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Brandon v. Los Angeles County Sheriff Department

United States District Court, Ninth Circuit

June 3, 2013

MARSHA BRANDON, Plaintiff,
v.
LOS ANGELES COUNTY SHERIFF DEPARTMENT,

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

Plaintiff, a person in state custody, filed this civil rights action on October 4, 2012. The caption of the Complaint appeared to list as Defendants the Los Angeles County Sheriff's Department and a "Deputy Morales, " although the body of the Complaint appeared to list only "Deputy Morales" as a Defendant.

On October 5, 2012, the Magistrate Judge ordered the United States Marshal to effect service of the Summons and Complaint upon "Deputy Morales." The Marshal's Service subsequently advised the Court that Plaintiff had failed to provide sufficient information and documentation to effect service on "Deputy Morales." On January 3, 2013, the Magistrate Judge ordered Plaintiff to provide sufficient information and documentation. The Magistrate Judge further ordered that, if service had not been effected by February 4, 2013, Plaintiff was required to file a declaration no later than February 25, 2013, attempting to show cause, if there be any, why this action should not be dismissed for failure to prosecute and failure to effect timely service. The Magistrate Judge's Order cautioned that "Plaintiff's failure timely to comply with this Order may be deemed consent to the dismissal of this action." Service still has not been effected on "Deputy Morales, " and Plaintiff failed to file a timely declaration in response to the January 3, 2013 Order.

Meanwhile, on January 8, 2013, Defendant County of Los Angeles, "erroneously sued and served herein as the Los Angeles County Sheriff's Department, " filed a Motion to Dismiss. On January 9, 2013, the Magistrate Judge ordered Plaintiff to file opposition to the Motion to Dismiss on or before February 8, 2013. Plaintiff failed to file opposition within the allotted time. By Minute Order filed February 22, 2013, the Magistrate Judge ordered Plaintiff to file an opposition or other response to the Motion to Dismiss within twenty (20) days of February 22, 2013. The Magistrate Judge warned Plaintiff that "[f]ailure timely to do so may result in the dismissal of the entire action for failure to prosecute." Nevertheless, Plaintiff again failed to file an opposition or other response to the Motion to Dismiss.

DISCUSSION

This action should be dismissed without prejudice. A district court may dismiss an action for failure to obey a court order and for failure to prosecute. See Link v. Wabash Railroad Co. , 370 U.S. 626, 629-33 (1962); Pagtalunan v. Galaza , 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003); Ferdik v. Bonzelet , 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992). Despite having been warned of the consequence of dismissal, Plaintiff has failed to provide the Marshal's Service with the information and documentation necessary to effect service of the Summons and Complaint on "Deputy Morales, "[1] and has failed to respond timely to an order to show cause. Despite having been warned of the consequence of dismissal, Plaintiff also has failed timely to comply with two court orders requiring a response to the pending Motion to Dismiss. Accordingly, dismissal of this action without prejudice is appropriate.[2]

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.


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