Heredia-Prieto v. Unknown Party

Filing 9

ORDER REJECTING REPORT AND RECOMMENDATION 7 ; dismissing order to show cause; plaintiff to file amended complaint within 21 days; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PEDRO HEREDIA-PRIETO,
Plaintiff,
-vUNKNOWN PARTY,
Defendant.

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No. 1:16-cv-1229
Honorable Paul L. Maloney

ORDER REJECTING REPORT AND RECOMMENDATION AND DISMISSING
ORDER TO SHOW CAUSE
Plaintiff Pedro Heredia-Prieto filed this lawsuit against “John Doe,” the medical
provider at the Newaygo County Jail who treated Plaintiff. The magistrate judge first ordered
Plaintiff to identify the defendant (ECF No. 4) and then issued an order to show cause (ECF
No. 6) why the lawsuit should not be dismissed when the Plaintiff’s response to the first order
failed to name the defendant. 1
Now pending is a report in which the magistrate judge recommends dismissing the
lawsuit. (ECF No. 7.) The magistrate judge explained that Plaintiff still had not identified
the defendant and had not responded to the order to show cause. Plaintiff filed objections.
Plaintiff located one of his medical reports which was completed while he was at the Newaygo
County Jail. (ECF No. 8-1.) One of the signatures at the bottom is “L. Stewart M.A.”
(PageID.52.) Plaintiff states that the defendant is L. Stewart.

Plaintiff makes much of the fact that he captioned the lawsuit with the name “John Doe,” and that
his complaint was docketed with defendant identified as “Unknown Party.” John Doe is a
pseudonym used for an unknown party. Whether the complaint is captioned with “John Doe” or
“Unknown Party” is completely irrelevant to the outcome.
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Plaintiff’s objection is timely. See Fed. R. Civ. P. 72(b)(2). Plaintiff has identified the
defendant, which satisfies the order to show cause.

Therefore, the report and

recommendation (ECF No. 7) are REJECTED. The lawsuit may proceed. Plaintiff will
need to file an amended complaint, within 21 days, naming the proper defendant and will
then need to have the complaint served on the defendant. See Smith v. City of Chattanooga,
No. 1:08-cv-63, 2009 WL 3762961, at *5 (E.D. Tenn. Nov. 4, 2009).
IT IS SO ORDERED.
Date: March 28, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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