(PC) Flowers v. County of Fresno ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DE’ANDRAE FLOWERS, Case No. 1:19-cv-01027-NONE-JLT (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF 90 DAYS TO IDENTIFY JANE DOE 13 v. (Doc. 14) 14 COUNTY OF FRESNO, et al., 15 Defendants. 16 17 This action proceeds on Eighth Amendment medical indifference claims against 18 Defendants CO Toon and Does 1–3. (See Doc. 15.) Although plaintiff has stated a claim against 19 Does 1–3, the Court will not require service on these defendants at this time. The Ninth Circuit 20 has held that where identity is unknown prior to the filing of a complaint, the plaintiff should be 21 given an opportunity through discovery to identify the unknown defendants unless it is clear that 22 discovery would not uncover the identities, or that the complaint would be dismissed on other 23 grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. 24 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 25 Accordingly, the Court GRANTS Plaintiff 90 days in which to discover the name of 26 Does 1–3 through subpoena or otherwise, and to substitute these defendants’ actual names by 27 filing a “notice of substitution.” See Wakefield, 177 F.3d at 1163. If, within 90 days, Plaintiff fails 28 1 to file a notice of substitution that provides the actual name of the Doe defendants, the Court will 2 recommend dismissal of his claims against these defendants without prejudice. 3 IT IS SO ORDERED. 4 5 Dated: September 10, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28