Unreported / Non-Citable
Background
Isaac Lamaar Montgomery, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action under 42 U.S.C. § 1983 in the Eastern District of California on June 11, 2025. On August 24, 2026, the court screened the first amended complaint and recommended that the Eighth Amendment failure-to-protect and conditions-of-confinement claims against Defendant Gonzalez and Does 1-5 proceed and that all other claims and defendants be dismissed. Those are recommendations; this order does not adopt them or reach the merits.
On September 10, 2026, the court issued a summons for Gonzalez and authorized service through the district's E-Service pilot program, sending the papers to the California Department of Corrections and Rehabilitation (CDCR) and the Attorney General's Office with the incident date, location, and defendant name Plaintiff had provided. On October 6, 2026, the summons was returned unexecuted because the prison's litigation coordinator reported that multiple staff named Gonzalez worked the facility on the day and shift of the incident and the information was not enough to identify the defendant.
The court explained that, to proceed against Gonzalez, Plaintiff must adequately identify and serve him or give the Marshals Service enough information to do so. The court offered an opportunity to seek more information but stressed that identifying and serving the defendant remains Plaintiff's responsibility.
The Court’s Holding
Rule 26(d)(1) generally bars discovery before the Rule 26(f) conference but permits it when authorized by court order. Finding good cause and citing Malibu Media, LLC v. Doe, 319 F.R.D. 299, 305 (E.D. Cal. 2016), which notes that courts may permit early discovery to learn the identities of Doe defendants, the court authorized Plaintiff to issue a subpoena duces tecum to CDCR for the limited purpose of obtaining additional identifying information about Gonzalez, so that CDCR can identify him and accept service or Plaintiff can serve him at another address.
The authorization is procedural and conditional. The Clerk must send Plaintiff one copy each of Form AO 88B (subpoena) and Form USM-285 (Marshals service form). Plaintiff should request only documents that may help identify or serve Gonzalez, such as address information, staff log sheets for the date and location of the incident, or names, photos, and addresses of officers on duty, and should name CDCR as the recipient. After he returns the completed forms, the court will review them and, if correct, direct the U.S. Marshals Service to serve the subpoena; the court may limit the requested production. CDCR may submit personal confidential information about Gonzalez to the court confidentially. If CDCR fails to respond or objects, Plaintiff may file a motion to compel.
Plaintiff has 30 days from service of the order to return the completed forms, and 120 days from the order, until February 10, 2027, to serve Gonzalez. The court warned that failure to identify and serve him will result in dismissal without prejudice of the action. That is a warning; nothing is dismissed by this order.
Key Takeaways
- The court authorized limited early discovery, a subpoena duces tecum to CDCR, solely to identify and locate Defendant Gonzalez after service failed because several staff members share that surname.
- No subpoena has been served yet; Plaintiff must return completed Forms AO 88B and USM-285 within 30 days of service of the order, and the court will review them and may limit the requests.
- Plaintiff has until February 10, 2027 to serve Gonzalez, and failure to identify and serve him will result in dismissal without prejudice of the action.
- CDCR may give confidential personal information about Gonzalez to the court, and Plaintiff may move to compel if CDCR fails to respond or objects.
- The order does not adopt the screening recommendations or decide the merits of any Eighth Amendment claim.
Why It Matters
This is a short, unpublished discovery and case-management order by a magistrate judge. It carries no precedential weight and decides no merits question. Its practical value is as an example of how courts in this district may help an incarcerated pro se plaintiff overcome a service problem when prison staff cannot match a common surname to a single employee: through narrow, court-supervised early discovery directed to the custodial agency, with step-by-step form instructions.
Still open are whether the subpoena forms will be approved and served, what CDCR will produce or object to, whether Plaintiff can identify and serve Gonzalez by February 10, 2027, and whether the district judge will adopt the screening recommendations.