United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE A MOTION TO
SUBSTITUTE THE DOE DEFENDANT(S) OR FILE A REQUEST FOR A RULE
45 SUBPOENA FORTY-FIVE (45) DAY DEADLINE
Reynaldo Solorzano is a state prisoner proceeding pro se and
in forma pauperis pursuant to 42 U.S.C. § 1983. This
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
is currently a patient at Coalinga State Hospital (CSH). As
noted in the findings and recommendations filed concurrently
with this order, Plaintiff's first amended complaint
stated a cognizable claim for damages against Does A, B, C,
and D for failure to protect in violation of the Eighth
Amendment. (ECF No. 11.) On July 17, 2017, Plaintiff notified
the Court that he intends to proceed only on those claims.
(ECF No. 15.)
also notified the Court that he has made two requests using
CDCR Form 22 addressed to the Pleasant Valley State Prison
sergeant or warden of Facility B (or “Bravo”)
requesting the third-watch duty roster of the program office
and video footage so that he can identify Does A, B, C. and
D. Plaintiff attaches copies of his requests dated May 14,
2017, (ECF No. 15), and June 25, 2017 (ECF No. 15). No
information regarding the responses are given or indicated on
the forms provided by Plaintiff.
the use of Doe defendants is acceptable to withstand
dismissal of the complaint at the screening stage, those
person or persons cannot be served with process in this
action until they are identified by their names. The burden
is on Plaintiff to discover the identity of the defendants.
Plaintiff should seek to discover the identity of Doe
defendants and move to substitute them into the case as soon
as possible. Plaintiff may be able to locate names from
incident reports, Rules Violation Reports, his central file,
or other documents available for Plaintiff to review without
Plaintiff has identified certain recent requests for
information he believes may assist him in identifying the Doe
defendants, but has not explained what responses he has been
given, or whether and how he has followed-up. Plaintiff has
also not explained any other attempts to find such
information, such as the avenues described above.
Plaintiff shows he has exhausted all such available avenues
and has not been able to identify the Doe defendants, he may
move for the issuance of a Rule 45 subpoena.
of the Federal Rules of Civil Procedure permits issuance of
subpoenas to obtain discovery from non-parties equivalent to
discovery from parties under Rule 34. See Adv. Comm.
Note to 1991 Amendment to FRCP 45. Rule 34 governs discovery
of designated documents, electronically stored information,
and designated tangible things subject to the provisions of
Federal Rule of Civil Procedure 26(b). Meeks v.
Parsons, No. 1:03-cv-6700-LJO-GSA, 2009 WL 3003718, at
*2 (E.D. Cal. Sept. 18, 2009) (citing Fahey v. United
States, 18 F. R. D. 231, 233 (S.D.N.Y. 1955)).
26(b)(1) establishes the scope of discovery, stating in
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b). These standards mean that the Court
may grant a request by Plaintiff to issue a Rule 45 subpoena
to a properly identified non-party to discover information
that is relevant to the party's claims or defenses, is
not burdensome, is not within Plaintiff's reasonable
access, upon a sufficient showing of the importance of the
Plaintiff shall be permitted forty-five (45) days from the
issuance of this order to either file a motion to amend his
complaint to substitute the Doe Defendants, or to file any
request for a Rule 45 subpoena to obtain the information
necessary to identify the Doe Defendants. If Plaintiff files
a Rule 45 subpoena request, he must meet the standards
addressed above. Any request for an extension of time to
comply with this order must be supported by good cause,
showing the diligent efforts Plaintiff is making to attempt
to identify the Doe Defendants.