9th Cir. 1989); see Swartz v. Gold Dust Casino, Inc., 91 F.R.D.
14 543, 547 (D. Nev. 1981).
However, Plaintiff is advised that pursuant to Rule 4 of the Federal Rules of Civil
16 Procedure, the complaint and summons was to have been served within ninety days. Fed. R.
17 Civ. P. 4(m). If the complaint and summons is not timely served, the Court “must dismiss the
18 action without prejudice against that defendant or order that service be made within a specified
19 time. But if the plaintiff shows good cause for the failure, the court must extend the time for
20 service for an appropriate period.” 4 Fed. R. Civ. P. 4(m).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted
22 a de novo review of this case. Having carefully reviewed the entire file, the Court finds the
23 findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
The findings and recommendations, filed November 8, 2017, is ADOPTED IN
Defendant CDCR’s motion to dismiss, filed September 29, 2017 is GRANTED as
Plaintiff’s section 1983 claims, first cause of action; and Fair Employment
and Housing Act claims, second and seventh causes of action; against
CDCR are DISMISSED without leave to amend as Defendant CDCR is
entitled to Eleventh Amendment immunity;
the FEHA is DISMISSED for failure to state a claim;
Plaintiff’s request for punitive damages against CDCR is DISMISSED
without leave to amend;
Within ten (10) days of the date of entry of this order, Plaintiff shall file an
amended complaint; and
Plaintiff’s state law claims; the third, fourth, fifth, and sixth causes of
action; against CDCR are DISMISSED with leave to amend;
Plaintiff’s second cause of action for racial discrimination in violation of
If Plaintiff fails to file an amended complaint in compliance with this order, this
action shall proceed only against the Doe Defendants on the first, third, fourth,
fifth, sixth, and seventh causes of action.
IT IS SO ORDERED.
/s/ Lawrence J. O’Neill _____
November 29, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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