Reyes v. Meyer

Filing 46

ORDER by Judge Ronald M. Whyte Granting 12 Motion for Extension of Time to File a Dispositive Motion - Defendant's Motion for Summary Judgment Deemed Timely; Granting 18 Motion to File Under Seal; Denying 24 Motion for Summary Judg ment; Denying 28 Motion to Compel; Granting 31 Motion for Extension of Time to File an Opposition to Plaintiff's Motion to Compel - Defendant's Opposition is Deemed Timely; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program. Case is Referred to Judge Vadas for Settlement Proceedings. Case is Stayed and Administratively Closed Until Further Order of the Court. (jgS, COURT STAFF) (Filed on 7/3/2014)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 ABEL REYES, 13 14 Plaintiff, v. 15 A. MEYER, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. C 13-0980 RMW(PR) ORDER DENYING MOTION TO COMPEL; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DISMISSING DOE DEFENDANTS; REFERRING CASE TO PRO SE SETTLEMENT PROGRAM (Docket Nos. 12, 18, 24, 28, 31.) Plaintiff, a state prisoner proceeding pro se, filed a civil complaint in the Superior Court 19 of Monterey County. On March 4, 2013, defendant Meyer filed a notice of removal. He has 20 also filed a motion for summary judgment.1 Plaintiff has filed a motion to compel discovery and 21 to continue the motion for summary judgment under Federal Rule of Civil Procedure 56(d). 22 Defendant has filed an opposition,2 and plaintiff has filed a reply. Plaintiff has also filed an 23 24 25 26 27 28 1 Defendant’s motion for an extension of time to file a dispositive motion is GRANTED. (Docket No. 12.) Defendant’s motion for summary judgment deemed timely. Defendant’s motion to file under seal is GRANTED. (Docket No. 18.) The clerk shall seal the documents requested therein. 2 Defendant’s motion for an extension to time to file an opposition to plaintiff’s motion to compel is GRANTED. (Docket No. 31.) Defendant’s opposition is deemed timely. Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 opposition to defendant’s motion for summary judgment, and defendant has filed a reply. For 2 the reasons below, plaintiff’s motion to compel and motion to continue are DENIED. 3 Defendant’s motion for summary judgment is DENIED. 4 BACKGROUND 5 Plaintiff alleges that on December 25, 2009, defendant Correctional Officer A. Meyer 6 and his partner, Correctional Officer Doe #1, used excessive force upon plaintiff when removing 7 plaintiff from his cell in mechanical restraints and injured plaintiff’s shoulder as a result. 8 Plaintiff claims defendant Meyer again assaulted him when defendant slammed plaintiff’s head 9 twice against the inside of the back of the holding cage. 10 Plaintiff also claims that Doe #2 - Doe #5 were present when defendant was using 11 excessive force upon him yet failed to intervene. Further, plaintiff alleges that Doe #6 and Doe 12 #7 were present during plaintiff’s video-taped interview after the assault. 13 14 15 ANALYSIS I. Motion to Compel Plaintiff may file a motion to compel discovery, however, only after he satisfies the 16 “meet and confer” requirements of the discovery rules. See Fed. R. Civ. P. 37(a)(2)(A) 17 (providing that a motion to compel must include certification that movant has in good faith 18 conferred and attempted to confer with non-disclosing party in effort to secure disclosure 19 without court action); N.D. Cal. Civ. R. 37-1 (same). Because plaintiff is detained, however, he 20 is not required to meet and confer with defendants in person. Rather, if his discovery requests 21 are denied, and he intends to seek a motion to compel, he must send a letter to defendants to that 22 effect, offering them one last opportunity to provide him with the sought-after information 23 before resorting to filing a motion to compel. 24 On this record, there is no indication that plaintiff satisfied the meet-and-confer 25 requirement prior to filing his motion to compel on November 18, 2013. (Docket No. 28.) It 26 does not appear that plaintiff took any steps to attempt to resolve his discovery dispute with 27 defendant before seeking assistance from this court by filing his motion to compel. Thus, the 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 2 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 2 motion to compel is DENIED without prejudice. Even if plaintiff had satisfied the meet-and-confer requirement, defendant’s response, 3 filed December 20, 2013, states that defendant believes he complied with plaintiff’s discovery 4 requests. After plaintiff file his motion to compel, during a telephone conference on December 5 13, 2013, in which defense counsel and plaintiff attempted to resolve discovery disputes, defense 6 counsel asked plaintiff whether there were any unresolved discovery requests, to which plaintiff 7 responded that there were not. (Opp. at 2; Nguyen Decl. ¶ 11.) 