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Pro Se Tips and Tactics: Unknown Defendant Identities

A recent Supreme Court case highlights a problem some prisoners face in finding the exact identities of defendants in civil rights cases. This column discusses this problem and some possible solutions.

In most cases, you must sue individuals and not governmental or corporate entities : In Correctional Services Corp. v. Malesko , 534 U.S. 61 (2001), the Supreme Court held that a federal prisoner could not sue for violations of constitutional rights a private corporation that had contracted to run a halfway house for the federal Bureau of Prisons. The Court extended to private corporate prison contractors an earlier case holding that plaintiffs could not sue a federal agency or public corporation, as opposed to individual federal agents, for violations of constitutional rights.

Malesko arose in the special context of cases in which the federal government may be sued for violations of constitutional rights, where the Supreme Court has found that in some instances plaintiffs can make out a claim something like a § 1983 claim. (§ 1983 itself refers only to suits against state government officials, so it does not apply directly to suits against federal officials.) However, it reinforces some earlier holdings of the Court that apply directly to § 1983 cases against state actors. In those cases, particularly Will v. Michigan Dept. Of State Police , 491 U.S. 58 (1989), the Court held that because a state is not a "person" within the meaning of 42 U.S.C. § 1983, plaintiffs could not sue either the state or a state officer in his or her "official capacity." So, plaintiffs in § 1983 cases must sue individuals who work for the state and who are responsible for violations of constitutional rights.

There are some exceptions to the general rule holding that government or corporate entities cannot be sued for constitutional violations. The major exception is that local government entities, such as cities or counties, can be directly sued. See: Monell v. New York City Dept. Of Social Services , 436 U.S. 658 (1978). The Supreme Court in Malesko also suggested (but did not hold) that a prisoner probably could sue under § 1983 a private corporation contracting with a state (as opposed to the federal government) to provide prison services. But these exceptions do not apply to a great amount of prisoner litigation, which arises within the walls of a prison run directly by a state or federal entity.

What if I don't know who the individuals are? - So, in most civil rights cases you can't just sue "the prison." It is imperative that you sue individuals that are responsible for violations of constitutional rights, not entities such as state or federal agencies or private corporations. But what if you don't know exactly who was responsible for the problem about which you are suing?

This problem could arise in a couple of ways. If someone authorized the action taken against you, for example by ordering that you be placed immediately in segregation or that force be used against you, you might not know exactly who in the chain of command that was. Or, you might have seen or know in some way the person or people about whom you are complaining, but not know a correct name. (In some cases, for example, officers have inappropriately removed their identifying badges, which they are not supposed to do.)

The best solution is to get the information before filing if you possibly can, because you will avoid all of the problems discussed below. But let's say you have worked hard to prepare your lawsuit but you just have not been able to get the name of a key person. You need to get that name somehow because in order to have the court take jurisdiction over them, you must serve them with the lawsuit and a summons. See Federal Rule of Civil Procedure 4. But you also need to get your lawsuit filed. What should you do?

One possibility is to name what are called "John Doe" defendants. "John Does" are used in some complaints to represent real people whose exact identities are unknown, with the plaintiff finding out as soon as possible the real name of the defendant and amending the complaint to add the real name. Although "John Does" are sometimes called "fictitious parties," they should not be really fictitious _ they should represent real people that the person signing the complaint knows of, but whose actual identity the plaintiff does not know at the time the complaint is filed. You should not throw "John Does" into your complaint unless you have a good faith belief that there are real people you are thinking of that the "John Does" represent.

There can be problems with using "Doe" defendants. Even though there is no real rule against them and they are used, some federal courts say that they do not favor them and might just dismiss the Does. Tolefree v. Ritz , 382 F.2d 566 (9 th Cir. 1967). Other courts, more sensibly, say instead, "Doe defendants are routinely used as stand-ins for real parties until discovery permits the intended defendants to be installed." Sheets v. The Morning Call , 130 F.R.D. 34, 37 (E.D. Pa. 1990), and cases cited there. Unless the identity issue is resolved early on, John Does can linger in a case and cause logistical problems.

