Caree Harper v. Otis Wright, II

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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