Opinion
22-cv-01738 BLF (PR)
08-30-2023
RICHARD REVELEZ, Plaintiff, v. KATHLEEN ALLISON, et al., Defendants.
ORDER DIRECTING PLAINTIFF TO FILE NOTICE IN RESPONSE TO CDCR NOTICE REGARDING UNIDENTIFIED DEFENDANTS (DOCKET NO. 24)
BETH LABSON FREEMAN United States District Judge
Plaintiff, a state inmate, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against defendants at San Quentin State Prison (“SQSP”) where the underlying incident occurred. Dkt. Nos. 1, 12. The Court found the pleadings stated a cognizable failure-to-protect claim against Defendants Tomaso and Whitney, and ordered service. Dkt. No. 15. The CDCR filed a first notice of Report of E-Service Waiver on April 7, 2023, indicating that neither of these Defendants could be identified. Dkt. No. 16. The Court ordered service again, with additional information to aid in the identification of Defendants. Dkt. No. 17. The CDCR's subsequent responses indicated that a search for these two Defendants was conducted with no success: “unable to find any employee with those last names.” Dkt. Nos. 19, 20.
On July 19, 2023, the Court directed Plaintiff to provide more information for these unserved Defendants. Dkt. No. 21. In the same order, the Litigation Coordinator at SQSP was requested to assist in identifying the Defendants based on information contained in the pleadings. Id. On August 22, 2023, the CDCR filed another response stating as follows: “I reviewed SQ incident log SQP-003-18-03-0105, and was unable to locate Sergeants by the name of D'Tamaso or Whitney. The only Sergeant listed on this incident is A. Cuevas.” Dkt. No. 24. On the same day, the Court granted Plaintiff an extension of time to provide more information for the unserved Defendants. Dkt. No. 25.
In light of the information provided by the CDCR, Plaintiff must file a notice regarding how he wishes to proceed in this matter. He may either continue to attempt to locate Defendants D'Tamaso and Whitney and provide the information by October 18, 2023, or file another amended complaint to remove Defendants D'Tamaso and Whitney from this action and replace Sgt. A. Cuevas as the appropriate Defendant in this matter.
If Plaintiff chooses the first course of action, he must file notice that he wishes to proceed against the originally named Defendants D'Tamaso and Whitney no later than twenty-eight (28) days from the date this order is filed. Then he will have until October 18, 2023, to file the necessary information for these Defendants. If by that deadline Plaintiff fails to provide the Court with the information sufficient for the Marshal to serve the complaint, his claims against Defendants D'Tamaso and Whitney shall be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure without further notice to Plaintiff.
In the alternative, if Plaintiff wishes to file a second amended complaint to name Sgt. A. Cuevas as the proper Defendant, he shall file a notice and a second amended complaint that supersedes the original and supplemental no later than twenty-eight (28) days from the date this order is filed. The second amended complaint must include the caption and civil case number used in this order, Case No. 22-01738 BLF (PR), and the words “SECOND AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the questions on the form in order for the action to proceed. The second amended complaint supersedes the original and amended complaints, these being treated thereafter as non-existent. Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, claims not included in the second amended complaint are no longer claims and defendants not named in the second amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).
IT IS SO ORDERED.