Lambertson v. Lewis et al

Filing 60

ORDER TO REOPEN CASE AND SEND PLAINTIFF A SUBPOENA. Signed by Judge James Donato on 6/1/16. (lrcS, COURT STAFF) (Filed on 6/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN D. LAMBERTSON,

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Plaintiff,

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ORDER TO REOPEN CASE AND
SEND PLAINTIFF A SUBPOENA

v.

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G. D. LEWIS,

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Defendant.

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United States District Court
Northern District of California

Case No. 12-cv-05122-JD

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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Plaintiff alleged that three Doe defendants and the warden failed to protect him from an assault by

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other inmates on February 14, 2012. The case was dismissed for failure to state a claim and

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plaintiff filed an appeal. The Ninth Circuit reversed and ordered the claims to continue against the

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Doe defendants and remanded the case for further proceedings.1 The Doe defendants have not

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been identified or served.
Although the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit,

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see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t of Corrections,

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406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of alleged defendants

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cannot be known prior to the filing of a complaint. In such circumstances, the plaintiff should be

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given an opportunity through discovery to identify the unknown defendants, unless it is clear that

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discovery would not uncover their identities or that the complaint should be dismissed on other

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grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal.

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1986).

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The Ninth Circuit did not consider the claim against the warden because plaintiff failed to
reallege his claim against this defendant in the third amended complaint.

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Plaintiff must provide the identities of the Doe defendants. Plaintiff may seek such

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information through the California Public Records Act or any other means available such as

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seeking reports from his central file concerning the incident. Plaintiff may also use a Court

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subpoena which the Court will provide with instruction below. If plaintiff seeks to use the

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subpoena he must return it the Court as soon as possible.
CONCLUSION

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1. The Clerk shall REOPEN this case.

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2. Plaintiff shall provide the identities of the defendants within fifty-six days (56) of

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service of this Order.
3. As a pro se litigant, plaintiff needs the Court’s Clerk to issue a subpoena. Fed. R. Civ.

United States District Court
Northern District of California

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P. 45(a)(3). Therefore, the Clerk shall send to plaintiff a blank records subpoena form for

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plaintiff to fill out and return to the Court so that the Clerk may issue the subpoena and the

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Marshal may serve it on the subpoenaed party. Plaintiff needs to fill in all of the necessary

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information, but must leave the signature line blank so that the Clerk may sign it.

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IT IS SO ORDERED.
Dated: June 1, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN D. LAMBERTSON,

Case No. 12-cv-05122-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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G. D. LEWIS,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on June 1, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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John D. Lambertson ID: V-92821
California State Prison-Corcoran
P.O. Box 3466
Corcoran, CA 93212

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Dated: June 1, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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