Wallway v. John Doe MHP Officer

Filing 4

ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Randy Raymond Wallway, and filing 2 Complaint IFP/Prisoner filed by Randy Raymond Wallway. Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Randy Raymond Wallway., Order Setting: Wallway shall return completed subpoena by 7/11/2017 ( Discovery due by 7/11/2017.) Signed by Magistrate Judge Jeremiah C. Lynch on 6/21/2017. (Attachments: # 1 Appendix Subpoena) (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
RANDY RAYMOND WALLWAY,

CV 17-71-M-DLC-JCL

Plaintiff,
ORDER

vs.

JOHN DOE, MHP OFFICER,
Defendant.

Plaintiff Randy Wallway, appearing pro se, filed an application requesting
leave to proceed in forma pauperis. He submitted a declaration that makes the
showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient
funds to prosecute this action IT IS HEREBY ORDERED that Wallway’s
application to proceed in forma pauperis is GRANTED. This action may proceed
without prepayment of the filing fee, and the Clerk of Court is directed to file
Wallway’s lodged Complaint as of the filing date of his request to proceed in
forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
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screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court has reviewed Wallway’s pleading to consider whether this action
can survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9
Cir. 2005). The Court finds that at this stage of the proceedings Wallway’s
allegations at least state a claim upon which relief could be granted under 42
U.S.C. § 1983. Wallway alleges Defendant John Doe Montana Highway Patrol
Officer arrested Wallway and physically assaulted him while he was in handcuffs.
Therefore, the Court will order Wallway’s complaint be served on Defendant.
Because Wallway is proceeding in forma pauperis, he is entitled to have his
complaint and summons served by the United States Marshal. Fed. R. Civ. P.
4(c)(3). Nonetheless, Wallway is obligated to provide the Court with an
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appropriate address for service on the Defendant. See Pullano v. Clark Co.
Detention Ctr., 2010 WL 4272871, *2 (D. Nev. 2010).
More importantly though, because Wallway has identified the Defendant as
an unknown John Doe, he must first undertake to discover John Doe’s actual
identity. Ordinarily, a party may not seek discovery from any source until after the
parties confer regarding discovery as required by Fed. R. Civ. P. 26(f). Fed. R.
Civ. P. 26(d)(1). But situations arise where a plaintiff does not know the identity
of a defendant or defendants prior to filing a complaint. Therefore, “the plaintiff
should be given an opportunity through discovery to identify the unknown
defendants, unless it is clear that discovery would not uncover the identities, or
that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir. 1980). Thus, the courts have discretion, for good cause
and in the interests of justice, to allow a party to conduct premature discovery for
the limited purpose of ascertaining the identity of an unknown defendant. Evans
v. Unknown Names of Department of Corrections Officers, 2007 WL 30597, *2
(N.D. Cal. 2007).
In evaluating whether good cause exists to allow a plaintiff to conduct early
discovery to learn the identity of a John Doe defendant, a court should consider
whether the plaintiff: “(1) identifies the defendant with sufficient specificity that
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the court can determine that the defendant is a real person who can be sued in
federal court, (2) recounts the steps taken to locate and identify the defendant, (3)
demonstrates that the action can withstand a motion to dismiss, and (4) proves that
the discovery is likely to lead to identifying information that will permit service of
process.” Burns v. City of Concord, 2014 WL 892082, *1 (N.D. Cal. 2014).
“Good cause may be found where the need for expedited discovery, in
consideration of the administration of justice, outweighs the prejudice to the
responding party.” Evans, at *2 (quoting Semitool, Inc. v. Tokyo Electron
America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).
Wallway’s allegations are sufficient to establish good cause to allow him to
conduct early discovery. He states a Montana Highway Patrol officer assaulted
him on May 23, 2014, around 6:00 p.m. Thus it is plausible the John Doe
defendant is a real person who could be identified by the Montana Highway
Patrol’s records, and is an individual who could be sued. And the allegations at
least state a claim that the officer potentially used excessive force against Wallway
in violation of his rights secured by the Fourth Amendment of the United States
Constitution. Although Wallway has not provided any information as to any
efforts he may have made to identify the officer who allegedly assaulted him, the
Court finds that in the interests of justice it is more efficient to permit Wallway to
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conduct limited discovery through the Montana Highway Patrol with relatively
little burden and prejudice potentially imposed against the Montana Highway
Patrol. Therefore, the Court will afford Wallway an opportunity to conduct early
discovery through the use of a Fed. R. Civ. P. 45 subpoena in an effort to identify
the John Doe highway patrol trooper named in his pleading.
Therefore, IT IS HEREBY ORDERED the Clerk of Court is directed to
sign, but otherwise leave blank, the attached Subpoena to Produce Documents,
Information, or Objects (form AO 88B), and mail the form to Wallway. Wallway
must complete the subpoena form which must be directed to a specific office of
the Montana Highway Patrol at a specific location in Montana. Wallway shall
specify on the form the documents he seeks to obtain which shall be limited to
only those regarding the identity of the highway patrol trooper who arrested
Wallway on May 23, 2014, at approximately 6:00 p.m.
Because Wallway is proceeding in forma pauperis under 28 U.S.C. § 1915,
he is entitled to have “officers of the court [...] issue and serve all process” in this
case. 28 U.S.C. § 1915(d). Therefore, IT IS ORDERED that on or before July 11,
2017, Wallway shall return the completed subpoena form to the Clerk of Court.
Upon receipt of the form the Clerk of Court is directed to deliver the subpoena,
together with a copy of this Order, to the United States Marshal, and the Marshal
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is directed to serve the completed subpoena. The subpoena must provide a
minimum of 45-days notice before the date of production.
If the Montana Highway Patrol responds to the subpoena by providing
Wallway with the identity of the trooper who arrested him, then IT IS ORDERED
that within 14 days of Wallway’s receipt of the identifying information Wallway
shall file: (1) an amended complaint identifying the name of the trooper in place
of the John Doe defendant presently named, and (2) a notice which provides the
Court with an appropriate address for service on the named Defendant. The
address must be sufficient for personal service on the Defendant. Fed. R. Civ. P.
4(d)(1)(A)(I) and 4(e).
At all times during the pendency of this action, Wallway shall immediately
advise the Court of any change of address and its effective date. Such notice shall
be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure to file a NOTICE
OF CHANGE OF ADDRESS may result in the dismissal of the action for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b). Wallway is also advised that his
failure to prosecute this action, to comply with the Court’s orders, or to comply
with the Federal Rules of Civil Procedure may also result in a recommendation
that this case be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). The
Court may dismiss this case under Rule 41(b) sua sponte under certain
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circumstances. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962);
Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683,
689 (9th Cir. 2005).
DATED this 21st day of June, 2017.

Jeremiah C. Lynch
United States Magistrate Judge

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