Opinion
Civil Action 2:10-cv-00956.
August 2, 2011
ORDER
This matter is before the Court upon Plaintiff's request that the Clerk make a copy of his Complaint and serve Corrections Officer J. Weatherholt. (ECF No. 11.) For the reasons that follow, Plaintiff's request is DENIED. Additionally, Plaintiff must, WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER, amend his Complaint to substitute in the real name for his John Doe Defendant and perfect service on that named party as required by Federal Rule of Civil Procedure 4(m). Alternatively, Plaintiff may SHOW CAUSE WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER why the Court should not dismiss his John Doe defendant pursuant to Rule 4(m) and why the Court should allow an extension of time to effect service.
Plaintiff, Ronald D. Leonard, filed this action on September 14, 2010, moving for in forma pauperis status. The Court granted Plaintiff's motion, causing his Complaint to be filed on November 4, 2010. In addition to naming Robin Knab, the Chillicothe Correctional Institution Warden, he also named a John Doe defendant. To date, Plaintiff has not moved to amend his Complaint to substitute in the real name for his John Doe Defendant. He therefore has yet to perfect service over this Defendant.
Federal Rule of Civil Procedure 10(a) requires a plaintiff to "name all the parties" in the Complaint. Fed.R.Civ.P. 10(a). Though the naming of pseudonymous defendants is permissible where the party requires discovery to identify the true identity of the defendants, the party must subsequently amend the complaint to reflect the discovered identities and effect service over those named parties within Rule 4(m)'s 120-day window. See Petty v. Cty. of Franklin, 478 F.3d 341, 345-46 (6th Cir. 2007) (affirming district court's dismissal of unnamed John Doe defendants pursuant to Rule 4(m) where the plaintiff failed to substitute the real names for his John Does and had failed to serve them within Rule 4(m)'s 120-day window); Fed.R.Civ.P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time.")
In the instant case, more than 120 days have lapsed since Plaintiff's November 4, 2010 Complaint, and Plaintiff has failed to amend his Complaint to substitute the real name for his John Doe defendant and effect service on him or her. Consequently, the Court ORDERS Plaintiff to amend his Complaint WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER to substitute in the real name for his John Doe defendant and to perfect service on him or her as required by Rule 4(m) or to SHOW CAUSE WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER why the Court should not dismiss his John Doe defendant pursuant to Rule 4(m) and why the Court should allow an extension of time to effect service. Plaintiff must support any good cause showing with sworn affidavits. The Court notes that Plaintiff, not the Clerk, must supply the service copy of the Complaint.