Driscoll v. Neven et al

Filing 9

ORDER that the Clerk of the Court shall electronically SERVE acopy of this order, a copy of 7 Screening Order, and a copy of 8 Complaint on the Office of the Attorney General of the State of Nevada, attentionKat Howe. IT IS FURTHER ORDERED th at the Attorney Generals Office shall enter a limitednotice of appearance within 10 days. IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff theapproved form for filing a § 1983 complaint, instructions for the same, and a copy of hisoriginal complaint 8 . Signed by Magistrate Judge Nancy J. Koppe on 7/7/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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D. NEVEN et al.,
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Defendants.
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___________________________________ )

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I.

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BRANDAN DRISCOLL,

2:14-cv-1935-RCJ-NJK
ORDER

DISCUSSION

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On June 2, 2015, the Court issued a screening order permitting the deliberate

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indifference to serious medical needs claim to proceed, dismissing the failure to protect and

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retailation claims with leave to amend, and deferring a decision on the state law claims until

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Plaintiff had an opportunity to file an amended complaint. (ECF No. 7 at 8-9). The Court

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granted Plaintiff 30 days from the date of that order to file an amended complaint curing the

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deficiencies of his failure to protect and retaliation claims. (Id. at 9). The Court specifically

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stated that if Plaintiff chose not to file an amended complaint, the action would proceed on the

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deliberate indifference to serious medical needs claim and the supplemental state law claims

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when Plaintiff learned the identities of Defendant John/Jane Doe Nurses. (Id. at 9). Plaintiff

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has not filed an amended complaint.

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The use of Doe defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti,

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629 F.2d 637, 642 (9th Cir.1980). Where the identity of alleged defendants cannot be known

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prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery

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to identify them. Id. Failure to afford the plaintiff such an opportunity is error. See Wakefield

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v. Thompson, 177 F.3d 1160, 1163 (9th Cir.1999). Accordingly, Plaintiff shall be allowed to

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conduct limited pre-service discovery in an effort to ascertain the true identity of the

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defendants. To that end, the Attorney General will be directed to enter a limited appearance

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in this action for the purpose of responding to the discovery discussed herein. Plaintiff will be

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permitted to serve three interrogatories on the Attorney General in order to discover the

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identities of the John/Jane Doe nurses at High Desert State Prison. If plaintiff learns the

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identities of the nurses who allegedly violated his rights, he shall file an amended complaint

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to add them as named defendants. If plaintiff is unable to learn the identity of at least one Doe

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defendant, this action shall be dismissed without prejudice.

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If Plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes the original complaint and, thus, the amended complaint must be

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complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint

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is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa

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Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a

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plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve

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them for appeal). Plaintiff’s amended complaint must contain all claims, defendants, and

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factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file

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the amended complaint on this Court’s approved prisoner civil rights form and it must be

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entitled “First Amended Complaint.”

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The Court notes that if Plaintiff chooses to file an amended complaint identifying at least

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one Doe defendant, as outlined in this order, Plaintiff shall file the amended complaint within

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60 days from the date of entry of this order. If plaintiff is unable to learn the identity of at least

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one Doe defendant, this action shall be dismissed without prejudice.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the deliberate indifference to serious

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medical needs claim shall proceed if Plaintiff can learn the identify of one of the Doe

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defendants.

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IT IS FURTHER ORDERED that, if Plaintiff can learn the identify of one of the Doe
defendants, the supplemental claims shall also proceed.

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IT IS FURTHER ORDERED that the Clerk of the Court shall electronically SERVE a

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copy of this order, a copy of the original screening order (ECF No. 7) and a copy of Plaintiff’s

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complaint (ECF No. 8) on the Office of the Attorney General of the State of Nevada, attention

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Kat Howe.

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IT IS FURTHER ORDERED that the Attorney General’s Office shall enter a limited

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notice of appearance within 10 days on behalf of Defendants for the limited purpose of

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conducting limited pre-service discovery in an effort to ascertain the true identities of the Doe

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defendants.

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IT IS FURTHER ORDERED that Plaintiff will be permitted to serve three interrogatories

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on the Attorney General’s Office in order to discover the identities of the John/Jane Doe

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nurses at High Desert State Prison.

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IT IS FURTHER ORDERED that if Plaintiff is able to discover the identities of the

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John/Jane Doe nurses, he shall file an amended complaint naming at least one Doe defendant

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within 60 days from the date of entry of this order.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the

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approved form for filing a § 1983 complaint, instructions for the same, and a copy of his

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original complaint (ECF No. 8). If Plaintiff chooses to file an amended complaint, he must use

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the approved form and he shall write the words “First Amended” above the words “Civil Rights

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Complaint” in the caption.

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IT IS FURTHER ORDERED that if Plaintiff fails to timely file an amended complaint

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naming at least one Doe defendant, as outlined in this order, this action shall be dismissed

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without prejudice.

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DATED: This 7th day of July, 2015.

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_________________________________
NANCY J. KOPPE
United States Magistrate Judge
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