Carroll v. Schwarzenegger et al

Filing 84

ORDER signed by District Judge Leslie E. Kobayashi on 7/17/2012 ORDERING Plaintiff's # 20 claims in the Second Amended Complaint against Defendant Sampath Suryadevara, identified in this action as Defendant S. Sury Adevara, are HEREBY DISMISSED WITHOUT PREJUDICE. Insofar as there are no remaining claims in this action, this Court DIRECTS the Clerk's Office to close the case. CASE CLOSED (Reader, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Vernon D. Carroll,

)
)
Plaintiff,
)
)
vs.
)
)
S. Sury Adevara and E. Mazin, )
)
Defendants.
)
_____________________________ )

Civil No. 2:08-00408 LEK

ORDER DISMISSING ACTION
Pro se Plaintiff Vernon D. Carroll (“Plaintiff”), who
is proceeding in forma pauperis, filed this 42 U.S.C. § 1983
action on February 22, 2008.

Plaintiff filed his Second Amended

Prisoner Civil Rights Complaint (“Second Amended Complaint”) on
December 11, 2009.

[Dkt. no. 20.]

A December 22, 2009 Screening

Order concluded, inter alia, that the allegations in the Second
Amended Complaint were sufficient to warrant service on
Defendants S. Sury Adevara and E. Mazin.

[Dkt. no. 22.]

An

Order Directing Service by United States Marshal Without
Prepayment of Costs was filed on January 19, 2010.

[Dkt. no.

24.]
On November 17, 2010, after an unsuccessful attempt to
serve each of the defendants at the addresses Plaintiff provided
and after various motions filed by Plaintiff, this Court issued
an order directing Plaintiff to file a declaration or affidavit
by January 3, 2011 setting forth the information necessary to

identify Defendants Adevara and Mazin for service.
38.]

[Dkt. no.

The Court cautioned Plaintiff that his failure to do so

could result in the dismissal of the case.
Plaintiff’s January 3, 2011 response provided a
complete address for Defendant Mazin and an incomplete address
for Defendant Adevara.

[Dkt. no. 39.]

This Court ordered

service to be made on Defendant Mazin, [dkt. no. 42,] but the
person who the United States Marshals Service (“Marshals
Service”) found at the address provided was a Dr. Mazin Aziz, who
stated through counsel that he was not the person identified in
this action as Defendant Mazin [dkt. no. 59].

On May 9, 2011,

this Court dismissed Plaintiff’s claims in the Second Amended
Complaint against Defendant Mazin without prejudice.

[Dkt. no.

60.]
As to Defendant Adevara, this Court used the incomplete
address that Plaintiff provided on January 3, 2011 to find a
similarly named person, Sampath Suryadevara at 6637 North Gentry
Avenue, Fresno, California 93711.

The Court ordered Plaintiff to

file a declaration by February 4, 2011 stating whether
Sampath Suryadevara was the person identified as Defendant
Adevara in this action.

The Court cautioned Plaintiff that, if

he failed to respond, or if he responded that Sampath Suryadevara
was not the person he has identified as Defendant Adevara, this
Court would dismiss this action pursuant to Fed. R. Civ. P. 4(m).

2

[Dkt. no. 41.]
Plaintiff filed his response on January 24, 2011,
stating that Sampath Suryadevara is the person identified as
Defendant Adevara in this action.

Plaintiff also provided two

alternate addresses for Sampath Suryadevara.

[Dkt. no. 43.]

On

December 13, 2011, the Marshals Service completed service at 1771
West Romneya Dr. #C, Anaheim, California 92801.

[Dkt. no. 71.]

Sampath Suryadevara (“Defendant Suryadevara”), however,
never filed a response to the Second Amended Complaint.
Plaintiff has therefore sought default judgment and summary
judgment against Defendant Suryadevara.
On February 29, 2012, this Court issued a Minute Order
(“2/29/12 EO”) noting that, on January 23, 2012, Plaintiff filed
a motion entitled “Motion To: Order Default under Time Limitation
on Reply Local Rule 230(m) and Motion For: Summary Judgment
Federal Rules of Civil Procedure Rule (56)” (“1/23/12 Motion”),
and, on February 23, 2012, Plaintiff filed a motion entitled
“Motion For: Default Judgment Order and Summary Judgment and
Motion to Compel” (“2/23/12 Motion”).

