Revelez v. Allison
- Beth Freeman
- 5:22-cv-01738
- U.S. District Court · Northern District of California
- 3
In Revelez v. Allison, Judge Freeman ordered the pro se plaintiff to choose whether to identify two defendants or amend his civil-rights complaint.
Richard Revelez and the originally named defendants Tomaso/D’Tamaso and Whitney; the order also provided a possible amendment naming Sergeant A. Cuevas.
What happened
In Revelez v. Allison, Richard Revelez, a state inmate representing himself, brought a civil-rights case under a federal law allowing suits against state officials. The court had found a failure-to-protect claim against Tomaso and Whitney, but the California Department of Corrections and Rehabilitation could not identify them.
The court ordered Revelez to file a notice explaining how he wished to proceed. He could continue trying to provide information sufficient to serve Tomaso and Whitney, or file a second amended complaint naming Sergeant A. Cuevas instead. If he chose to continue against Tomaso and Whitney but did not provide enough information for service by October 18, 2023, those claims would be dismissed without prejudice.
Judge Beth Labson Freeman also explained that a second amended complaint would replace the earlier pleadings, and claims or defendants left out would no longer be part of the case. The order directed Revelez to file the required notice within 28 days.
The detailed version
- Revelez v. Allison · No. 5:22-cv-01738
- Beth Freeman
- Aug. 30, 2023
Background
Richard Revelez, a state inmate proceeding without a lawyer, filed a civil-rights action under 42 U.S.C. § 1983 against defendants at San Quentin State Prison. The court previously found that the pleadings stated a failure-to-protect claim against Tomaso and Whitney and ordered service of the complaint.
The California Department of Corrections and Rehabilitation filed notices stating that it could not identify either defendant. After the court ordered another service attempt and requested assistance from the prison's litigation coordinator, the department reported that it could not locate sergeants named D’Tamaso or Whitney in the relevant incident log. The log listed only Sergeant A. Cuevas as a sergeant involved in the incident.
Order
The court directed Revelez to file a notice stating how he wished to proceed. He could either:
- Continue attempting to identify and serve D’Tamaso and Whitney. If he selected this option, he had to notify the court within 28 days and provide sufficient information by October 18,
- If he failed to provide information sufficient for the United States Marshal to serve the complaint, his claims against D’Tamaso and Whitney would be dismissed without prejudice under Federal Rule of Civil Procedure 4(m); or
- File a notice and a second amended complaint naming Sergeant A. Cuevas as the proper defendant, also within 28 days.
The court stated that a second amended complaint would replace the original and supplemental complaints. Claims not included in the second amended complaint would no longer be claims, and defendants not named in it would no longer be defendants.
Disposition and significance
The order did not decide the underlying failure-to-protect claim. It directed Revelez to file a notice and set out two possible ways to proceed. It also provided that the claims against D’Tamaso and Whitney would be dismissed without prejudice if Revelez chose to continue against them but failed to provide enough identifying information for service by the stated deadline.
Judge Beth Labson Freeman signed the order on August 30, 2023.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.