Blake v. City of Sacramento et al

Filing 19

ORDER signed by Judge William B. Shubb on 11/6/2012. Plaintiff's 12 and 13 First Amended Complaint are the same and, hereby, STRICKEN. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11
12
13

STEVE BLAKE, individually and
as Successor-in-Interest to
Carl Blake, deceased,

14

Plaintiff,

15
16

NO. CIV. 2:12-2061 WBS CKD
ORDER

v.

20

CITY OF SACRAMENTO; SACRAMENTO
POLICE DEPARTMENT; RICK
BRAZIEL, in his official
capacity as chief of police
for the City of Sacramento and
the Sacramento Police
Department; and DOE OFFICERS 2
through 5, and DOES 6-50,
inclusive,

21

Defendants.

17
18
19

/
22
23
24

----oo0oo---Plaintiff Steve Blake initiated this action under 42

25

U.S.C. § 1983 on August 6, 2012.

On September 17, 2012,

26

defendants City of Sacramento and Rick Braziel filed a motion to

27

dismiss for failure to state a claim upon which relief can be

28

granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and
1

1

a motion to strike pursuant to Rule 12(f).

2

15(a)(1)(B), plaintiff had twenty-one days from the date

3

defendants’ motion was served to amend his pleading “once as

4

matter of course.”

5

exception of filing an amended pleading once as a matter of

6

course, “a party may amend its pleading only with the opposing

7

party’s written consent or the court’s leave.”

8

15(a)(2).

9

Pursuant to Rule

Fed. R. Civ. P. 15(a)(1)(B).

With the

Fed. R. Civ. P.

Plaintiff did not file an amended complaint within

10

twenty-one days after service of defendants’ motion,1 but filed a

11

First Amended Complaint, (Docket No. 12), and a separate “‘Doe’

12

amendment,” (Docket No. 13), on October 17, 2012.

13

First Amended Complaint was untimely under Rule 15(a)(1)(B) and

14

will therefore be striken.

15

Plaintiff’s

Plaintiff’s purported “‘Doe’ amendment” will also be

16

striken.

“The practice of ‘Doe’ pleading is not permitted by the

17

Federal Rules of Civil Procedure [nor] by the United States Court

18

of Appeals for the Ninth Circuit.”

19

No. 81-298 LKK, 1982 WL 502, at *7 (E.D. Cal. Sept. 9, 1982)

20

(internal quotation marks omitted) (alteration in original).

21

a general rule, the use of ‘John Doe’ to identify a defendant is

22

not favored.”

Ortiz v. Bank of Am., Civ.

“As

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

23
1

24
25
26
27
28

Eastern District Local Rule 135(a) provides that
“service” occurs when the “Notice of Electronic Filing” is
automatically generated when a document is filed if counsel has
consented to electronic service under Local Rule 135(g). Here,
plaintiff’s counsel consented to electronic service and the
docket reflects that notice of defendants’ motion to dismiss and
strike was electronically mailed to plaintiff’s counsel on
September 17, 2012. Plaintiff therefore had twenty-one days from
September 17, 2012, to file an amended complaint as a matter of
course.
2

1

Cir. 1980).

2

Here, plaintiff’s attempt to substitute Bonnie Ilene

3

Wehe for “Doe 1” illustrates the reasons why Doe pleading is not

4

allowed in the federal courts.

5

plaintiff simply states that he is substituting Wehe for “Doe 1.”

6

The amendment is void of any allegations putting Wehe on notice

7

of how she allegedly violated plaintiff’s rights and Wehe is not

8

even listed as a defendant in the caption of the untimely First

9

Amended Complaint.

10

In plaintiff’s “‘Doe’ amendment,”

Plaintiff’s “‘Doe’ amendment” will therefore

be striken.

11

If plaintiff wishes to amend his Complaint or join Wehe

12

or any other individuals as defendants in this action, he may do

13

so by seeking leave of court.

14

Status (Pretrial Scheduling) Order simultaneously with this

15

Order, any motion for leave to amend would be governed by Rule

16

16.

17

08 (9th Cir. 1992) (“Once the district court had filed a pretrial

18

scheduling order pursuant to Federal Rule of Civil Procedure 16

19

which established a timetable for amending pleadings that rule’s

20

standards controlled.”).

Because the court is issuing a

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-

21

IT IS THEREFORE ORDERED that Docket Nos. 12 and 13 be,

22

and the same hereby are, stricken.

23

DATED:

November 6, 2012

24
25
26
27
28
3