Mascorro v. The City of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No.: 21cv1725-LL-AGS 12 Plaintiff, ORDER TO SERVE PROCESS ON 13 v. OR BEFORE APRIL 8, 2022 14 THE CITY OF SAN DIEGO; SAN DIEGO POLICE DEPARTMENT; THE 15 SAN DIEGO CHIEF OF POLICE; 16 OFFICERS 1-4, 17 Defendants. 18 19 20 On October 5, 2021, Plaintiff, Eloy Mascorro, proceeding pro se, filed a civil rights 21 action against the City of San Diego, the San Diego Police Department (“SDPD”), the 22 Chief of the SDPD, and “Officers 1–4.” Plaintiff previously filed another civil rights action 23 against some of the same defendants. See Mascorro v. The City of San Diego, et al., 24 21cv1427-LL-AGS (“Mascorro I”).1 Plaintiff alleges that on October 6, 2020, he was 25 26 27 1 On October 18, 2021, Judge Bashant entered an Order to Show Cause why the two actions should not be consolidated. ECF No. 5. Because the cases involved separate events, this 28 1 unlawfully detained, searched, and arrested in Balboa Park by SDPD officers in relation to 2 an arson investigation. Plaintiff also claims that while in jail, his property was purposely 3 damaged by members of the SDPD as a result of his previous police misconduct 4 complaints. On October 10, 2021, Judge Bashant granted Plaintiff leave to proceed IFP, 5 but denied his motion to appoint counsel. ECF No. 4. On December 12, 2021, Judge 6 Bashant denied Plaintiff’s motion to reconsider her decision not to recommend the 7 appointment of counsel. ECF No. 8. On January 5, 2022, the case was transferred to the 8 below signed district judge. ECF No. 11. 9 “The plaintiff is responsible for having the summons and complaint served within 10 the time allowed by Rule 4(m) and must furnish the necessary copies to the person who 11 makes service.” Fed. R. Civ. P. 4(c)(1). “If a defendant is not served within 90 days after 12 the complaint is filed, the court – on motion or on its own after notice to the plaintiff – 13 must dismiss the action without prejudice against that defendant or order that service be 14 made within a specified time.” Fed. R. Civ. P. 4(m); see also S.D. Cal. Civ. R. 41.1(a) 15 (providing that “[a]ctions or proceedings which have been pending for more than six 16 months, without any proceeding or discovery having been taken therein during such period, 17 may, after notice, be dismissed by the court for want of prosecution”); States S. S. Co. v. 18 Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970) (affirming “[t]hat a court has power 19 to dismiss an action for want of prosecution on its own motion, both under Rule 41 (b), F. 20 R. Civ. P., or under its local rule, or even in the absence of such rules, is settled in this 21 circuit”). “The exercise of the power to dismiss is discretionary and will be reversed only 22 for an abuse.” States S. S. Co., 426 F.2d at 804. “In determining whether to dismiss a claim 23 for failure to prosecute or failure to comply with a court order, the Court must weigh the 24 following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 25 court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) 26 the availability of less drastic alternatives; and (5) the public policy favoring disposition of 27 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). “The 28 public’s interest in expeditious resolution of litigation always favors dismissal.” Id. l As noted above, Plaintiff filed his complaint in this case on October 5, 2021 and a 2 summons was issued on October 12, 2021. Plaintiff has not, however, filed proof of service 3 any of the named defendants, and none of the named defendants have appeared. 4 || Accordingly, Plaintiff is ORDERED to serve a copy of the summons and complaint on 5 || the City of San Diego, and to file proof of service on CM/ECF, on or before April 8, 2022. 6 manner of service must be consistent with the Federal Rules of Civil Procedure for 7 || service of process, most importantly, Rule 4. Failure to serve any of the named defendants, 8 to file proof of service, on or before April 8, 2022, will result in dismissal of the case 9 || without prejudice. 10 Additionally, and as consistent with Judge Bashant’s December 8, 2021 order in 11 || Mascorro I, 21cv1427-LL-AGS, ECF No. 8 at 6, Plaintiff may, in accordance with ECF 12 || Administrative Policies and Procedures,” use the Court’s CM/ECF filing system to 13 |/electronically file documents and receive electronic notice of case-related transmissions, 14 ||so long as Plaintiff properly registers as a CM/ECF user with the Clerk’s Office on or 15 || before April 8, 2022. 16 IT IS SO ORDERED. 17 Dated: March 8, 2022 NO 18 QF | 19 Honorable Linda Lopez 50 United States District Judge 21 22 23 24 25 26 27 | 28 Available at https://www.casd.uscourts.gov/attorney/filing-procedures.aspx.