Opinion
CV 22-00114-JAK (AS)
09-20-2022
JONATHAN WAYNE JAMES, Plaintiff, v. HOWARD BARRON, UNKNOWN MEDICAL STAFF NAME, AND UNKNOWN PSYCHOLOGY STAFF NAME, Defendants.
Johnathan Wayne James PLAINTIFF, PROCEEDING PRO SE
Johnathan Wayne James PLAINTIFF, PROCEEDING PRO SE
MEMORANDUM AND ORDER AUTHORIZING DISCOVERY OF “DOE” DEFENDANTS
ALKA SAGAR, United States Magistrate Judge
On January 13, 2022, Plaintiff Jonathan Wayne James filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) . (Dkt. No. 1). On February 24, 2022, the Court dismissed the Complaint with leave to amend because the Complaint sought monetary relief against Howard Barron, the Warden at the Federal Correctional Institution (“FCI”), at Victorville solely in his official capacity and failed to allege sufficient facts to support any claim against Defendant Barron and failed to comply with Rule 8 off the Federal Rules of Civil Procedure. (Dkt. No. 8).
On August 10, 2022, Plaintiff filed a First Amended Complaint. (Dkt. NO. 2 0 (“FAC”)) . The First Amended Complaint named the following Defendants: (1) Howard Barron, Warden; (2) Unknown Staff name (medical staff); and (3) Unknown Staff name (Psychology staff). (FAC at 3). According to the FAC, the unknown staff members are medical and psychology staff members at FCI Victorville. All defendants are sued in their individual capacities. (See id.).
On August 29, 2022, the Court issued an Order re Civil Rights Case (Dkt. No. 22), and an Order re Service of Process (Dkt. No. 23), directing Plaintiff to complete USM-285 forms (“Process Receipt and Return”) in order to accomplish service of process by the United States Marshal. Plaintiff was ordered to complete the USM-285 forms by providing a first and last name for each Defendant, the Defendant's identification number, if available, and a complete street address where each Defendant could be served together with any special instructions or other information that may assist in expediting service, such as whether the Defendant works in a specific part of the building or whether the Defendant works an evening shift. Id. at 2. On September 19, 2022, Plaintiff filed a “Notice of Submission of Documents to Court Clerk for Forwarding to United States Marshall” indicating that he had sent “3” completed USM-285 forms to the Clerk for forwarding to the United States Marshall to effect service of process of the First Amended Complaint. (Dkt. No. 30). However, Plaintiff failed to provide the first and last names of the “unknown medical staff member” and “unknown psychology staff member” Defendants he has named or any information to assist in effectuating service to these defendants.
The Court assumes that Plaintiff does not know the names of the Defendants listed as unnamed medical staff member and unnamed psychology staff member in the FAC and will therefore permit Plaintiff to conduct discovery to obtain this information. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (“[W]here the identity of the alleged defendant is not known 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.”) (alterations omitted) (internal quotation marks omitted). Accordingly, the Court authorizes Plaintiff to submit interrogatories to FCI-Victorville,to determine the names of the Defendants. Plaintiff's discovery shall be served pursuant to Federal Rule of Civil Procedure 31, a copy of which is attached to this Order. Plaintiff must limit the scope of any discovery request to the identification of the full names o “unnamed medical staff member” and “unnamed psychology staff member referenced in the FAC. Plaintiff must re-submit the USM-285 forms listing the first and last names of the Defendants and the street address where they may be served and file a notice of submission with the Court. Copies of USM-285 forms and a form Notice of Submission are attached to this Order.
The FAC alleges that, while Plaintiff was incarcerated at FCI Victorville, the acting warden, prison medical staff, and prison psychology staff violated his constitutional right to adequate medical care. See FAC at 5-7.
Plaintiff is granted forty-five (45) days from the date of this Memorandum and Order within which to conduct discovery to learn the names of the unnamed Defendants and to submit USM-285 forms and file a Notice of Submission with the Court, as described above. This means that Plaintiff must initiate discovery immediately, without further delay. Plaintiff is explicitly cautioned that failure to timely comply with this Order will result in recommendation that this action be dismissed against the unnamed defendants for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff is further advised that, if he does not wish to pursue this action, or to pursue this action against certain defendants, he may voluntarily dismiss this action or dismiss certain defendants by filing a notice of dismissal in accordance with Federal Rule of Civil Procedure 41(a) (1) . A sample notice is attached to this order as well.
