United States District Court, S.D. California
ORDER GRANTING EX PARTE APPLICATIONS FOR EXPEDITED
DISCOVERY [DOC. NOS. 13, 15, 16.]
Karen S. Crawford, United States Magistrate Judge.
Aaron Raiser, proceeding pro se and in forma
pauperis, filed this action pursuant to Title 42, United
States Code, Section 1983, alleging that San Diego deputy
sheriffs violated his Fourth Amendment right to be free from
unreasonable searches, because they detained him on several
occasions while he was in his car or walking on the side of a
street with no reason to believe he was breaking any laws.
[Doc. No. 9, at pp. 4-8.] Plaintiff also alleges that he
believes San Diego deputy sheriffs have a custom or policy of
unlawfully detaining citizens. [Doc. No. 9, at p. 4.]
31, 2019, plaintiff filed an Ex Parte Application
for Order (1) Allowing Extension of Time to Serve Doe
Defendants and (2) Expedited Discovery to Identify Doe
Defendants. [Doc. No. 13.] On September 5, 2019 and September
7, 2019, plaintiff filed two more Ex Parte
Applications that are almost identical to his first Ex
Parte Application. These newer Ex Parte
Applications seek the same relief as the original Ex Parte
Application. [Doc. Nos. 15, 16.]
separate incidents at different locations on April 30, 2017,
August 7, 2017, and March 29, 2018, plaintiff alleges he was
unlawfully detained by deputy sheriffs in violation of the
Fourth Amendment. All three incidents allegedly took place in
San Diego County. Plaintiff does not know the identities of
the deputy sheriffs, so he named the County of San Diego as a
defendant, along with "DOES 1-20." [Doc. No. 9, at
pp. 1, 4-8.]
Request for Expedited Discovery.
Ex Parte Applications, plaintiff seeks leave to
serve discovery limited to learning the identities of the DOE
defendants on an expedited basis, so he can serve each of
them with a summons and the First Amended Complaint. [Doc.
16-1, at pp. 2-3; Doc. Nos. 13, 15.] Generally, discovery is
not permitted without a court order before the parties have
conferred pursuant to Federal Rule of Civil Procedure 26(f).
Fed.R.Civ.P. 26(d)(1). In the Ninth Circuit, exceptions to
requests for early discovery have generally been disfavored.
Gillespie v. Civiletti, 629F.2d637, 642
(9th Cir. 1980.) "However, situations arise,
such as the present, where the identity of alleged defendants
will not be known prior to the filing of a complaint. In such
circumstances, the plaintiff should be given an opportunity
through discovery to identify the unknown defendants, unless
it is clear that discovery would not uncover the identities,
or that the complaint would be dismissed on other
grounds." Id. at p. 642. See also Wakefield
v. Thompson, 177F.3d 1160, 1163 (9th Cir. 1999).
in the Ninth Circuit have also permitted expedited discovery
prior to the Rule 26(f) conference "upon a showing of
good cause." American LegalNet, Inc. v. Davis,
673 F.Supp.2d (CD. Cal. 2009). However, courts have indicated
that "some limiting principals should apply to the
determination of whether discovery to uncover the identity of
a defendant is warranted." Columbia Ins. Co. v.
seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999).
Early discovery should be limited to "ensure that this
unusual procedure will only be employed in cases where the
plaintiff has in good faith exhausted traditional avenues for
identifying a civil defendant pre-service and will prevent
use of this method to harass or intimidate."
the plaintiff should identify the missing party with
sufficient specificity such that the Court can determine that
defendant is a real person or entity who could be sued in
federal court." Id. In support of his Ex Parte
Application, plaintiff submitted a Declaration stating he is
aware from prior litigation that the San Diego County Sheriff
keeps a record whenever a deputy sheriff runs a background
check on an individual. Because the First Amended Complaint
identifies the times, dates, and locations for the alleged
unlawful stops, plaintiff believes the San Diego County
Sheriff can readily identify the deputy sheriffs involved in
each incident. [Doc. No. 16-2, at pp. 2-3.] The First Amended
Complaint also alleges that all three incidents that serve as
the basis for this action took place in San Diego County.
[Doc. No. 9, at pp. 5-8.] Accordingly, the Court finds that
plaintiff has sufficiently and specifically identified the
the party should identify all previous steps taken to locate
the elusive defendant. This element is aimed at ensuring that
plaintiffs make a good faith effort to comply with the
requirements of service of process and specifically
identifying defendants." Columbia, 185 F.R.D.
at 578. Prior to filing his Ex Parte Application, plaintiff
states in his Declaration that he contacted counsel for the
County of San Diego by phone and e-mail and attempted to
arrange a stipulation for the parties to complete initial
disclosures prior to the usual deadlines so that he could
discover the names of the DOE defendants, but he was
unsuccessful. [Doc. No. 16-2, at p. 2.] Plaintiff also
contacted a clerk in the Records Department for the San Diego
County Sheriff and spoke with a person familiar with the
Sheriffs policies on public records requests. He was advised
by the clerk that he would not be able to obtain any records
relating to the incidents alleged in this litigation through
the Records Department. [Doc. No. 16-2, at p. 2.] Therefore,
plaintiff represents that he has "exhausted all known
means to obtain the identities" of the DOE defendants
"short of discovery." [Doc. No. 16-2, at p. 2.]
plaintiff should establish to the Court's satisfaction
that plaintiffs suit against defendant could withstand a
motion to dismiss." Columbia, 185 F.R.D. at
578. "Thus, plaintiff must make some showing that an act
giving rise to civil liability actually occurred and that the
discovery is aimed at revealing specific identifying features
of the person or entity who committed that act."
Id. at 580. Although liberally construed, plaintiffs
allegations against the DOE defendants have already survived
initial screening by the District Court. [Doc. No. 5, at p.
on the foregoing, the Court finds that plaintiff submitted
enough information to establish good cause for an order
allowing him to proceed with expedited discovery limited to
learning the identities of the DOE defendants. Therefore,
plaintiffs request for an order permitting expedited
discovery to learn the identities of the DOE defendants is
GRANTED. [Doc. Nos. 13, 15, 16.]
Request for Extension of Time to Serve ...