(PC)Arteaga v. Garcia

Opinion

6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JOSE O. ARTEAGA, Case No. 1:22-cv-01292-KES-EPG (PC) 10 Plaintiff, 11 ORDER AUTHORIZING ISSUANCE OF v. SUBPOENA DUCES TECUM AND SETTING 12 DEADLINES J. GARCIA, et al., 13 AND Defendants. 14 ORDER DIRECTING CLERK TO SEND PLAINTIFF A COPY OF FORM 15 AO 88B AND FORM USM-285 16 Plaintiff Jose O. Arteaga is a state prisoner proceeding pro se and in forma pauperis in this 17 civil rights action filed pursuant to 42 U.S.C. § 1983. 18 The Court has screened Plaintiff’s complaint and found that the case may proceed on the 19 following cognizable claims: 1) Eighth Amendment claims against defendants J. Garcia and 20 A. Fugate for excessive force and 2) Eighth Amendment failure to protect claim against 21 Defendant John Doe #1. (ECF Nos. 14, 21). On January 23, 2025, the Court issued a service 22 order, ordering service on the three defendants through CDCR’s e-service pilot program. (ECF 23 No. 22). Subsequently, defendants Garcia and Fugate filed notice of intent to waive service. (ECF 24 No. 25). However, CDCR was unable to identify defendant John Doe #1 and filed notice of intent 25 not to waive service for that defendant. (ECF Nos. 25, 26). Similarly, U.S. Marshals was unable 26 to serve this defendant. (ECF No. 27). 27 To proceed against Defendant John Doe #1, Plaintiff must identify and serve this Defendant. Service can only be completed if the Court or the United States Marshal can identify 28 1 and locate the Defendant. Plaintiff will have an opportunity to seek information to learn John Doe 2 #1’s identity. However, it remains Plaintiff’s responsibility to identify and serve John Doe #1 and 3 to file a motion to substitute or amend the complaint accordingly. 4 Although Federal Rule of Civil Procedure 26(d)(1) generally provides that “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” a 5 party may do so “when authorized . . . by court order.” Here, the Court finds good cause to permit 6 Plaintiff to issue a subpoena duces tecum for the limited purpose of discovery identity of 7 Defendants John Doe #1 for the claims that proceed in this case. See Malibu Media, LLC v. Doe, 8 319 F.R.D. 299, 305 (E.D. Cal. 2016) (noting that a court may permit, for good cause, early 9 discovery to learn the identities of Doe defendants). 10 Accordingly, the Court will authorize the issuance of a subpoena duces tecum to seek 11 documents from the California Department of Corrections and Rehabilitation. The Clerk of Court 12 is directed to send Plaintiff one copy of form AO 88B and one copy of form USM-285, to be 13 completed by Plaintiff. When completing these subpoena forms, Plaintiff should only request 14 documents that may assist him in identifying John Doe #1. 15 On the AO 88B form, in the section that beings with “To: (Name of person to whom this 16 subpoena is directed),” Plaintiff should identify the person or entity he is seeking the documents 17 from. Since Plaintiff is seeking information about an employee at Corcoran State Prison, their 18 employer, Corcoran State Prison, appears to be the logical recipient of the subpoena. 19 In the blank space between the lines starting with “production” and “place,” Plaintiff should 20 identify the documents he is seeking that would assist him in identifying and serving the 21 unidentified defendant, such as any documents related to identity of people matching the 22 descriptions of the defendant, or photos, names, and addresses of the officers on duty the day of 23 the alleged incident. The “place” and date and “time of the production” boxes refer to the date on which the 24 documents should be produced to the Plaintiff and the address of where the documents should be 25 sent, such as the place of his incarceration or his residence. 26 Plaintiff should not fill out Proof of Service section of the AO 88B form, it will be 27 completed by the U.S. Marshalls after they serve the subpoena. Similarly, Plaintiff should not fill 28 1 | out the section of the USM-285 form that is marked “Space Below for Use of U.S. Marshal Only 2 | — Do Not Write Below this Line.” 3 The “Serve At” Section on the USM-285 form should match “To:” section on the AO 88B 4 | form, providing the name and address of the person or entity to whom subpoena is directed, such 5 | as Corcoran State Prison. 6 Once Plaintiff has completed and returned forms AO 88B and USM-285, the Court will 7 review the documents and, if they are correctly completed, the Court will direct the United States 8 Marshals Service to serve the subpoena.! The Court notes that it may limit Plaintiffs request for

9 production of documents. Plaintiff has 120 days from the date of service of this order to file a motion to substitute a named defendant in place of John Doe #1. Failure to file a motion to substitute by this deadline may result in the dismissal of the unidentified defendants. 2 Accordingly, IT IS ORDERED that: 13 1. The Clerk of Court is directed to send Plaintiff one copy of form AO 88B and one copy of form USM-285; 15 2. Plaintiff has thirty days from the date of service of this order to complete and return 16 forms AO 88B and USM-285; and 17 3. Plaintiff has 120 days from the date of service of this order to file a motion to 18 substitute a named defendant in place of John Doe #1. Failure to file a motion to 19 substitute by this deadline may result in the dismissal of John Doe #1. 20 > IT IS SO ORDERED.

22 | Dated: _ February 18, 2025 [see ey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 ‘Tf after being served with the subpoena, the California Department of Corrections and Rehabilitation fails 27 | to respond or objects to providing documents, Plaintiff may file a motion to compel. The motion must be 8 filed with the Court and served on the responding person or entity.