Opinion
1:22-cv-00028-JLT-BAM (PC)
09-04-2022
DEJWANN SIMMS, Plaintiff, v. EDWARDS, Defendant.
ORDER CONSTRUING PLAINTIFF'S MOTION TO SUBSTITUTE THE IDENTITY OF DEFENDANT CORRECTION OFFICER #1 AS OBJECTIONS TO FINDINGS AND RECOMMENDATIONS (Doc. 27)
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT CORRECTION OFFICER #1 FROM ACTION WITHOUT PREJUDICE (Doc. 26)
This action proceeds against Defendant Edwards and Correction Officer #1 for deliberate indifference to medical needs and for failure to protect, in violation of the Eighth Amendment, related to the events surrounding Plaintiff's transport back to North Kern State Prison on October 16, 2020.
On March 9, 2022, the assigned Magistrate Judge directed Plaintiff to file a motion to substitute the identity of Defendant Correction Officer #1 that provided the Court with enough information to locate them for service of process. (Doc. 11.) Following an extension of time, the Court warned Plaintiff that if he failed to comply with the Court's order, the Court would dismiss the unidentified defendant from this action, without prejudice, for failure to serve with process pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 23.) Following Plaintiff's failure to file a motion to substitute the identity of Defendant Correction Officer #1, on July 27, 2022, the Magistrate Judge issued findings and recommendations to dismiss Correction Officer #1 from this action, without prejudice. (Doc. 26.) The Court served the findings and recommendations on Plaintiff and notified him that any objections had to be filed within 14 days. (Id. at 3.)
On August 22, 2022, Plaintiff filed a motion to substitute the identity of Defendant Correction Officer #1. (Doc. 27.) In the filing, Plaintiff explains that he has submitted inmate request forms to the watch office, the R&R assignment officer, R&R sergeant, and the R&R Lt., but is waiting on responses to his requests. As of the date of his filing, Plaintiff states he has been unable to get responses from anyone, and he believes that the only way he will be able to obtain information about the identity of Defendant Correction Officer #1 is through the discovery process. (Id.)
As Plaintiff's filing does not contain any specific information that can be substituted for the identity of Defendant Correction Officer #1, the Court construes the filing as Plaintiff's objections to the pending findings and recommendations. Upon review of the objections, the Court finds no basis warranting rejection of the Magistrate Judge's findings and recommendations. As discussed in the findings and recommendations, Plaintiff was permitted multiple opportunities to provide sufficient information to identify Defendant Correction Officer #1, during which time Plaintiff could have submitted discovery requests to Defendant Edwards or pursued other information requests to individuals who are not parties to this action. (See Doc. 26, p. 2.) Though Plaintiff states that he has submitted information requests to various individuals and offices to learn the identity of Defendant Correction Officer #1, Plaintiff does not state when these requests were submitted, what specific information or documents he hopes to obtain from those sources, or how the specific information requested will assist Plaintiff in identifying Defendant Correction Officer #1 for service of process.
According to 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court concludes that the Magistrate Judge's findings and recommendations are supported by the record and by proper analysis. Thus,
1. Plaintiff's motion to substitute the identity of Defendant Correction Officer #1, (Doc. 27), is construed as Plaintiff's objections to the July 27, 2022 findings and recommendations.
2. The findings and recommendations issued on July 27, 2022, (Doc. 26), are ADOPTED IN FULL.
3. Defendant Correction Officer #1 is DISMISSED from this action, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m).
4. This action shall proceed against Defendant Edwards for deliberate indifference to medical needs and for failure to protect, in violation of the Eighth Amendment, for the events surrounding the transport back to North Kern State Prison on October 16, 2020.
5. This matter is referred to the Magistrate Judge for further proceedings consistent with this order.
IT IS SO ORDERED.