Filed: Oct. 09, 2018
Latest Update: Oct. 09, 2018
Summary: ORDER DISCHARGING ORDER TO SHOW CAUSE WHY DOE DEFENDANTS SHOULD NOT BE DISMISSED (ECF No. 25) ORDER REQUIRING PLAINTIFF TO SUBSTITUTE DOE DEFENDANT OR FILE STATUS REPORT WITHIN FORTY-FIVE (45) DAYS BARBARA A. McAULIFFE , Magistrate Judge . Plaintiff Rodney C. Buckley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. On June 1, 2018, the Court found service of the first amended complaint appropriate for claims of: (1) excessive force
Summary: ORDER DISCHARGING ORDER TO SHOW CAUSE WHY DOE DEFENDANTS SHOULD NOT BE DISMISSED (ECF No. 25) ORDER REQUIRING PLAINTIFF TO SUBSTITUTE DOE DEFENDANT OR FILE STATUS REPORT WITHIN FORTY-FIVE (45) DAYS BARBARA A. McAULIFFE , Magistrate Judge . Plaintiff Rodney C. Buckley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. On June 1, 2018, the Court found service of the first amended complaint appropriate for claims of: (1) excessive force i..
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ORDER DISCHARGING ORDER TO SHOW CAUSE WHY DOE DEFENDANTS SHOULD NOT BE DISMISSED (ECF No. 25) ORDER REQUIRING PLAINTIFF TO SUBSTITUTE DOE DEFENDANT OR FILE STATUS REPORT WITHIN FORTY-FIVE (45) DAYS
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Rodney C. Buckley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action.
On June 1, 2018, the Court found service of the first amended complaint appropriate for claims of: (1) excessive force in violation of the Eighth Amendment against Defendants B. Johnson and R. Zamora for the incident on or about January 22, 2013; (2) failure to protect in violation of the Eighth Amendment against Defendants Gutierrez, A. Rocha, and John Doe, who saw the assault and refused to intervene in the incident on or about January 22, 2013; and (3) a claim for retaliation in violation of the First Amendment against Defendant J. Gonzales, for placing Plaintiff in Ad-seg on or about January 23, 2013. The Court also directed Plaintiff to provide the Court with written notice identifying Defendant John Doe with enough information to locate the defendant for service of process. (ECF No. 18.) When Plaintiff failed to provide such written notice, the Court issued an order requiring Plaintiff to show cause why Defendant John Doe should not be dismissed for failure to prosecute. (ECF No. 25.)
Currently before the Court is Plaintiff's response to the order to show cause. (ECF No. 27.) Plaintiff states that he is unable to identify Defendant John Doe due to lack of discovery. Plaintiff states that the incident occurred only four and a half days after he had been housed at that institution. Plaintiff requests that the Court not dismiss the claim against Defendant John Doe until he receives additional discovery from other staff assigned to the facility at the time of the incident.
The Court notes that it is Plaintiff's burden to discover the identity of Defendant John Doe, and to amend his complaint to substitute a name for the unnamed officer. As the remaining defendants have already appeared in this action and discovery has not yet begun, the Court finds it appropriate to extend the deadline for Plaintiff to identify Defendant John Doe.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Order to Show Cause issued on September 11, 2018, (ECF No. 25), is DISCHARGED;
2. Within forty-five (45) days from the date of service of this order, Plaintiff SHALL either:
a. File a file a motion to substitute the identity of Defendant John Doe, or
b. File a status report explaining the actions he took to locate the name of Defendant John Doe;
3. Any extension of the deadline set in this order must be sought from the Court before the deadline expires, and must be supported by a showing of good cause;
4. If Plaintiff fails to comply with this order, the Court will dismiss Defendant John Doe for Plaintiff's failure to obey a court order and failure to prosecute.
IT IS SO ORDERED.
