Marsha Brandon v. Los Angeles County Sheriff Department et al

Filing 78

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 73 by Judge Philip S. Gutierrez. 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. (Attachments: # 1 Report and Recommendation) (sp)

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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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Defendants.
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______________________________)

NO. CV 13-7613-PSG(E)

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

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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BACKGROUND

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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 United States Marshals

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Service to serve the First Amended Complaint on Defendant “Deputy

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Morales.”

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had failed to provide information or documentation necessary to effect

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service, and after Plaintiff stated in a declaration that she had no

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additional contact information for “Deputy Morales,” the Court

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dismissed the action without prejudice by Judgment entered July 14,

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2014.

After the Marshals Service advised the Court that Plaintiff

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On November 27, 2015, the United States Court of Appeals for the

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Ninth Circuit filed a Memorandum remanding the action to this Court

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for further proceedings.

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showed that Plaintiff had provided the United States Marshals Service

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with the last name and place of employment of “Deputy Morales” and the

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date, time and location of the alleged incident giving rise to

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Plaintiff’s claims.

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not indicate why the United States Marshals Service or the Los Angeles

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Sheriff’s Department had been unable to effectuate service.

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Circuit vacated and remanded the case for further proceedings,

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“including, if necessary, a determination of the U.S. Marshal’s or

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Sheriff’s Department’s efforts to identify or locate Deputy Morales.”

The Ninth Circuit stated that the record

The Ninth Circuit observed that the record did

The Ninth

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Initially, this Court was unable to proceed further in the action

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because Plaintiff had failed to keep the Court apprised of her current

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address.

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to the Court undelivered.

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February 4, 2016, again dismissing the action without prejudice.

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Mail directed to Plaintiff’s address of record was returned
Accordingly, the Court entered Judgment on

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On February 5, 2016, Plaintiff belatedly filed a new address of

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record.

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“Objection . . . Motion for Reconsideration” seeking to proceed in the

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action.

On February 22, 2016, the Court received from Plaintiff an

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On February 25, 2016, the Court issued an “Order Vacating

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Judgment and Extending Time to Effect Service of Process.”

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thereby vacated the judgment pursuant to Rule 60(b) of the Federal

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Rules of Civil Procedure, ordered the United States Marshal to renew

The Court

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efforts to serve the Summons and First Amended Complaint on Defendant

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“Deputy Morales,” and extended the time to complete such service to

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ninety (90) days from the date of the Order.

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4(m).

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United States Marshals Service all information and documentation

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Plaintiff then possessed that might assist in the renewed efforts to

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serve Defendant “Deputy Morales.”

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the event the United States Marshals Service again proved unable to

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effect service of process on Defendant “Deputy Morales,” the United

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States Marshals Service should file with the Court a document

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detailing all efforts to identify, locate and serve Defendant “Deputy

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Morales.”1

See Fed. R. Civ. P.

The Court also ordered Plaintiff forthwith to provide to the

The Court further ordered that, in

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On March 14, 2016, Plaintiff’s service copy of the Court’s

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February 25, 2016 Order was returned to the Court undelivered, with

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the handwritten notation “advised at 1430 & 2000 Hrs. refused to pick-

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The Court did not direct any service-related order to
non-party Los Angeles Sheriff’s Department for lack of jurisdiction
to do so.
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up” and the stamped notation “return to sender not deliverable as

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addressed unable to forward.”

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On April 8, 2016, Plaintiff filed a “Statement of Fact” stating

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in full:

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information Petitioner have [sic] access to is on file with the

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Court[.]

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[sic].”

“Petitioner states no new information on defendant[.]

All

At this time Petitioner awaits MARSHALL service processing

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The United States Marshals Service did not file any return of

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service indicating successful service of process on Deputy Morales

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within the 90 day extended deadline, and did not timely comply with

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the Court’s February 25, 2016 Order to detail all of the Marshal’s

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efforts to identify, locate and serve Defendant “Deputy Morales.”

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June 3, 2016, after further inquiry by the Court, the Marshals Service

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advised the Court that the Marshals Service could not attempt to serve

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“Deputy Morales” because Plaintiff had not submitted a “new complete

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service packet” to the Marshals Service.

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Marshals Service advised the Court by email that the Los Angeles

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County Sheriff’s Department had reported that it was unable to

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identify the correct employee.

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email suggested that the Sheriff’s Department might have information

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sufficient to determine whether any deputy having the last name

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“Morales” was on duty at the identified location on the date and time

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of the alleged occurrence.

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United States Marshals Service might be able to perform an

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investigation sufficient to locate and identify Defendant “Deputy

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Morales,” with or without the cooperation of the Sheriff’s Department.

On

On June 7, 2016, the

However, a document attached to the

It also appeared to the Court that the

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On June 15, 2016, the Court issued an “Order re Service of

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Process,” directing the Courtroom Deputy Clerk to prepare the service

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packet Plaintiff was supposed to have prepared.

