1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 18-04492 BLF (PR) Plaintiff, 12 ORDER DIRECTING PLAINTIFF TO LOCATE SUCCESSOR OR
13 REPRESENTATIVE FOR v. DECEASED DEFENDANT; 14 DENYING MOTION FOR LEAVE TO AMEND COMPLAINT; 15 DENYING MOTION FOR KENNEDY BENJAMIN RINEY, RECONSIDERATION OF 16 APPOINTMENT OF COUNSEL; Defendant. INSTRUCTIONS TO CLERK 17 (Docket Nos. 32, 33) 18
19 Plaintiff, a state prisoner proceeding pro se filed a civil rights complaint pursuant to 20 42 U.S.C. § 1983. On December 10, 2019, the Court found the second amended 21 complaint, liberally construed, stated a cognizable Fourth Amendment claim against 22 Defendant Officer Kennedy B. Riney of the Daly City Police Department. Dkt. No. 29 at 23 2-3.1 The Court ordered the matter served on Defendant, directing him to file a dispositive 24 motion or notice regarding such motion. Id. On April 14, 2020, the Daly City Police 25 Department filed a Statement Noting Death of Defendant Officer Riney, who passed away 26 27 1 on March 18, 2018. Dkt. No. 36. Because the statement was not served on Plaintiff, the 2 Court will order the Clerk to serve a copy of the Statement Noting Death of Defendant on 3 Plaintiff along with a copy of this order. The Court will also herein address pending 4 motions filed by Plaintiff. 5 6 DISCUSSION 7 A. Deceased Defendant 8 “If a party dies and the claim is not thereby extinguished, the court may order 9 substitution of the proper party. A motion for substitution may be made by any party or by 10 the decedent’s successor or representative. If the motion is not made within 90 days after 11 service of a statement noting the death, the action by or against the decedent must be 12 dismissed.” Fed. R. Civ. P. 25(a). Two things are required of a party for the running of 13 the 90 day period to commence: a party must 1) formally suggest the death of the party on 14 the record, and 2) serve the suggestion of death on the other parties and nonparty 15 successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). A 16 party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ. 17 P. 5(b), while non-party successors or representatives of the deceased party must be served 18 the suggestion of death in the manner provided by Rule 4 for the service of a summons. 19 Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Rule 25 requires dismissal absent a 20 motion for substitution within the 90-day period only if the statement of death was 21 properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-71 (2d Cir. 1998). 22 Accordingly, Plaintiff may attempt to locate Defendant Riney’s successor or 23 representative, and then request the Court order the Marshal to serve them with a statement 24 noting the death of Defendant Riney. With the notice, Plaintiff must file a motion for 25 substitution of the decedent party under Rule 25(3) of the Federal Rules of Civil 26 Procedure, which will be served on the successor or representative along with the 1 Furthermore, because Defendant Riney has not yet been served in this action, the 2 claims against him may be subject to dismissal under Rule 4(m). Although a plaintiff who 3 is incarcerated and proceeding in forma pauperis may rely on service by the Marshal, such 4 plaintiff “may not remain silent and do nothing to effectuate such service”; rather, “[a]t a 5 minimum, a plaintiff should request service upon the appropriate defendant and attempt to 6 remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 7 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending since July 25, 8 2018. Dkt. No. 1. If Defendant’s successor or representative is not served in due course, 9 absent a showing of “good cause,” Plaintiff’s claims against this Defendant shall be 10 dismissed without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must provide the U.S. 11 Marshal with sufficient information to effectuate service or face dismissal of his complaint 12 without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding 13 prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) 14 where prisoner failed to show he had provided Marshal with sufficient information to 15 effectuate service). 16 B. Motion for Appointment of Counsel 17 Plaintiff has filed a motion for reconsideration of the last court order denying him 18 appointment of counsel, asserting new grounds. Dkt. No. 33. In the motion, Plaintiff also 19 generally requests a preliminary injunction and court order for prison officials to “cease 20 and desist violence, harassment and retaliation to interefer[e] with plaintiff’s civil action.” 21 Id. at 2. Plaintiff is currently being housed at Corcoran State Prison (“CSP”), which is not 22 a party to this action. Accordingly, the Court has no jurisdiction over CSP or any of its 23 employees in this action to issue an injunctive order against them. Plaintiff must file any 24 new claims against CSP employees in a separate civil rights action. 25 Plaintiff asserts the following grounds for appointment of counsel: lack of legal 26 material and access to the law library and legal assistance, and the need for assistance to 1 alleges, Plaintiff managed to file another motion to amend the complaint with this motion. 