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Ransom v. Lee

United States District Court, C.D. California

March 15, 2017

BRYAN E. RANSOM, Plaintiff,
v.
S. LEE, et al., Defendants.

          MEMORANDUM AND ORDER SUMMARILY DISMISSING UNSERVED DEFENDANTS

          HONORABLE DALE S. FISCHER United States District Judge

         I. INTRODUCTION

         On December 15, 2014, Plaintiff Bryan E. Ransom (“Plaintiff”), proceeding pro se and in forma pauperis, filed a Third Amended Complaint (“TAC”) under 42 U.S.C. § 1983. ECF Docket No. (“Dkt.”) 20. The TAC raises twenty-one “claims” against forty-eight defendants, including the following seven defendants who have not yet been served in the action: (1) M. Escobar, (2) K. Smith, (3) R. Downey, (4) Galvan, (5) E. Scef, (6) Siebert, and (7) L. Cabrera (the “Unserved Defendants”). For the reasons set forth below, the claims against the Unserved Defendants are dismissed without prejudice for failure to serve and failure to prosecute.

         II. PROCEDURAL BACKGROUND

         On December 15, 2014, Plaintiff filed the instant TAC. Dkt. 20. The TAC raises twenty-one “claims” against forty-eight defendants. Id. Each of these “claims” raises multiple causes of actions under state and federal law and arises from discrete incidents related to Plaintiff's 2013 hunger strike at California Men's Colony (“CMC”). Id. On December 29, 2014, the Court issued an order directing service of the TAC on the named defendants. Dkt. 22.

         A proof of service on the Unserved Defendants was not filed. Hence, on April 14, 2016, the Court issued an Order to Show Cause why the claims against the Unserved Defendants should not be dismissed for failure to serve and failure to prosecute (“OSC”). Dkt. 126. The Court granted Plaintiff until May 4, 2016 to file a response to the OSC, and warned Plaintiff “that the Court will deem his failure to timely file a response to this Order as consent to the dismissal of his claims against Defendants Escobar, Smith, Downey, Galvan, Scef, Siebert, and Cabrera without prejudice.” Id.

         The time for responding to the OSC has passed and Plaintiff has failed to timely file a response, or request an extension of time in which to do so.[1] As of the date of this Order, no proof of service on the Unserved Defendants has been filed with the Court.

         III. DISCUSSION

         A. PLAINTIFF'S CLAIMS AGAINST THE UNSERVED DEFENDANTS ARE DISMISSED FOR FAILURE TO SERVE

         Pursuant to Federal Rule of Civil Procedure 4(m) “[i]f a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m).

         Here, over ninety (90) days have passed since Plaintiff filed the TAC, yet Plaintiff has failed to serve defendants (1) M. Escobar, (2) K. Smith, (3) R. Downey, (4) Galvan, (5) E. Scef, (6) Siebert, and (7) L. Cabrera. Thus, pursuant to Federal Rule of Civil Procedure 4(m), the claims against the Unserved Defendants must be DISMISSED without prejudice.

         B. PLAINTIFF'S CLAIMS AGAINST THE UNSERVED DEFENDANTS ARE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS

         It is well established that district courts have sua sponte authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (standard applied in dismissal for failure to prosecute); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (dismissal for failure to comply with any court order).

         In deciding whether to dismiss for failure to prosecute or to comply with court orders, a district court must consider five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); see also In re Eisen, ...


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