Caldera #326441 v. Ramos et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Anthony Caldera,
Plaintiff,
v.
Alfred Ramos, et al.,
Defendants.
No. CV-25-00373-PHX-DJH (DMF)
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT
JUDGE:
This matter is before the Court on its own review regarding Defendant John Doe
(“Defendant Doe”).
This matter is referred to the undersigned United States Magistrate Judge pursuant
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as
authorized under 28 U.S.C. § 636(b)(1) (Doc. 6 at 12).
As set forth below, it is recommended that the Court dismiss without prejudice
Defendant Doe.
I. PERTINENT PROCEDURAL HISTORY AND POSTURE
By way of background, the Complaint initiating this matter was filed in this Court
in February 2025 (Doc. 1). On April 11, 2025, the Court screened the Complaint,
dismissed without prejudice Defendant Baldenegro, dismissed Count Three, ordered
Defendant Reyes to answer Count One, and ordered that Defendant Ramos to answer
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 1 of 7

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Count Two (Doc. 6 at 10). Additionally, the Court found that liberally construed, Plaintiff
also stated a First Amendment retaliation claim against Defendant Doe in Count Two (Id.
at 7). The Court explained regarding Defendant Doe:
Although Plaintiff has stated a claim against Defendant Doe, the Court will
not require service on Defendant Doe at this time because it is, in most
instances, impossible for the United States Marshal or his designee to serve
a summons and complaint upon an anonymous defendant.
However, the Court will not dismiss the claim against Defendant Doe at this
time. The Ninth Circuit has held that where identity is unknown prior to the
filing of a complaint, the plaintiff should be given an opportunity through
discovery to identify the unknown defendants, unless it is clear that discovery
would not uncover the identities, or that the complaint would be dismissed
on other grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). The
Court will allow Plaintiff 120 days in which to discover the actual name of
Defendant Doe, through subpoena or otherwise, and to substitute the
Defendant’s actual name by filing a “notice of substitution.” See Wakefield,
177 F.3d at 1163. The Court may dismiss without prejudice Defendant Doe
if Plaintiff fails to timely file a notice of substitution, unless Plaintiff seeks
and is granted an extension of time.
(Doc. 6 at 7-8). The Court ordered that within 120 days from the filing date of the Order,
“Plaintiff must file a ‘Notice of Substitution,’ substituting Defendant Doe’s actual name.
The Court may dismiss without prejudice Defendant Doe if Plaintiff fails to timely file a
notice of substitution, unless Plaintiff seeks and is granted an extension of time” (Id. at 10).
The April 11, 2025, Order also warned that “[i]f Plaintiff fails to timely comply with every
provision of this Order, including these warnings, the Court may dismiss this action without
further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district
court may dismiss an action for failure to comply with any order of the Court)” (Doc. 6 at
9).
On June 17, 2025, Defendants Ramos and Reyes filed their Answer (Doc. 10). The
following day, the Court issued a Scheduling and Discovery Order (Doc. 11).
On August 25, 2025, the Court granted in part Plaintiff’s August 2025 motion to
extend time to file a notice of substitution regarding Defendant Doe:
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 2 of 7

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In the pending motion, Plaintiff admits the time for substitution of Defendant
John Doe may have already expired but requests an additional one-hundred
twenty (120) days “to discover the actual name of Defendant John Doe” due
to various prison conditions creating challenges regarding Plaintiff’s legal
paperwork in this matter (Doc. 17 at 2). A response to Plaintiff’s motion is
not necessary for the Court to rule.
Upon good cause shown, the Court will extend time for Plaintiff to substitute
the actual name of Defendant John Doe. Nevertheless, based on the record
in this matter, the Court will grant an additional sixty (60) days rather than
the requested one-hundred twenty (120) days.
(Doc. 18 at 2; see Doc. 17). The Court’s orders included:
IT IS FURTHER ORDERED that within sixty (60) days from the filing
date of this Order, Plaintiff must file a “Notice of Substitution,” substituting
Defendant John Doe’s actual name. Failure to comply with the Court’s Order
may result in the dismissal of the Defendant John Doe.
(Doc. 18 at 2).
After Plaintiff failed to comply with the Court’s August 25, 2025, Order (Doc. 18),
on November 4, 2025, the Court issued an Order to Show Cause (Doc. 22), which included
in pertinent part:
As of this date, Plaintiff has not filed a Notice of Substitution regarding the
John Doe Defendant. The Court will extend the deadline to file a Notice of
Substitution substituting the John Doe Defendant’s actual name. Plaintiff is
again reminded that failure to comply with the Court’s order may result in
the dismissal of the John Doe Defendant.
Accordingly,
IT IS ORDERED that Plaintiff shall within fourteen (14) days from the
date of this Order file a Notice of Substitution, substituting Defendant John
Doe’s actual name. Failure to comply with the Court’s Order may result in
the dismissal of the Defendant John Doe.
(Id. at 2-3).
On November 26, 2025, the Court issued another Order to Show Cause (Doc. 23),
which stated and ordered:
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 3 of 7

