Martin v. Lona

Opinion

UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 ***

4 Plaintiff, vs. 2:18-cv-02426-RFB-VCF 5 OFFICER EFRAIN LONA, et al., 7 Defendants. MOTION TO COMPEL (ECF NO. 33) 8

9 Before the Court is plaintiff Weslie Martin’s motion to compel (ECF No. 33). The Court grants 10 the motion in part. (Id.) 11 I. Background 12 13 Pro se plaintiff Weslie Martin is incarcerated and he brings claims pursuant to 42. U.S.C. §1983: 14 pursuant to the screening order, Martin’s claims will proceed regarding: (1) Eighth Amendment sexual 15 assault claim against High Desert State Prison (HDSP) correctional Officer Dubree; (2) Eighth 16 Amendment excessive force claim against HDSP correctional Officer Warden; (3) Eighth Amendment 17 excessive force claim against HDSP correctional Officer Lona; (4) Eighth Amendment deliberate 18 indifference to a serious medical need claim against Dubree, Warden, and Lona. (ECF No. 18). The 19 Nevada Attorney General accepted service on behalf of Officer Efrain Lona only. (ECF No. 32). 20 Plaintiff now moves to compel the Nevada AG to accept service for Officers Dubree and 21 Warden. (ECF No. 33). Plaintiff argues that he may have misspelled the names of officers Dubree and 22 Warden, but he alleges that the Nevada AG knows the identities of Officers Dubree and Warden. (Id.) 23 The Nevada AG argues in its response that are no NDOC employees named “Dubree” or 24 “Warden” and thus it cannot ascertain their identities. (ECF No. 34 at 4). It also argues that Dubree and 25 1 Warden are not current state employees, and it cannot accept service on their behalf. (Id.) The Nevada 1 AG also argues that to the extent plaintiff’s motion is construed as a discovery motion, that plaintiff’s 2 motion should be denied because he failed to meet and confer. (Id.) 3 4 II. Analysis 5 “[I]t is plaintiff's burden to name the correct defendant to his action…” Walberg v. United 6 States Postal Serv., No. 2:14-CV-0988-TLN-CMK, 2016 WL 815651, at 2 (E.D. Cal. Mar. 2, 2016), 7 report and recommendation adopted, No. 2:14-CV-0988-TLN-CMK, 2016 WL 1267913 (E.D. Cal. 8 Mar. 31, 2016). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent 9 standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 10 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Discovery motions will not be considered 11 unless the movant (1) has made a goodfaith effort to meet and confer as defined in LR IA 1-3(f) before 12 filing the motion, and (2) includes a declaration setting forth the details and results of the meet-and 13 confer conference about each disputed discovery request.” LR 26-6(c). 14 Although plaintiff’s motion is captioned as a motion to compel, construing plaintiff’s complaint 15 liberally, it does not appear that plaintiff has sought to take discovery regarding the identities of 16 17 Officers Dubree and Warden. It instead appears that plaintiff is mindful of his obligation to serve 18 Officers Dubree and Warden and is attempting to do so by asking the Court for an Order to compel the 19 Nevada AG to accept service for Dubree and Warden. It is not clear based on the Nevada AG’s 20 ambiguous response whether (1) it is unable to accept service because, based on a common sense 21 reading of plaintiff’s complaint and a good faith search, it cannot identify any officers named Officer 22 Dubree or Warden (regardless of a slight misspelling) OR (2) if it cannot accept service because it has 23 determined the identity of either or both of defendants, and the identified defendant(s) is/are no longer 24 employed by the state. The Court thus orders the Nevada AG to clarify the record so that this case can 25 2 move forward. If the Nevada AG cannot identify Officers Dubree or Warden, the Nevada AG must file

5 notice on the record attesting to the fact that it cannot in good faith identify Officers Dubree or

3 Warden after a diligent search of its records. If, on the other hand, the Nevada AG cannot accept 4 || service for Officers Dubree or Warden because they are no longer state employees, the Court orders the 5 || Nevada AG to file a notice ex parte under seal that states (1) the full names of the defendant officers 6 || for whom it does not accept service and (2) their last-known-address information. Since the AG must 7 || file this private information ex parte under seal, the Nevada AG must not serve the plaintiff with the 8 || known addresses of those defendants for whom it has such information. If the last known address ° of the defendants is a post office box, the AG's Office must attempt to obtain and provide under seal the last known physical addresses. ACCORDINGLY, IT IS ORDERED that plaintiff Weslie Martin’s motion to compel (ECF No. 33) is GRANTED

4 IN PART as follows: the Nevada AG has until Wednesday, January 13, 2021 to either (1) file a notice

15 with the Court attesting that it cannot in good faith identify Officers Dubree or Warden after a diligent 16 || Search OR (2) file a notice ex parte under seal that states the defendant’s full names and last known 17 || physical addresses. 19 DATED this 30th day of December 2020. 20 f gg Sm CAMFERENBACH UNITED STATES MAGISTRATE JUDGE 22 23 24 25