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Corry v. Alameda County Sheriff's Office

United States District Court, Ninth Circuit

May 30, 2013

JOHN J. CORRY, Plaintiff,
v.
ALAMEDA COUNTY SHERIFF'S OFFICE, et al., Defendants.

ORDER OF SERVICE AND PARTIAL DISMISSAL

EDWARD M. CHEN, District Judge.

A. Pleading And Defendant Issues

John J. Corry, an inmate at the California State Prison in Corcoran, filed this pro se civil rights action under 42 U.S.C. § 1983 complaining that he was subjected to excessive force on July 1, 2011 while incarcerated at the Santa Rita County Jail. The Court reviewed the complaint and determined that it stated a claim for an Eighth Amendment violation based on the allegations of the use of excessive force. See Docket # 6, p. 2. The Court gave Corry leave to amend so that he could attempt to identify any of the allegedly misbehaving deputies, who he had only identified as John Doe defendants in his complaint. See id. The Court also determined that the complaint did not state a claim against either of the two defendants for which Mr. Corry did provide names, i.e., the Alameda County Sheriff's Office and the Santa Rita County Jail. Id. at 3.

Corry did not file an amended complaint, and the deadline by which to do so has long passed. Therefore, the Alameda County Sheriff's Office and the Santa Rita County Jail are dismissed from this action because the complaint does not state a claim against either defendant.

Corry did send to the Court a letter in which he stated that one of the deputies that punched him had the last name of "Gorden, " although Mr. Corry did not know his first name. See Docket # 7, p. 2. The Court will have the U.S. Marshal attempt to serve process on the defendant with the information provided by Corry, although there may not be enough information to identify this particular defendant. If the Marshal is unable to serve the defendant with the information provided, the action will be dismissed, as the Court indicated would occur in footnote 1 of the Order of Dismissal With Leave To Amend.

Mr. Corry has filed a "motion requesting the Alameda County Sheriff produce the following information, " in which he asks the Court to order the Sheriff to provide information about the individual deputies he wants to sue. The motion is DENIED. (Docket # 8.) The Alameda County Sheriff is not a party in this action and has not appeared in this action. The Alameda County Sheriff's Department (which never was ordered to be served with process) is being dismissed from this action today. The Court does not issue orders to non-parties directing them to do things for litigants. It is Mr. Corry's responsibility to provide to the Court the true identities of the Doe defendants, and not the Court's responsibility to conduct investigations or do discovery on his behalf.

Mr. Corry is free to attempt to obtain his information by using a subpoena duces tecum, also sometimes known as a records subpoena. Federal Rule of Civil Procedure 45 sets out the rules for issuing, serving, protesting and responding to a subpoena duces tecum. Rule 45(c)(2)(A) allows a subpoenaing party to command production of documents and other things, without requiring the subpoenaed person or entity to personally appear at the place of production. The Clerk will send to Mr. Corry two blank subpoena forms for him to fill out completely and return to the Court to be issued by the Clerk so that he may serve them.

B. Request for Appointment of Counsel

Mr. Corry has requested that the court appoint counsel to represent him in this action. A district court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See id. Neither of these factors is dispositive and both must be viewed together before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances requiring the appointment of counsel are not evident at this time. The request for appointment of counsel is DENIED. (Docket # 7.)

C. Service Of Process And Scheduling

In order to move this action toward resolution, the Court will order service of process on the one defendant for whom a name has been provided:

1. The complaint, as amended by Docket # 7, states a cognizable § 1983 claim against Alameda County Sheriff's Deputy Gorden for the use of excessive force in violation of Mr. Corry's Eighth Amendment rights. The Alameda County Sheriff's Office and the Santa Rita County Jail are dismissed from this action.

2. The Clerk shall issue a summons and the United States Marshal shall serve, without prepayment of fees, the summons, a copy of the complaint and a copy of all the documents in the case file upon Alameda County Sheriff's Deputy [first name unknown] Gorden, who apparently worked at the Santa Rita Jail on July 1, 2011.

3. In order to expedite the resolution of this case, the following briefing schedule for ...


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