Driscoll v. Neven et al
Filing
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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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....
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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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