Custard v. Balsick et al

Filing 38

ORDER OVERRULING PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES RULING re: 37 Objections filed by Bob Allen Custard. IT IS ORDERED that the objections stated in Pltfs Objections to U.S. District Judge Via § 636 on Mags Order (ECF 34) 37 , filed February 24, 2016, are overruled, by Judge Robert E. Blackburn on 2/25/2016. (evana, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Action No. 15-cv-02221-REB-CBS BOB ALLEN CUSTARD, Plaintiff, v. MR. BALSICK, et al., Defendants. ORDER OVERRULING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S RULING Blackburn, J. The matter before me is Pltf’s Objections to U.S. District Judge Via § 636 on Mag’s Order (ECF 34) [#37],1 filed February 24, 2016, challenging the magistrate judge’s Order [#34], filed February 16, 2016, denying Plft’s Motion for Court Order to Court Clerk To Serve John Does 1-10 [#31], filed February 10, 2016. I overrule the objections. Plaintiff’s objections pertain to non-dispositive matters that were referred to the magistrate judge for resolution. Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), I may modify or set aside any portion of a magistrate judge’s order which I find to be clearly erroneous or contrary to law. Moreover, because plaintiff is proceeding pro se, I have reviewed his filings more liberally than pleadings or papers filed by attorneys. 1 “[#37]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Having reviewed the motion and the magistrate judge’s order, I find and conclude that the magistrate judge’s order is not clearly erroneous or contrary to law. Plaintiff appears to believe that it is the court’s obligation to identify unnamed John Doe defendants. It is not. “Plaintiff may bring an action against unknown John Doe defendants, but plaintiff must substitute named defendants for those unknown defendants after the completion of discovery.” Simmons v. District of Columbia, 750 F.Supp.2d 43, 45 (D.D.C. 2011) (emphasis added). See also Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“[W]here the identity of alleged defendants will not be known prior to the filing of a complaint . . . plaintiff should be given an opportunity through discovery to identify the unknown defendants.”). This obligation is coextensive with plaintiff’s burden under Fed. R. Civ. P. 4(m) to effectuate proper service. See Cuin v. Adams County Board of County Commissioners, 2011 WL 3236088 at *1 (D. Colo. July 28, 2011). While the court must and will assist a pro se incarcerated plaintiff in logistically effecting service, it is plaintiff’s burden to properly identify defendants on whom service is to be made. THEREFORE, IT IS ORDERED that the objections stated in Pltf’s Objections to U.S. District Judge Via § 636 on Mag’s Order (ECF 34) [#37], filed February 24, 2016, are overruled. 2 Dated February 25, 2016, at Denver, Colorado. BY THE COURT: 3

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