Pina v. Lewis et al

Filing 59

ORDER by Judge Ronald M. Whyte Denying 53 Motion Motion for Order to Obtain Declarations From Inmate Witnesses; Denying 56 Motion for Entry of Default. (jgS, COURT STAFF) (Filed on 10/23/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PABLO P. PINA,

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Plaintiff,
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v.
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CORRECTIONAL OFFICER E. BONITI, )
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Defendant.
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No. C 10-3784 RMW (PR)
ORDER DENYING REQUEST FOR
ENTRY OF DEFAULT; DENYING
MOTION FOR ORDER TO
OBTAIN DECLARATIONS FROM
INMATE WITNESSES
(Docket Nos. 53, 56)

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. On May 13, 2013, the court ordered the complaint served upon defendant
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Correctional Officer E. Boniti. On June 6, 2013, the litigation coordinator at Pelican Bay State
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Prison returned the summons and complaint because defendant is deceased. (Doc. No. 52.)
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In cases wherein the plaintiff proceeds in forma pauperis, the “officers of the court shall
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issue and serve all process.” 28 U.S.C. 1915(d). The court must appoint the Marshal to effect
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service, see Fed. R. Civ. P. 4(c)(2), and the Marshal, upon order of the court, must serve the
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summons and the complaint, see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994).
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Although a plaintiff who is incarcerated and proceeding in forma pauperis may rely on service
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by the Marshal, such plaintiff “may not remain silent and do nothing to effectuate such service”;
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rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendant and
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attempt to remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828
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Order Denying Request for Entry of Default; Denying Motion for Order to Obtain Declarations from Inmate
Witnesses
G:\PRO-SE\RMW\CR.10\Pina784misc.wpd

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F.2d 1107, 1110 (5th Cir. 1987).

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“If a party dies and the claim is not extinguished, the court may order substitution of the

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proper party. A motion for substitution may be made by any party or by the decedent’s

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successor or representative. If the motion is not made within 90 days after the service of a

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statement noting the death, the action by or against the decedent must be dismissed.” Fed. R.

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Civ. P. 25(a); Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).

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Here, plaintiff’s complaint has been pending for over 120 days, and thus, absent a

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showing of “good cause,” is subject to dismissal without prejudice. See Fed. R. Civ. P. 4(m).

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Plaintiff must provide sufficient information to allow the Marshal to locate and serve the estate

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or representative of deceased defendant Officer Boniti or face dismissal of this defendant from

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this action without prejudice. See Walker v. Sumner, 14 F.3d at 1421-22 (holding prisoner

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failed to show cause why prison official should not be dismissed under Rule 4(m) where prisoner

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failed to show he had provided Marshal with sufficient information to effectuate service).

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Failure to do so within sixty days of the date this order is filed will result in the dismissal of the

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claims against Officer Boniti under Rule 4(m).

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As a matter of courtesy, the court requests that the litigation coordinator at Pelican Bay

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State Prison provide any information regarding the status of Officer Boniti’s estate and, if a

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representative of the estate is discovered, shall inform the court of the same within forty-five

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days after the filing date of this order.

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Plaintiff’s request for default against Officer Boniti is DENIED. Plaintiff’s motion for an

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order to obtain declarations from witnesses is DENIED without prejudice as premature at this

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time.

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Request for Entry of Default; Denying Motion for Order to Obtain Declarations from Inmate
Witnesses
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G:\PRO-SE\RMW\CR.10\Pina784misc.wpd

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PABLO PINA,

Case Number: CV10-03784 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
CORRECTIONAL OFFICER E. BONITI,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 23, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Pablo P. Pina D-28079
Pelican Bay State Prison
P. O. Box 7500
D-2; #122 SHU
Crescent City, CA 95531
Dated: October 23, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk