(PC) Sekona v. Francis

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 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 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 civil rights action under 42 U.S.C. § 1983. This matter is set for trial to commence on August 8, 2023.

20 On September 19, 2022, Plaintiff listed in his pretrial statement witnesses that he intended to call at trial. (Doc. No. 59 at 8). In the Court’s December 13, 2023 Tentative Pretrial Order, the Court informed Plaintiff that he must submit money orders if he intends to have the Marshals Service serve any nonincarcerated witness. (Doc. No. 64 at 10). On February 3, 2023 Plaintiff submitted checks made out to the following four witnesses: (1) LVN Melinda Cook, (2) Correctional Officer Commagay, (3) Correctional Officer Tabia, and (4) Correctional Officer Hernandez. See docket. On June 22, 2023, the Court directed service of subpoenas on the four aforementioned witnesses. (Doc. Nos. 84-87). On June 30, 2023, subpoenas were returned executed for Correctional Officer Commagay and LVN Melinda Cook but unexecuted for Correctional Officers Tabia and Hernandez. (Doc. Nos. 90-93). The checks for Correctional 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 rely on the U.S. Marshal for service of subpoenas for his unincarcerated witnesses. See Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it is ultimately Plaintiff’s responsibility to provide the Marshal with accurate and sufficient information to effect service. See Walker v. Sumner, 14 F.3d 1415, 1421–22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472, 115 (1995).

9 Here, the U.S. Marshal attempted service on Correctional Officers Tabia and Hernandez with the information Plaintiff provided. However, the Litigation Coordinator at Kern Valley State Prison could not identify who Correctional Officers Tabia and Hernandez due to a lack of information provided by Plaintiff. (Doc. Nos. 91, 92). Notably, Plaintiff did not provide a first name for either witness or other identifying information which may assist the litigation coordinator with identifying the correct individuals. Plaintiff therefore has not provided sufficient information to identify and locate Correctional Officers Tabia and Hernandez for service of the subpoenas.

17 Plaintiff will be afforded an opportunity to provide correct or updated information regarding the two witness’ names, as well as provide a new check for the appropriate witness fees made out to the name of the correct individual. Regarding the previous money orders made out to Correctional Officers Tabia and Hernandez, the Court will physically return the 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 Notice of Updated Information concerning Correctional Officers Tabia and Hernandez. If Plaintiff wishes to have the U.S. Marshal attempt to re-serve the subpoena on these witnesses and the names of these witnesses are different than what was on the original checks, he will need to resubmit a new check or money order in the amount of $137.00 for each witness, made out to the corrected spelling of the witness’s name. Plaintiff’s failure to timely comply with this order | will result in Plaintiff's inability to call this witness to testify at trial. >| Dated: __July 2. 2023 Wihaw. □□□ fareh fackt 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE