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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOHN D. LAMBERTSON, 7 Plaintiff, 8 ORDER TO REOPEN CASE AND SEND PLAINTIFF A SUBPOENA v. 9 G. D. LEWIS, 10 Defendant. 11 United States District Court Northern District of California Case No. 12-cv-05122-JD 12 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. 13 14 Plaintiff alleged that three Doe defendants and the warden failed to protect him from an assault by 15 other inmates on February 14, 2012. The case was dismissed for failure to state a claim and 16 plaintiff filed an appeal. The Ninth Circuit reversed and ordered the claims to continue against the 17 Doe defendants and remanded the case for further proceedings.1 The Doe defendants have not 18 been identified or served. Although the use of “John Doe” to identify a defendant is not favored in the Ninth Circuit, 19 20 see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep’t of Corrections, 21 406 F.2d 515, 518 (9th Cir. 1968), situations may arise where the identity of alleged defendants 22 cannot be known prior to the filing of a complaint. In such circumstances, the plaintiff should be 23 given an opportunity through discovery to identify the unknown defendants, unless it is clear that 24 discovery would not uncover their identities or that the complaint should be dismissed on other 25 grounds. See Gillespie, 629 F.2d at 642; Velasquez v. Senko, 643 F. Supp. 1172, 1180 (N.D. Cal. 26 1986). 27 1 28 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. 1 Plaintiff must provide the identities of the Doe defendants. Plaintiff may seek such 2 information through the California Public Records Act or any other means available such as 3 seeking reports from his central file concerning the incident. Plaintiff may also use a Court 4 subpoena which the Court will provide with instruction below. If plaintiff seeks to use the 5 subpoena he must return it the Court as soon as possible. CONCLUSION 6 7 1. The Clerk shall REOPEN this case. 8 2. Plaintiff shall provide the identities of the defendants within fifty-six days (56) of 9 10 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 11 P. 45(a)(3). Therefore, the Clerk shall send to plaintiff a blank records subpoena form for 12 plaintiff to fill out and return to the Court so that the Clerk may issue the subpoena and the 13 Marshal may serve it on the subpoenaed party. Plaintiff needs to fill in all of the necessary 14 information, but must leave the signature line blank so that the Clerk may sign it. 15 16 IT IS SO ORDERED. Dated: June 1, 2016 17 18 JAMES DONATO United States District Judge 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JOHN D. LAMBERTSON, Case No. 12-cv-05122-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 G. D. LEWIS, Defendant. 8 9 10 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 11 12 13 14 15 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. 16 17 18 John D. Lambertson ID: V-92821 California State Prison-Corcoran P.O. Box 3466 Corcoran, CA 93212 19 20 21 Dated: June 1, 2016 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 3

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