Bruce Westin v. Deputy Alex Vaziri, No. 2:2011cv10738 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO SERVE AND PROSECUTE by Judge Michael W Fitzgerald. (rla)
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fiLED· SOUTHERN DIVISiON CLERK, U.S. DISTRICT COURt 1 , AW 282012 ;) 2 CfNTRAL OISTRi~t1 BY I 3 \ o Of CAUFORUIA OEP"Jrf V, ~ 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 12 MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO SERVE AND PROSECUTE Plaintiff, 13 v. 14 15 Case No. CV 11-10738-MWF (MLG) BRUCE WESTIN, DEPUTY ALEX VAZIRI, Defendant. 16 17 18 On January 6, 2012, Plaintiff Bruce westin filed this pro se 19 civil rights complaint pursuant to 42 U. S. C. 20 Los Angeles County Sheriff's Department and Deputy Alex Vaziri as 21 defendants. 22 force against Plaintiff' while arresting him on February 11, 2011, 23 and that the Sheriff's Department was liable as Vaziri's employer. 24 On The January complaint 11, § 1983, naming the alleged that Vaziri used unreasonable 2012, Magistrate Judge Marc L. Goldman 25 dismissed the complaint with leave to amend with respect to the 26 Sheriff's Department because the allegations against it were based 27 solely upon 28 basis for liability under section 1983. See Monell v. Department the theory of respondeat superior, which is not a 1 of Social SVs., 436 U.S. 658, 691 (1978). Plaintiff did not file 2 an amended complaint within the time allowed, and on February 8, 3 2012, it was ordered that the United States Marshal effect service 4 upon Deputy Vaziri only. A service packet was sent to Mr. westin 5 for completion and forwarding to the Marshal for the purpose of 6 effecting service. 7 It came to the Court's attention that the service packet had 8 never been sent to the Marshal, and on April 16, 2012, Magistrate 9 Judge Goldman issued an order directing Plaintiff to show cause 10 why 11 affirmative 12 Plaintiff filed a motion to extend the time to effect service and 13 on April 17, 14 extension of time to effect service was granted. 15 the case should steps 2012, to not be serve dismissed the for Defendant. failure On take same the to day, the order to show cause was dismissed and an On July 11, 2012, Plaintiff requested a second extension of 16 time to effect 17 wrong material 18 effected 19 resubmitting the summons and complaint to the Marshal, 20 utilize the Sheriff's Department to effect service. in service. to that the Plaintiff Marshal manner. He and stated that he had that further service stated sent could that the not be instead of he would 21 On July 13, 2012, Magistrate Judge Goldman granted Plaintiff 22 an extension of time to August 3, 2012, in which to effect service 23 on Vaziri, either through the United States Marshal, the sheriff's 24 department, 25 failure 26 this action without prejudice. As of August 23, 2012, no proof of 27 service has been filed and no additional extension of time has 28 been requested. or on his own. Plaintiff was cautioned to timely effect service would result 2 that the in dismisssal of 1 This action will be dismissed without prejudice. Rule 4(m) of 2 the Federal Rules of Civil Procedure provides that if service is 3 not made within 120 days after the filing of the complaint, 4 the 5 within 6 prejudice upon 7 plaintiff. See Boudette v. 8 1'991) (affirming dismissal of complaint for failure to timely serve 9 the summons and complaint); Townsel v. County of Contra Costa, 820 plaintiff that cannot show good period, 320 the cause why service the action shall court's own initiative (9th Cir. be was dismissed with 1987) (same). 757 The 120 days made without notice 923 F. 2d 754, Barnette, not and to the (9th Cir. 10 F.2d 319, in which to 11 effect service in this case expired on May 7, 2012. The second of 12 the two extensions of time to effect service expired on August 3, 13 2012. Plaintiff has still not served the summons and complaint. 14 While the court is mindful that Plaintiff is proceeding pro 15 'se, he nonetheless has a and Civil 17 Plaintiff 18 specifically 19 extensions of time to in which to do so. 20 service warrants dismissal of this action by reason of Rule 4(m). has this failed informed In addition, Court's follow the Rules of 16 21 Procedure responsibility to effect of service this regarding despite requirement Courts possess an action based on a orders service. being being and twice given The failure to effect the discretionary authority to 22 dismiss 23 prosecute or comply with a court order. Fed.R.Civ.p. 41(b); Local 24 Rule 25 (1962). 26 in extreme circumstances." 27 1423 (9th Cir. 1986). The Court is required to weigh the following 28 factors 12.1. See Link v. Wabash plaintiff's R.R. failure to diligently 370 U.S. Co., 626, 629-630 "Dismissal is a harsh penalty and is to be imposed only in determining Henderson whether to 3 v. Duncan, dismiss a 779 F.2d 1421, case for lack of 1 prosecution: 2 of litigation; 3 risk 4 favoring 5 availability of less drastic sanctions." 6 594 F.3d 1081, 7 1451 (9th Cir. 1994) of "(1) the public's interest in expeditious resolution (2) the court's need to manage its docket; prejudice to disposition the of 1084 defendants; cases (9th Cir. on (4) their 2010); the (3) the public merits; and (5) the Dell, Omstead v. In re Eisen, policy Inc, 31 F.3d 1447, (citing Henderson, 779 F.2d at 1423). 8 In weighing these factors, the court concludes that dismissal 9 is appropriate in this case. The case has been pending for eight 10 months 11 been 12 effect 13 interest 14 resolution 15 sanctions available when a party has failed to prosecute or effect 16 service. 17 without given service upon the defendant. extensions service of would the weighs Accordingly, 18 without prejudice 19 of result public in it for time in and favor is and warned dismissal the of that that of in dismissal. ORDERED failure court Plaintiff has this his this failure action. bringing There action are be prosecute. Dated: August 28, 2012 22 Michael W. Fitzgerald united States District Judge 23 24 Presented By: 25 26 27 28 The cases no to to other dismissed to effect service and failure to 20 21 twice Marc L. Goldman United States Magistrate Judge 4
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