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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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Case No.: 16cv689 BEN (JMA)

DOYLE WAYNE DAVIS, CDCR
#34318,
v.
DANIEL PARAMO, Warden, et al.,
Defendants.

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Presently before the Court are two motions brought by Plaintiff Doyle

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Wayne Davis (“Plaintiff”): first, a motion to compel discovery and/or waiver of

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service, in which Plaintiff seeks assistance in serving Defendants S. Bedane and

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John Doe “Jose,” and second, a motion for clarification of the court’s record.

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(See ECF Nos. 42, 44.)

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I.

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Service Upon Defendant Bedane
On July 18, 2016, the Court ordered the U.S. Marshal to serve a copy of

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the Complaint and summons upon the named defendants as directed by Plaintiff

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on the USM Form 285s provided to him. (ECF No. 11.) On August 24, 2016, the

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summons upon Defendant Bedane was returned unexecuted as Bedane is no

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longer employed by at the R.J. Donovan Correctional Facility (“Donovan”). (ECF
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16cv689 BEN (JMA)

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No. 21.) Plaintiff requests the issuance of an order directing Deputy Attorney

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General Christopher H. Findley, who currently represents twelve (12) defendants

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in this matter, to provide the current or last known address for Defendant

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Bedane.
“[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to

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rely on the U.S. Marshal for service of the summons and complaint, and, having

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provided the necessary information to help effectuate service, plaintiff should not

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be penalized by having his or her action dismissed for failure to effectuate

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service.” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). So long as the

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prisoner has furnished the information necessary to identify the defendant, the

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marshal’s failure to effect service of process is automatically good cause within

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the meaning of Fed. R. Civ. P. 4(m). See Walker v. Sumner, 14 F.3d 1415, 1422

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(9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472,

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483-85 (1995).1 Here, Plaintiff has sufficiently identified Defendant Bedane as a

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former Laboratory Technologist at Donovan. Thus, as long as the privacy of

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Defendant’s forwarding address can be preserved, Plaintiff is entitled to rely on

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the U.S. Marshal to effect service upon Defendant Bedane on his behalf. See

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Puett, 912 F.2d at 275; see also Avery v. Allamby, 2015 WL 710695 (S.D. Cal.

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2015). Accordingly, the Court ORDERS Deputy Attorney General Findley to

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provide the forwarding address for Defendant Bedane to the U.S. Marshal in a

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confidential memorandum indicating that the summons and complaint is to be

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delivered to the address specified in the memorandum. The Deputy Attorney

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General shall provide the U.S. Marshal with any such information on or before

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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).

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16cv689 BEN (JMA)

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December 30, 2016. Within forty-five (45) days of receipt of any available

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address from the Deputy Attorney General, the Court ORDERS the U.S. Marshal

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to serve a copy of Plaintiff’s Complaint and summons upon Defendant Bedane.

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All costs of service shall be advanced by the United States pursuant to the

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Court’s July 18, 2016 Order directing service pursuant to 28 U.S.C. § 1915(d)

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and Fed. R. Civ. P. 4(c)(2). (ECF No. 11.)

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IT IS FURTHER ORDERED that the Clerk of the Court provide a copy of:

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(1) the Court’s July 18, 2016 Service Order (ECF No. 11); (2) this Order; (3) the

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Complaint, summons and a blank U.S. Marshal Form 285 to Deputy Attorney

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General Findley for purposes of re-attempting service as to Defendant Bedane.

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However, both the Deputy Attorney General and the Office of the U.S. Marshal

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are ORDERED to keep any address provided for Bedane strictly confidential.

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Thus, any address provided shall not appear on any U.S. Marshal Form 285,

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shall not be provided to Plaintiff, and shall not be made part of the Court’s

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record. If Deputy Attorney General Findley is not able to locate an address for

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Defendant Bedane, he shall file a Declaration with the Court to that effect by no

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later than January 6, 2017.

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II.

Identity of Defendant John Doe “Jose”
Plaintiff also seeks an order requiring Deputy Attorney General Findley to

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provide the complete identity of Defendant John Doe “Jose,” purportedly named

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as a defendant in the Complaint. (See ECF No. 1.) “As a general rule, the use

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of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629

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F.2d 637, 642 (9th Cir 1980). Where a defendant’s identity is unknown prior to

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the filing of the complaint, the plaintiff should be given an opportunity through

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discovery to identify the unknown defendant, unless it is clear that discovery

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would not uncover the identity or that the complaint would be dismissed on other

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grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing
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Gillespie, 629 F.2d at 642). In order to proceed to discovery, Plaintiff must first

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state a cognizable claim. Discovery has not yet been authorized in this case as

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there are three (3) motions to dismiss pending before the Court. If this case

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proceeds to discovery, Plaintiff may then attempt to ascertain the true identity of

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Defendant John Doe “Jose” and seek to amend his Complaint to name that

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defendant.

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III.

Motion for Clarification of the Court’s Record

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Plaintiff observes that ECF No. 18, which consists of a Notice of Document

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Discrepancy, incorrectly identifies the document at issue as Plaintiff’s “Motion for

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Reconsideration of the Court’s Ruling Denying Motion to Exceed the Number of

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Requests for Admissions.” The Clerk of Court is ORDERED to correct the text of

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ECF No. 18 to accurately reflect the document to which it refers: Plaintiff’s

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Application for the Court to Reconsider Motion for Judicial Notice (see ECF No.

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19).

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IT IS SO ORDERED.
Dated: December 15, 2016

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16cv689 BEN (JMA)