8 9 10 Moreover, a review of the pleadings shows that it appears that plaintiff’s sole discovery issue, if any, is the “opportunity to discover” the identities of Doe #1 - Doe #7. (Docket No. 41.) The record demonstrates that plaintiff has had such opportunity. 11 In plaintiff’s request for interrogatory number 3, plaintiff asks defendant to “identify any 12 Salinas Valley Staff employees who were on duty on third watch in D-1 AD-SEG, on the date of 13 December 25, 2009.” (Nguyen Decl., Ex. 1 at 3.) Defendant objected, and construed plaintiff’s 14 request as “seeking the identity of any Salinas Valley correctional officers who worked during 15 third watch in D-1 Ad-Seg on December 25, 2009, at Salinas Valley.” (Id.) So construed, 16 defendant identified Sergeant R. Machuca, Officer V. Pato, Jr., Officer J.S. Cermeno, and 17 Officer A. Cortina. (Id.) In response to plaintiff’s request for production of documents numbers 18 2 and 3, in which plaintiff asks for the names of all non-party witnesses who were on duty at the 19 Correctional Treatment Center on December 25, 2009, during third watch, defendant provided 20 documents AG001 - AG0016. (Id., Ex. 2 at 3; Docket No. 41 at 7-22.) Plaintiff also requested 21 the identity of Doe #6 and Doe #7, who witnessed a video-recording of plaintiff reporting his 22 head injuries. (Docket No. 34 at 6; Nguyen Decl. ¶ 11.) Defense counsel has provided those 23 names as Sgt. D. Battles and Sgt. S. Watson. (Docket No. 35 at 2.) 24 Presumably, plaintiff requested the above information to identify Doe #1 - Doe #7. Doe 25 #6 and Doe #7 have been identified as Sgt. D. Battles and Sgt. S. Watson. In an effort to 26 discover the identities of Doe # 1 - Doe #5, plaintiff asked for all Salinas Valley employees who 27 were on duty on third watch in D-1 Ad-Seg on December 25, 2009. Defendant provided that 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 3 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 information on October 30, 2012 (Nguyen Decl., Ex. 1 at 3) and November 25, 2013 (id., Ex. 2 2 at 3). Plaintiff complains that the sixteen pages of documents defendant produced contain 3 numerous names of prison officials and plaintiff cannot guess and pick from the list which 4 employees might be Doe #1 - Doe #5. However, plaintiff appears to have overlooked 5 defendant’s response to plaintiff’s interrogatory #3 in which he names five specific individuals. 6 Whether these five individuals are Doe #1 through Doe #5 remains to be seen. Nonetheless, the 7 record supports defendant’s assertion that he has provided the information that plaintiff 8 requested. Thus, plaintiff’s assertion that he has not had an opportunity to discover the identity 9 of Doe #1 - Doe #7 is unpersuasive. 10 11 12 Accordingly, plaintiff’s motion is DENIED. II. Rule 56(d) Federal Rule of Civil Procedure 56(d) provides that if a party opposing summary 13 judgment demonstrates a need for further discovery in order to obtain facts essential to justify 14 the party’s opposition, the court may deny the motion for summary judgment or continue the 15 hearing to allow for such discovery. Fed. R. Civ. P. 56(d); Margolis v. Ryan, 140 F.3d 850, 853 16 (9th Cir. 1998). In making a Rule 56(d) motion, a party opposing summary judgment must make 17 clear “what information is sought and how it would preclude summary judgment.” Id. at 853-54 18 (district court correctly denied motion for continuance under Rule 56(f)3 where plaintiff did not 19 provide any basis or factual support for his assertions that further discovery would lead to the 20 facts and testimony he described, and his assertions appeared based on nothing more than “wild 21 speculation”); see also, e.g., Nicholas v. Wallenstein, 266 F.3d 1083, 1088-89 (9th Cir. 2001) 22 (district court did not abuse its discretion in denying motion for continuance under Rule 56(f) 23 where plaintiffs had already conducted a large amount of informal discovery and where they did 24 not make clear what information was sought and how it would preclude summary judgment). 25 Rule 56(d) requires that the requesting party show (1) it has set forth in affidavit form the 26 27 28 3 Former Federal Rule of Civil Procedure 56(f) was amended in 2010. It is now set forth in Rule 56(d). Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 4 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 specific facts it hopes to elicit from further discovery, (2) the facts sought exist, and (3) the 2 sought-after facts are essential to oppose summary judgment. Family Home and Finance Center, 3 Inc. v. Federal Home Loan Mortgage Corp., 525 F.3d 822, 827 (9th Cir. 2008). 