Yahthyah Yahvah v. County of Los Angeles

Filing 29

ORDER TO SHOW CAUSE WHY INDIVIDUAL DEFENDANTS SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE PROCESS by Magistrate Judge Alicia G. Rosenberg. IT IS ORDERED that Plaintiff show cause in writing, on or before March 26, 2018, why the individual defen dants in their individual capacity should not be dismissed from this action without prejudice pursuant to Rule 4(m) or for failure to prosecute. If Plaintiff does not timely response to this order to show cause on or before March 26, 2018, the individual defendants may be dismissed without prejudice for failure to serve process under Rule 4(m) or for failure to prosecute. (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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YATHYAH YAHVAH,
Plaintiff,
v.
COUNTY OF LOS ANGELES et al.,
Defendants.

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NO. CV 17-101-MWF (AGR)
ORDER TO SHOW CAUSE WHY
INDIVIDUAL DEFENDANTS
SHOULD NOT BE DISMISSED
FOR FAILURE TO SERVE
PROCESS

On January 5, 2017, Plaintiff filed a civil rights complaint against the County of Los
Angeles and four individual defendants who were employees of the County Department
of Children and Family Services (“DCFS”): Director Philip L. Browning, assistant
regional administrator Stephanie Harges, supervising social worker Virginia Lyle, and
social worker Vanessa Soto-Miller.
On January 18, 2017, the court ordered Plaintiff to complete a USM-285 form for each
defendant in each capacity in which that defendant is sued. In other words, if a defendant
is sued in both individual and official capacity, Plaintiff must complete two forms for the
defendant, one for each capacity. The court ordered Plaintiff to submit the completed
USM-285 forms to the United States Marshal no later than February 17, 2017. The court

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warned that failure to do so could result in dismissal for failure to prosecute. (Dkt. No. 8.)

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The court provided the forms, summonses and copies of the complaint to Plaintiff.

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The court issued an order directing service of process by the United States Marshal.
(Dkt. No. 7.)
On August 25, 2017, Plaintiff requested an extension of time to submit the documents

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to the United States Marshal, and stated she or an attorney misplaced the forms. On

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August 29, 2017, the court granted the request for extension of time to September 29,

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2017. (Dkt. No. 13.) The court again provided the forms, summonses and copies of the

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complaint.

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Plaintiff submitted a USM-285 form for Defendant County of Los Angeles, which was

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served with process. (Dkt. No. 17.) The County filed a motion to dismiss the complaint,

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and the court has issued an Amended Report and Recommendation on that motion.

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Plaintiff has not submitted USM-285 forms for any of the individual defendants in any

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capacity and has not requested an extension of time to do so. As explained in the

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Amended Report and Recommendation, service upon an individual defendant in an

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official capacity is redundant and unnecessary because the County is a named defendant

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and has appeared. However, service of process upon an individual defendant in his or her

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individual capacity is required.

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A “pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal

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for service of the summons and complaint” after “having provided the necessary

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information to help effectuate service” under 28 U.S.C. § 1915 and Rule 4. Puett v.

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Blandford, 912 F.2d 270, 275 (9th Cir.1990); accord, Walker v. Sumner, 14 F.3d 1415,

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1422 (9th Cir.1994), abrogated in part on other grounds by Sandin v. Conner, 515 U.S.

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472 (1995)).

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When service cannot be accomplished due to the pro se plaintiff's failure to submit the

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required information, and the plaintiff fails to remedy the situation after being put on

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notice, dismissal without prejudice is appropriate. Walker, 14 F.3d at 1421-22 (holding

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that prisoner failed to show cause why his claims against prison official should not be
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dismissed under Rule 4(m) when prisoner failed to show “he provided the marshal with

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sufficient information to serve [the defendant]”).

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Plaintiff’s time for service of process upon the individual defendants expired on

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September 29, 2017. Fed. R. Civ. P. 4(m). The deadline may be extended for “good

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cause.” Id.

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IT IS ORDERED that Plaintiff show cause in writing, on or before March 26, 2018,

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why the individual defendants in their individual capacity should not be dismissed from

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this action without prejudice pursuant to Rule 4(m) or for failure to prosecute. If Plaintiff

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does not timely response to this order to show cause on or before March 26, 2018, the

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individual defendants may be dismissed without prejudice for failure to serve process

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under Rule 4(m) or for failure to prosecute.

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DATED: March 9, 2018

____________________________
ALICIA G. ROSENBERG
United States Magistrate Judge

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