(PC) Saldana v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL SALDANA, No. 2:19-cv-0916 CKD P 12 Plaintiff, 13 v. ORDER AND 14 M.E. SPEARMAN, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On March 16, 2020, the court screened plaintiff’s amended complaint as the court is 19 required to due under 28 U.S.C. § 1915A(a). Plaintiff’s amended complaint was dismissed with 20 leave to amend and plaintiff was given instructions as to the contents of his second amended 21 complaint. Plaintiff has filed a second amended complaint which now must be screened. 22 As plaintiff now knows, the court must dismiss a complaint or portion thereof if a prisoner 23 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which 24 relief may be granted, or that seek monetary relief from a defendant who is immune from such 25 relief. 28 U.S.C. § 1915A(b)(1), (2). 26 Although the facts alleged by plaintiff in claim 1 of his second amended complaint are 27 adequate to state a claim for excessive force under the Eighth Amendment, plaintiff only 28 ///// 1 | identifies the person committing the alleged violation as “John Doe.” The court cannot allow the 2 || case to proceed with only a “John Doe” defendant as the next step in this lawsuit would be to 3 || serve process upon a defendant. Fed. R. Civ. P. 2. As there is no defendant upon whom process 4 | can be served and no discernable method for identifying “John Doe,” this action cannot proceed 5 | further. If, at some point, plaintiff learns the identity of “John Doe” he is free to file a second 6 | action. 7 In all other respects, the second amended complaint does not assert even arguably 8 || actionable claims. 9 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 10 | assign a district court judge to this case. 11 IT IS HEREBY RECOMMENDED that: 12 1. Plaintiff's second amended complaint be dismissed; and 13 2. This case be closed. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen after 16 | being served with these findings and recommendations, plaintiff may file written objections with 17 || the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 18 | Recommendations.” Plaintiff □□ advised that failure to file objections within the specified time 19 || waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 20 | 1991). 21 | Dated: April 14, 2020 Ci dp. f | fe 2 CAROLYN K DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 | 1 7 sald09 16.frs 28