4 “[S]ummary judgment is disfavored where relevant evidence remains to be discovered, 5 particularly in cases involving confined pro se plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930 6 (9th Cir. 2004). In such cases, “summary judgment in the face of requests for additional 7 discovery is appropriate only where such discovery would be fruitless with respect to the proof 8 of a viable claim.” Id. (internal quotation marks and citation omitted). 9 Here, the court has reviewed plaintiff’s requests for discovery, and assertions of 10 discovery requests that remain unfulfilled. As stated above, the only discovery request that 11 plaintiff appears to dispute is that he has not had “the opportunity to identify” defendant Doe #1 12 - #7. However, where a plaintiff requests information relating to facts within his control, any 13 request for that discovery would be “fruitless” and would not warrant a motion under Rule 56(d). 14 Id. at 930-31. 15 As stated above, defendant provided the names of Doe #6 and Doe #7. In addition, 16 defendant provided the names of non-party witnesses who were on duty the night of December 17 25, 2009 in documents AG0001 - AG0016 as well as the names of Salinas Valley correctional 18 officers who worked during third watch in D-1 Ad-Seg on December 25, 2009. Once those 19 employees were identified, plaintiff could have amended his complaint to name these Doe 20 defendants. See Grinage v. Leyba, 2008 WL 199720, at *12 (D. Nev. 2008) (noting that pro se 21 litigants “are not excused from following the rules and orders of the court, including the 22 discovery rules,” granting the defendants’ summary judgment motion with respect to the 23 plaintiff’s claims against unidentified Doe defendants, and dismissing those claims where the 24 plaintiff “was afforded sufficient opportunity to pursue discovery to identify” those defendants 25 and amend his complaint but “did not diligently do so”). Despite having this information, 26 plaintiff has not moved to amend his complaint, or made further inquiry to determine the role 27 each of these named individuals may have had on the night of December 25, 2009. Nonetheless, 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 5 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 defendant’s response to plaintiff’s discovery requests appear satisfied, and plaintiff possesses the 2 information he appears to have sought. 3 Accordingly, because defendant has produced information responsive to plaintiff’s 4 requests in an effort to identify Doe #1 - Doe #7, plaintiff’s motion under Rule 56(d) is 5 DENIED. 6 III. Motion for Summary Judgment 7 A. 8 Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 9 Standard of Review that there is “no genuine issue as to any material fact and that the moving party is entitled to 10 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect 11 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 12 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 13 verdict for the nonmoving party. Id. 14 The party moving for summary judgment bears the initial burden of identifying those 15 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 16 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving 17 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 18 reasonable trier of fact could find other than for the moving party. But on an issue for which the 19 opposing party will have the burden of proof at trial, as is the case here, the moving party need 20 only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. 21 at 325. 22 Once the moving party meets its initial burden, the nonmoving party must go beyond the 23 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a 24 genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over 25 material facts and “factual disputes that are irrelevant or unnecessary will not be counted.” 26 Liberty Lobby, Inc., 477 U.S. at 248 (1986). It is not the task of the court to scour the record in 27 search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 6 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 The nonmoving party has the burden of identifying, with reasonable particularity, the evidence 2 that precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the 3 moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 4 At the summary judgment stage, the court must view the evidence in the light most 5 favorable to the nonmoving party: if evidence produced by the moving party conflicts with 6 evidence produced by the nonmoving party, the judge must assume the truth of the evidence set 7 forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 8 1158 (9th Cir. 1999). 