David William Wuco v. John Doe, et al.

E.D. California

David William Wuco v. John Doe, et al.

DecidedSeptember 16, 2025

Docket1:23-cv-00572

StatusUnknown

This text of David William Wuco v. John Doe, et al. (David William Wuco v. John Doe, et al.) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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David William Wuco v. John Doe, et al., (E.D. Cal. 2025).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WILLIAM WUCO, Case No.: 1:23-cv-00572-KES-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS JANE DOE AND 13 v. JOHN DOE WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO EFFECT 14 JOHN DOE, et al., SERVICE OF PROCESS

15 Defendants. 14-DAY OBJECTION PERIOD

18 Plaintiff David William Wuco is proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth Amendment 20 excessive force claim against John Doe, and deliberate indifference to serious medical needs 21 claims against John Doe and Jane Doe. 22 I. BACKGROUND 23 On June 13, 2025, the Court issued its Order Granting Plaintiff Ninety Days Within 24 Which to Identify Doe Defendants. (Doc. 22.) Plaintiff was directed to identify “John Doe and 25 Jane Doe, through subpoena or otherwise, and to substitute these individuals’ actual named by 26 filing a ‘notice of substitution’” within 90 days. (Id. at 3-4.) Although more than 90 days have 27 passed, Plaintiff has failed to comply with the Court’s order. 1 II. DISCUSSION 2 Although Plaintiff's deadline to file a notice of substitution has passed, Plaintiff has not 3 filed a notice of substitution, identified defendants Jane Doe and John Doe, or otherwise 4 contacted the Court. As Plaintiff has failed to identify defendants Jane Doe and John Doe, the 5 Court will recommend that these Doe defendants be dismissed from this action, without 6 prejudice, due to Plaintiff's failure to provide the Court with accurate and sufficient information 7 to effect service of the summons and first amended complaint on defendants Jane Doe and John 8 Doe within the period prescribed by Federal Rule of Civil Procedure 4(m). 9 The Federal Rules of Civil Procedure provide as follows: 10 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 11 dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff 12 shows good cause for the failure, the court must extend the time for service for an appropriate period. 13 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 16 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 17 prisoner ‘is entitled to rely on the U.S. Marshal for service’ ... as long as he or she ‘provide[s] the 18 necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 832 19 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on other 20 grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished the 21 information necessary to identify the defendant, the marshal's failure to effect service is 22 ‘automatically good cause....’” Walker v. Sumner, 14 F.3d 1415, 1422 (quoting Sellers v. United 23 States, 902 F.2d 598, 603 (7th Cir. 1990)), overruled on other grounds by Sandin, 515 U.S. at 24 483-84). However, where a pro se plaintiff fails to provide the Marshal with accurate and 25 sufficient information to effect service of the summons and complaint, the Court's sua sponte 26 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 27 As an initial matter, the Court notes Plaintiff was advised in September 2023 that “John 1 individuals and amended his complaint to substitute the names for John Doe or Jane Doe. For 2 service to be successful, the Marshal must be able to identify and locate defendants.” (See Doc. 3 13 [First Screening Order].) Plaintiff was reminded of that obligation nearly one year later. (See 4 Doc. 16 at 7-8.) 5 The Court’s June 13, 2025, order again advised Plaintiff that the United States Marshal 6 cannot serve Doe defendants, that Plaintiff was required to identify Jane Doe and John Doe “with 7 enough information to locate these defendants for service of process,” and that he would be 8 provided an “’opportunity to discover the identities of John Doe and Jane Doe through limited 9 discovery.’” (See Doc. 22 at 2.) The Court also informed Plaintiff of other means for identifying 10 Doe defendants, as well as the requirements for obtaining a subpoena duces tecum to learn the 11 necessary identifying information. (Id.) The Court also advised Plaintiff that if he had learned the 12 identities of the Doe defendants since filing the first amended complaint and did not require a 13 subpoena, he should file a notice of substitution with the Court, “asking to substitute the 14 individual’s actual name for ‘John Doe’ and/or ‘Jane Doe.’” (Id. at 3.) Plaintiff was provided with 15 a 90-day deadline to file a notice of substitution identifying the named individuals in place of 16 these Doe defendants. (Id.) Finally, Plaintiff was warned that if he failed to file a notice to 17 substitute John Doe and/or Jane Doe by the deadline, the Court would recommend the dismissal 18 of John Doe and/or Jane Doe without prejudice. (Id. at 4.) 19 Plaintiff has failed to provide the Court with accurate and sufficient information to effect 20 service of the summons and first amended complaint on defendants Jane Doe and John Doe 21 within the period prescribed by Federal Rule of Civil Procedure 4(m). Accordingly, the Court will 22 recommend that Jane Doe and John Doe be dismissed from the action, without prejudice.1 23 III. CONCLUSION AND RECOMMENDATIONS 24 Based on the foregoing, the Court RECOMMENDS that: 25 1. Defendants Jane Doe and John Doe be DISMISSED without prejudice for Plaintiff’s 26 failure to effect service of process pursuant to Rule 4(m); and 27

1 The Court notes this action proceeds only against John Doe and Jane Doe. 1 2. The Clerk of the Court be directed to close this case. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 4 after being served with a copy of these Findings and Recommendations, a party may file written 5 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 6 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 7 without leave of Court and good cause shown. The Court will not consider exhibits attached to 8 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 9 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 10 reference the exhibit with specificity.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WILLIAM WUCO, Case No.: 1:23-cv-00572-KES-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANTS JANE DOE AND 13 v. JOHN DOE WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO EFFECT 14 JOHN DOE, et al., SERVICE OF PROCESS

