Pasene v. Correa et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IOSEFA PASENE,
Plaintiff,
vs.
BOISSE CORREA, Honolulu Police
Chief, other, BOSSIE CORREA;
GREGORY MCCORMICK, Honolulu
Police Detective; THEODORE
COONS, Honolulu Police Detective;
ALBERT LE, Honolulu Police Officer;
DANIEL SELLERS, Honolulu Police
Officer; OFFICER JOHN DOE,
Honolulu Police Officer/Dispatcher;
and CITY AND COUNTY OF
HONOLULU,
Defendants.
Case No. 21-cv-427-DKW-KJM
ORDER DIRECTING SERVICE OF
THE FIRST AMENDED
COMPLAINT
On October 29, 2021, Plaintiff Iosefa Pasene, proceeding pro se, filed a
Complaint against six current and/or former members of the Honolulu Police
Department—Boisse Correa, Gregory McCormick, Theodore Coons, Daniel
Sellers, Albert Le, and John Doe—and the City and County of Honolulu (the
“City”) (collectively, “Defendants”), alleging several civil rights violations. Dkt.
No. 1. Pasene also filed an application to proceed in forma pauperis (“IFP
Application”). Dkt. No. 4. On November 30, 2021, the Court granted Pasene’s
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IFP Application and directed the U.S. Marshal to assist with service of Pasene’s
Complaint. Dkt. No. 9.
Of the six identified Defendants, four—the City, Correa, Coons, and
Sellers—were successfully served with process, while two—McCormick and Le—
were not.1 See Dkt. Nos. 26, 28. According to the U.S. Marshals Service,
“Gregory McCormick [and Albert Le are] no longer employed by HPD. No
forwarding address provided by HPD or Corporation Counsel.” Dkt. Nos. 25, 27.
On April 11, 2022, the City, Correa, and Coons filed Motions to Dismiss.
Dkt. Nos. 40, 46. On September 2, 2022, the Court dismissed some of Pasene’s
claims with prejudice and others without prejudice. Dkt. No. 64. Pasene was
granted until October 14, 2022 to amend his Complaint. See Dkt. No. 67.
On October 12, 2022, Pasene filed his First Amended Complaint (“FAC”).
Dkt. No. 70. Because Pasene retains his IFP status and the claims in his FAC have
not been dismissed, the Court finds that service of the Summons and the FAC is
appropriate as to the two Defendants who have not yet been served, McCormick
and Le. As to the other four Defendants who have already been served, the Court
reminds Pasene that it is his obligation to serve any filings and documents on those
four Defendants or their counsel from this point forward, including the FAC. See
1The “John Doe” Defendant will be addressed in a subsequent order, assuming Pasene
successfully identifies the individual.
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Dkt. No. 9 (Court’s prior order directing, “After service of the summons and the
Complaint, whether accomplished on his own or with the service of the U.S.
Marshal, Pasene must serve on Defendants or their attorneys a copy of all further
documents he submits to the Court. The U.S. Marshal is not responsible for
serving such further documents on Plaintiff’s behalf.”).
To facilitate service of the Summons and FAC as to McCormick and Le, the
Court ORDERS as follows:
1. For each of the two (2) Defendants who have not yet been successfully
served with process—McCormick and Le—the Clerk’s Office is directed
to send to Plaintiff: one copy of the FAC; one copy of the original
Complaint; one USM-285 form; one summons; one Notice of Lawsuit
and Request for Waiver of Service of Summons form (AO 398); and two
Waiver of Service of Summons forms (AO 399); an instruction sheet;
and a copy of this Order.
2. For each of those two Defendants, Plaintiff shall complete the forms as
directed and submit the following documents to the U.S. Marshal in
Honolulu, Hawai‘i: a completed USM-285 form; a copy of the FAC; a
copy of the original Complaint; the summons; a completed Notice of
Lawsuit and Request for Waiver of Service of Summons form (AO 398);
and two (2) completed Waiver of Service of Summons forms (AO 399).
3. Upon receipt of these documents from Plaintiff, the U.S. Marshal shall
mail to each of the two Defendants: a copy of the FAC; a copy of the
original Complaint; a completed Notice of Lawsuit and Request for
Waiver of Service form (AO 398); and two (2) completed Waiver of
Service of Summons forms (AO 399), as directed by Plaintiff without
payment of costs. See Fed. R. Civ. P. 4(c)(3). Given that the
whereabouts of these two Defendants may be unknown, Pasene is
reminded that it is his obligation to provide valid addresses for the U.S.
Marshal to use for service; it is not the U.S. Marshal’s obligation to
locate the two Defendants.
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4. For each of the two Defendants, the U.S. Marshal shall retain a copy of
the FAC and the Summons. For each of the two Defendants, the U.S.
Marshal shall also file a returned Waiver of Service of Summons form as
well as any Waiver of Service of Summons form that is returned as
undeliverable, as soon as it is received.
5. If either Defendant does not return a Waiver of Service of Summons
form within sixty days from the date that such form is mailed, the U.S.
Marshal shall:
a. 	Personally serve such Defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
b. Within ten days after personal service is effected, file the return of
service for such Defendant, along with evidence of any attempts to
secure a waiver of service of summons and of the costs
subsequently incurred in effecting service. Said costs shall be
enumerated on the USM-285 form and shall include the costs
incurred by the U.S. Marshal’s office in photocopying additional
copies of the summons and the Complaint and for preparing new
USM-285 forms, if required. Costs of service will be taxed against
the personally served Defendant in accordance with the provisions
of Federal Rule of Civil Procedure 4(d)(2).
6. If Plaintiff does not wish to use the U.S. Marshal for service, as outlined
above, he may serve the remaining two unserved Defendants on his own,
in compliance with Federal Rule of Civil Procedure 4.
7. Plaintiff is cautioned that if he fails to comply with this Order and his
non-compliance prevents timely and proper service as set forth in Federal
Rule of Civil Procedure 4(m), this action, in whole or in part, is subject to
dismissal for failure to serve.
8. After service of the FAC and Summons, as applicable, whether
accomplished on his own or with the service of the U.S. Marshal,
Plaintiff must serve on Defendants or their attorneys a copy of all further
documents he submits to the Court. The U.S. Marshal is not responsible
for serving such further documents on Plaintiff’s behalf. Plaintiff shall
include, with any original paper filed with the Clerk of Court, a
certificate stating the date that a copy of the document was served on
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Defendants or their counsel, and the manner in which service was
accomplished. Any paper received by a District or Magistrate Judge that
has not been filed with the Clerk of Court or that does not include a
certificate of service will be disregarded.
9. Plaintiff is further notified that he must comply with the Federal Rules of
Civil Procedure and the Local Rules for the District of Hawai‘i.
IT IS SO ORDERED.
DATED: October 19, 2022 at Honolulu, Hawai‘i.
Iosefa Pasene v. Boisse Correa, et al; Civil No. 21-00427 DKW-KJM; ORDER
DIRECTING SERVICE OF THE FIRST AMENDED COMPLAINT
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
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