9 10 B. Undisputed Facts At Salinas Valley State Prison, on the night of December 25, 2009, defendant came to 11 plaintiff’s cell door to pick up plaintiff’s tray. (Compl. at 4.) Plaintiff told him that he did not 12 feel well, he was depressed and confused, and he felt suicidal. (Id.) Defendant told plaintiff to 13 kill himself so that defendant and his partner, Doe #1, could save him. (Id.) 14 Around 5:45 p.m. that same day, plaintiff sustained a cut to his left arm. (Id. at 5, Ex. A.) 15 The nurse noted that plaintiff remarked that he was feeling suicidal. (Id., Ex. A.) Later that day, 16 defendant and Doe #1 went to remove plaintiff from his cell by placing plaintiff’s hands behind 17 his back in mechanical restraints. (Id. at 5.) Defendant removed plaintiff by bending his arms 18 behind his back even though plaintiff had an injured shoulder. (Id.) Then, when plaintiff was 19 put in the holding cage, defendant slammed plaintiff’s head onto the holding cage door. (Id.) 20 When defendant opened the holding cage door, defendant pushed plaintiff’s head against the 21 inside of the back of the holding cage. (Id.) Other Doe defendants came out and watched 22 defendant slamming plaintiff’s head against the cage. (Id.) Defendant then asked plaintiff why 23 he was hitting himself in the head. (Id.) As a result of defendant’s actions, plaintiff suffered two 24 open wounds on the right side of the top of his head. (Id. at 6.) 25 At around 7:00 p.m., plaintiff was seen by Nurse Alton at the Correctional Treatment 26 Center. (Alton Decl. ¶¶ 4-5.) She noted that plaintiff’s main complaint was self-inflicted 27 scratches on his left forearm, and she observed abrasions on his right upper forehead. (Id. ¶¶ 7- 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 7 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 8.) Plaintiff complained to Nurse Larson about having a “bump on his head.” (Larson Decl. ¶ 2 6.) Plaintiff reported defendant’s assault to Supervisor Lieutenant Kerry Clark, who video 3 recorded plaintiff’s account regarding his head injuries. (Opp. at 3.) 4 B. 5 The arbitrary and wanton infliction of pain violates the Cruel and Unusual Punishments Legal Claim 6 Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). When prison 7 officials stand accused of using excessive force in violation of the Eighth Amendment, the core 8 judicial inquiry is whether force was applied in a good faith effort to maintain or restore 9 discipline, or maliciously and sadistically for the very purpose of causing harm. Id. at 6-7. In 10 determining whether the use of force was for the purpose of maintaining or restoring discipline, 11 or for the malicious and sadistic purpose of causing harm, a court may evaluate the need for 12 application of force, the relationship between that need and the amount of force used, the extent 13 of any injury inflicted, the threat reasonably perceived by the responsible officials, and any 14 efforts made to temper the severity of a forceful response. Id. at 7. In reviewing these factors, 15 courts must accord prison administrators wide-ranging deference in the adoption and execution 16 of polices and practices to further institutional order and security. Jeffers v. Gomez, 267 F.3d 17 895, 917 (9th Cir. 2001). 18 Taking the evidence in the complaint as true, and drawing all inferences therefrom in 19 plaintiff’s favor, there is a genuine issue of material fact as to whether defendant’s use of force, 20 i.e., yanking plaintiff’s arms up despite plaintiff’s bad shoulder, and slamming plaintiff’s head 21 into the cage twice while plaintiff was restrained, was excessive. According to plaintiff, 22 defendant assaulted plaintiff for no reason. Defendant argues that plaintiff has not provided 23 evidence demonstrating that defendant acted with malicious intent to cause harm. In support of 24 defendant’s argument, defendant states that the evidence demonstrates that plaintiff suffered 25 minimal injuries. Moreover, defendant disputes all of plaintiff’s factual allegations against him. 26 (Meyer Decl. ¶¶ 8-12.) Although the extent of injury suffered by a prisoner is one of the factors 27 to be considered in determining whether the use of force is wanton and unnecessary, the absence 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 8 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 of serious injury does not end the Eighth Amendment inquiry. Hudson, 503 U.S. at 7. Such 2 standards are always violated when prison