IT IS SO ORDERED.
United States Code Annotated
Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos)
Title V. Disclosures and Discovery (Refs & Annos)
Federal Rules of Civil Procedure Rule 31
Rule 31. Depositions by Written Questions
Currentness
(a) When a Deposition May Be Taken.
(1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take a deposition before the time specified in Rule 26(d); or
(B) if the deponent is confined in prison.
(3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken.
(4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6).
(5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times.
(b) Delivery to the Officer; Officer's Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to:
(1) take the deponent's testimony in response to the questions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the questions and of the notice.
(c) Notice of Completion or Filing.
(1) Completion. The party who noticed the deposition must notify all other parties when it is completed.
(2) Filing. A party who files the deposition must promptly notify all other parties of the filing.
CREDIT(S)
(Amended March 30, 1970, effective July 1, 1970; March 2, 1987, effective August 1, 1987; April 22, 1993, effective December 1, 1993; April 30, 2007, effective December 1, 2007; April 29, 2015, effective December 1, 2015.)
ADVISORY COMMITTEE
1937 Adoption
This rule is in accordance with common practice. In most of the states listed in the Note to Rule 26(a), provisions similar to this rule will be found in the statutes which in their respective statutory compilations follow those cited in the Note to Rule 26(a).
1970 Amendment
Confusion is created by the use of the same terminology to describe both the taking of a deposition upon “written interrogatories” pursuant to this rule and the serving of “written interrogatories” upon parties pursuant to Rule 33. The distinction between these two modes of discovery will be more readily and clearly grasped through substitution of the word “questions” for “interrogatories” throughout this rule.
Subdivision (a). A new paragraph is inserted at the beginning of this subdivision to conform to the rearrangement of provisions in Rules 26(a), 30(a), and 30(b).
The revised subdivision permits designation of the deponent by general description or by class or group. This conforms to the practice for depositions on oral examination.
The new procedure provided in Rule 30(b)(6) for taking the deposition of a corporation or other organization through persons designated by the organization is incorporated by reference.
The service of all questions, including cross, redirect, and recross, is to be made on all parties. This will inform the parties and enable them to participate fully in the procedure.
The time allowed for service of cross, redirect, and recross questions has been extended. Experience with the existing time limits shows them to be unrealistically short. No special restriction is placed on the time for serving the notice of taking the deposition and the first set of questions. Since no party is required to serve cross questions less than 30 days after the notice and questions are served, the defendant has sufficient time to obtain counsel. The court may for cause shown enlarge or shorten the time.
Subdivision (d). Since new Rule 26(c) provides for protective orders with respect to all discovery, and expressly provides that the court may order that one discovery device be used in place of another, subdivision (d) is eliminated as unnecessary.
1987 Amendment
The amendments are technical. No substantive change is intended.
1993 Amendments
Subdivision (a). The first paragraph of subdivision (a) is divided into two subparagraphs, with provisions comparable to those made in the revision of Rule 30. Changes are made in the former third paragraph, numbered in the revision as paragraph (4), to reduce the total time for developing cross-examination, redirect, and recross questions from 50 days to 28 days.
2007 Amendment
The language of Rule 31 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The party who noticed a deposition on written questions must notify all other parties when the deposition is completed, so that they may make use of the deposition. A deposition is completed when it is recorded and the deponent has either waived or exercised the right of review under Rule 30(e)(1).
2015 Amendment
Rule 31 is amended in parallel with Rules 30 and 33 to reflect the recognition of proportionality in Rule 26(b)(1).
Notes of Decisions (40)
Fed. Rules Civ. Proc. Rule 31, 28 U.S.C.A., FRCP Rule 31
Including Amendments Received Through 6-1-16
NOTICE OF SUBMISSION OF DOCUMENTS TO COURT CLERK FOR FORWARDING TO UNITED STATES MARSHAL
Plaintiff hereby states under penalty of perjury that he has complied with the Court's Order re Service of Process, issued on August 29, 2022
On___, Plaintiff sent [insert number of copies] ___completed USM-285 forms to the Clerk to Magistrate Judge Sagar for forwarding to the United States Marshal to effect service of process of the First Amended Civil Rights Complaint, filed on August 10, 2022.
Plaintiff further states under penalty of perjury that he has not requested service by the United States Marshal upon any person except those listed in the Court's Order Directing Service of Process by the United States Marshal.