United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LARRY LIONEL WHITE,

Plaintiff,

v.

CITY OF SAN FRANCISCO; et al.,

Defendants. /

No. C 08-4603 SI (pr)

ORDER 

In this pro se prisoner's civil rights action under 42 U.S.C. § 1983, Larry Lionel White

sued Peter Siragusa, a retired police inspector from the San Francisco Police Department, for

wrongful arrest. White alleged in his complaint that, on April 22, 2005, he was arrested and

removed from his residence without a valid warrant by San Francisco police inspector Siragusa.

He contended that the warrant was invalid because neither the warrant nor the affidavit in

support of it was signed. 

This action is now before the court for consideration of numerous matters. The court first

addresses service of process issues, and White's motions for default and summary judgment; then

addresses White's discovery request and motion for reconsideration of the denial of his motion

for appointment of counsel; and lastly, addresses White's several efforts to amend his complaint.

A. Service Of Process And White's Efforts To Summarily Prevail

After doing an initial review of the complaint under 28 U.S.C. § 1915A, the court

determined that the complaint stated a claim against Peter Siragusa, and ordered the Marshal to

serve process on him. The U.S. Marshal's Service representative reported to the court (via the

Case 3:08-cv-04603-SI Document 38 Filed 02/09/10 Page 1 of 5
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"remarks" box on the process receipt and return form (docket # 14)) that the attempt to serve

Siragusa at the San Francisco Police Department was unsuccessful because he had retired and

the department did not provide a new address at which he could be served. The court ordered

White to provide a current address at which Siragusa could be served. (Docket # 17.) White

then sent in a document entitled "Order Service Of Process And Dispositive Motions," which

indicated that Siragusa could be served at the "City Hall Office, Executive Officer" at 1 Dr.

Goodlet B. Place, San Francisco, CA. (Docket # 19.) The Marshal attempted service of process

there and returned a process receipt and return form indicating that defendant was personally

served by serving "Nydia Gonzalez" at the 4th floor at San Francisco City Hall. (Docket # 28.)

Nothing on the form indicated who Nydia Gonzalez was or how she was authorized to accept

service on behalf of Siragusa. Defendant Siragusa never filed anything in this action, and no

attorney made an appearance on his behalf.

It is not clear whether service of process has been accomplished. Federal Rule of Civil

Procedure 4(e) provides that an individual may be served by following state law or by doing one

of the following: delivering a copy of the summons and complaint "to the individual personally,"

leaving a copy of the summons and complaint "at the individual's dwelling or usual place of

abode with someone of suitable age and discretion who resides there," or delivering a copy of

the summons and complaint "to an agent authorized by appointment or by law to receive service

of process." Fed. R. Civ. P. 4(e). Under state law, an individual may be served by, inter alia,

personal delivery, delivery of a copy of the summons and complaint to someone else at

defendant's usual residence or place of business, service by mail coupled with acknowledgment

of receipt, or service by publication. See Cal. Code Civ. P. § 415.10 et seq.

Here, there is inadequate evidence that Siragusa was properly served. He was not

personally served. He was not served at his residence (unless the extremely unlikely situation

is that he lives on the fourth floor of City Hall). He was not served at his place of business,

because he has retired. See, e.g., Zirbes v. Stratton, 187 Cal.App.3d 1407, 1417-18 (Cal. Ct.

App. 1986) (service on former place of employment is inadequate under state law). And there

is inadequate evidence that Nydia Gonzalez is authorized to accept service of process on

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Siragusa's behalf. It may be that Gonzalez is authorized to accept service, but White would have

to provide evidence of that authority, which he has not done. In short, it does not appear that

Siragusa has been properly served because service of process was attempted at his former place

of employment (assuming that the office at City Hall accepts documents for current San

Francisco police officers) and signed for by a person whose authority to accept service of

process on his behalf is unknown. White will need to establish that giving the documents to

Nydia Gonzales accomplished service of process on Siragusa. 

In light of the fact that White has not established that Siragusa has been properly served

with process, White’s motion for entry of default is DENIED. (Docket # 30.) Further, even if

service of process had occurred, it does not appear that the defendant would have been in default

because of the unusual provisions in 42 U.S.C. § 1997e(g)(1), which allows a defendant to

"waive the right of reply" in a civil rights action filed by a prisoner, provides that such a waiver

is not an admission of the allegations in the complaint, and disallows relief for the plaintiff

unless a reply has been filed. The "reply" referred to in § 1997e(g) appears to be the answer to

the complaint. If a defendant may waive the right of reply, he would not be in default for not

filing one. And there was no court-imposed deadline that was missed because the court had

vacated the dispositive motion schedule when the service of process problems surfaced.

