United States District Court, E.D. California
ORDER REGARDING PLAINTIFF'S RESPONSE IDENTIFYING
DOE DEFENDANTS (ECF NO. 41) THIRTY (30) DAY DEADLINE
Michael Hernandez Gonzalez ("Plaintiff) was a pretrial
detainee at the time of the incident and is currently a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff and Defendant Mims have consented to the
jurisdiction of a United States Magistrate Judge. (ECF Nos.
4, 34.) This action proceeds on Plaintiffs third amended
complaint against Defendants Sheriff Mims and Deputy Sheriffs
JOHN and JANE DOES 1-10 for failing to protect Plaintiff in
violation of the Fourteenth Amendment, arising from
Defendants' failure to investigate Plaintiffs subsequent
placements in holding cells, after the initial beating on or
about October 20, 2012, including upon his return from
Atascadero. (ECF Nos. 21, 22.)
April 12, 2017, the Court issued an order finding service of
the third amended complaint appropriate on Defendant Mims.
The Court further ordered Plaintiff, within ninety (90) days
from the date of the order, to provide written notice
identifying the Doe Defendants with enough information to
locate the defendants for service of process. (ECF No. 22.)
Mims appeared and filed an answer in this action on June 23,
2017. (ECF No. 28.) The Court issued a discovery and
scheduling order on June 28, 2017. (ECF No. 29.)
September 7, 2017, Plaintiff filed a motion to compel,
relating to various discovery issues. (ECF No. 38.) Defendant
Mims opposed the motion on September 8, 2017. (ECF No. 39.)
October 6, 2017, the Court denied the motion to compel
without prejudice and clarified the discovery request.
Defendant Mims was ordered to respond to Plaintiffs request
within fourteen days, and Plaintiff was ordered to identify
the Doe Defendants within forty-five days. (ECF No. 40.)
before the Court is Plaintiffs response identifying the Doe
Defendants and requesting service documents. Attached is
Defendant Mims' response to Plaintiffs discovery request,
identifying the names of the Fresno County jail
classification officers responsible for Plaintiffs housing
and/or cell placement from October 20, 2012 through May 2013
as David Gutierrez, Michael Scott, John Palacios, and William
Nemoto. (ECF No. 41.) The Court construes Plaintiffs filing
as a motion to amend the complaint to substitute the names of
the Doe Defendants, and a motion for service and issuance of
summons. Defendant has not had an opportunity to file a
response, but the Court finds a response unnecessary. Local
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served.
Otherwise, a party may amend only by leave of the court or by
written consent of the adverse party, and leave shall be
freely given when justice so requires. Fed.R.Civ.P. 15(a).
"Rule 15(a) is very liberal and leave to amend shall be
freely given when justice so requires."
AmerisourceBergen Corp. v. Dialysist W., Inc., 465
F.3d 946, 951 (9th Cir. 2006) (citation and quotation
omitted). However, courts "need not grant leave to amend
where the amendment: (1) prejudices the opposing party; (2)
is sought in bad faith; (3) produces an undue delay in
litigation; or (4) is futile." Id.
requests leave to amend his complaint to identify the Doe
Defendants in this action. Pursuant to Defendant Mims'
response, Plaintiff has identified the Doe Defendants as
David Gutierrez, Michael Scott, John Palacios, and William
Nemoto. (ECF No. 41, p. 2.)
Court has considered the proposed amendment and finds that
leave to amend should be granted. In considering the relevant
factors, the Court finds no evidence of prejudice, bad faith,
undue delay in litigation, or futility. Accordingly,
Plaintiffs motion to amend shall be granted.
respect to Plaintiffs request for the issuance of service
documents, Plaintiff is advised that the Court will direct
service of process after Plaintiff has filed a fourth amended
complaint substituting the names of the Doe Defendants.
Conclusion and Order
discussed, Plaintiff shall be granted leave to file a fourth
amended complaint, within thirty (30) days, in order to