(PC) Lake v. County of San Diego
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court considered a motion to dismiss for failure to serve a defendant under Federal Rule of Civil Procedure 4(m) in a civil rights action filed by a pro se plaintiff. The court dismissed the action in its entirety without prejudice because the plaintiff failed to serve the sole remaining defendant within the statutory time limit and failed to respond to a show cause order.
| What the court decided | The model |
|---|---|
Dismissal of the action in its entirety without prejudice for failure to serve the defendant GBDF Medical Director pursuant to Federal Rule of Civil Procedure 4(m).“Accordingly, based on Plaintiff’s failure to effectuate service of the complaint and summons on Defendant GBDF Medical Director, the sole remaining defendant in this action, the Court DISMISSES the action in its entirety without prejudice.” | agree with court The court correctly applied Rule 4(m), which mandates dismissal without prejudice if a defendant is not served within 90 days of filing, unless good cause is shown. The record indicates the complaint was filed on July 22, 2019, and the order was issued on February 12, 2020, well past the 90-day deadline. The plaintiff failed to respond to the show cause order and did not demonstrate good cause for the failure to serve. Since the County of San Diego had already been dismissed, the failure to serve the Medical Director resulted in the dismissal of the entire action. |
The order itself: sound — The order is procedurally sound. It correctly identifies the expiration of the Rule 4(m) deadline, notes the plaintiff's failure to respond to the show cause order, and applies the rule to dismiss the case without prejudice. The citation to Walker v. Sumner is appropriate for the context of pro se service requirements, even with the abrogation note. The court also correctly notes the plaintiff's failure to update his address under Local Rules, which supports the dismissal.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN HANS LAKE, Case No. 19cv1558-MMA (RBM)
12 Plaintiff, ORDER RE: DISMISSAL PURSUANT 13 vs. TO FEDERAL RULE OF CIVIL PROCEDURE 4(m) 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. 16 17 18 19 20 Plaintiff Steven Hans Lake, while detained at the San Diego County Sheriff 21 Department’s George Bailey Detention Facility (“GBDF”) located in San Diego, 22 California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 23 1983 against Defendants County of San Diego and the GBDF Medical Director, alleging 24 violation of his constitutional right to adequate medical care. See Doc. No. 1. Defendant 25 County of San Diego moved to dismiss Plaintiff’s claims pursuant to Federal Rule of 26 Civil Procedure 12(b)(6). See Doc. No. 11. Plaintiff did not file a response to the 27 motion. On December 17, 2019, the Court granted the County’s unopposed motion. See 28 Doc. No. 13. The Court further ordered Plaintiff to show cause why this action should 1 not be dismissed as to Defendant GBDF Medical Director for failure to serve this 2 defendant with the summons and complaint pursuant to Federal Rule of Civil Procedure 3 4(m). See id. To date, Plaintiff has not filed a response to the Court’s December 17, 4 Order, and the time in which to do so has expired.1 5 As the Court noted in its previous order, Defendant GBDF Medical Director is the 6 only named defendant in this action besides Defendant County of San Diego. Plaintiff’s 7 attempt to serve the GBDF Medical Director was unsuccessful. See Doc. No. 10. “If a 8 defendant is not served within 90 days after the complaint is filed, the court – on motion 9 or on its own after notice to the plaintiff – must dismiss the action without prejudice 10 against that defendant or order that service be made within a specified time.” Fed. R. 11 Civ. P. 4(m). 12 Under the mailbox rule, Plaintiff filed this action on July 22, 2019. The time 13 period to effectuate service under Rule 4(m) has expired, and Plaintiff has failed to 14 demonstrate good cause for his failure to serve the GBDF Medical Director. 15 Accordingly, based on Plaintiff’s failure to effectuate service of the complaint and 16 summons on Defendant GBDF Medical Director, the sole remaining defendant in this 17 action, the Court DISMISSES the action in its entirety without prejudice. See Walker v. 18 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (holding that an incarcerated pro se plaintiff 19 proceeding in forma pauperis must provide the marshal with sufficient information 20 21 1 The Court notes that the Clerk of Court has been unable to serve Plaintiff via U.S. Mail with the 22 Court’s most recent orders. The mail has been returned to the Court by the San Diego County Sheriff’s Department with notations indicating that Plaintiff has been released from custody. See Doc. Nos. 14, 23 15. A search of the Sheriff’s online inmate locator system demonstrates that Plaintiff is no longer in custody. See https://apps.sdsheriff.net/wij/WijList.aspx?LastName=Lake&FirstName=Steven (last 24 visited 2/11/2020). Pursuant to this District’s Local Rules, “[a] party proceeding pro se must keep the 25 court and opposing parties advised as to current address.” SD CivLR 83.11.b. Plaintiff has failed to do so, which ultimately could serve as an additional ground upon which to dismiss this action without 26 prejudice. See id. (“If mail directed to a pro se plaintiff by the clerk at the plaintiff's last designated address is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties 27 within 60 days thereafter of the plaintiff's current address, the court may dismiss the action without prejudice for failure to prosecute.”). In any event, because dismissal is appropriate under Rule 4(m), the 28 1 necessary for service), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 2 ||(1995). The Court DIRECTS the Clerk of Court to enter judgment accordingly and 3 || close the case. 4 IT IS SO ORDERED. 5 || DATE: February 12, 2020 Whthp Lu hipllr 6 HON. MICHAEL M. ANELLO United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3