Opinion
1:19-cv-00901-NONE-JLT (PC)
12-15-2021
RICHARD SCOTT KINDRED, Plaintiff, v. WUILMER CABRERA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS CONSTRUING THE PLAINTIFF'S OBJECTIONS TO THE FINDINGS AND RECOMMENDATIONS AS A MOTION FOR RECONSIDERATION AND TO GRANT THE MOTION
(DOC. 24)
14-DAY DEADLINE
JENNIFER L. THURSTON, CHIEF UNITED STATES MAGISTRATE JUDGE
On February 20, 2020, the Court entered a screening order finding that Plaintiff's complaint states cognizable claims of excessive force against Defendants Cabrera and Media and a failure to protect claim against John Doe. (Doc. 7.) The Court granted Plaintiff an opportunity to file an amended complaint, a notice of voluntary dismissal, or a notice of election to stand on his complaint. (Id.) The Court advised Plaintiff that John Doe must be named or otherwise identified for the United States Marshal to effect service. (Id.) Plaintiff filed a first amended complaint. (Doc. 13.)
On May 15, 2021, the Court issued findings and recommendations determining that the amended complaint is substantially similar to the original complaint, with minor factual additions, asserting the same claims against the same defendants. (Doc. 15.) Therefore, the Court construed the first amended complaint as a notice of Plaintiff's intent to stand on his original complaint. (Id.) Because Plaintiff did not identify “John Doe” sufficiently to effect service of process, the Court recommended the dismissal of claims against John Doe. (Id.)
During the pendency of the findings and recommendations, on July 12, 2021, Plaintiff filed a motion for a subpoena to discovery the name of John Doe. (Doc. 18.) The Court granted the motion, (Doc. 19), and on August 20, 2021, Plaintiff filed a reply to the defendants' objection to the service of the subpoena. (Doc. 21) In this pleading, Plaintiff indicates that the identity of John Doe is Lawrence Congress. (Doc. 21.) Plaintiff failed to object to the findings and recommendations and on December 1, 2021, the Court adopted them, ordered the dismissal of Defendant John Doe from the action, and ordered the case to proceed on Plaintiff's excessive force claims against Defendants Cabrera and Media. (Doc. 24.)
On December 13, 2021, Plaintiff filed a reply to the district judge's order adopting the findings and recommendations, noting the assertion he made in response to the objections to the subpoena and reiterating that the Attorney General's Office identified John Doe as Lawrence Congress.
Because the Plaintiff provided Lawrence Congress's identity after the Court issued the findings and recommendations but before the order adopting the findings and recommendations- albeit in an opaque fashion--the Court finds that Plaintiff's failure to protect claim against Congress should be allowed to proceed. Accordingly, the Court RECOMMENDS:
1. Plaintiff's objections to the findings and recommendations be construed as a motion for reconsideration (Doc. 24) and that it should be GRANTED.
2. The First Amended Complaint be AMENDED by interlineation to substitute Laurence Congress for John Doe.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.