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Wallway v. Doe

United States District Court, D. Montana, Missoula Division

June 21, 2017




         Plaintiff Randy Wallway, appearing pro se, filed an application requesting leave to proceed in forma pauperis. He submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this action IT IS HEREBY ORDERED that Wallway's application to proceed in forma pauperis is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Wallway's lodged Complaint as of the filing date of his request to proceed in forma pauperis.

         The federal statute under which leave to proceed in forma pauperis is permitted - 28 U.S.C. § 1915 - also requires the Court to conduct a preliminary screening of the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2).

         The Court has reviewed Wallway's pleading to consider whether this action can survive dismissal under the provisions of section 1915(e)(2), or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9 Cir. 2005). The Court finds that at this stage of the proceedings Wallway's allegations at least state a claim upon which relief could be granted under 42 U.S.C. § 1983. Wallway alleges Defendant John Doe Montana Highway Patrol Officer arrested Wallway and physically assaulted him while he was in handcuffs. Therefore, the Court will order Wallway's complaint be served on Defendant.

         Because Wallway is proceeding in forma pauperis, he is entitled to have his complaint and summons served by the United States Marshal. Fed.R.Civ.P. 4(c)(3). Nonetheless, Wallway is obligated to provide the Court with an appropriate address for service on the Defendant. See Pullano v. Clark Co. Detention Ctr., 2010 WL 4272871, *2 (D. Nev. 2010).

         More importantly though, because Wallway has identified the Defendant as an unknown John Doe, he must first undertake to discover John Doe's actual identity. Ordinarily, a party may not seek discovery from any source until after the parties confer regarding discovery as required by Fed.R.Civ.P. 26(f). Fed.R.Civ.P. 26(d)(1). But situations arise where a plaintiff does not know the identity of a defendant or defendants prior to filing a complaint. Therefore, “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.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Thus, the courts have discretion, for good cause and in the interests of justice, to allow a party to conduct premature discovery for the limited purpose of ascertaining the identity of an unknown defendant. Evans v. Unknown Names of Department of Corrections Officers, 2007 WL 30597, *2 (N.D. Cal. 2007).

         In evaluating whether good cause exists to allow a plaintiff to conduct early discovery to learn the identity of a John Doe defendant, a court should consider whether the plaintiff: “(1) identifies the defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process.” Burns v. City of Concord, 2014 WL 892082, *1 (N.D. Cal. 2014). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Evans, at *2 (quoting Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002)).

         Wallway's allegations are sufficient to establish good cause to allow him to conduct early discovery. He states a Montana Highway Patrol officer assaulted him on May 23, 2014, around 6:00 p.m. Thus it is plausible the John Doe defendant is a real person who could be identified by the Montana Highway Patrol's records, and is an individual who could be sued. And the allegations at least state a claim that the officer potentially used excessive force against Wallway in violation of his rights secured by the Fourth Amendment of the United States Constitution. Although Wallway has not provided any information as to any efforts he may have made to identify the officer who allegedly assaulted him, the Court finds that in the interests of justice it is more efficient to permit Wallway to conduct limited discovery through the Montana Highway Patrol with relatively little burden and prejudice potentially imposed ...

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