(PC) Kirkland v. Smith

Opinion

TREVON R. KIRKLAND, Case No.: 1:23-cv-00602-CDB Plaintiff, ORDER GRANTING PLAINTIFF v. JOHN DOE

D. SMITH, et al.,

Defendants.

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