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Marshals Service, upon receipt of the service packet from the

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Courtroom Deputy Clerk, to attempt to identify, locate and serve

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“Deputy Morales.”

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was required to effect service of process to ninety (90) days from the

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date of the Order.

The Court ordered the

The Court extended the time within which Plaintiff

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On July 1, 2016, a “Process Receipt and Return” was filed

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purporting to show service of process on “Deputy Morales.”

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July 13, 2016, Defendant Jesus Morales filed an Answer to the

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November 26, 2013 First Amended Complaint.

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Court issued an Order setting a discovery cut-off date of November 14,

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2016, and a December 14, 2016 deadline for the filing of summary

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judgment motions.

On

Also on July 13, 2016, the

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On October 14, 2016, Defendant filed a Motion to Compel

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Plaintiff’s Responses to Interrogatories and Request for Production of

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Documents, etc.” (“Motion to Compel”).

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Defendant’s counsel stated that Plaintiff had failed to respond at all

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to Defendant’s interrogatories and requests for production, had failed

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to respond at all to a letter from Defendant’s counsel pursuant to the

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Court’s “meet and confer” requirements and had failed to submit

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Plaintiff’s portion of the Joint Stipulation as requested by

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Defendant’s counsel.

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In a supporting Declaration,

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On October 14, 2016, the Court issued a Minute Order ordering

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Plaintiff to file a response to the Motion to Compel within twenty

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(20) days of the date of the Minute Order.

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so.2

Plaintiff failed to do

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On November 18, 2016, the Court issued an “Order Granting

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Defendant’s Motion to Compel, etc.”

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respond to the subject discovery requests on or before December 9,

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2016.

The Court ordered Plaintiff to

The Court also cautioned Plaintiff that failure to comply with

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the Order could result in the dismissal of the action for failure to

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prosecute pursuant to Rule 41 of the Federal Rules of Civil Procedure

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and/or a motion for sanctions including issue and evidence preclusion

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sanctions or terminating sanctions.3

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By Minute Order filed December 21, 2016, the Court sua sponte

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extended the deadline for filing summary judgment motions to

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January 17, 2017.

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On January 6, 2017, Defendant filed “Defendant Deputy Jesus

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Morales’ Notice of Motion and Motion for Involuntary Dismissal, etc.”

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Defendant seeks: (1) an order for involuntary dismissal for failure to

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prosecute pursuant to Rule 41(b) of the Federal Rules of Civil

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Procedure or alternatively for terminating sanctions pursuant to Rule

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On November 15, 2016, Plaintiff belatedly filed a motion
to “set aside” the Motion to Compel and a request for the
appointment of counsel.
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Also on November 18, 2016, the Court denied Plaintiff’s
request for appointment of counsel.
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37(b)(2)(C) [sic] of the Federal Rules of Civil Procedure;

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(2) alternatively, issue and/or evidence preclusion sanctions pursuant

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to Rule 37(b)(2)(A)(ii) of the Federal Rules of Civil Procedure

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(“Motion”).

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opposition to the Motion within thirty (30) days of January 11, 2017.

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The Court warned Plaintiff that “[f]ailure to file timely opposition

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to the Motion may result in the dismissal of the action.”

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Nevertheless, Plaintiff failed to file timely opposition to the

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Motion.

On January 11, 2017, the Court ordered Plaintiff to file

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On February 21, 2017, Plaintiff belatedly filed “Plaintiff

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Opposition, etc.”

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nothing about the Motion or the discovery requests with which the

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Court previously ordered Plaintiff to comply.

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conclusory fashion that Plaintiff supposedly has made “every effort”

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to respond to Defendant and to the Court.

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that Plaintiff is being “held in a restricted AREA as P.O.W. Prisoner

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of War.”4

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ordered released from the “Restricted Area” but remains there pending

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a ‘new Housing assignment or Transport which is yet to be

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determine[d].”

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stating in conclusory fashion that Plaintiff “has done or continue[s]

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to do everything in her powers to prosecute” the case.

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This document, which is unsigned, says almost

The document states in

The document also states

The document further states that Plaintiff recently was

The document asks the Court not to dismiss the case,

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Plaintiff’s address
Institution for Women.

of
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record

is

the

California

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DISCUSSION

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A District Court may dismiss an action for failure to prosecute

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and failure to obey a court order.

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626, 629-30 (1952) (court has inherent power to achieve the orderly

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and expeditious disposition of cases by dismissing actions for failure

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to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.),

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cert. denied, 506 U.S. 915 (1992) (court may dismiss action for

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failure to comply with a court order, after the court considers the

See Link v. Wabash R.R., 370 U.S.

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appropriate factors); see also Fed. R. Civ. P. 41(b).

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Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure authorizes

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a court to dismiss an action in whole or in part for failure to obey

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an order compelling discovery responses.

Furthermore,

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In determining whether to dismiss, the Court weighs the following

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factors: “(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less

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drastic alternatives; and (5) the public policy favoring disposition

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of cases on their merits.”

