Caree Harper v. Otis Wright, II ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAREE ANNETTE HARPER, No. 17-56019
Plaintiff-Appellant, D.C. No. 2:17-cv-01709-RGK
v.
MEMORANDUM*
OTIS D. WRIGHT II, U.S. District Court
Judge, individual and official capacities; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Caree Annette Harper appeals pro se from the district court’s judgment in
her 42 U.S.C. § 1983 action alleging various federal and state law violations. We
have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissal for failure to prosecute. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th
Cir. 2002). We reverse and remand.
Although Harper did not timely serve the summons and complaint, see Fed.
R. Civ. P. 4(m) (setting forth 90-day period for service of the summons and
complaint), Harper properly served defendant Judge Wright two days after the
service deadline, and properly served the remaining defendants about two weeks
after the service deadline. Furthermore, Harper’s claims would be time-barred if
the action was dismissed. Under these circumstances, we conclude that the
applicable factors weigh against dismissal. See Henderson v. Duncan, 779 F.2d
1421, 1423-24 (9th Cir. 1986) (setting forth factors to determine whether dismissal
as a penalty for failure to prosecute is appropriate and reviewing the record
independently where the district court did not make explicit findings); see also
Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (holding that relief
was appropriate under Rule 4(m) because plaintiffs would be time-barred from re-
filing their action); Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (“In
making decisions under Rule 4(m) a district may consider factors like a statute of
limitations bar . . . and eventual service.” (citation and internal quotation marks
omitted)); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512-13 (9th Cir.
2 17-56019
2001) (district court has discretion to extend the time for service even absent good
cause). We reverse the judgment and remand for further proceedings. In light of
our disposition, we do not consider Harper’s contentions regarding the merits of
her claims.
Attorney Paul L. Hoffman’s motion for leave to file an amicus brief (Docket
Entry No. 8) is denied as unnecessary because the proposed amicus brief is
substantively identical to the opening brief.
REVERSED and REMANDED.
3 17-56019