If you do use John Doe defendants, you should use the discovery techniques discussed below as early as possible to try to resolve identity. Once you have the proper identities, you should quickly move to amend the complaint to substitute the correct names and then obtain service of process over the correctly named parties. Regarding amendment, see Federal Rule of Civil Procedure 15.

Another method is to file the complaint naming only the defendants whose names you do know, find out as quickly as possible through discovery the names of others you knew of but did not know how to name, and then amend to add the additional defendants under Rule 15. This has the advantage of not cluttering the complaint with "John Does," and it will also avoid a potential issue in jurisdictions where "Doe" defendants are not favored.

When you are unable to find out the names of people who should properly be defendants, it is very important to file your lawsuit well in advance of the running of any applicable statute of limitations if you can. This is because of the rules regarding "relation back" of amendments under Rule 15(c). "Relation back" addresses the question of which amendments will be counted in law as having been made at an earlier time than they actually were made. If your amendment to add a new defendant is made after the applicable statute of limitations has run and it does not "relate back" to a time before the running of the statute, you will not be able to sue that defendant.

Amendments to add completely new parties must meet the "relation back" rules of Rule 15(c). And, this is also true of "John Doe" defendants, even though the "John Does" have been named in earlier pleadings:

"Amendments substituting actual for fictitious defendants are treated as amendments to add new parties and will not relate back unless the requirements of Rule 15(c) are satisfied." See: Wright, Miller & Cooper, Federal Civil Procedure , Sec. 3642, note 2.

In some cases, there will be no problem with relation back, since Rule 15(c)(1) allows relation back when it is "permitted by the law that provides the statute of limitations applicable to the action&" If you are absolutely sure of the statute of limitations that applies and that it will allow relation back, you need not worry. But if you are not sure, and if you cannot meet any of the other parts of Rule 15(c), you may not be able to add defendants _ even important ones you could not identify before the case was filed _ after the end of the limitations period.

Discovery of defendants' names _ If you are missing defendants when you first file your complaint, or if you have named "Does," it is crucial to use the discovery rules to find out as quickly as you can the true identities of proper defendants. The discovery rules are Federal Rules of Civil Procedure 26-37, and they contain several ways to fairly quickly try to find out the true identities of people involved in the incidents about which you are suing.

For example, Rule 26(a) now requires so-called "initial disclosures" by each party fairly soon after the filing of a lawsuit, "without awaiting a discovery request" by the other side. Among other things, each side must disclose identifying information about "each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses&identifying the subject of the information." Rule 26(a)(1)(A). In other words, if someone authorized or participated in what happened to you, and the prison official's lawyers intend to use that person's information to defend, you should get that identity as part of initial disclosures.

But even if you don't get the information that way, there are many other discovery methods you can employ. You could ask as part of a request for production of documents under Rule 34 for "any and all internal documents, memos, notes, e-mails&" etc. that relate to the incidents about which you are suing. If you obtain documents in response to this request, look at them carefully for the names you are seeking.

Another option is to use Interrogatories under Rule 33. Interrogatories should not be used to asked open-ended questions (such as "why was I placed in segregation") because the answer will be looked at carefully by lawyers before it is sent back to you. However, you can ask specific questions that have only one answer, such as, "Name every person who participated in or authorized my placement in segregation." You might get the identity you are looking for that way.

A third, although more cumbersome, method is to conduct a deposition under Rule 30 of someone you know was involved. You can then ask that person questions such as, "Who authorized having me placed in segregation?" Despite obvious logistical problems, persistent prisoners are able to conduct depositions. There is not space in this column to address how to do this, but it is often done.

Look through all of the discovery rules for potential ways to find out the identities you need. If you cannot get answers to your discovery requests within the time you are supposed to under each rule, you should also consult the rules (including local rules of the court you are in) regarding motions to compel answers. See Rule 37. No matter what method you use, you must move quickly to get all of the right defendants named.

The information in this column is general and is not legal advice for your specific case. As always, you must do legal research regarding your specific case in order to answer specific legal questions.

John Midgley is an attorney with Columbia Legal Services in Seattle, Washington.

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