Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Edward Younan, a California state prisoner, appeals pro se the district court's summary judgment in favor of Los Angeles County and the Los Angeles County Sheriff's Department and dismissal without prejudice as to several unserved deputy sheriffs in his 42 U.S.C. § 1983 action.¹  Younan alleges that he warned the defendants that a fellow prisoner threatened to assault him and later did assault him. He contends that the defendants violated his civil rights by not moving him to another unit. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Younan first contends that the district court erred in dismissing the action without prejudice as to deputy sheriffs whom he was unable to name and serve. We review for an abuse of discretion. Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987).

Pursuant to Fed. R. Civ. P. 4(j), an action will be dismissed if service of the summons and complaint is not made within 120 days after filing, unless the plaintiff can show good cause for his failure to comply with Rule 4(j). Fed. R. Civ. P. 4(j); Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987). Plaintiffs proceeding in forma pauperis are entitled to have process served by a United States Marshal when requested. See 28 U.S.C. § 1915(c) and Fed. R. Civ. P. 4(c) (2) (B) (i). Here, the United States Marshal was unable to serve the two unknown deputies and deputies Sharppard and Jackson because Younan did not know their first names. It has been three years since the alleged incident. Furthermore, the record indicates that the magistrate attempted to assist Younan in locating and serving the unknown deputies. The magistrate also warned Younan that the action against Sharppard and Jackson and the two unnamed defendants would be dismissed if they were not served.

Accordingly, the district court did not abuse its discretion in dismissing the action without prejudice as to Sharppard, Jackson, and the two unknown deputies for failure to timely serve.

Second, Younan contends that the district court erred by dismissing the action and proceeding to summary judgment without allowing him to conduct discovery in order to determine the names of the deputy sheriffs he was unable to serve. We review for an abuse of discretion, Mackey v. Pioneer Nat'l Bank Inc., 867 F.2d 520, 523 (9th Cir. 1989).

Under Fed. R. Civ. P. 56(f), a party may apply for a continuance of the proceedings to permit discovery. Fed. R. Civ. P. 56(f); see also Bhan v. NME Hospitals, 772 F.2d 1467 (9th Cir. 1985). Younan made no such motion although he referred in his objections to the magistrate's report to his need for discovery.

This court has held that where a party fails to follow the proper procedures under the Federal Rules, the trial judge may nevertheless proceed to summary judgment. Foster v. Arcata Associates, 772 F.2d 1453 1467 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). "References in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f)." Brae Transp. Inc., v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).

Accordingly, because Younan did not make a Rule 56(f) motion, the district court did not abuse its discretion by dismissing the unnamed and unserved defendants without allowing Younan to pursue discovery. See Foster, 772 F.2d at 1467.

Finally, Younan contends that the district court erred in granting summary judgment in favor of the County of Los Angeles and the County of Los Angeles Sheriff's Department. We review de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), and affirm.

A municipality will not be found liable under section 1983 for the constitutional violations of its officials unless the plaintiff has demonstrated that the action inflicting injury flowed either from an explicitly adopted or tacitly authorized municipal policy. Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978). A municipal policy exists when an official with final policy making authority chooses a deliberate course of action from among various alternatives. Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986).

Younan's conclusory allegations fail to raise a genuine issue of material fact that the County of Los Angeles and the County of Los Angeles Sheriff's Department have a policy of ignoring the complaints of endangered inmates. In fact, the record indicates that the defendants have a policy to investigate complaints and protect inmates from danger, not ignore their complaints. Therefore, the district court properly granted summary judgment in favor of the County of Los Angeles and the County of Los Angeles Sheriff's Department.

AFFIRMED.