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Allen v. Giodonez

United States District Court, C.D. California

April 15, 2014

MICHAEL DEWAYNE ALLEN, Plaintiff,
v.
C.O. GIODONEZ, 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.

BACKGROUND

Plaintiff, a state prisoner, filed this action pro se on November 26, 2012. On December 11, 2012, the Court dismissed the Complaint with leave to amend. On December 31, 2012, Plaintiff filed a First Amended Complaint. On January 3, 2013, the Court issued an Order directing service of process of the First Amended Complaint by the United States Marshal on Defendant C.O. Giodonez.

On February 28, 2013, the Court issued an Order indicating that the Marshals Service had advised the Court that Plaintiff had failed to provide information or documentation necessary to effect service. The Order required Plaintiff to show cause, within thirty (30) days of the date of the Order, why the action should not be dismissed for failure to prosecute. The Order also advised Plaintiff that failure timely to comply with the Order might be deemed consent to the dismissal of the action. Plaintiff failed to respond to the Order within the allotted time.

On April 8, 2013, the Magistrate Judge issued a Report and Recommendation, recommending dismissal of the action without prejudice. Plaintiff did not file any objections to the recommendation. On October 3, 2013, the District Judge issued an "Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge." Judgment was entered on October 7, 2013.

On November 5, 2013, the Court received a letter from Plaintiff, dated October 22, 2013. The letter claimed that various circumstances had prevented Plaintiff from prosecuting this action previously. The letter expressed Plaintiff's desire to prosecute the action.

On November 5, 2013, the District Judge issued an "Order Vacating Judgment and Extending Time to Effect Service of Process." This Order vacated the Judgment entered October 7, 2013, and extended for sixty (60) days the time within which Plaintiff could effect service of process. The Order required that Plaintiff "forthwith" provide to the United States Marshals Service the information and documentation necessary to effect service. The Order advised Plaintiff that failure timely to effect service of process might result in the dismissal of the action.

Despite the passage of several months since the November 5, 2013 Order, service of process has not been effected. In March, 2014, the United States Marshals Service advised the Court that Plaintiff has failed to provide the information and documentation necessary to effect service. By Minute Order issued on March 20, 2014, the Magistrate Judge ordered Plaintiff to file a declaration within twenty (20) days attempting to show cause, if there be any, why this action should not be dismissed without prejudice for failure timely to effect service and/or for failure to prosecute. The same Order warned Plaintiff that "[f]ailure timely to comply with this Minute Order may be deemed consent to the dismissal of this action." Nevertheless, Plaintiff failed to file any declaration within the allotted time.

DISCUSSION

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). Despite having been warned repeatedly of the consequence of dismissal, Plaintiff repeatedly has failed to provide the Marshal's Service with the information and documentation necessary to effect service, and repeatedly has failed to respond timely to orders 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 repeatedly has failed to respond timely to orders to show cause. 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 (1995) (it is the plaintiff/prisoner's responsibility to provide the Marshals Service with sufficient information with which to effect service).[1]

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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