Davis v. Paramo et al

Filing 57

ORDER Regarding Plaintiff's (1) Motion to Compel Discovery and/or Waiver of Service and (2) Ex Parte Motion for Clarification of the Court's Record (ECF Nos. 42 , 44 ). Signed by Magistrate Judge Jan M. Adler on 12/15/2016. (Sent forms to Deputy Attorney General Findley)(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 15 ORDER REGARDING PLAINTIFF’S (1) MOTION TO COMPEL DISCOVERY AND/OR WAIVER OF SERVICE AND (2) EX PARTE MOTION FOR CLARIFICATOIN OF THE COURT’S RECORD [ECF Nos. 42, 44] Plaintiff, 13 14 Case No.: 16cv689 BEN (JMA) DOYLE WAYNE DAVIS, CDCR #34318, v. DANIEL PARAMO, Warden, et al., Defendants. 16 17 18 Presently before the Court are two motions brought by Plaintiff Doyle 19 Wayne Davis (“Plaintiff”): first, a motion to compel discovery and/or waiver of 20 service, in which Plaintiff seeks assistance in serving Defendants S. Bedane and 21 John Doe “Jose,” and second, a motion for clarification of the court’s record. 22 (See ECF Nos. 42, 44.) 23 I. 24 Service Upon Defendant Bedane On July 18, 2016, the Court ordered the U.S. Marshal to serve a copy of 25 the Complaint and summons upon the named defendants as directed by Plaintiff 26 on the USM Form 285s provided to him. (ECF No. 11.) On August 24, 2016, the 27 summons upon Defendant Bedane was returned unexecuted as Bedane is no 28 longer employed by at the R.J. Donovan Correctional Facility (“Donovan”). (ECF 1 16cv689 BEN (JMA) 1 No. 21.) Plaintiff requests the issuance of an order directing Deputy Attorney 2 General Christopher H. Findley, who currently represents twelve (12) defendants 3 in this matter, to provide the current or last known address for Defendant 4 Bedane. “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to 5 6 rely on the U.S. Marshal for service of the summons and complaint, and, having 7 provided the necessary information to help effectuate service, plaintiff should not 8 be penalized by having his or her action dismissed for failure to effectuate 9 service.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). So long as the 10 prisoner has furnished the information necessary to identify the defendant, the 11 marshal’s failure to effect service of process is automatically good cause within 12 the meaning of Fed. R. Civ. P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422 13 (9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 14 483-85 (1995).1 Here, Plaintiff has sufficiently identified Defendant Bedane as a 15 former Laboratory Technologist at Donovan. Thus, as long as the privacy of 16 Defendant’s forwarding address can be preserved, Plaintiff is entitled to rely on 17 the U.S. Marshal to effect service upon Defendant Bedane on his behalf. See 18 Puett, 912 F.2d at 275; see also Avery v. Allamby, 2015 WL 710695 (S.D. Cal. 19 2015). Accordingly, the Court ORDERS Deputy Attorney General Findley to 20 provide the forwarding address for Defendant Bedane to the U.S. Marshal in a 21 confidential memorandum indicating that the summons and complaint is to be 22 delivered to the address specified in the memorandum. The Deputy Attorney 23 General shall provide the U.S. Marshal with any such information on or before 24                                                 25 26 27 28 1 Rule 4(m) provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). 2 16cv689 BEN (JMA) 1 December 30, 2016. Within forty-five (45) days of receipt of any available 2 address from the Deputy Attorney General, the Court ORDERS the U.S. Marshal 3 to serve a copy of Plaintiff’s Complaint and summons upon Defendant Bedane. 4 All costs of service shall be advanced by the United States pursuant to the 5 Court’s July 18, 2016 Order directing service pursuant to 28 U.S.C. § 1915(d) 6 and Fed. R. Civ. P. 4(c)(2). (ECF No. 11.) 7 IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of: 8 (1) the Court’s July 18, 2016 Service Order (ECF No. 11); (2) this Order; (3) the 9 Complaint, summons and a blank U.S. Marshal Form 285 to Deputy Attorney 10 General Findley for purposes of re-attempting service as to Defendant Bedane. 11 However, both the Deputy Attorney General and the Office of the U.S. Marshal 12 are ORDERED to keep any address provided for Bedane strictly confidential. 13 Thus, any address provided shall not appear on any U.S. Marshal Form 285, 14 shall not be provided to Plaintiff, and shall not be made part of the Court’s 15 record. If Deputy Attorney General Findley is not able to locate an address for 16 Defendant Bedane, he shall file a Declaration with the Court to that effect by no 17 later than January 6, 2017. 18 19 20 II. Identity of Defendant John Doe “Jose” Plaintiff also seeks an order requiring Deputy Attorney General Findley to 21 provide the complete identity of Defendant John Doe “Jose,” purportedly named 22 as a defendant in the Complaint. (See ECF No. 1.) “As a general rule, the use 23 of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 24 F.2d 637, 642 (9th Cir 1980). Where a defendant’s identity is unknown prior to 25 the filing of the complaint, the plaintiff should be given an opportunity through 26 discovery to identify the unknown defendant, unless it is clear that discovery 27 would not uncover the identity or that the complaint would be dismissed on other 28 grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing 3 16cv689 BEN (JMA) 1 Gillespie, 629 F.2d at 642). In order to proceed to discovery, Plaintiff must first 2 state a cognizable claim. Discovery has not yet been authorized in this case as 3 there are three (3) motions to dismiss pending before the Court. If this case 4 proceeds to discovery, Plaintiff may then attempt to ascertain the true identity of 5 Defendant John Doe “Jose” and seek to amend his Complaint to name that 6 defendant. 7 8 III. Motion for Clarification of the Court’s Record 9 Plaintiff observes that ECF No. 18, which consists of a Notice of Document 10 Discrepancy, incorrectly identifies the document at issue as Plaintiff’s “Motion for 11 Reconsideration of the Court’s Ruling Denying Motion to Exceed the Number of 12 Requests for Admissions.” The Clerk of Court is ORDERED to correct the text of 13 ECF No. 18 to accurately reflect the document to which it refers: Plaintiff’s 14 Application for the Court to Reconsider Motion for Judicial Notice (see ECF No. 15 19). 16 17 IT IS SO ORDERED. Dated: December 15, 2016 18 19 20 21 22 23 24 25 26 27 28 4 16cv689 BEN (JMA)

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