Marpel v. Saukhla et al

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 5/6/11 ORDERING that the California Medical Facility is DISMISSED from this action; and 16 Motion to obtain additional service documents is DENIED without prejudice. (Dillon, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSEPH MARPEL, Plaintiff, 11 12 vs. 13 No. 2:11-cv-0387 KJN P SAUKHLA, et al., 14 Defendants. / 15 16 ORDER Pursuant to this court’s screening of plaintiff’s original complaint pursuant to 28 17 U.S.C. § 1915A(a), the court found that the complaint may state potentially cognizable claims 18 against defendants Bick and Saukhla, but does not state a claim against the California Medical 19 Facility. (Dkt. No. 4 at 2.) Plaintiff, who has preliminarily agreed to the jurisdiction of the 20 magistrate judge for all purposes (Dkt. No.7), see 28 U.S.C. § 636(c), Local Rule 305(a), has 21 filed a document in which he agrees to terminate the California Medical Facility from this action 22 (Dkt. No. 16 at 2). 23 In the same document, plaintiff has filed a “motion” to obtain additional service 24 documents in order to provide the court with information necessary to serve process on a 25 defendant who has not yet been identified. Plaintiff states: “I need to amend another defendant 26 in this case. I do not have his/her name at the moment, but, this person is in charge of screening 1 1 all of the complaints in the Medical Department here at CMF [California Medical Facility].” 2 (Dkt. No. 16 at 1.) Plaintiff is advised that the use of “Doe defendants” is not favored in the Ninth 3 4 Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“As a general rule, the use 5 of ‘John Doe’ to identify a defendant is not favored.”). Where the identity of an alleged 6 defendant cannot be known prior to the filing of a complaint, the plaintiff should be given an 7 opportunity through discovery to identify such defendant. Id. Failure to afford the plaintiff such 8 an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) 9 (dismissing a complaint because plaintiff is unaware of Doe’s identity at the time the complaint 10 is filed is error). If plaintiff learns the identity of the subject Doe defendant, through discovery or 11 earlier, he may file a motion for leave to file an amended complaint in order to add the newly 12 identified individual as a named defendant. See Brass v. County of Los Angeles, 328 F.3d 1192, 13 1195-98 (9th Cir. 2003). If the amended complaint states a potentially cognizable claim against 14 the newly named defendant, the court will then provide the necessary service documents. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The California Medical Facility is dismissed from this action; and 17 2. Plaintiff’s motion (Dkt. No. 16) to obtain additional service documents is 18 denied without prejudice. 19 DATED: May 6, 2011 20 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 21 22 23 marp0387.misc 24 25 26 2

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