(PC) Lake v. County of San Diego ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN HANS LAKE, Case No. 19cv1558-MMA (RBM) 12 Plaintiff, ORDER GRANTING DEFENDANT 13 vs. COUNTY OF SAN DIEGO’S UNOPPOSED MOTION TO DISMISS; 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. [Doc. No. 11] 16 ORDERING PLAINTIFF TO SHOW 17 CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR 18 FAILURE TO SERVE REMAINING 19 DEFENDANT UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m) 20 21 22 Plaintiff Steven Hans Lake, while detained at the San Diego County Sheriff 23 Department’s George Bailey Detention Facility (“GBDF”) located in San Diego, 24 California, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 25 1983 against Defendants County of San Diego and the GBDF Medical Director, alleging 26 violation of his constitutional right to adequate medical care. See Doc. No. 1. Defendant 27 County of San Diego moves to dismiss Plaintiff’s claims pursuant to Federal Rule of 28 Civil Procedure 12(b)(6). See Doc. No. 11. To date, Plaintiff has not filed a response in 1 opposition to the motion. For the reasons set forth below, the Court GRANTS Defendant 2 County of San Diego’s unopposed motion. The Court further ORDERS Plaintiff to show 3 cause why this action should not be dismissed as to Defendant GBDF Medical Director 4 for failure to serve this defendant with the summons and complaint pursuant to Federal 5 Rule of Civil Procedure 4(m). 6 MOTION TO DISMISS 7 Defendant County of San Diego moves to dismiss Plaintiff’s claims pursuant to 8 Federal Rule of Civil Procedure 12(b)(6). Defendant filed its motion on November 6, 9 2019, and the Court set the motion for administrative hearing on December 23, 2019. As 10 such, Plaintiff’s opposition to the motion was due on or before December 9, 2019. See 11 SD CivLR 7.1.e.2. To date, Plaintiff has not submitted a response in opposition to the 12 motion, nor has he requested an extension of time in which to do so. 13 As set forth in this District’s Civil Local Rules, “[i]f an opposing party fails to file 14 the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute 15 a consent to the granting of a motion or other request for ruling by the court.” SD CivLR 16 7.1.f.3.c. The Ninth Circuit has held a district court may properly grant an unopposed 17 motion to dismiss pursuant to a local rule where the local rule permits, but does not 18 require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 19 46 F.3d 52, 53 (9th Cir. 1995). The Court has the option of granting Defendant’s motion 20 on the basis of Plaintiff’s failure to respond, and it chooses to do so. 21 Accordingly, the Court GRANTS Defendant County of San Diego’s motion to 22 dismiss and DISMISSES this action as to Defendant County of San Diego without 23 prejudice. The Clerk of Court is instructed to terminate this action as to Defendant 24 County of San Diego. 25 ORDER TO SHOW CAUSE 26 Defendant GBDF Medical Director is the only named defendant in this action 27 besides Defendant County of San Diego. Plaintiff’s attempt to serve the GBDF Medical 28 Director was unsuccessful. See Doc. No. 10. 1 “If a defendant is not served within 90 days after the complaint is filed, the court — 2 ||on motion or on its own after notice to the plaintiff — must dismiss the action without 3 || prejudice against that defendant or order that service be made within a specified time.” 4 || Fed. R. Civ. P. 4(m). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is 5 entitled to rely on the U.S. Marshal for service of the summons and complaint,” provided 6 || the prisoner has supplied “the necessary information to help effectuate service ....” 7 || Puett v. Blandford, 912 F.2d 270, 275 (9th Cir.1990). If service cannot be accomplished 8 || due to a pro se plaintiffs “neglect” or “fault,” including the plaintiffs failure to provide 9 || sufficient information to identify or locate the defendant, dismissal is appropriate. See 10 || Walker v. Sumner, 14 F.3d 1415, 1421-1422 (affirming dismissal of claims against an 11 unserved defendant under Rule 4(m) where the prisoner had not shown that “he provided 12 marshal with sufficient information to serve [the defendant]’’). 13 Under the mailbox rule, Plaintiff filed this action on July 22, 2019. The time 14 || period to effectuate service under Rule 4(m) has expired. Accordingly, IT IS HEREBY 15 |} ORDERED that within thirty (30) days from the date of this Order, Plaintiff must show 16 |}cause why this action should not be dismissed without prejudice as to Defendant GBDF 17 || Medical Director for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil 18 ||Procedure. The failure to respond to this order will result in this action being terminated 19 || as to Defendant GBDF Medical Director and the case being dismissed. 20 IT IS SO ORDERED. 21 || DATE: December 17, 2019 LMlckicl Ld - - hill HON. ICHAEL M. ANELLO United States District Judge 23 24 25 26 27 28