2 Dkt. No. 32. Furthermore, discovery at this stage in the proceedings is premature since 3 Defendant has not yet been served in this action. Accordingly, the motion for 4 reconsideration is DENIED for lack of changed circumstances. See Agyeman v. 5 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand v. Rowland, 113 6 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 7 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This denial is without 8 prejudice to the Court’s sua sponte appointment of counsel at a future date should the 9 circumstances of this case warrant such appointment. 10 C. Motion to Amend Complaint 11 Plaintiff filed a motion to amend the complaint, indicating that he wants to add the 12 City of Daly City as a defendant to this action. Dkt. No. 32. He asserts that the grounds 13 for liability is that Defendant Riney was an “agent, servant, and employee” of Daly City, 14 which is a “municipal corporation within the State of California, and at all relevant times, 15 it employed defendant Kennedy B. Riney.” Id. at 1. 16 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where 17 official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 18 436 U.S. 658
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 18-04492 BLF (PR) Plaintiff, 12 ORDER DIRECTING PLAINTIFF TO LOCATE SUCCESSOR OR
13 REPRESENTATIVE FOR v. DECEASED DEFENDANT; 14 DENYING MOTION FOR LEAVE TO AMEND COMPLAINT; 15 DENYING MOTION FOR KENNEDY BENJAMIN RINEY, RECONSIDERATION OF 16 APPOINTMENT OF COUNSEL; Defendant. INSTRUCTIONS TO CLERK 17 (Docket Nos. 32, 33) 18
19 Plaintiff, a state prisoner proceeding pro se filed a civil rights complaint pursuant to 20 42 U.S.C. § 1983. On December 10, 2019, the Court found the second amended 21 complaint, liberally construed, stated a cognizable Fourth Amendment claim against 22 Defendant Officer Kennedy B. Riney of the Daly City Police Department. Dkt. No. 29 at 23 2-3.1 The Court ordered the matter served on Defendant, directing him to file a dispositive 24 motion or notice regarding such motion. Id. On April 14, 2020, the Daly City Police 25 Department filed a Statement Noting Death of Defendant Officer Riney, who passed away 26 27 1 on March 18, 2018. Dkt. No. 36. Because the statement was not served on Plaintiff, the 2 Court will order the Clerk to serve a copy of the Statement Noting Death of Defendant on 3 Plaintiff along with a copy of this order. The Court will also herein address pending 4 motions filed by Plaintiff. 5 6 DISCUSSION 7 A. Deceased Defendant 8 “If a party dies and the claim is not thereby extinguished, the court may order 9 substitution of the proper party. A motion for substitution may be made by any party or by 10 the decedent’s successor or representative. If the motion is not made within 90 days after 11 service of a statement noting the death, the action by or against the decedent must be 12 dismissed.” Fed. R. Civ. P. 25(a). Two things are required of a party for the running of 13 the 90 day period to commence: a party must 1) formally suggest the death of the party on 14 the record, and 2) serve the suggestion of death on the other parties and nonparty 15 successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). A 16 party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ. 17 P. 5(b), while non-party successors or representatives of the deceased party must be served 18 the suggestion of death in the manner provided by Rule 4 for the service of a summons. 19 Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Rule 25 requires dismissal absent a 20 motion for substitution within the 90-day period only if the statement of death was 21 properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-71 (2d Cir. 1998). 22 Accordingly, Plaintiff may attempt to locate Defendant Riney’s successor or 23 representative, and then request the Court order the Marshal to serve them with a statement 24 noting the death of Defendant Riney. With the notice, Plaintiff must file a motion for 25 substitution of the decedent party under Rule 25(3) of the Federal Rules of Civil 26 Procedure, which will be served on the successor or representative along with the 1 Furthermore, because Defendant Riney has not yet been served in this action, the 2 claims against him may be subject to dismissal under Rule 4(m). Although a plaintiff who 3 is incarcerated and proceeding in forma pauperis may rely on service by the Marshal, such 4 plaintiff “may not remain silent and do nothing to effectuate such service”; rather, “[a]t a 5 minimum, a plaintiff should request service upon the appropriate defendant and attempt to 6 remedy any apparent defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 7 1107, 1110 (5th Cir. 1987). Here, Plaintiff’s complaint has been pending since July 25, 8 2018. Dkt. No. 1. If Defendant’s successor or representative is not served in due course, 9 absent a showing of “good cause,” Plaintiff’s claims against this Defendant shall be 10 dismissed without prejudice. See Fed. R. Civ. P. 4(m). Plaintiff must provide the U.S. 11 Marshal with sufficient information to effectuate service or face dismissal of his complaint 12 without prejudice. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (holding 13 prisoner failed to show cause why prison official should not be dismissed under Rule 4(m) 14 where prisoner failed to show he had provided Marshal with sufficient information to 15 effectuate service). 