Darwin Spears v. J Santos et al, No. 2:2012cv00179 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING ACTION by Judge Virginia A. Phillips. Accordingly, it is ORDERED that this action be dismissed for lack of prosecution. (rp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DARWIN SPEARS, Plaintiff, 12 13 14 15 16 17 v. DEPUTY J. SANTOS, Defendant. _______________________________ ) Case No. CV 12-179 VAP(JC) ) ) MEMORANDUM OPINION AND ) ORDER DISMISSING ACTION ) ) ) ) ) ) On May 14, 2012, plaintiff Darwin Spears ( plaintiff ), a pretrial detainee at 18 the Los Angeles County Men s Central Jail who is proceeding pro se and has been 19 granted leave to proceed in forma pauperis, filed the operative First Amended 20 Complaint against Deputy J. Santos in her individual capacity. 21 On June 19, 2012, the Court issued an Order Re: Service of Process by U.S. 22 Marshal directing plaintiff to complete and to return to the Clerk of the Court, a 23 USM-285 Form for the defendant and to file a Notice of Submission on or before 24 July 3, 2012, indicating that the completed USM-285 Form had been provided to 25 the Clerk of the Court ( June 19 Order ). 26 As plaintiff failed to provide the completed USM-285 Form to the Clerk of 27 the Court or to file a Notice of Submission by July 3, 2012, the Court, on July 18, 28 2012, issued an Order to Show Cause ( OSC ) directing plaintiff, by no later than 1 1 August 1, 2012, to show good cause in writing, if any exists, why this case should 2 not be dismissed based on plaintiff s failure to provide accurate and sufficient 3 information to enable the United States Marshal s Service to effect service of the 4 summons and the operative First Amended Complaint, plaintiff s failure to 5 prosecute this action, and plaintiff s failure timely to comply with the June 19, 2012 6 Order. The OSC expressly cautioned plaintiff in bold-face print that the failure to 7 comply with the OSC and/or to show good cause, might result in the dismissal of 8 this action. Although the deadline to comply with the OSC expired more than two 9 weeks ago, plaintiff has not responded thereto. Nor has plaintiff submitted a 10 completed USM-285 Form and a Notice of Submission or otherwise communicated 11 with the Court in this action. 12 An incarcerated pro se plaintiff, proceeding in forma pauperis, is entitled to 13 rely on the United States Marshal s Service ( USMS ) for service and should not be 14 penalized by having his action dismissed for failure to effect service where the 15 USMS has failed to perform its duties. Puett v. Blandford, 912 F.2d 270, 275 (9th 16 Cir. 1990). Nevertheless, a plaintiff relying upon the USMS for service must 17 provide the necessary information to effectuate service. Id. Where a pro se 18 plaintiff fails to provide the USMS with accurate and sufficient information to 19 effect service of the summons and complaint, a court may dismiss the unserved 20 defendant sua sponte. Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), 21 abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Here, 22 plaintiff has not done so. 23 Moreover, it is well-established that a district court has authority to dismiss a 24 plaintiff s action because of his failure to prosecute or to comply with court orders. 25 See Fed. R. Civ. P. 41(b); Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); 26 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 27 (1992). In determining whether to dismiss an action for failure to prosecute or 28 failure to comply with court orders, a district court must consider several factors: 2 1 (1) the public s interest in expeditious resolution of litigation; (2) the court s need 2 to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy 3 favoring disposition of cases on their merits; and (5) the availability of less drastic 4 alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 5 prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 6 This Court finds that the first two factors the public s interest in 7 expeditiously resolving this litigation and the Court s interest in managing the 8 docket, weigh in favor of dismissal since plaintiff has not submitted the requisite 9 information to enable the operative First Amended Complaint to be served as 10 directed, has not filed a response to the Order to Show Cause, and has not otherwise 11 communicated with the Court regarding this matter. The Court cannot hold this 12 case in abeyance indefinitely awaiting plaintiff s response to the Court s directives. 13 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal 14 since a presumption of injury arises from the occurrence of unreasonable delay in 15 prosecuting an action. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). 16 Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, 17 the public policy favoring disposition of cases on their merits, is greatly outweighed 18 by the factors in favor of dismissal discussed herein. Finally, as this Court has 19 already cautioned plaintiff of the consequences of failing to prosecute this action 20 and afforded, or attempted to afford him the opportunity to do so, and as plaintiff 21 has not responded, no sanction lesser than dismissal is feasible. 22 Accordingly, it is ORDERED that this action be dismissed for lack of 23 prosecution. 24 DATED: _August 27, 2012_____ 25 26 ____________________________________ 27 HONORABLE VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE 28 3

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