Opinion
3:11-cv-00502-LRH-VPC
11-21-2013
RONALD WHITMIRE, Plaintiff, v. GARY GRAHAM, et al., Defendants.
ORDER
This is a pro se prisoner civil rights action, brought pursuant to 42 U.S.C. § 1983. Plaintiff has named two Doe defendants in his amended complaint (#21). The use of Doe Defendants is not favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9 Cir.1980). However, where the identity of alleged defendants cannot be known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify them. Id. Failure to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9Cir.1999).
Accordingly, plaintiff shall be allowed to conduct limited pre-service discovery in an effort to ascertain the true identity of the defendants. To that end, the Attorney General will be directed to enter a limited appearance in this action for the purpose of responding to the discovery discussed herein. Plaintiff will be permitted to serve three interrogatories on the Attorney General in order to discover the identities of the Doe #1 and #2 corrections officers at High Desert State Prison. If plaintiff learns the identities of the officers who allegedly violated his rights, he shall file a notice of substitution to substitute their names in place of the Doe defendants. If plaintiff is unable to learn the identity of at least one Doe defendant, this action will be dismissed without prejudice.
IT IS THEREFORE ORDERED as follows:
1. The Clerk shall electronically serve a copy of this order, along with a copy of the complaint, on the Office of the Attorney General of the State of Nevada, to the attention of Kat Howe.
2. The Attorney General SHALL ENTER AN APPEARANCE in this action within ten (10) days of the date of entry of this order for the limited purpose of responding to limited pre-service discovery by plaintiff as set forth in this order. No responsive pleading to the complaint shall be required until further order of the court.
4. Within thirty (30) days from the date of this order, plaintiff shall serve no more than three interrogatories on the Attorney General in order to discover the identities of the defendant corrections officers. The Attorney General shall respond to the interrogatories as provided in Fed. R. Civ. P. 33 and 37.
IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that he is served with the Attorney General's responses to interrogatories to file his notice of substitution, if any, to provide the names of the Doe defendants.
IT IS FURTHER ORDERED that plaintiff is expressly cautioned that if he does not timely file a notice of substitution in compliance with this order, this entire action will be dismissed without prejudice.
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UNITED STATES MAGISTRATE JUDGE