United States District Court, S.D. California
ORDER GRANTING DEFENDANT COUNTY OF SAN DIEGO'S
UNOPPOSED MOTION TO DISMISS; [DOC. NO. 11] ORDERING PLAINTIFF
TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR
FAILURE TO SERVE REMAINING DEFENDANT UNDER FEDERAL RULE OF
CIVIL PROCEDURE 4(M)
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE
Steven Hans Lake, while detained at the San Diego County
Sheriff Department's George Bailey Detention Facility
(“GBDF”) located in San Diego, California, and
proceeding pro se, filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 against Defendants County
of San Diego and the GBDF Medical Director, alleging
violation of his constitutional right to adequate medical
care. See Doc. No. 1. Defendant County of San Diego
moves to dismiss Plaintiff's claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). See Doc. No. 11.
To date, Plaintiff has not filed a response in opposition to
the motion. For the reasons set forth below, the Court
GRANTS Defendant County of San Diego's
unopposed motion. The Court further ORDERS
Plaintiff to show cause why this action should not be
dismissed as to Defendant GBDF Medical Director for failure
to serve this defendant with the summons and complaint
pursuant to Federal Rule of Civil Procedure 4(m).
County of San Diego moves to dismiss Plaintiff's claims
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendant filed its motion on November 6, 2019, and the Court
set the motion for administrative hearing on December 23,
2019. As such, Plaintiff's opposition to the motion was
due on or before December 9, 2019. See SD CivLR
7.1.e.2. To date, Plaintiff has not submitted a response in
opposition to the motion, nor has he requested an extension
of time in which to do so.
forth in this District's Civil Local Rules, “[i]f
an opposing party fails to file the papers in the manner
required by Civil Local Rule 7.1.e.2, that failure may
constitute a consent to the granting of a motion or other
request for ruling by the court.” S.D. CivLR 7.1.f.3.c.
The Ninth Circuit has held a district court may properly
grant an unopposed motion to dismiss pursuant to a local rule
where the local rule permits, but does not require, the
granting of a motion for failure to respond. See
generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
1995). The Court has the option of granting Defendant's
motion on the basis of Plaintiff's failure to respond,
and it chooses to do so.
the Court GRANTS Defendant County of San
Diego's motion to dismiss and DISMISSES
this action as to Defendant County of San Diego without
prejudice. The Clerk of Court is instructed to terminate this
action as to Defendant County of San Diego.
to Show Cause
GBDF Medical Director is the only named defendant in this
action besides Defendant County of San Diego. Plaintiff's
attempt to serve the GBDF Medical Director was unsuccessful.
See Doc. No. 10.
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). “[A]n
incarcerated pro se plaintiff proceeding in forma pauperis is
entitled to rely on the U.S. Marshal for service of the
summons and complaint, ” provided the prisoner has
supplied “the necessary information to help effectuate
service Puett v. Blandford, 912 F.2d 270, 275 (9th
Cir.1990). If service cannot be accomplished due to a pro se
plaintiffs “neglect” or “fault, ”
including the plaintiffs failure to provide sufficient
information to identify or locate the defendant, dismissal is
appropriate. See Walker v. Sumner, 14 F.3d 1415,
1421-1422 (affirming dismissal of claims against an unserved
defendant under Rule 4(m) where the prisoner had not shown
that “he provided the marshal with sufficient
information to serve [the defendant]”).
the mailbox rule, Plaintiff filed this action on July 22,
2019. The time period to effectuate service under Rule 4(m)
has expired. Accordingly, IT IS HEREBY
ORDERED that within thirty (30) days from the date
of this Order, Plaintiff must show cause why this action
should not be dismissed without prejudice as to Defendant
GBDF Medical Director for failure to serve pursuant to Rule
4(m) of the Federal Rules of Civil Procedure. The failure to