officials maliciously and sadistically use force to 3 cause harm, whether or not significant injury is evident. Id. Accepting plaintiff’s account as 4 true, as this court must, an inference could certainly be drawn that defendant assaulted plaintiff 5 for the purpose of causing him harm.4 6 Having concluded that genuine issues of material fact exist as to whether defendant used 7 excessive force against plaintiff in violation of the Eighth Amendment, the court next addresses 8 whether he is entitled to qualified immunity. The defense of qualified immunity protects 9 “government officials . . . from liability for civil damages insofar as their conduct does not 10 violate clearly established statutory or constitutional rights of which a reasonable person would 11 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court considering a claim of 12 qualified immunity must determine whether the plaintiff has alleged the deprivation of an actual 13 constitutional right and whether such right was clearly established such that it would be clear to 14 a reasonable officer that his conduct was unlawful in the situation he confronted. See Pearson v. 15 Callahan, 129 S. Ct. 808, 818 (2009). Regarding the first prong, the threshold question must be, 16 taken in the light most favorable to the party asserting the injury, do the facts alleged show the 17 officer’s conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001). The 18 inquiry of whether a constitutional right was clearly established must be undertaken in light of 19 20 21 22 23 24 25 26 27 28 4 Defendant points out that the court should not rely on plaintiff’s complaint as evidence because plaintiff’s complaint is unverified. Plaintiff’s opposition, similarly, is also unverified. A verified complaint or motion may be used as an opposing affidavit under Federal Rule of Civil Procedure 56 to the extent it is based on personal knowledge and sets forth specific facts admissible in evidence. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam). Without such verification, plaintiff’s complaint and opposition have no evidentiary value. See Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). To “verify” a pleading, the plaintiff must swear or affirm that the facts contained therein are true, under the penalty of perjury. Id.; Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995). In light of plaintiff’s pro se status, plaintiff must file and sign a declaration if he can do so in good faith, averring that, to the plaintiff’s best knowledge and under the penalty of perjury, the facts proffered in both his complaint and opposition are true. Plaintiff shall file this declaration within thirty days of the filing date of this order. Should plaintiff fail to file such a declaration within thirty days, defendant may file a motion to reconsider this order. Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 9 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 the specific context of the case, not as a broad general proposition. Id. at 202. The relevant, 2 dispositive inquiry in determining whether a right is clearly established is whether it would be 3 clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. 4 The court finds granting summary judgment on the ground of qualified immunity is 5 improper in this case. Resolving all factual disputes in favor of plaintiff, the court concludes that 6 defendant violated plaintiff’s clearly established right to be free from excessive force. See 7 Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003) (“the law regarding a prison guard’s 8 use of excessive force was clearly established by 1994”). Granting summary judgment on the 9 ground of qualified immunity is “improper if, under the plaintiff’s version of the facts, and in 10 light of the clearly established law, a reasonable officer could not have believed his conduct was 11 lawful.” Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000). Here, under plaintiff’s 12 version of the facts, no reasonable officer could believe that defendant’s actions were permitted 13 under the Eighth Amendment. In addition, where, as here, “the material, historical facts are in 14 dispute,” the availability of qualified immunity does not turn solely on a question of law, and the 15 district court is precluded from granting summary judgment on qualified immunity grounds. See 16 Torres v. City of Los Angeles, 548 F.3d 1197, 1211 (9th Cir. 2008) (holding that the existence of 17 issues of material fact precludes a court from granting judgment as a matter of law on qualified 18 immunity grounds, and observing that “sending factual issues to the jury but reserving to the 19 judge the ultimate ‘reasonable officer’ determination leads to serious logistical difficulties”). 