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Counce v. Federal Bureau of Prisons

United States District Court, Ninth Circuit

July 30, 2013

KENNETH IRVIN COUNCE, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS CORRECTIONAL OFFICER SANCHEZ, et al., Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dolly M. Gee, 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.

PROCEEDINGS

Plaintiff, a federal prisoner, filed this action pro se on January 13, 2012. The operative pleading is the Third Amended Complaint, which alleges a claim for relief against one Defendant, "Correctional Officer Sanchez." On September 17, 2012, the Court ordered service of process of the Third Amended Complaint by the United States Marshal.

On November 5, 2012, the Court filed a Minute Order indicating that the Marshals Service had advised the Court that Plaintiff had failed to provide information or documentation necessary to effect service. The Minute Order required Plaintiff to show cause, within thirty (30) days of November 5, 2012, why the action should not be dismissed for failure to prosecute.

On December 3, 2012, Plaintiff filed a document entitled "Third Declaration." This Declaration appeared to reflect Plaintiff's lack of sufficient information to permit the United States Marshal to effect service on Defendant. Plaintiff's Declaration indicated, among other things, that Plaintiff did not know Defendant's first name.

By Minute Order filed December 7, 2012, the Court gave Plaintiff more time to attempt to gather additional identifying information concerning Defendant. However, the Minute Order also required that, on or before January 15, 2013, Plaintiff show cause, if there be any, why this action should not be dismissed for failure to prosecute and for failure to effect timely service of the Summons and Third Amended Complaint. The December 7, 2012 Minute Order warned Plaintiff that "[f]ailure timely to comply with this Order may be deemed consent to the dismissal of this action." Nevertheless, Plaintiff failed to file any timely response to the December 7, 2012 Minute Order.

DISCUSSION

For the reasons discussed below, this action should be dismissed without prejudice for failure to prosecute, failure to obey a court order, and failure to effect timely service of the Third Amended Complaint.

A district court may dismiss an action for failure to obey a court order or 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). 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, and has failed to respond timely to an order to show cause.

"An incarcerated pro se plaintiff, proceeding in forma pauperis, is entitled to rely on the marshal for service and should not be penalized by having his action dismissed for failure to effect service where the marshal has failed to perform his duties. Puett v. Blandford , 912 F.2d 270, 275 (9th Cir. 1990). Nevertheless, a plaintiff relying upon the U.S. Marshal for service must provide the necessary information and documents to effectuate service. Id." Friday v. United States Dep't of Justice, 1994 WL 48956 *1 (D. Or. Feb. 7, 1994). In the present case, the Marshal has attempted to perform his duties, but Plaintiff has not provided the Marshal with the necessary information to effectuate service and has failed to respond timely to an order to show cause.

Rule 4(m) requires the Court to extend the time for service if a plaintiff shows good cause for the failure to serve. "At a minimum, good cause' means excusable neglect." Bourdette v. Barnette , 923 F.2d 754, 756 (9th Cir. 1991). Here, Plaintiff has not shown any good cause for the failure of service.

A court has "broad discretion" to extend the time for service under Rule 4(m), even absent a showing of good cause. See Efaw v. Williams , 473 F.3d 1038, 1040-41 (9th Cir. 2007); see also United States v. 2, 164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc. , 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts "leeway to preserve meritorious lawsuits despite untimely service of process"). A court may consider various factors including prejudice to the defendant, actual notice, a possible limitations bar, and eventual service. Efaw v. Williams , 473 F.3d at 1041. Any such dismissal should be without prejudice. See id. at 772.

Here, the record shows no basis for further extending the time for service. To the contrary, the record suggests that further extending the time for service would be an idle act. Service on the Defendant evidently cannot be effected without more specific identifying information, and Plaintiff has proven unwilling or unable to provide such information. Accordingly, dismissal without prejudice is appropriate. Id .; see Walker v. Sumner , 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds, Sandin v. Conner , 515 U.S. 472 (1955) (it is the plaintiff/prisoner's responsibility to provide the Marshals Service with sufficient information with which to effect service); accord Brush v. Harper, 2009 WL 256380, at *1 (E.D. Cal. Feb. 3, 2009), adopted, 2009 WL 902265 (E.D. Cal. April 1, 2009); Schrubb v. Tilton , 2009 WL 133022, at *2 (N. D. Cal. Jan. 16, 2009).

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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