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(9th Cir. 2002), cert. denied, 538 U.S. 909 (2003) (citation omitted).

Pagtalunan v. Galaza, 291 F.3d 639, 642

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“The public’s interest in expeditious resolution always favors

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dismissal.”

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see also In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d 1217, 1227 (9th Cir. 2006) (“Orderly and

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expeditious resolution of disputes is of great importance to the rule

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of law.”).

Pagtalunan v. Galaza, 291 F.3d at 642 (citation omitted);

The events allegedly giving rise to Plaintiff’s claims
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occurred in 2010.

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discovery has taken place.

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case may have been caused by the United States Marshals Service.

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However, Plaintiff’s dilatory conduct in meeting her obligations to

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facilitate the timely service of process, to keep the Court apprised

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of her current address, to heed deadlines, to respond timely to

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discovery requests and to comply with a court order compelling

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discovery responses has caused excessive delay.

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to deal with Plaintiff’s repeated failures “has consumed some of the

This action has been pending over three years.

No

It is true that some of the delay in this

In addition, the need

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court’s time that could have been devoted to other cases on the

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docket.”

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“It is incumbent upon the Court to manage its docket without being

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subject to routine noncompliance of litigants such as [Plaintiff].”

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Id. (citation omitted).

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dismissal.

Pagtalunan v. Galaza, 291 F.3d at 642 (citation omitted).

The first two factors weigh in favor of

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The law presumes prejudice from unreasonable delay.

In re

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d at

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1229.

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impair the defendant’s ability to go to trial or threaten to interfere

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with the rightful decision of the case.”

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Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990), cert. denied, 498 U.S.

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1109 (1991).

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compelling discovery responses is sufficient prejudice to warrant

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dismissal.

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(9th Cir. 2014); In re Phenylpropanolamine (PPA) Products Liability

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Litigation, 460 F.3d at 1227 (“Failing to produce documents as ordered

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is considered sufficient prejudice”) (citation omitted).

“A defendant suffers prejudice if the plaintiff’s actions

Adriana Int’l Corp. v.

Failure to produce discovery or to comply with an order

Goulatte v. County of Riverside, 587 Fed. App’x 374, 375

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Here,

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Defendant’s discovery requests, many of which concerned Plaintiff’s

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contentions and Plaintiff’s alleged damages, went to the heart of

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Plaintiff’s case (see Motion, Exs. B, C).

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deadline for filing summary judgment motions have long since elapsed.

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Plaintiff’s failure to respond to the discovery requests and failure

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to comply with the Court’s order compelling discovery responses have

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deprived Defendant of any factual information concerning Plaintiff’s

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claims or Plaintiff’s alleged damages.

The discovery cut-off and

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In weighing the risk of prejudice, the Court may also consider a

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party’s reasons, if any, for failing to comply with a court order.

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Pagtalunan v. Galaza, 291 F.3d at 642-43.

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is confined in restrictive housing, but does not indicate why such

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confinement rendered Plaintiff unable to respond to discovery requests

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propounded in October of 2016 or to comply with a Court order issued

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in November of 2016 (see Motion, Exs. B, C).

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favor of dismissal.

Plaintiff contends that she

This factor weighs in

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With respect to the consideration of less drastic alternatives,

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the Court expressly advised Plaintiff in the November 18, 2016 Order

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that failure to comply with the terms of the Order could result in the

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dismissal of the action.

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will result in dismissal can itself meet the ‘consideration of

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alternatives’ requirement.”

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Liability Litigation, 460 F.3d at 1229.

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possible consequences of a failure to comply with the November 18,

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2016 Order, Plaintiff has done nothing toward compliance with that

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order and has offered no persuasive excuse for her noncompliance.

“Warning that failure to obey a court order

In re Phenylpropanolamine (PPA) Products

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Despite being warned of the

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Given Plaintiff’s indigency and her history of consistently refusing

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to heed deadlines, court orders or discovery obligations, the

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imposition of any sanction less drastic than dismissal would be an

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idle act and would leave undressed the manifest prejudice to

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Defendant.

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Finally, the factor that public policy favors disposition of

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cases on their merits ordinarily weighs against dismissal.

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Pagtalunan v. Galaza, 291 F.3d at 643.

See

However, “this factor lends

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little support to a party whose responsibility it is to move a case

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toward disposition on the merits but whose conduct impedes progress in

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that direction.”

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Litigation, 460 F.3d at 1228 (citation and internal quotations

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omitted); see In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)

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(policy favoring disposition on the merits entitled to little weight

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in light of plaintiff’s “total refusal to provide discovery”).

In re Phenylpropanolamine (PPA) Products Liability

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In sum, after consideration of all of the relevant factors, the

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Court concludes that dismissal of this action without prejudice is

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appropriate.

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RECOMMENDATION

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For the reasons discussed herein, 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 (1) dismissing the action without prejudice.

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DATED:

March 2, 2017.

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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