[Dkt. nos. 70 (1/23/12

Motion), 73 (2/23/12 Motion), 74 (2/29/12 EO).]

The Court noted

that Plaintiff had not provided certification that he served the
motions on Defendant Suryadevara.

The Court stated:

If Plaintiff believed that merely mailing the
2/23/12 Motion to the Office of the Clerk was
sufficient to serve the 2/23/12 Motion on Sampath
Suryadevara, Plaintiff was mistaken. Even though
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Plaintiff is proceeding in forma pauperis, it is
Plaintiff’s responsibility to serve the 2/23/12
Motion, and all other motions, memoranda, and
statements, on Sampath Suryadevara until there is
a ruling that Sampath Suryadevara is in default
for failure to appear. Plaintiff can effect
service of motions, memoranda, and statements by
mail to Sampath Suryadevara at 1771 North
Romney[a] Drive #C, Anaheim, CA 92801, until
Sampath Suryadevara provides the district court
with another address for service.
[2/29/12 EO at 2 (emphasis in original).]

The Court gave

Plaintiff until March 21, 2012 to file a declaration clarifying
whether he served both the 1/23/12 Motion and the 2/23/12 Motion
on Defendant Suryadevara, and the Court cautioned Plaintiff that
it would deny any of the motions that Plaintiff failed to serve
on Defendant Suryadevara.
On March 23, 2012, this Court issued an EO granting
Plaintiff an extension until April 9, 2012 to file the
declaration confirming service.

[Dkt. no. 76.]

The Court

cautioned Plaintiff that it would not grant any further
extensions and that, if he failed to file confirmation of service
by April 9, 2012, the Court would deny the 1/23/12 Motion and the
2/23/12 Motion without prejudice.
Plaintiff failed to file confirmation of service by
April 9, 2012.

Thus, on April 19, 2012, this Court issued an EO

denying the 1/23/12 Motion and the 2/23/12 Motion (“4/19/12 EO”).
[Dkt. no. 78.]

In light of Defendant Suryadevara’s failure to

respond to the Second Amended Complaint, however, this Court
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ordered Plaintiff to file a request for entry of default by
May 18, 2012.

The 4/19/12 EO stated:

Plaintiff must serve a copy of the request for
entry of default on Defendant at 1771 North
Romneya Drive #C, Anaheim, CA 92801. The Court
reiterates that Plaintiff cannot serve Defendant
by mailing the document to the district court.
The Court CAUTIONS Plaintiff that, if he fails to
file a request for entry of default by May 18,
2012 or if he fails to serve Defendant with a copy
of the request, this Court will dismiss
Plaintiff’s case for failure to comply with this
Court’s order. See Fed. R. Civ. P. 16(f)[(1)](C)
(stating that, if a party fails to obey a pretrial
order, a court may, on its own, issue any just
orders authorized by Fed. R. Civ. P.
37(b)(2)(A)(ii), including dismissal of the
action).
[Id. at 2 (emphasis in original).]
On May 2, 2012, Plaintiff filed his “Motion For: Second
Review Time Limitation under Error’s of [Default] and Reviewing
the Proofreading the Responds on Dec. 2, 2011 from the U.S.
Marshals and Motion To: Consider a [Fare] Judgment within Your
Orders, and Your Court Order under [Cautions] within the Federal
Laws and Standards”.

[Dkt. no. 79.]

This Court denied the

motion without prejudice because Plaintiff did not sign it and
because he did not include a certificate of service.

[Dkt. no.

