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Frank Orr v. Adriana Hernandez


March 28, 2011


The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge


Plaintiff's Second Amended Complaint asserts an excessive force claim based upon an incident occurring July 14, 2006 against Defendant Madina and two unidentified Doe Defendants. The litigation of this claim has not progressed because of difficulties identifying and locating these Defendants.

1. Doe Defendants and Plaintiff's Motion to Compel (ECF No. 60)

Though the court warned Plaintiff that he is ultimately responsible for identifying the Doe Defendants, the court ordered defense counsel to assist by obtaining information from the institution or Plaintiff's records as to the identity of the two second watch officers. Defense counsel informed the court by affidavit that he had asked the Litigation Coordinator at Mule Creek State Prison to provide him with the full names of the two second-watch correctional officers. However, the prison responded that after reviewing "all of the prison records for July 14, 2006" it was "impossible to determine, without more information from Plaintiff, which officers escorted Plaintiff to administrative segregation on July 14, 2006." ECF No. 46.

Plaintiff now moves the court (ECF No. 60) to compel the Defendants to produce additional discovery to assist the Plaintiff in identifying the John Doe second watch officers. Plaintiff specifically requests the court to order the defense to produce a color photo of all white and hispanic search and escort correctional officers who reported to work on July 14, 2006. The defense opposes the motion contending it has done all it could to identify the Doe Defendants and that providing the Plaintiff with the requested photographs would create a safety and security risk for the institution.

The court will not order the disclosure of the requested photographs to the Plaintiff. because of the obvious security risk it poses. If Defendant Madina can be served (see below) and enters an appearance in the case, the court will order Defendant Madina to disclose any information known to him regarding the identity of the second watch officers involved in escorting Plaintiff to segregation on July 14, 2006. If the Doe Defendants are not capable of being identified through allowable discovery, then the claims against the Doe Defendants must be dismissed.

2. Defendant Madina

On October 5, 2010, the U.S. Marshals Service returned an unexecuted summons for Defendant Madina. In the notes section it indicates "9/20/10 per Mule Creek not employed" and "9/30/10 per CDC Locator none in database." There is no evidence of any further attempt by defense counsel or the Marshals to locate and serve Defendant Madina. Defense counsel and the United State Marshal are directed to determine if, in fact, a person with the spelling of Madina or a similar name, was employed as a correctional officer at Mule State Prison on or about July 14, 2006. Counsel for the Defendants shall promptly file a report concerning the search and results.


1. Defense counsel and the U.S. Marshals are ordered to discover the full name and last known address for Defendant Madina. Within ten days of this Order, Defense counsel shall file the correct name and last known employment address, and if not available, the last known residence address of Defendant Madina under seal and verify that the Marshals have the information and a copy of this Order. The U.S. Marshals shall then promptly complete service on that Defendant at the address provided.

2. Plaintiff's Motion to Compel (ECF No. 60) is DENIED except to the extent stated herein.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide a copy to Plaintiff, counsel for the Defendants, and the U.S. Marshals Service.

Justin L. Quackenbush


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