United States District Court, E.D. California
ORDER RE: FINDINGS AND RECOMMENDATIONS
WILLAIM B. SHUBB, District Judge.
Plaintiff Johnathan Samuel Williams, a state prisoner proceeding without counsel, brought a § 1983 action against three defendants-Drs. Kurk, McIntyre, and Wood-for violations of his Eighth Amendment rights. (See Pl.'s Am. Compl. at 43-50 (Docket No. 9).) On January 8, 2013, the Magistrate Judge informed plaintiff that service directed to these defendants was returned unexecuted after the California State Prison, Solano, told the United States Marshal there was no record of defendants having worked there. (Docket No. 24.) Plaintiff was directed to seek additional information sufficient to effect service. (Id.)
During the next year, plaintiff made several requests for extensions of time, (Docket Nos. 26, 27-29), stating that prison policy limits his access to the prison's law library and that his requests for information from the California Department of Corrections and Rehabilitation ("C.D.C.R.") had gone unanswered. (Pl.'s Second Mot. For Extension Of Time (Docket No. 28).) After receiving two extensions, plaintiff failed to provide any further information concerning the defendants. (Docket No. 31.) The Magistrate Judge submitted Findings and Recommendations ("F&Rs") recommending that the case be dismissed for failure to prosecute and failure to comply with the court's order to serve defendants. (Id.) Plaintiff timely filed objections to the F&Rs. (Docket No. 32.)
For the reasons below, the court rejects the Magistrate Judge's recommendation and remands with orders to appoint counsel for the plaintiff and allow counsel time to locate information concerning the defendants.
I. Involuntary Dismissal for Failure to Serve Process
Courts may involuntarily dismiss a case for failure to prosecute or failure to comply with court rules and orders. See Local Rule 110; Fed.R.Civ.P. 41(b). "Dismissal is a harsh penalty and is to be imposed only in extreme circumstances, " Henderson v. Duncan , 779 F.2d 1421, 1423 (9th Cir. 1986), but dismissal without prejudice is a more easily justified sanction for failure to prosecute than dismissal with prejudice, see Ash v. Cvetkov , 739 F.2d 493, 496 (9th Cir. 1984).
When determining whether dismissal is appropriate, courts must weigh five factors: (1) the public interest in expeditious resolution of litigation, (2) the court's need to manage its docket, (3) the risk of prejudice to the defendant, (4) the public policy favoring disposition of cases on their merits, and (5) the availability of less drastic alternatives. See Bautista v. Los Angeles Cnty. , 216 F.3d 837, 841 (9th Cir. 2000). The Ninth Circuit prefers but does not require explicit discussion of these factors. See Malone v. U.S. Postal Serv. , 833 F.2d 128, 132 (9th Cir. 1987); Henderson , 779 F.2d at 1424.
The Ninth Circuit has upheld dismissal for failure to serve process. In Anderson v. Air West, Inc. , 542 F.2d 522 (1976), for example, the Ninth Circuit upheld a district court's decision to dismiss for lack of prosecution after "a clear showing of willful delay in the service of process on... defendants." Id. at 525. The plaintiff failed to provide a reasonable explanation for a one-year delay in service of process, and the court interpreted the record to reflect "deliberate delay" as plaintiff's counsel tried "to decide whether he really wanted to serve these individuals." Id.
Dismissal for failure to serve defendants has also been used in the context of prisoner litigation. In Taraldsen v. Camberos, Civ. No. 80-1855, 2009 WL 825807 (D. Ariz. Mar. 30, 2009), a district court in Arizona dismissed a pro se prisoner's § 1983 complaint without prejudice after the plaintiff failed to complete and return a service pack for the defendant. Id. at *1. However, the court's ultimate decision to dismiss the case considered several factors beyond delinquent service of process, including the plaintiff's failure to notify the court of a change of address. Id. at *1-2.
II. Application of the Five Factors
This is a close case. The court finds that three of the five factors weigh against involuntary dismissal, while two factors support it. Ultimately, however, plaintiff's good faith attempts to obtain information concerning the defendants and comply with the court's orders distinguishes his situation from a typical case warranting dismissal. Accordingly, the court finds involuntary dismissal inappropriate at this time.
A. The Public Interest in Expeditious Resolution of Litigation and the Court's Need to Manage Its Docket
The Ninth Circuit's discussion of the first two factors in Malone is helpful in fleshing out the essential analysis. Under these factors, the Malone court considered whether the defendant delayed or impeded resolution of the case or prevented the district court from adhering to its trial schedule. See Malone , 833 F.2d at 131.
The length of plaintiff's delay in serving process arguably supports dismissal under this analysis. The Magistrate Judge responded to the initial failure to serve defendants by ordering plaintiff on January 8, 2013, to seek additional information. Since then, plaintiff has requested and received two extensions granting him more time, (Docket Nos. 26, 27), in addition to an unrequested extension provided by the Magistrate Judge after ruling on one of ...