81.]
Also on May 2, 2012, Plaintiff filed his “Motion To:
The Honorable Judge Leslie E. Kobayashi to be Aware that a Legal
Copy to the Defendant: Sampath Suryadevara is Serve by Federal
Mail under Default and to Call the District Court to Arrange an
5

Appointment for Court Hearing on Complaint and Motion To: ReServe the Defendant from the U.S. Marshals So the Defendant Can
have an Up-To-Dated Court Documents by Serving: USM-285 Process
Receipt and Return Forms” (“5/2/12 Motion”).

[Dkt. no. 80.]

On

May 8, 2012, the Court issued an EO construing the 5/2/12 Motion
as a request for entry of default (“5/8/12 EO”).

[Dkt. no. 82.]

The Court denied the 5/2/12 Motion without prejudice because
Plaintiff failed to follow the Court’s repeated instructions to
serve all court documents on Defendant Suryadevara until there
was a finding that Defendant Suryadevara was in default.

The

Court ordered Plaintiff to re-file his request for entry of
default.

The 5/8/12 EO included the following:
The Court CAUTIONS Plaintiff that, if he
fails to file his request for entry of default
judgment by June 22, 2012, or if his request does
not comply with the terms of this EO, this Court
will dismiss Plaintiff’s case for failure to
comply with this Court’s order. See Fed. R. Civ.
P. 16(f)(1)(C). The Court also CAUTIONS Plaintiff
that it will not grant any further extensions.

[Id. at 2-3 (emphases in original).]
Plaintiff did not re-file his request for entry of
default.

Instead, Plaintiff filed documentation that he sent

something to Defendant Suryadevara via certified mail on May 25,
2012.

[Motion To: File Awareness of U.S. Postal Service of

Certified Mail Receipt on May 25, 2012, filed 6/6/12 (dkt. no.

6

83).1]

Plaintiff’s filing does not state what he sent to

Defendant Suryadevara on May 25, 2012.

Moreover, even if

Plaintiff sent Defendant Suryadevara a copy of the 5/2/12 Motion,
this Court previously denied that motion and ordered Plaintiff to
re-file his request for entry of default.
In light of the foregoing history of this case, this
Court CONCLUDES that dismissal is warranted because Plaintiff has
not mailed a copy of the request for entry of default to the last
known address for Defendant Suryadevara.

This dismissal is made

pursuant to Fed. R. Civ. P. 16(f)(1), which states, in pertinent
part:
On motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney:
. . . .
(C) fails to obey a scheduling or other
pretrial order.
Dismissal of Plaintiff’s action in whole is one of the available
sanctions.

See Fed. R. Civ. P. 37(b)(2)(A)(v).

In concluding

that dismissal is warranted, this Court has considered the five
factors set forth in Bautista v. Los Angeles County, 216 F.3d
837, 841 (9th Cir. 2000).2

The Court finds that the public

1

Although Plaintiff titled the document as a motion, the
Clerk’s Office has construed it at a Certificate of Service, and
this Court agrees with that characterization.
2

The Ninth Circuit has delineated five factors that a
district court must weigh in determining whether to dismiss a
case for failure to comply with a court order: “1) the public
(continued...)
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interest in expeditious resolution of this litigation and the
Court’s interest in managing the docket strongly outweigh the
policy favoring disposition of cases on the merits.

Moreover,

Defendant Suryadevara will not be prejudiced by dismissal, and
there are no less drastic alternatives available at this time.
CONCLUSION
On the basis of the foregoing, Plaintiff’s claims in
the Second Amended Complaint against Defendant Sampath
Suryadevara, identified in this action as Defendant S. Sury
Adevara, are HEREBY DISMISSED WITHOUT PREJUDICE.

Insofar as

there are no remaining claims in this action, this Court DIRECTS
the Clerk’s Office to close the case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 17, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

VERNON D. CARROLL V. S. SURY ADEVARA, ET AL; CIVIL 2:08-00408
LEK; ORDER DISMISSING ACTION

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(...continued)
interest; 2) the court’s need to manage the docket; 3) the risk
of prejudice to the defendant; 4) the public policy favoring
disposition of cases on their merits; and 5) the availability of
less drastic alternatives.” Bautista, 216 F.3d at 841 (citation
omitted).
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