Crittendon v. Lombardo et al

Filing 40

ORDER. IT IS ORDERED that Plaintiff Joshua Crittendon's 34 Motion to Give USM-285 Forms to US Marshal for Service and 38 Motion to Serve Additional Defendants are GRANTED in part and DENIED in part. The Clerk of the Court shall delive r to the USMS for service a copy of 30 the Screening Order, 31 Complaint, 32 Summons, this Order, and 34 -1, 38 -1 the following five USM-285 forms: (1) Williamson, supervisor of Naphcare; (2) C.O. Sanchez, P#14667; (3) Sgt. Rogers (SERT Team); (4) C.O. Torres, P#8232; and (5) C.O. Brown, P#15165. See Order for further details/deadlines. Signed by Magistrate Judge Peggy A. Leen on 2/6/2018. (Copies have been distributed pursuant to the NEF - cc: USM - MR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 JOSHUA CRITTENDON, Case No. 2:17-cv-01700-RFB-PAL 8 9 10 11 Plaintiff, v. ORDER JOE LOMBARDO, et al., (Mot. USM-285 Forms – ECF No. 34; Mot. Serve Add. Defs. – ECF No. 38) Defendants. 12 This matter is before the court on Plaintiff Joshua Crittendon’s Motion to Give USM-285 13 Forms to US Marshal for Service (ECF No. 34) and Motion to Serve Additional Defendants (ECF 14 No. 38). These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and 15 LR IB 1-3 of the Local Rules of Practice. The court has considered the Motions as well as 16 defendants’ Response (ECF No. 37). 17 BACKGROUND 18 Mr. Crittendon is a pretrial detainee currently in custody at the Clark County Detention 19 Center (“CCDC”), and he is proceeding in this civil rights action pro se and in forma pauperis 20 (“IFP”). This case arises from his allegations, pursuant to 28 U.S.C. § 1983, that defendants 21 violated his civil rights. Upon review of the complaint, the court determined that it stated a 22 plausible § 1983 claims against five named defendants for excessive force, deliberate indifference 23 to serious medical need, and unreasonable conditions of confinement, as well as state law claims 24 for assault and battery and medical negligence. 25 Crittendon also stated claims against doe defendants for failure to protect (count I) and excessive 26 force (count II). Id. at 5 n.3, 6–8. The court explained that a plaintiff may use “Doe” to identify 27 an unknown defendant in the complaint for screening purposes and subsequently attempt to 28 determine the defendant’s identity through discovery. Id. at 5 n.3 (citing Gillespie v. Civiletti, 629 1 See Screening Order (ECF No. 30). Mr. 1 F.2d 637, 642 (9th Cir. 1980)). Mr. Crittendon was specifically instructed: “If the true identity of 2 any of the Doe Defendant(s) comes to light during discovery, Plaintiff may move to amend his 3 complaint to assert claims against the Doe Defendant(s) at that time.” Id. (emphasis added). 4 The Clerk of the Court was directed to issue summonses for Defendants Rogers, Torrez, 5 Williamson, Sanches, and Brown, and deliver those summonses to the U.S. Marshal Service 6 (“USMS”) to attempt service. Id. at 15. The clerk’s office mailed Mr. Crittendon five USM-285 7 forms to correspond with the five defendants for whom summons were issued. Id. The court 8 instructed Crittendon to “furnish to the U.S. Marshal the required USM-285 forms” within 30 days 9 and include “relevant information as to each Defendant on each form.” Id.1 DISCUSSION 10 11 I. MR. CRITTENDON’S MOTIONS 12 Mr. Crittendon’s first motion asks the court to deliver 10 completed USM-285 forms to the 13 USMS. The forms request service for: (1) Williamson, supervisor of Naphcare; (2) M. Binko, 14 P#8227; (3) N. Trost (SERT Team), P#13609; (4) P. Patimeeporn (SERT Team), P#14529; (5) J. 15 Senior (SERT Team), P#8213; (6) Sgt. Williams (SERT Team), P# 9422; (7) C.O. Johnson; 16 (8) C.O. Sanchez, P#14667; (9) Sgt. Rogers (SERT Team), P#5752; and (10) L. Verduzco (SERT 17 Team), P#7647. The second motion attached two additional forms: (11) C.O. Torres, P#8232; 18 (12) C.O. Brown, P# 15165. 19 Defendants’ Response (ECF No. 37) to the first motion argues that Crittendon’s USM-285 20 forms must be limited to the five named defendants for whom summonses were issued: Rogers, 21 Torrez, Williamson, Sanches, and Brown. Most of Mr. Crittendon’s forms are improper because 22 he included individuals who are not named in the complaint. Although the court permitted the 23 complaint to move forward against “doe” defendants, Crittendon must seek leave to amend his 24 complaint to appropriately name and assert allegations against any new defendant. Assuming the 25 26 27 28 1 Once the court enters an order directing a plaintiff to send completed USM-285 forms to the USMS and instructing the USMS to attempt service, the forms should not be sent to the Clerk of the Court, but mailed directly to the USMS’s office: U.S. Marshal Service – District Headquarters 333 Las Vegas Blvd. South, Suite 2058 Las Vegas, NV 89101 2 1 newly named individuals in his USM-285 forms are the doe defendants he referenced in the 2 complaint, Mr. Crittendon must seek to amend his complaint prior to serving the identified 3 individuals with a complaint that does not properly identify the individuals as defendants. Defense 4 counsel therefore asks the court to ensure that the USMS only attempt service upon the defendants 5 specifically identified in the court’s Screening Order (ECF No. 37). 