Marsha Brandon v. Los Angeles County Sheriff Department et al

Filing 21

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Philip S. Gutierrez for Report and Recommendation (Issued) 19 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment shall be entered dismissing the action without prejudice. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARSHA BRANDON,

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Plaintiff,
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v.
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LOS ANGELES COUNTY SHERIFF
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DEPARTMENT “DEPUTY MORALES,” )
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Defendant.
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______________________________)

NO. CV 13-7613-PSG(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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Phillip S. Gutierrez, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Plaintiff, a state prisoner, filed a “1st Amended . . . Civil

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Rights Complaint” (“First Amended Complaint”) on November 26, 2013.

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The First Amended Complaint names “Deputy Morales” as the sole

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Defendant.

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On December 2, 2013, the Court ordered the Unites States Marshal

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to serve the First Amended Complaint on “Deputy Morales.”

On May 6,

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2014, the Court filed a Minute Order indicating that the Marshals

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Service had advised the Court that Plaintiff had failed to provide

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information or documentation necessary to effect service.

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Order required Plaintiff to show cause, within thirty (30) days of

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May 6, 2014, why the action should not be dismissed for failure to

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prosecute.

The Minute

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Plaintiff’s only timely response to the Court’s May 6, 2014

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Minute Order was a one page declaration, filed May 28, 2014.

In this

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declaration, Plaintiff states that she does not know how to contact

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“Deputy Morales.”

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County Sheriff Dept, et al., No. CV 12-8288-JSL(E), the Court

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dismissed a prior civil rights action in which Plaintiff named “Deputy

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Morales” as a Defendant but failed to provide sufficient information

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or documentation to effect service on “Deputy Morales.”

The Court observes that in Brandon v. Los Angeles

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DISCUSSION

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This action should be dismissed without prejudice.

“An

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incarcerated pro se plaintiff, proceeding in forma pauperis, is

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entitled to rely on the marshal for service and should not be

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penalized by having his action dismissed for failure to effect service

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where the marshal has failed to perform his duties.

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Blandford, 912 F.2d 270, 275 (9th Cir. 1990).

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plaintiff relying upon the U.S. Marshal for service must provide the

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necessary information and documents to effectuate service.
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Puett v.

Nevertheless, a

Id.”

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Friday v. United States Dep’t of Justice, 1994 WL 48956 *1 (D. Or.

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Feb. 7, 1994).

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perform his duties, but Plaintiff has not provided the Marshal with

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the necessary information to effectuate service.

In the present case, the Marshal has attempted to

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Rule 4(m) of the Federal Rules of Civil Procedure requires the

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Court to extend the 120 day time frame for service if a plaintiff

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shows good cause for the failure to serve.

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cause’ means excusable neglect.”

“At a minimum, ‘good

Boudette v. Barnette, 923 F.2d 754,

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756 (9th Cir. 1991).

Here, Plaintiff has not shown any good cause for

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the failure of service.

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Morales” since 2012, but despite the passage of many months and the

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dismissal of a prior action, Plaintiff has failed to obtain

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identifying information sufficient to effect service on “Deputy

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Morales.”

Plaintiff has been attempting to sue “Deputy

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A court has “broad discretion” to extend the time for service

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under Rule 4(m), even absent a showing of good cause.

See Efaw v.

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Williams, 473 F.3d 1038, 1040-41 (9th Cir. 2007); see also United

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States v. 2,164 Watches, More or Less, Bearing a Registered Trademark

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of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives

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courts “leeway to preserve meritorious lawsuits despite untimely

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service of process”).

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prejudice to the defendant, actual notice, a possible limitations bar,

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and eventual service.

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dismissal should be without prejudice.

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A court may consider various factors including

Efaw v. Williams, 473 F.3d at 1041.

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See id. at 772.

Any such

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Here, the record shows no basis for further extending the time

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for service.

To the contrary, the record suggests that further

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extending the time for service would be an idle act.

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Defendant evidently cannot be effected without more specific

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identifying information, and Plaintiff has proven unwilling or unable

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to provide such information.

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is appropriate.

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Cir. 1994), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472

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(1955) (it is the plaintiff/prisoner’s responsibility to provide the

Service on the

Accordingly, dismissal without prejudice

Id.; see Walker v. Sumner, 14 F.3d 1415, 1422 (9th

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Marshals Service with sufficient information with which to effect

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service); accord Brush v. Harper, 2009 WL 256380, at *1 (E.D. Cal.

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Feb. 3, 2009), adopted, 2009 WL 902265 (E.D. Cal. April 1, 2009);

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Schrubb v. Tilton, 2009 WL 113022, at *2 (N. D. Cal. Jan. 16, 2009).

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order: (1) accepting and adopting this Report and

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Recommendation; and (2) directing that Judgment be entered dismissing

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the action without prejudice.

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DATED: June 19, 2014.

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________________/S/___________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

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No notice of appeal pursuant to the