20 In sum, accepting plaintiff’s allegations as true, there are genuine issues of fact as to 21 whether defendant violated plaintiff’s constitutional rights. Accordingly, defendant is not 22 entitled to summary judgment, nor is he entitled to qualified immunity. 23 C. 24 In plaintiff’s complaint, he alleges that Doe #1 engaged in excessive force along with Doe defendants 25 defendant, that Doe #2 - Doe #5 failed to intervene and protect plaintiff from the excessive force, 26 and that Doe #6 and Doe #7 were witnesses to plaintiff’s video-taped interview. As a general 27 rule, the use of “Doe” defendants is disfavored in federal court. Gillespie v. Civiletti, 629 F.2d 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 10 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 637, 642 (9th Cir. 1980). Where, however, the identity of a defendant is unknown before the 2 complaint is filed, the plaintiff “should be given an opportunity through discovery to identify the 3 unknown defendants,” unless doing so would be futile. Id. Although given ample opportunity to 4 conduct discovery and to file an amended complaint, plaintiff has still not filed a procedurally 5 proper amended complaint identifying those defendants. At this time, Doe defendants are 6 DISMISSED without prejudice. 7 IV. 8 9 Referral to Pro Se Prisoner Settlement Program Prior to setting this matter for trial and appointing pro bono counsel to represent plaintiff for that purpose, the court finds good cause to refer this matter to Judge Vadas pursuant to the 10 Pro Se Prisoner Settlement Program for settlement proceedings on the excessive force claim set 11 forth above, as well as plaintiff’s state law claims. The proceedings will consist of one or more 12 conferences as determined by Judge Vadas. The conferences shall be conducted with defendant, 13 or his representative, attending by videoconferencing if he so chooses. If these settlement 14 proceedings do not resolve this matter, the court will then set this matter for trial and consider a 15 motion from plaintiff for appointment of counsel. 16 17 CONCLUSION 1. Plaintiff’s motion to compel is DENIED. Plaintiff’s motion to continue under 18 Rule 56(d) is DENIED. Defendant’s motion for summary judgment is DENIED. Doe 19 defendants are DISMISSED. 20 2. Within thirty days of the filing date of this order, plaintiff shall file and sign, 21 under penalty of perjury, a declaration averring that, to the best of his knowledge, the facts 22 proffered in both plaintiff’s complaint and opposition are true. Should plaintiff fail to file such a 23 declaration, defendant may file a motion to reconsider the court’s order denying defendant’s 24 motion for summary judgment. 25 3. The instant case is REFERRED to Judge Vadas pursuant to the Pro Se Prisoner 26 Settlement Program for settlement proceedings on the claims in this action, as described above. 27 The proceedings shall take place within one-hundred twenty (120) days of the filing date of 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 11 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd 1 this order. Judge Vadas shall coordinate a time and date for a settlement conference with all 2 interested parties or their representatives and, within ten (10) days after the conclusion of the 3 settlement proceedings, file with the court a report regarding the prisoner settlement proceedings. 4 If these settlement proceedings to do not resolve this matter, plaintiff can file a renewed motion 5 for appointment of counsel, and the court will then set this matter for trial. 6 7 8 9 10 11 12 4. The clerk of the court shall mail a copy of this order, to Judge Vadas in Eureka, California. 5. The instant case is STAYED pending the settlement conference proceedings. The clerk shall ADMINISTRATIVELY CLOSE this case until further order of the court. IT IS SO ORDERED. DATED: RONALD M. WHYTE United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Motion to Compel; Denying Defendant’s Motion for Summary Judgment; Dismissing Doe Defendants; Referring Case to Pro Se Settlement Program 12 P:\PRO-SE\RMW\CR.13\Reyes980mtcmsj.wpd UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ABEL REYES, Case Number: CV13-00980 RMW Plaintiff, CERTIFICATE OF SERVICE v. A MEYER et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 3, 2014, 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. Abel Reyes P-55763 California Medical Facility PO Box 2000 Vacaville, CA 95696 Dated: July 3, 2014 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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