15 Defendants. 14-DAY OBJECTION PERIOD

18 Plaintiff David William Wuco is proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth Amendment 20 excessive force claim against John Doe, and deliberate indifference to serious medical needs 21 claims against John Doe and Jane Doe. 22 I. BACKGROUND 23 On June 13, 2025, the Court issued its Order Granting Plaintiff Ninety Days Within 24 Which to Identify Doe Defendants. (Doc. 22.) Plaintiff was directed to identify “John Doe and 25 Jane Doe, through subpoena or otherwise, and to substitute these individuals’ actual named by 26 filing a ‘notice of substitution’” within 90 days. (Id. at 3-4.) Although more than 90 days have 27 passed, Plaintiff has failed to comply with the Court’s order. 1 II. DISCUSSION 2 Although Plaintiff's deadline to file a notice of substitution has passed, Plaintiff has not 3 filed a notice of substitution, identified defendants Jane Doe and John Doe, or otherwise 4 contacted the Court. As Plaintiff has failed to identify defendants Jane Doe and John Doe, the 5 Court will recommend that these Doe defendants be dismissed from this action, without 6 prejudice, due to Plaintiff's failure to provide the Court with accurate and sufficient information 7 to effect service of the summons and first amended complaint on defendants Jane Doe and John 8 Doe within the period prescribed by Federal Rule of Civil Procedure 4(m). 9 The Federal Rules of Civil Procedure provide as follows: 10 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 11 dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff 12 shows good cause for the failure, the court must extend the time for service for an appropriate period. 13 14 Fed. R. Civ. P. 4(m). 15 In cases involving a plaintiff proceeding in forma pauperis, a United States Marshal, upon 16 order of the court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “[A] 17 prisoner ‘is entitled to rely on the U.S. Marshal for service’ ... as long as he or she ‘provide[s] the 18 necessary information to help effectuate service.’” Schrubb v. Lopez, 617 Fed. Appx. 832, 832 19 (9th Cir. 2015) (quoting Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990), abrogated on other 20 grounds by Sandin v. Connor, 515 U.S. 472 (1995)). “So long as the prisoner has furnished the 21 information necessary to identify the defendant, the marshal's failure to effect service is 22 ‘automatically good cause....’” Walker v. Sumner, 14 F.3d 1415, 1422 (quoting Sellers v. United 23 States, 902 F.2d 598, 603 (7th Cir. 1990)), overruled on other grounds by Sandin, 515 U.S. at 24 483-84). However, where a pro se plaintiff fails to provide the Marshal with accurate and 25 sufficient information to effect service of the summons and complaint, the Court's sua sponte 26 dismissal of the unserved defendants is appropriate. Walker, 14 F.3d at 1421-22. 27 As an initial matter, the Court notes Plaintiff was advised in September 2023 that “John 1 individuals and amended his complaint to substitute the names for John Doe or Jane Doe. For 2 service to be successful, the Marshal must be able to identify and locate defendants.” (See Doc. 3 13 [First Screening Order].) Plaintiff was reminded of that obligation nearly one year later. (See 4 Doc. 16 at 7-8.) 5 The Court’s June 13, 2025, order again advised Plaintiff that the United States Marshal 6 cannot serve Doe defendants, that Plaintiff was required to identify Jane Doe and John Doe “with 7 enough information to locate these defendants for service of process,” and that he would be 8 provided an “’opportunity to discover the identities of John Doe and Jane Doe through limited 9 discovery.’” (See Doc. 22 at 2.) The Court also informed Plaintiff of other means for identifying 10 Doe defendants, as well as the requirements for obtaining a subpoena duces tecum to learn the 11 necessary identifying information. (Id.) The Court also advised Plaintiff that if he had learned the 12 identities of the Doe defendants since filing the first amended complaint and did not require a 13 subpoena, he should file a notice of substitution with the Court, “asking to substitute the 14 individual’s actual name for ‘John Doe’ and/or ‘Jane Doe.’” (Id. at 3.) Plaintiff was provided with 15 a 90-day deadline to file a notice of substitution identifying the named individuals in place of 16 these Doe defendants. (Id.) Finally, Plaintiff was warned that if he failed to file a notice to 17 substitute John Doe and/or Jane Doe by the deadline, the Court would recommend the dismissal 18 of John Doe and/or Jane Doe without prejudice. (Id. at 4.) 19 Plaintiff has failed to provide the Court with accurate and sufficient information to effect 20 service of the summons and first amended complaint on defendants Jane Doe and John Doe 21 within the period prescribed by Federal Rule of Civil Procedure 4(m). Accordingly, the Court will 22 recommend that Jane Doe and John Doe be dismissed from the action, without prejudice.1 23 III. CONCLUSION AND RECOMMENDATIONS 24 Based on the foregoing, the Court RECOMMENDS that: 25 1. Defendants Jane Doe and John Doe be DISMISSED without prejudice for Plaintiff’s 26 failure to effect service of process pursuant to Rule 4(m); and 27

1 The Court notes this action proceeds only against John Doe and Jane Doe. 1 2. The Clerk of the Court be directed to close this case. 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 4 after being served with a copy of these Findings and Recommendations, a party may file written 5 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 6 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 7 without leave of Court and good cause shown. The Court will not consider exhibits attached to 8 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 9 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 10 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 11 may be disregarded by the District Judge when reviewing these Findings and Recommendations 12 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 13 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 14 Cir. 2014). 15 IT IS SO ORDERED. 16

17 Dated: September 16, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18

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