 See Order Regarding Service Of Process And Dispositive Motions, p. 2. 

White’s motion for summary judgment is DENIED. (Docket # 29). The same service

of process problem that precludes entry of default also means that summary judgment is

improper. That is, White may not obtain summary judgment in his favor against the defendant

without proving that the defendant properly was served with process. 

B. Miscellaneous Motions

White's “reconsideration of motion for appointment of counsel” repeats the arguments

made in his first motion for appointment of counsel and adds that he has no telephone access in

prison. The motion is DENIED for the same reasons the court denied his first motion for

appointment of counsel in its March 2, 2009 Order Of Service. (Docket # 18.)

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White's request for production of documents is DISMISSED because it was improperly

filed. (Docket # 22.) The court generally is not involved in the discovery process and only

becomes involved when there is a dispute between the parties about discovery responses.

Discovery requests and responses normally are exchanged between the parties without any copy

sent to the court. See Fed. R. Civ. P. 5(d) (listing discovery requests and responses that "must

not" be filed with the court until they are used in the proceeding or the court orders otherwise).

Only when the parties have a discovery dispute that they cannot resolve among themselves

should the parties even consider asking the court to intervene in the discovery process. The

court does not have enough time or resources to oversee all discovery, and therefore requires that

the parties present to it only their very specific disagreements. To promote the goal of

addressing only very specific disagreements (rather than becoming an overseer of all discovery),

the court requires that the parties meet and confer to try to resolve their disagreements before

seeking court intervention. See Fed. R. Civ. P. 37(a); N. D. Cal. Local Rule 37. Where, as here,

one of the parties is a prisoner, the court does not require in-person meetings and instead allows

the prisoner and defense counsel to meet and confer by telephone or exchange of letters.

Although the format of the meet-and-confer process changes, the substance of the rule remains

the same: the parties must engage in a good faith effort to meet and confer before seeking court

intervention in any discovery dispute. Although the court has dismissed the request for

production of documents, White remains free to serve his discovery requests on the defendant

once he has been served with process. White cannot serve interrogatories and document

production requests on non-parties or on parties who have not been served with process. 

C. Amending The Pleading

White has filed numerous documents indicating an intent to amend his complaint. See,

e.g., docket # 9 (amended complaint that includes only a prayer for relief), docket # 23 (motion

for leave to file amended complaint), docket # 24 (“amended complaint”), docket # 25

(“amended complaint” different from docket # 24), docket # 26 (declaration/motion for leave

to file an amended complaint), docket # 27 (“amended complaint addendum”), docket # 31

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(exhibit A and exhibit E), docket # 35 (“amended complaint to process order of service San

Francisco Police Department”), and docket # 37 (a certificate of service plus a single page with

paragraphs numbered 4 and 5 that appear to be legal argument and a prayer for relief). White

apparently wants to amend his complaint, but by filing bits and pieces of an amended complaint,

he has only managed to create an extremely confused record, as well as an inadequate pleading,

because an amended complaint supersedes an earlier complaint. See London v. Coopers &

Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) ("a plaintiff waives all causes of action alleged in

the original complaint which are not alleged in the amended complaint.") He also needs

permission of the court to file any amended complaint after the first one. See Fed. R. Civ. P. 15.

In light of the confused state of the pleading caused by White’s numerous pleadingrelated filings, the court GRANTS his motions to amend so that he may file a single coherent

pleading. (Docket # 23 and # 26.) The court will give White ample time to produce a coherent

and complete pleading; he should use that time to do so and should not expect to file repeated

amendments to make adjustments and add afterthoughts to his second amended complaint.

Continued tinkering with a pleading after the court has found that a claim has been stated may

result in the plaintiff un-stating a claim if a later version deletes some critical allegation because

of the rule that a later pleading supersedes an earlier pleading. Additionally, resolution of a case

is delayed by repeated amendments of the pleading. 

White must file a second amended complaint no later than March 12, 2010, and must

include the caption and civil case number used in this order and the words SECOND

AMENDED COMPLAINT on the first page. White is cautioned that his second amended

complaint must be a complete statement of his claims and will supersede existing pleadings.

IT IS SO ORDERED.

Dated: February 9, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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