Jesse Youngblood v. 5 Unknown Cim Correctional Off

MEMORANDUM

Jesse L. Youngblood, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 1291 . We review for an abuse of discretion a district court’s dismissal for failure to serve, Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990), and for failure to comply with a court order, Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.1984). We vacate and remand.

Dismissal of Youngblood’s action for failure to effect service was premature as Youngblood should have been given an opportunity to identify the defendants through limited discovery. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.1980) (holding that where a plaintiff is unaware of the identity of alleged defendants, “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”); see also Fed.R.Civ.P. 45 (permitting third party subpoenas); Fed. R.Civ.P. 26(d) (prohibiting discovery prior to a Rule 26(f) conference except “when…