(PC) Kirkland v. Smith

• Court: District Court, E.D. California
• Decided: October 1, 2024
• Docket: 1:23-cv-00602
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TREVON R. KIRKLAND, Case No.: 1:23-cv-00602-CDB 12 Plaintiff, ORDER GRANTING PLAINTIFF 90 DAYS WITHIN WHICH TO IDENTIFY 13 v. JOHN DOE

14 D. SMITH, et al.,

15 Defendants.

17 Plaintiff Trevon R. Kirkland is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 Plaintiff filed his complaint on April 13, 2023. (Doc. 1.) Following screening, in relevant 21 part, the Court found Plaintiff states a cognizable Fourteenth Amendment due process violation 22 against Defendant John Doe. (See Doc. 17.) 23 The Court now addresses the issue of Plaintiff’s need to identify John Doe against whom 24 the Fourteenth Amendment claim proceeds. 25 II. DISCUSSION 26 Defendant “John Doe #1” is employed at Kern Valley State Prison and is presently 27 unknown to Plaintiff. Plaintiff alleges John Doe refused to allow him to present evidence at a 1 Fourteenth Amendment. 2 Plaintiff is advised that the United States Marshal cannot serve Doe defendants. Plaintiff 3 will be required to identify John Doe with enough information to locate the defendant for service 4 of process. Plaintiff will be given the “opportunity through discovery to identify the unknown 5 (Doe) defendants.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quotation and 6 citation omitted). 7 As previously noted, this action proceeds, in part, on Plaintiff’s Fourteenth Amendment 8 due process claim against Defendant Doe. Although Plaintiff has stated a plausible claim against 9 John Doe, the Court will not require service at this time. The Ninth Circuit has held that where 10 identity is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity 11 through discovery to identify the unknown defendants unless it is clear that discovery would not 12 uncover the identities, or that the complaint would be dismissed on other grounds. Wakefield v. 13 Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 14 (9th Cir. 1980)). Here, it is unclear whether discovery would uncover the identity of John Doe, 15 nor it is clear that Plaintiff’s complaint would be dismissed on other grounds. Thus, Plaintiff 16 should be afforded an opportunity to discover the identity of John Doe through limited discovery. 17 Rule 45 of the Federal Rules of Civil Procedure concerns subpoenas. Plaintiff is advised 18 the Court’s authorization of a subpoena duces tecum requested by an in forma pauperis plaintiff 19 is subject to limitations. Because personal service of a subpoena duces tecum is required (Fed. R. 20 Civ. P. 45(b)), “[d]irecting the Marshal’s Office to expend its resources personally serving a 21 subpoena is not taken lightly by the court.” Austin v. Winett, No. 1:04-cv-05104-DLB PC, 2008 22 WL 5213414, at *1 (E.D. Cal. Dec. 12, 2008); 28 U.S.C § 1915(d). Limitations include the 23 relevance of the information sought, as well as the burden and expense to the non-party in 24 providing the requested information. Fed. R. Civ. P. 26, 45. 25 A motion for issuance of a subpoena duces tecum should be supported by clear 26 identification of the documents sought and a showing that the records are obtainable only through 27 the identified third party. See, e.g., Davis v. Ramen, No. 1:06-cv-01216-AWI-SKO (PC), 2010 1 | (PC), 2010 WL 148703, at *1 (E.D. Cal. Jan. 14, 2010). The “Federal Rules of Civil Procedure 2 | were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in 3 | order to comply with a subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 4 | 1991). Non-parties are “entitled to have the benefit of the Court’s vigilance” in considering these 5 | factors. Id. 6 Finally, the Court notes that if Plaintiff has learned the name of John Doe since filing his 7 | complaint, and/or does not require a subpoena to obtain the individual’s identity, Plaintiff shall 8 | file a notice of substitution with the Court, asking to substitute that individual’s actual name for 9 | “John Doe #1.” 10 I. CONCLUSION AND ORDER ll Accordingly, the Court GRANTS Plaintiff ninety (90) days in which to discover the 12 | name of John Doe, through subpoena or otherwise, and to substitute this defendant’s actual name 13 | by filing a “notice of substitution.” See Wakefield, 177 F.3d at 1163. If, within 90 days, Plaintiff 14 | fails to file a notice of substitution that provides the actual name John Doe, the Court will 15 | recommend dismissal, without prejudice, of John Doe #1. 16 | IT IS □□ ORDERED. 7 Dated: _ October 1, 2024 | Ww Vv KD 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28