(PC) Sekona v. Francis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, Case No. 1:19-cv-00529-ADA-HBK (PC) 12 Plaintiff, ORDER TO PROVIDE NOTICE OF UPDATED SUFFICIENT INFORMATION 13 v. TO EFFECTUATE SERVICE ON CORRECTIONAL OFFICERS HERNANDEZ 14 M. FRANCIS, AND TABIA 15 Defendant. (Doc. Nos. 91, 92) 16 JULY 20, 2023 DEADLINE 17 Plaintiff Etuate Sekona is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action under 42 U.S.C. § 1983. This matter is set for trial to commence on August 8, 19 2023. 20 On September 19, 2022, Plaintiff listed in his pretrial statement witnesses that he intended 21 to call at trial. (Doc. No. 59 at 8). In the Court’s December 13, 2023 Tentative Pretrial Order, the 22 Court informed Plaintiff that he must submit money orders if he intends to have the Marshals 23 Service serve any nonincarcerated witness. (Doc. No. 64 at 10). On February 3, 2023 Plaintiff 24 submitted checks made out to the following four witnesses: (1) LVN Melinda Cook, (2) 25 Correctional Officer Commagay, (3) Correctional Officer Tabia, and (4) Correctional Officer 26 Hernandez. See docket. On June 22, 2023, the Court directed service of subpoenas on the four 27 aforementioned witnesses. (Doc. Nos. 84-87). On June 30, 2023, subpoenas were returned 28 executed for Correctional Officer Commagay and LVN Melinda Cook but unexecuted for 1 Correctional Officers Tabia and Hernandez. (Doc. Nos. 90-93). The checks for Correctional 2 Officers Tabia and Hernandez were returned to the Clerk of the Court. (Doc. Nos. 91, 92). 3 Plaintiff, as an incarcerated pro se plaintiff proceeding in forma pauperis, is entitled to 4 rely on the U.S. Marshal for service of subpoenas for his unincarcerated witnesses. See Puett v. 5 Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it is ultimately Plaintiff’s responsibility 6 to provide the Marshal with accurate and sufficient information to effect service. See Walker v. 7 Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994), abrogated on other grounds by Sandin v. 8 Connor, 515 U.S. 472, 115 (1995). 9 Here, the U.S. Marshal attempted service on Correctional Officers Tabia and Hernandez 10 with the information Plaintiff provided. However, the Litigation Coordinator at Kern Valley 11 State Prison could not identify who Correctional Officers Tabia and Hernandez due to a lack of 12 information provided by Plaintiff. (Doc. Nos. 91, 92). Notably, Plaintiff did not provide a first 13 name for either witness or other identifying information which may assist the litigation 14 coordinator with identifying the correct individuals. Plaintiff therefore has not provided sufficient 15 information to identify and locate Correctional Officers Tabia and Hernandez for service of the 16 subpoenas. 17 Plaintiff will be afforded an opportunity to provide correct or updated information 18 regarding the two witness’ names, as well as provide a new check for the appropriate witness 19 fees made out to the name of the correct individual. Regarding the previous money orders 20 made out to Correctional Officers Tabia and Hernandez, the Court will physically return the 21 money orders to Plaintiff at trial, unless Plaintiff requests otherwise. 22 Accordingly, it is ORDERED: 23 No later than July 20, 2023, Plaintiff shall provide to correctional officials for mailing a 24 Notice of Updated Information concerning Correctional Officers Tabia and Hernandez. If 25 Plaintiff wishes to have the U.S. Marshal attempt to re-serve the subpoena on these witnesses and 26 the names of these witnesses are different than what was on the original checks, he will need to 27 resubmit a new check or money order in the amount of $137.00 for each witness, made out to the 28 corrected spelling of the witness’s name. Plaintiff’s failure to timely comply with this order 1 | will result in Plaintiff's inability to call this witness to testify at trial. 2 >| Dated: __July 2. 2023 Wihaw. □□□ fareh fackt 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28