Roberts v. Khounphixay et al

Filing 54

ORDER denying without prejudice Plaintiff's 45 Motion to Compel and Plaintiff's 53 Motion for Reconsideration. Signed by Hon. Brian A Tsuchida. (PM) cc: Plaintiff via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOE J.W. ROBERTS, JR.,
Plaintiff,

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ORDER DENYING MOTIONS
WITHOUT PREJUDICE

v.
VILMA KHOUNPHIXAY, et al.,
Defendants.

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CASE NO. 2:18-cv-00746-MJP-BAT

On May 24, 2018, the Court directed service of the summons and complaint upon all

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named Defendants (Vilma Khounphixay, J. Warner, J. Robison, Lynn (Nurse), Heather Helms,

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Lindsay McIntyre, and Officer Ayala). Dkt. 6. With the exception of “Lynn (Nurse),” all

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Defendants returned waivers of service, have answered Plaintiff’s Complaint, and are defending

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this action. No waiver of service was returned for “Lynn (Nurse).” In addition to the named

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Defendants, Plaintiff listed John Doe Correctional Officers 1-3. Because Defendant “Lynn” and

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the “John Doe” defendants were never properly identified or served, the Court lacks jurisdiction

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over them.

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On September 21, 2018, Defendants moved for judgment on the pleadings. Dkt. 33.

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Defendants also filed a motion for protective order to stay all discovery pending the Court’s

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adjudication of their motion for judgment on the pleadings. Dkt. 35. The Court granted the

ORDER DENYING MOTIONS WITHOUT
PREJUDICE - 1

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motion and stayed all discovery pending its adjudication of the motion for judgment on the

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pleadings. Dkt. 46 at 2. In the meantime, the Court ordered Plaintiff to provide the full name and

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address of the partially identified “Lynn, Nurse” if he intended to proceed against her in this

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action. Dkt. 39.

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Plaintiff advises that he does not have this information (or information identifying the

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John Doe defendants) and he does not have reasonable access to this information, but he did

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request the information in discovery (i.e., names all correction staff on duty in the intensive

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management unit who were involved with his care and placement in restraints from April 23,

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2018 through May 8, 2018). See, e.g., Dkt. 36-1, p. 5. However, because all discovery was

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stayed, that information has not yet been provided to him. On October 12, 2018, Plaintiff filed a

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motion to compel discovery (Dkt. 45), and on November 8, 2018, he filed a motion for

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reconsideration (Dkt. 53) asking the Court to reconsider its stay of discovery.

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The Court is mindful that Plaintiff has taken steps within his power to ascertain the

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identity and whereabouts of these individuals but the information is clearly in the possession and

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control of the defendants. Thus, it would be unfair to dismiss these defendants without allowing

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Plaintiff the information and time necessary to attempt to identify and serve them. However, at

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this juncture in the proceedings, it is not necessary to grant Plaintiff the relief he seeks. The

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Court can determine if Defendants are entitled to judgment on the pleadings without knowing the

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names and addresses of the unidentified defendants because judgment on the pleadings turns on

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the facts alleged in the complaint. The Court considers all factual allegations in the complaint

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and accepts them as true and construes them in the light most favorable to Plaintiff in

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determining whether he has stated a claim. The Court will make this determination as to each of

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Plaintiff’s claims and as to each of the defendants, even without knowing a particular

ORDER DENYING MOTIONS WITHOUT
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defendant’s name. If the Court determines that Plaintiff has stated a viable claim or claims, the

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stay on discovery shall be lifted and this case shall proceed on the viable claim or claims.

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Accordingly, it is ORDERED:

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1)

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Plaintiff’s motions to compel (Dkt. 45) and for reconsideration (Dkt. 53) are

DENIED without prejudice.
2)

The Clerk shall send a copy of this Order to Plaintiff and to counsel for

Defendants.
DATED this 13th day of November, 2018.

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A

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BRIAN A. TSUCHIDA
Chief United States Magistrate Judge

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ORDER DENYING MOTIONS WITHOUT
PREJUDICE - 3