Unreported / Non-Citable
Background
Jose O. Arteaga, a state prisoner proceeding pro se and in forma pauperis, sued under 42 U.S.C. § 1983 in the Eastern District of California. The case is proceeding on Eighth Amendment excessive force claims against Defendants J. Garcia and Fugate and on an Eighth Amendment failure-to-protect claim against an unidentified defendant, John Doe #1.
On February 18, 2025, the court authorized a subpoena duces tecum to help Plaintiff identify Doe #1 and gave him 120 days from service of the order to move to substitute a named defendant, warning that failure to do so may result in dismissal of Doe #1. Plaintiff submitted subpoena forms on March 24, 2025. On March 27, 2025, the court declined to authorize service of the subpoenas as completed, allowed another 30 days to complete the forms, and again warned that noncompliance may result in dismissal. Plaintiff did not re-submit the forms.
The court then ordered alternative dispute resolution and stayed the case for 120 days on June 5, 2025. A settlement conference on November 24, 2025 did not resolve the case. On March 31, 2026, the court set a September 30, 2026 deadline for a motion to substitute and warned that Doe may be dismissed if Plaintiff failed to identify him. It also told Plaintiff he could request documents from other defendants, or seek a subpoena if the information was unavailable from them. The deadline passed with no motion and no identification.
The Court’s Holding
The magistrate judge recommends that Doe #1 be dismissed without prejudice under Federal Rule of Civil Procedure 4(m) because Plaintiff failed to give the court and the United States Marshal accurate and sufficient information to serve Doe #1 within the time Rule 4(m) prescribes. This is a recommendation, not a final order. It goes to the assigned district judge under 28 U.S.C. § 636(b)(1), and objections of no more than fifteen pages are due within thirty days of service.
The court relied on Rule 4(m), which requires dismissal without prejudice or an order that service be made within a specified time, and requires an extension if the plaintiff shows good cause. It also relied on Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994), which holds that an incarcerated pro se plaintiff proceeding in forma pauperis may rely on the Marshal for service and should not be penalized when the Marshal or clerk fails to perform, so long as the prisoner furnished the information needed to identify the defendant. Where the plaintiff does not provide accurate and sufficient information, dismissal of the unserved defendant is appropriate. Walker was overruled on other grounds by Sandin v. Connor.
Applying those rules, the court stressed that Plaintiff had two opportunities to pursue a subpoena duces tecum and two substitution deadlines, each with a warning, yet never identified Doe #1 or moved to substitute. The findings do not discuss any excuse offered by Plaintiff and do not fault the Marshal. A footnote confirms that the case continues against Garcia and Fugate.
Key Takeaways
- A recommendation to dismiss a Doe defendant is not final; the assigned district judge must act on it after the thirty-day objection period.
- An in forma pauperis prisoner may rely on the Marshal for service only after furnishing information sufficient to identify the defendant.
- Subpoena authorization, extended deadlines, and repeated warnings supported the recommendation to dismiss where Plaintiff took no further step to identify the defendant.
- The recommended dismissal is without prejudice and leaves the excessive force claims against Garcia and Fugate pending.
- The findings do not address limitations or whether Plaintiff could later name Doe #1, so those questions remain open.
Why It Matters
The findings illustrate how a magistrate judge handled an unidentified Doe defendant in a prisoner civil rights case: authorize limited discovery, set clear substitution deadlines, warn of the consequence, and then recommend dismissal under Rule 4(m) when nothing is filed. The court also pointed Plaintiff to document requests to other defendants as an alternative route to identification.
This is an unpublished district court recommendation with no precedential weight; it applies existing Ninth Circuit law rather than creating new law. What remains open is whether the district judge adopts the recommendation after any objections.