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On April 11, 2025, the Court warned that “[I]f Plaintiff fails to timely comply
with every provision of this Order, including these warnings, the Court may
dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for
failure to comply with any order of the Court)” (Doc. 6 at 9). The Court
again warned Plaintiff on August 25, 2025, that “[F]ailure to comply with
the Court’s Order may result in the dismissal of the Defendant John Doe”
Doc. 18 at 2).
After Plaintiff failed to file a Notice of Substitution, on November 4, 2025,
the Court issued an Order to Show Cause (Doc. 22) and provided Plaintiff
with additional time to file his Notice of Substitution. As of this date,
Plaintiff has not filed a Notice of Substitution regarding the John Doe
Defendant. The Court will once again extend the deadline to file a Notice of
Substitution substituting the John Doe Defendant’s actual name. Plaintiff is
again reminded that failure to comply with the Court’s order may result in
the dismissal of the John Doe Defendant.
Accordingly,
IT IS ORDERED sua sponte extending the time for Plaintiff to submit his
Notice of Substitution. Plaintiff shall within fourteen (14) days from the date
of this Order file a Notice of Substitution, substituting Defendant John Doe’s
actual name. Failure to comply with the Court’s Order may result in the
dismissal of the Defendant John Doe without further notice.
(Id. at 2-3).
Discovery in this matter closed on November 14, 2025 (Doc. 11 at 2). Presently,
Defendants Ramos and Reyes’ motion for summary judgment regarding the merits of the
claims against them (Docs. 24, 25) is pending Plaintiff’s response. As of this date, Plaintiff
has not filed a Notice of Substitution regarding the John Doe Defendant; nor has Plaintiff
filed a response to the November 2025 Orders to Show Cause (Docs. 22, 23). Despite
multiple extensions of time as set forth above, the time to substitute Defendant Doe expired
in December 2025 (Doc. 23).
II. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an
action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure,
failure to comply with the court’s local rules, or failure to comply with court orders. See
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 4 of 7

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s
authority to dismiss for lack of prosecution is necessary to prevent undue delays in the
disposition of pending cases and to avoid congestion in the calendars of the district courts);
Hells Canyon Pres. Council v. United States Forest Serv., 403 F.3d 683, 689 (9th Cir.
2005) (court may dismiss under Rule 41(b) for failure to prosecute or comply with rules of
civil procedure or the court’s orders); Ferdik, 963 F.2d at 1260 (a district court may dismiss
an action for failure to comply with any order of the court). Here, Plaintiff has failed to
prosecute as to Defendant Doe and has failed to follow this Court’s orders regarding
substitution of Defendant Doe.
In determining whether Plaintiff’s failure to prosecute and failure to follow court
orders warrants dismissal, the Court must weigh the following five factors: “(1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition
of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King,
856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam) (quoting Henderson v. Duncan, 779 F.2d
1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of
sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction.
Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v.
Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, the first, second, third, and fifth factors favor dismissal of Defendant Doe
from this matter. The fourth factor, as always, weighs against dismissal of an unidentified
defendant.
Plaintiff filed this action in February 2025 (Doc. 1). Plaintiff has had at least since
the Court’s Screening Order in April 2025 to identify and substitute Defendant Doe.
Discovery in this matter closed on November 14, 2025 (Doc. 11 at 2). Plaintiff’s failure to
file a notice of substitution providing the actual identity of Defendant Doe as directed
prevents the case from proceeding against Defendant Doe in the foreseeable future.
Presently, Defendants Ramos and Reyes’ motion for summary judgment regarding the
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 5 of 7

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
merits of the claims against them (Docs. 24, 25) is pending Plaintiff’s response. Defendant
Doe is codefendant to Defendant Ramos regarding Count Two (Docs. 1, 6). As recounted
above, the Court has already ordered Plaintiff to show cause why Defendant Doe should
not be dismissed, and the Court has several times extended time for Plaintiff to substitute
Defendant Doe. Also as recounted above, Plaintiff was repeatedly warned that his failure
to timely substitute Defendant Doe would result in dismissal of Defendant Doe.
The Court finds that only one less drastic sanction is realistically available to
dismissal of Defendant Doe with prejudice. Rule 41(b) of the Federal Rules of Civil
Procedure provides that a dismissal for failure to prosecute operates as an adjudication on
the merits “[u]nless the court in its order for dismissal otherwise specifies.” On this record,
the Court finds that a dismissal with prejudice of Defendant Doe would be unnecessarily
harsh. Therefore, it is recommended that Defendant Doe be dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly,
IT IS RECOMMENDED that Defendant John Doe be dismissed from this matter
without prejudice.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal
Rules of Appellate Procedure should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen days from the date of service of a copy of this
recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which
to file responses to any objections. Failure to file timely objections to the Magistrate
Judge’s Report and Recommendation may result in the acceptance of the Report and
Recommendation by the District Court without further review. See United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual
determination of the Magistrate Judge may be considered a waiver of a party’s right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 6 of 7

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. “Unless otherwise permitted
by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge
shall not exceed ten (10) pages.” LRCiv 7.2(e)(3).
Dated this 2nd day of February, 2026.
Case 2:25-cv-00373-DJH-DMF Document 32 Filed 02/03/26 Page 7 of 7