BREELAND v. WEXFORD HEALTH CARE SERVICES et al

Filing 44

ORDER denying 40 Plaintiff's Motion to Ask the Court the Process. Plaintiff shall have 30 days from the date of this Order in which to identify and take steps to effectuate service on the remaining defendant, Jane Doe. Failure to do so within that time period will result in a recommendation that this action be dismissed, without prejudice, pursuant to Rule 4(m). IT IS SO ORDERED. Signed by Magistrate Judge Richard A. Lanzillo on 1/14/2019. (jdg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH BREELAND,
Plaintiff,
v.
WEXFORD HEALTH CARE
SERVICES, et al.,
Defendants.

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Civil Action No. 17-281 Erie

District Judge Mark R. Hornak
Magistrate Judge Richard A. Lanzillo

ORDER
This matter is before the Court upon Plaintiff’s “motion to ask courts the process” (ECF
No. 40). For the reasons which follow, the motion is denied.
By way of background, Plaintiff initiated this lawsuit on October 23, 2017, based on his
allegation that an unknown nurse, identified in this lawsuit as “Jane Doe,” refused to examine his
ankle in a timely fashion after he sustained an injury playing basketball. ECF No. 1. Plaintiff
alleges that Jane Doe is an employee of the Pennsylvania Department of Corrections (“DOC”)
but that he has been unable to obtain her name. Id. ¶ 5. Instead of suing the DOC, Plaintiff sued
Wexford Health Services (“Wexford”), the private company engaged to provide medical services
to inmates at SCI-Albion, and the unidentified nurse. Id. ¶¶ 4-5.
Plaintiff never served either Defendant. By virtue of his voluntary “motion to dismiss
Wexford Health Care as Defendant,” the only defendant remaining in this action is the

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unidentified Jane Doe. 1 It is unclear what steps Plaintiff has taken to identify Jane Doe on his
own. However, he has repeatedly requested assistance from the Court in obtaining her identity.
See ECF Nos. 27, 38, 40. In each case, the Court has advised Plaintiff that he must attempt to
ascertain the identity of Jane Doe through proper discovery. ECF No. 28, 39. Now that he has
dismissed the only named defendant in this action, that path appears to be foreclosed to him.
It is “well-settled that the use of John/Jane Doe defendants absent compelling reasons
will not suffice and the district court may dismiss such defendants if plaintiff, after being granted
a reasonable period of discovery, fails to identify the defendants.” Miller v. Doe, 2016 WL
6780705, at *3 n. 4 (M.D. Pa. Nov. 16, 2016) (citing Sheetz v. Morning Call, 130 F.R.D. 34
(E.D. Pa. 1990)). When an unnamed defendant is not identified and served “within 90 days after
the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m); McKenzie v. Wetzel, 2016 WL 1068374, at *6 (W.D. Pa.
Feb. 10, 2016) (dismissing Jane and John Doe defendants who were never identified or served
within the timeframe provided by Rule 4(m)).
While the Court is sympathetic as to the logistical difficulties inherent in attempting to
identify an unknown individual while incarcerated, the burden nonetheless falls squarely on
Plaintiff to do so, and to do so within a timely fashion. Although this action has been pending
for approximately 15 months without any defendant being served, the Court will provide
Plaintiff with a final extension of thirty (30) days from the date of this Order in which to
effectuate service. If Plaintiff cannot identify Jane Doe within that time, whether by reviewing
Plaintiff’s initial attempt to have the United States Marshals Service serve process on Wexford appears to have
failed because he provided the address of the prison, rather than Wexford’s address.
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his medical records, grievance history, or any other documents obtainable by him that might
provide that individual’s identity, it will be recommended that this action be dismissed, without
prejudice, pursuant to Rule 4(m).
IT IS SO ORDERED.
/s/ Richard A. Lanzillo_______
RICHARD A. LANZILLO
United States Magistrate Judge
Dated: January 14, 2019

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