16 B. Motion for Appointment of Counsel 17 Plaintiff has filed a motion for reconsideration of the last court order denying him 18 appointment of counsel, asserting new grounds. Dkt. No. 33. In the motion, Plaintiff also 19 generally requests a preliminary injunction and court order for prison officials to “cease 20 and desist violence, harassment and retaliation to interefer[e] with plaintiff’s civil action.” 21 Id. at 2. Plaintiff is currently being housed at Corcoran State Prison (“CSP”), which is not 22 a party to this action. Accordingly, the Court has no jurisdiction over CSP or any of its 23 employees in this action to issue an injunctive order against them. Plaintiff must file any 24 new claims against CSP employees in a separate civil rights action. 25 Plaintiff asserts the following grounds for appointment of counsel: lack of legal 26 material and access to the law library and legal assistance, and the need for assistance to 1 alleges, Plaintiff managed to file another motion to amend the complaint with this motion. 2 Dkt. No. 32. Furthermore, discovery at this stage in the proceedings is premature since 3 Defendant has not yet been served in this action. Accordingly, the motion for 4 reconsideration is DENIED for lack of changed circumstances. See Agyeman v. 5 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand v. Rowland, 113 6 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 7 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This denial is without 8 prejudice to the Court’s sua sponte appointment of counsel at a future date should the 9 circumstances of this case warrant such appointment. 10 C. Motion to Amend Complaint 11 Plaintiff filed a motion to amend the complaint, indicating that he wants to add the 12 City of Daly City as a defendant to this action. Dkt. No. 32. He asserts that the grounds 13 for liability is that Defendant Riney was an “agent, servant, and employee” of Daly City, 14 which is a “municipal corporation within the State of California, and at all relevant times, 15 it employed defendant Kennedy B. Riney.” Id. at 1. 16 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where 17 official policy or custom causes a constitutional tort, see Monell v. Dep't of Social Servs., 18 436 U.S. 658, 690 (1978); however, a city or county may not be held vicariously liable for 19 the unconstitutional acts of its employees under the theory of respondeat superior, see 20 Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 21 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Based on his 22 general allegations, Plaintiff is attempting to hold Daly City liable solely based on the acts 23 of its employee, which is not sufficient to state a claim. To impose municipal liability 24 under § 1983 for a violation of constitutional rights resulting from governmental inaction 25 or omission, a plaintiff must show: “(1) that he possessed a constitutional right of which he 26 was deprived; (2) that the municipality had a policy; (3) that this policy amounts to 1 moving force behind the constitutional violation.” Oviatt By and Through Waugh v. 2 Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 3 378, 389 (1989) (internal quotation marks omitted). Plaintiff makes no allegations 4 establishing any of these elements. Accordingly, the motion to amend is DENIED. 5 6 CONCLUSION 7 For the foregoing reasons, the Court orders as follows: 8 1. Because the sole defendant in this action, Defendant Officer Riney, has 9 passed away, this matter can only proceed if Plaintiff is able to locate a successor or 10 representative for Defendant. Plaintiff may attempt to locate Defendant Riney’s 11 successor or representative and provide the Court with an appropriate address where the 12 Marshal can serve them with a suggestion noting the death of Defendant Riney. Along 13 with the location information, Plaintiff must file a motion for substitution of the deceased 14 party under Rule 25. If substitution is not made within ninety days after service of a 15 statement of Defendant Riney’s death, the claims against Defendant Riney shall be 16 dismissed. 17 Separately, this action may be subject to dismissal under Rule 4(m) if service is not 18 effectuated in due course. In the interest of justice, the Court will grant Plaintiff an 19 extension of time to comply with Rule 4(m). No later than ninety (90) days from the 20 date this order is filed, Plaintiff must provide the Court with an address to serve 21 Defendant Riney’s successor or representative. Failure to do so will result in the dismissal 22 without prejudice of this action and without further notice to Plaintiff. 23 2. Plaintiff’s motion for reconsideration of the court’s order denying his last 24 motion for appointment of counsel, Dkt. No. 33, is DENIED. 25 3. Plaintiff’s motion to amend the complaint to add Daly City as a defendant in 26 this action is DENIED. Dkt. No. 32. 1 || Death of Defendant Riney, Dkt. No. 36, with a copy of this order to Plaintiff, along with a 2 || certificate of service. 3 This order terminates Docket Nos. 32 and 33. 4 IT IS SO ORDERED. 5 || Dated: _ April 16, 2020 h oN tl (1 A □□□ / BETH LABSON FREEMAN 6 United States District Judge 7 8 9 10 11 12
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Z 18 19 20 21 22 23 24 Order to Locate Succ/Rep; Denying Am.; Denying Recon. M. 25 PRO-SE\BLF\CR.18\04492Saddozai_subs.Def&deny.recon 26 27