(PC) Patterson v. HIP-C Committee ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VESTER L. PATTERSON, Case No. 1:19-cv-01401-NONE-JLT (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO COMPEL, REQUEST FOR 13 v. SERVICE AND REQUST FOR JUDICIAL NOTICE, MOTION FOR A 14 JOHN DOES 1–18, PRELIMINARY INJUNCTION, REQUEST FOR TELEPHONIC 15 Defendants. HEARINGS 16 (Doc. 15, 16, 17, 19) 17 45-DAY DEADLINE 18 Plaintiff Vester L. Patterson, a state prisoner proceeding pro se and in forma pauperis, 19 filed this civil rights action under 42 U.S.C. § 1983. On May 21, 2020, Plaintiff filed his first 20 amended complaint. (Doc. 10). On December 18, 2020, Plaintiff filed several motions: (1) 21 Motion to Compel Defendants to Produce the Names of 1–18 HEP-C Committee Members (Doc. 22 15); (2) Request for Service and Request for Judicial Notice (Doc. 16); (3) [Motion] for 23 Emergency Preliminary Injunction and Temporary Restraining Order (Doc. 17); (4) Request for 24 Telephonic Appearance (Doc. 19). 25 During the pendency of these motions, on March 3, 2021, the Court entered an Order 26 screening Plaintiff’s first amended complaint and determined that Plaintiff’s claim for damages 27 against the Doe defendants could proceed. (Doc. 21 at 6.) The Court advised: 28 /// 1 Although the Court has determined that plaintiff states a cognizable claim against the Doe defendants, plaintiff is advised that service cannot be ordered of a Doe 2 defendant because the United States Marshal cannot serve an unknown individual. 3 Therefore, before the Court orders the United States Marshal to serve a Doe defendant, plaintiff will be required to identify him or her with enough information 4 to locate the defendant for service of process. Plaintiff will be given an opportunity through discovery to identify the unknown Doe defendants. Crowley v. Bannister, 5 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 6 (9th Cir. 1980)). Once the identity of a Doe defendant is ascertained, plaintiff must file a motion to amend his complaint only to identify the identified Doe defendant 7 so that service by the United States Marshal can be attempted. The Court will then 8 send plaintiff the appropriate service documents at such time that plaintiff ascertains the identities of the Doe defendants. However, if plaintiff fails to identify 9 any Doe defendant during the course of the discovery, any Doe Defendant will be dismissed from this action. 10 11 (Doc. 21 at 6–7.) 12 On May 7, 2021, the Court adopted in full the Findings and Recommendations entered on 13 March 3, 2021, (Doc. 21), and dismissing all claims except for Plaintiff’s Eighth Amendment 14 Claim against John Does 1–18. (Doc. 23.) 15 Plaintiff has not yet provided enough information for service of process, and the John Doe 16 defendants remain unknown. Therefore, Plaintiff is again ORDERED to identify these unknown 17 defendants with enough information to locate the them for service of process. Once the identities 18 of the Doe defendants are ascertained, Plaintiff shall file a motion to amend his first amended 19 complaint only to name the identified John Doe defendants so that service by the United States 20 Marshal can be attempted. The Court will then send Plaintiff the appropriate service documents at 21 such time that Plaintiff ascertains the identities of the John Doe defendants. 22 Because service has not been effectuated, discovery has not commenced. Therefore, the 23 Court ORDERS the following: Plaintiff’s motion to compel and Plaintiff’s Request for 24 Telephonic Appearance are DENIED as premature.1 (Docs. 15, 19.) Because Plaintiff’s Request 25 for Service is directed toward parties that have been dismissed, the request is DENIED as moot. 26 1 Because Plaintiff is seeking to compel the defendants to respond to discovery, but he has not yet identified who the 27 defendants are, the discovery methods set forth in the Federal Rules of Civil Procedure for discovery directed to a party, do not apply at this time. Rather, the plaintiff must conduct research or other form of non-party discovery to 28 determine the defendants’ true identities. 1 (Doc. 16.) Because no defendant has been served, Plaintiff’s Request for Judicial Notice (Doc. 2 16) and [Motion] for Emergency Preliminary Injunction and Temporary Restraining Order (Doc. 3 17) are DENIED without prejudice, pending response by a named John Doe defendant. 4 The Plaintiff is ORDERED to provide enough information about the John Does, within 5 45 days so that the United State Marshal can effectuate service. 6 Failure to comply with this order will result in a recommendation that this case be 7 dismissed for failure to obey a court order. 8 IT IS SO ORDERED. 9 10 Dated: May 13, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28