6 II. LEGAL STANDARDS AND ANALYSIS 7 Rule 10(a) of the Federal Rules of Civil Procedure requires a plaintiff to include the names 8 of the parties in the action. The Ninth Circuit has held that where identity is unknown prior to the 9 filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the 10 unknown defendants, unless it is clear that discovery would not uncover the identities or that the 11 complaint would be dismissed on other grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 12 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). When the names 13 of individual defendants are unknown at the time a complaint is filed, a plaintiff may refer to the 14 individual unknown defendants as defendant John (or Jane) Doe 1, John Doe 2, and so on, and 15 allege facts to support how each particular doe defendant violated the plaintiff’s constitutional 16 rights. The use of doe names allows the court to screen the complaint and determine whether the 17 plaintiff states an actionable claim against each doe defendant. After the screening and service on 18 named defendants is complete, the plaintiff may use the discovery process to obtain the names of 19 doe defendants whom he believes violated his constitutional rights and seek permission from the 20 court to amend the complaint and substitute the real names of the doe defendants. See, e.g., Plumb 21 v. Prinslow, 847 F. Supp. 1509, 1523 (D. Or. 1994) (requiring plaintiff to substitute true name of 22 a “John Doe” defendant and effect service at earliest opportunity). 23 Once the plaintiff learns the name of a doe defendant in discovery, he may file a motion 24 seeking leave to amend his complaint and attach the proposed amended complaint.2 The plaintiff 25 may substitute the exact allegations against each doe defendant in the complaint with that person’s 26 name. For example, if a plaintiff learned that Bugs Bunny was the person whose conduct he 27 2 28 Plaintiff is also informed that the Local Rules of Practice require the motion to include the proposed amended complaint, which must be complete in itself without reference to any prior pleading (i.e., the original complaint). LR 15-1(a); see also Fed. R. Civ. P. 15. 3 1 described in a complaint as John Doe #1, the amended complaint may repeat the same allegations 2 substituting Bugs Bunny in place of John Doe #1. The plaintiff may also add new defendants and 3 allegations in the amended complaint if desired. 4 An amended complaint must be complete on its own without referring to any prior pleading 5 (i.e., the original complaint). See LR 15-1(a). This is because an amended complaint generally 6 takes the place of the original complaint. Ramirez v. County of San Bernardino, 806 F.3d 1002, 7 1008 (9th Cir. 2015). Once a plaintiff files an amended complaint, the original pleading no longer 8 serves any function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 9 Therefore, in an amended complaint, as in the original complaint, each claim and the involvement 10 of each defendant must be sufficiently alleged. The court is required to screen any amended IFP 11 complaint and determine that it states a plausible claim for relief against each defendant before 12 requiring a responsive pleading or issuing summonses to new defendants. 28 U.S.C. §§ 1915, 13 1915A; Jones v. Bock, 549 U.S. 199, 213–14 (2007). 14 In this case, the court entered a Screening Order (ECF No. 30) finding that the complaint 15 states plausible § 1983 claims against defendants Rogers, Torrez, Williamson, Sanches, and 16 Brown. It appears Mr. Crittendon may have learned the identities of individuals he described in 17 the complaint as doe defendants because he submitted seven USM-285 forms requesting service 18 for seven individuals other than the five named defendants. However, before the court will 19 authorize service, he must first seek leave of the court to amend the complaint. The court will then 20 determine whether his proposed amended complaint states actionable claims against each new 21 proposed defendant. If so, the court will direct the clerk to issue summons for any proper new 22 defendant(s) and instruct the USMS to attempt service on such new defendant(s). The screening 23 and service process cannot proceed out of sequence. Thus, at this time, the USMS will only 24 attempt service on the five defendants named in the court’s prior Screening Order: Rogers, Torrez, 25 Williamson, Sanches, and Brown. See Screening Order (ECF No. 30), Summons (ECF No. 32). Accordingly, 26 27 /// 28 /// 4 1 IT IS ORDERED: 2 1. Plaintiff Joshua Crittendon’s Motion to Give USM-285 Forms to US Marshal for 3 Service (ECF No. 34) and Motion to Serve Additional Defendants (ECF No. 38) are 4 GRANTED in part and DENIED in part. 5 2. The Clerk of the Court shall deliver to the USMS for service a copy of the Screening 6 Order (ECF No. 30), Complaint (ECF No. 31), Summons (ECF No. 32), this Order, 7 and the following five USM-285 forms (ECF Nos. 34-1, 38-1): 8 9 (1) Williamson, supervisor of Naphcare; (2) C.O. Sanchez, P#14667; (3) Sgt. Rogers (SERT Team), (4) C.O. Torres, P#8232; and (5) C.O. Brown, P#15165. 10 3. After attempting service, the USMS shall file a notice with the court indicating whether 11 Rogers, Torrez, Williamson, Sanches, and Brown were served. 12 4. If the USMS is unable to serve Rogers, Torrez, Williamson, Sanches, or Brown and 13 Mr. Crittendon wishes to have service attempted again, he must timely file a motion 14 specifying a more detailed name and/or address for any unserved defendant(s), or 15 whether some other manner of service should be attempted. 16 17 5. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the deadline to accomplish service on defendants is March 29, 2018. 18 6. Mr. Crittendon must comply with this Order by accomplishing service by March 29, 19 2018, and his failure to complete service by that deadline may result in a 20 recommendation to the district judge that the case, or an unserved defendant, be 21 dismissed without prejudice. 22 Dated this 6th day of February, 2018. 23 24 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 25 26 27 28 5

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