Marano v. Neotti et al

Filing 12

ORDER denying 11 Motion for Relief from Judgment. Signed by Judge Larry Alan Burns on 12/15/15. (All non-registered users served via U.S. Mail Service)(kas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

FRANK MARANO,

12

CASE NO. 13cv3117-LAB (JLB)
Plaintiff(s),

ORDER DENYING MOTION FOR
RELIEF FROM JUDGMENT

vs.
13
14

GEORGE NEOTTI, et al.,
Defendant(s).

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff Frank Marano, a prisoner in state custody, filed his complaint bringing civil
rights claims under 42 U.S.C. § 1983 for past injuries. He was given leave to proceed in
forma pauperis, a summons was issued, and he was directed to provide the U.S. Marshals
service with a completed form 285 so the Marshals could effect service. (Docket no. 5.)
There is no evidence he ever did this, or anything else, to prosecute his case.
Then on July 17, 2015, the Court ordered Marano to show cause why this action
should not be dismissed for three reasons: failure to serve, failure to obey the Court’s orders,
and failure to prosecute. He was ordered to file a response by July 31, and cautioned that
if he did not do so, this action would be dismissed without prejudice.
Marano filed nothing, and the action was dismissed without prejudice on August 7.
Marano has now submitted a motion for relief from judgment under Fed. R. Civ. P. 60, styled
as a motion to vacate. His response is inadequate, and gives no good reason for his
multiple failures — nor for his failure to respond to the July 17 order.
-1-

13cv3117

1

The Motion is dated October 28, 2015 and is supported by another prisoner’s affidavit,

2

dated the same day. But the proof of mailing shows it was not delivered to prison officials

3

for mailing until December 4.

4

The Motion refers to serious injuries Marano suffered on December 10, 2009 and

5

again on February 27, 2012 at the hands of a fellow inmate. (Motion at 1–2.) He mentions

6

medical and psychological care he received after that, and the fact that he was “heavily

7

sedated with prescription pain medications,” though he does not say when that ended. (Id.

8

at 2.) The Motion implies that Marano is still undergoing some kind of medical care, though

9

it does not specifically say what.

10

The Motion also says that, for the past two months, Marano has been contacting

11

California attorneys, and has finally found one who might be willing to represent him. (Mot.

12

at 3.) Bearing in mind that it is dated October 28, this must mean he was contacting

13

attorneys throughout September and October, and that as of October 28, an attorney was

14

reviewing his case to decide whether to accept it. The affidavit supports what the Motion

15

says, but it too is somewhat vague about what difficulties Marano is currently facing. It says

16

Marano endured medical appointments as well as pain and suffering, and lacked focus due

17

to prescribed medications, but it does not make clear whether this is ongoing, or if so, how

18

Marano is functioning. It also says an attorney is reviewing Marano’s case file and deciding

19

whether to accept the case, but does not say how the affiant knows this.

20

The Motion’s arguments, if supported by other information, might support tolling, but

21

they do not show why Marano’s long delay in responding to the Court’s July 17 order, nor

22

good reason for his failure to serve Defendants or prosecute his claims.

23

Marano offers no explanation for his failure to complete the relatively simple task of

24

filling out Form 285 and sending it to the Marshals to effect service. Under Fed. R. Civ. P.

25

4(m), if a defendant is not timely served, the Court must either dismiss the action or extend

26

the time for service. If good cause for failure to serve is shown, the Court must extend the

27

time for service. Initially, Marano made no reply when told to explain why he had not served

28

Defendants. And he still has not explained why he failed to serve them for 14 months from
-2-

13cv3117

1

the time he was granted in forma pauperis status until the Court pointed out his failure to

2

serve and told him to respond. Nor does he explain why he has still not served them, even

3

though the matter has been brought to his attention. Dismissal is therefore appropriate.

4

Dismissal for failure to prosecute is also appropriate. Marano is clearly capable of

5

drafting and filing documents, and communicating with attorneys, either by himself or with

6

help. He does not explain his failure to contact attorneys until the month after his case had

7

been dismissed. He also offers no explanation for his decision to spend September and

8

October contacting attorneys instead of filing something with the Court, or even notifying the

9

Court of his situation. And he offers no explanation why it took him until December 4 to mail

10

his Motion.

11

The Court understands that Marano may be suffering from medical problems and the

12

side effects of medications in ways he cannot adequately explain. But even giving him

13

substantial leeway, there is no good explanation for his decision to wait several months

14

before responding to the Court’s order, while focusing on communicating with prospective

15

attorneys. Nor has explained why the task of filing his Motion took over a month.

16

In short, Marano has not been diligent, and has not adequately explained the long

17

delays. Under Fed. R. Civ. P. 60(b)(1), relief from a final order is available for excusable

18

neglect, and may be granted only where the plaintiff has been diligently pursued his claims.

19

See Engleson v. Burlington Northern R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). What is

20

more, he must show he has been diligently pursuing them, id., and Marano has not done

21

that.

22

It does not appear an attorney is prepared to represent Marano in this case. Marano

23

himself has said nothing more about it, and no attorney has made an appearance or

24

contacted the Court about representing Marano.

25

The relief Marano requests is either an order vacating the dismissal, or else an order

26

permitting him to file a new complaint. The former is inappropriate, given Marano’s lack of

27

diligence. But because the complaint was dismissed without prejudice, he can file a new

28

one and does not need permission to do that. The Motion is therefore DENIED.
-3-

13cv3117

1
2

If Marano does decide to file a new complaint, it would open a new case, and he
would likely need to explain why he is entitled to tolling.

3
4
5

IT IS SO ORDERED.
DATED: December 15, 2015

6
7

HONORABLE LARRY ALAN BURNS
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-

13cv3117