United States District Court, D. Nevada
ORDER (MOT. USM-285 FORMS - ECF NO. 34; MOT. SERVE
ADD. DEFS. - ECF NO. 38)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff Joshua
Crittendon's Motion to Give USM-285 Forms to U.S. Marshal
for Service (ECF No. 34) and Motion to Serve Additional
Defendants (ECF No. 38). These Motions are referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR
IB 1-3 of the Local Rules of Practice. The court has
considered the Motions as well as defendants' Response
(ECF No. 37).
Crittendon is a pretrial detainee currently in custody at the
Clark County Detention Center (“CCDC”), and he is
proceeding in this civil rights action pro se and
in forma pauperis (“IFP”). This case
arises from his allegations, pursuant to 28 U.S.C. §
1983, that defendants violated his civil rights. Upon review
of the complaint, the court determined that it stated a
plausible § 1983 claims against five named defendants
for excessive force, deliberate indifference to serious
medical need, and unreasonable conditions of confinement, as
well as state law claims for assault and battery and medical
negligence. See Screening Order (ECF No. 30). Mr.
Crittendon also stated claims against doe defendants for
failure to protect (count I) and excessive force (count II).
Id. at 5 n.3, 6-8. The court explained that a
plaintiff may use “Doe” to identify an unknown
defendant in the complaint for screening purposes and
subsequently attempt to determine the defendant's
identity through discovery. Id. at 5 n.3 (citing
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980)). Mr. Crittendon was specifically instructed: “If
the true identity of any of the Doe Defendant(s) comes to
light during discovery, Plaintiff may move to amend his
complaint to assert claims against the Doe Defendant(s) at
that time.” Id. (emphasis added).
Clerk of the Court was directed to issue summonses for
Defendants Rogers, Torrez, Williamson, Sanches, and Brown,
and deliver those summonses to the U.S. Marshal Service
(“USMS”) to attempt service. Id. at 15.
The clerk's office mailed Mr. Crittendon five USM-285
forms to correspond with the five defendants for whom summons
were issued. Id. The court instructed Crittendon to
“furnish to the U.S. Marshal the required USM-285
forms” within 30 days and include “relevant
information as to each Defendant on each form.”
Mr. Crittendon's Motions
Crittendon's first motion asks the court to deliver 10
completed USM-285 forms to the USMS. The forms request
service for: (1) Williamson, supervisor of Naphcare; (2) M.
Binko, P#8227; (3) N. Trost (SERT Team), P#13609; (4) P.
Patimeeporn (SERT Team), P#14529; (5) J. Senior (SERT Team),
P#8213; (6) Sgt. Williams (SERT Team), P# 9422; (7) C.O.
Johnson; (8) C.O. Sanchez, P#14667; (9) Sgt. Rogers (SERT
Team), P#5752; and (10) L. Verduzco (SERT Team), P#7647. The
second motion attached two additional forms: (11) C.O.
Torres, P#8232; (12) C.O. Brown, P# 15165.
Response (ECF No. 37) to the first motion argues that
Crittendon's USM-285 forms must be limited to the five
named defendants for whom summonses were issued: Rogers,
Torrez, Williamson, Sanches, and Brown. Most of Mr.
Crittendon's forms are improper because he included
individuals who are not named in the complaint. Although the
court permitted the complaint to move forward against
“doe” defendants, Crittendon must seek leave to
amend his complaint to appropriately name and assert
allegations against any new defendant. Assuming the newly
named individuals in his USM-285 forms are the doe defendants
he referenced in the complaint, Mr. Crittendon must seek to
amend his complaint prior to serving the identified
individuals with a complaint that does not properly identify
the individuals as defendants. Defense counsel therefore asks
the court to ensure that the USMS only attempt service upon
the defendants specifically identified in the court's
Screening Order (ECF No. 37).
Legal Standards and Analysis
10(a) of the Federal Rules of Civil Procedure requires a
plaintiff to include the names of the parties in the action.
The Ninth Circuit has held that where identity is unknown
prior to the filing of a complaint, 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. Wakefield v. Thompson,
177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). When the
names of individual defendants are unknown at the time a
complaint is filed, a plaintiff may refer to the individual
unknown defendants as defendant John (or Jane) Doe 1, John
Doe 2, and so on, and allege facts to support how
each particular doe defendant violated the plaintiff's
constitutional rights. The use of doe names allows the court
to screen the complaint and determine whether the plaintiff
states an actionable claim against each doe defendant. After
the screening and service on named defendants is complete,
the plaintiff may use the discovery process to obtain the
names of doe defendants whom he believes violated his
constitutional rights and seek permission from the court to
amend the complaint and substitute the real names of the doe
defendants. See, e.g., Plumb v. Prinslow,
847 F.Supp. 1509, 1523 (D. Or. 1994) (requiring plaintiff to
substitute true name of a “John Doe” defendant
and effect service at earliest opportunity).
the plaintiff learns the name of a doe defendant in
discovery, he may file a motion seeking leave to amend his
complaint and attach the proposed amended
complaint. The plaintiff may substitute the exact
allegations against each doe defendant in the complaint with
that person's name. For example, if a plaintiff learned
that Bugs Bunny was the person whose conduct he described in
a complaint as John Doe #1, the amended complaint may repeat
the same allegations substituting Bugs Bunny in place of John
Doe #1. The plaintiff may also add new defendants and
allegations in the amended complaint if desired.
amended complaint must be complete on its own without
referring to any prior pleading (i.e., the original
complaint). See LR 15-1(a). This is because an
amended complaint generally takes the place of the original
complaint. Ramirez v. County of San Bernardino, 806
F.3d 1002, 1008 (9th Cir. 2015). Once a plaintiff files an
amended complaint, the original pleading no longer serves any
function in the case. Ferdik v. Bonzelet, 963 F.2d
1258, 1262 (9th Cir. 1992). Therefore, in an amended
complaint, as in the original complaint, each claim and the
involvement of each defendant must be sufficiently alleged.
The court is required to screen any amended IFP complaint and
determine that it states a plausible claim for relief against
each defendant before requiring a responsive pleading or
issuing summonses to new defendants. 28 U.S.C. §§
1915, 1915A; Jones v. Bock, 549 U.S. 199, 213-14
case, the court entered a Screening Order (ECF No. 30)
finding that the complaint states plausible § 1983
claims against defendants Rogers, Torrez, Williamson,
Sanches, and Brown. It appears Mr. Crittendon may have
learned the identities of individuals he described in the
complaint as doe defendants because he submitted seven
USM-285 forms requesting service for seven individuals other
than the five named defendants. However, before the court
will authorize service, he must first seek leave of the court
to amend the complaint. The court will then determine whether
his proposed amended complaint states actionable claims
against each new proposed defendant. If so, the court will
direct the clerk to issue summons for any proper new
defendant(s) and instruct the USMS to attempt service on such
new defendant(s). The screening and service process cannot
proceed out of ...