1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN KOHUT, Case No.: 1:20-cv-01584-JLT-CDB (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF 90 DAYS WITHIN WHICH TO IDENTIFY 13 v. DOE 1 AND DOE 2

14 K. ALLISON, et al.,

15 Defendants. 16 17 Plaintiff Jonathan Kohut is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to

. 19 I. BACKGROUND 20 Plaintiff filed his third amended complaint on July 26, 2023. (Doc. 45.) 21 Following screening, and in relevant part, the Court found Plaintiff states cognizable First 22 Amendment right to send and receive mail and retaliation claims against Defendants Doe 1 and 23 Doe 2, a Fourteenth Amendment due process violation against Defendant Doe 2, Bane Acts claim 24 against Defendants Doe 1 and Doe 2, and state law negligence claims against Defendant Doe 1 25 and Doe 2. (See Docs. 46 & 47.) 26 The Court now addresses the issue of Plaintiff’s need to identify Doe 1 and Doe 2 against 27 whom his claims proceed. // 1 II. DISCUSSION 2 Defendants Doe 1 and Doe 2, both “Receiving & Release” officials, are employed at 3 Pleasant Valley State Prison (PVSP) and are presently unknown to Plaintiff. Plaintiff alleges 4 various federal and state law claims concerning the handling of his mail and/or packages against 5 Defendants Doe 1 and Doe 2. 6 Plaintiff is advised that the United States Marshals Service cannot serve Doe defendants. 7 Plaintiff will be required to identify Doe 1 and Doe 2 with enough information to locate these 8 defendants for service of process. Plaintiff will be given the “‘opportunity through discovery to 9 identify the unknown (Doe) defendants.’” Crowley v. Bannister,

(9th Cir. 10 2013). 11 As previously noted, although Plaintiff states plausible claims against these unknown 12 individuals, the Court will not require service at this time. The Ninth Circuit has held that where 13 identity is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity 14 through discovery to identify the unknown defendants unless it is clear that discovery would not 15 uncover the identities, or that the complaint would be dismissed on other grounds. Wakefield v. 16 Thompson,

(9th Cir. 1999) (citing Gillespie v. Civiletti,

, 642 17 (9th Cir. 1980)). Here, it is unclear whether discovery would not uncover the identity of Doe 1 18 and/or Doe 2. Nor is there any indication that Plaintiff’s operative complaint would be dismissed 19 on other grounds. Thus, Plaintiff should be afforded an opportunity to discover the identities of 20 Doe 1 and Doe 2 through limited discovery. 21 Initially, the Court notes Plaintiff may wish to seek the identities of Doe 1 and Doe 2 22 through other means. For example, Plaintiff might use a CDCR Form 22 to learn the identities of 23 Doe 1 and Doe 2, the officials involved in the handling of Plaintiff’s mail and packages during 24 the relevant period. Plaintiff might also request copies of other relevant records that may include 25 the actual names of Doe 1 and Doe 2. See, e.g., Thompson v. Allison, No. 23-cv-05079-HSG, 26

, at *3 (N.D. Cal. Oct. 3, 2024) (“Plaintiff may be able to obtain the names of 27 these [John Doe] individuals by accessing his classification records or using the CDCR Form 1 information. 2 Rule 45 of the Federal Rules of Civil Procedure concerns subpoenas. Plaintiff is advised 3 the Court’s authorization of a subpoena duces tecum requested by an in forma pauperis plaintiff 4 is subject to limitations. Because personal service of a subpoena duces tecum is required (Fed. R. 5 Civ. P. 45(b)), “[d]irecting the Marshal’s Office to expend its resources personally serving a 6 subpoena is not taken lightly by the court.” Austin v. Winett, No. 1:04-cv-05104-DLB PC, 2008

, *1 (E.D. Cal. Dec. 12, 2008); 28 U.S.C § 1915(d). Limitations include the 8 relevance of the information sought, as well as the burden and expense to the non-party in 9 providing the requested information. Fed. R. Civ. P. 26, 45. 10 A motion for issuance of a subpoena duces tecum should be supported by clear 11 identification of the documents sought and a showing that the records are obtainable only through 12 the identified third party. See, e.g., Davis v. Ramen, No. 1:06-cv-01216-AWI-SKO (PC), 2010

, *1 (E.D. Cal. May 11, 2010); Williams v. Adams, No. 1:05-cv-00124-AWI-SMS 14 (PC),

, *1 (E.D. Cal. Jan. 14, 2010). The “Federal Rules of Civil Procedure were 15 not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to 16 comply with a subpoena duces tecum.” Badman v. Stark,

(M.D. Pa. 1991). 17 Non-parties are “entitled to have the benefit of the Court’s vigilance” in considering these factors. 18

19 Finally, the Court notes that if Plaintiff has learned the names of Doe 1 and Doe 2 since 20 filing his third amended complaint, and/or does not require a subpoena to obtain these 21 individuals’ identities, Plaintiff shall file a notice of substitution with the Court, asking to 22 substitute that individual’s actual name for Doe 1 and/or Doe 2. 23 III. CONCLUSION AND ORDER 24 Accordingly, the Court GRANTS Plaintiff ninety (90) days in which to discover the 25 identities of Doe 1 and Doe 2, through subpoena or otherwise, and to substitute these Defendants’ 26 actual names by filing a “notice of substitution.” See Wakefield,

. 27 // 1 If, within 90 days, Plaintiff fails to file a notice of substitution that provides the actual 2 | names of Doe | and Doe 2, the Court will recommend dismissal, without prejudice, of 3 | Defendants Doe 1 and Doe 2. 4 | IT IS SOORDERED. >| Dated: _ June 12, 2025 | hwrnrD Pr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28