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