Christopher Barone v. Los Angeles County Sheriffs Department

• Court: District Court, C.D. California
• Decided: January 14, 2022
• Docket: 2:21-cv-04200
• Status: Unknown

Opinion

Case 2:21-cv-04200-JWH-PD Document 14 Filed 01/14/22 Page 1 of 4 Page ID #:210 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:21-cv-04200-JWH-PD Date: January 14, 2022 Title Christopher T Barone v Los Angeles County Sheriff’s Department, et al

Present: The Honorable: Patricia Donahue, United States Magistrate Judge

Isabel Martinez N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants: N/A N/A

Proceedings: (IN CHAMBERS) Order to Show Cause Why Action Should Not be Dismissed

On September 20, 2021, Plaintiff filed the First Amended Complaint (the “FAC”) in this matter. According to the FAC, Los Angeles County Sheriff’s Department deputies Park and Metcalf unlawfully arrested Plaintiff at his place of business after calling an individual to the location who had a restraining order against Plaintiff. The FAC also alleges that six unnamed deputies searched Plaintiff and his truck without a warrant. [Dkt. No. 10.] On October 29, 2021, the Court issued an Order directing Plaintiff to proceed promptly with service of the Summons and the FAC on Deputy Park, Deputy Metcalf, and the Los Angeles County Sheriff’s Department (the “LASD”). [Dkt. No. 11.] The Order required Plaintiff to file a copy of the proof of service no later than December 30, 2021. As Plaintiff is proceeding pro se, the Order advised Plaintiff that the Federal Pro Se clinic is available for assistance. On October 29, 2021, the Court also issued an Order authorizing Plaintiff to conduct early discovery under Federal Rule of Civil Procedure 26(d)(1) to determine the names of the six deputies whom Plaintiff alleged searched him and his truck without a warrant. The Order permitted Plaintiff

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Case No. 2:21-cv-04200-JWH-PD Date: January 14, 2022 Title Christopher T Barone v Los Angeles County Sheriff’s Department, et al to serve interrogatories for this information on the LASD no later than November 15, 2021. [Dkt. No. 12.] The Court ordered Plaintiff to file one of the following documents no later than January 4, 2022: (1) If no defendant has yet responded to the FAC, Plaintiff shall file a Second Amended Complaint identifying the Doe defendants by name; (2) If a defendant has responded to the FAC, Plaintiff shall file a motion for leave to file a Second Amended Complaint, attaching as an exhibit to the motion a copy of the Second Amended Complaint identifying the Doe defendants by name; or (3) If Plaintiff has not received a response to the interrogatory, or if the interrogatory response does not identify the Doe defendants, Plaintiff shall file a Status Report stating when the interrogatory was served and affirming that no response was received, or, if a response was received, that the response did not identify the Doe defendants. Plaintiff shall attach to the Status Report a copy of the interrogatory served on the LASD including the proof of service, and a copy of any response received from the LASD to the interrogatory. On November 12, 2021, Plaintiff filed a copy of Plaintiff’s Special Interrogatories, Set One with proof of service on the Office of County Counsel and Sheriff Alex Villanueva of the interrogatories and the FAC. [Dkt. No. 13.] As of the date of this Order, none of the Defendants has filed an Answer to the FAC and Plaintiff did not file a Second Amended Complaint naming the other deputies. Nor has he filed a status report affirming that the LASD did not respond to his interrogatory or that the response failed to

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Case No. 2:21-cv-04200-JWH-PD Date: January 14, 2022 Title Christopher T Barone v Los Angeles County Sheriff’s Department, et al identify the unnamed deputies. Thus, Plaintiff has failed to comply with the Order of the Court dated October 29, 2021. District courts may dismiss cases sua sponte for failure to prosecute or for failure to comply with a court order under Federal Rule of Civil Procedure 41(b) and Local Rule 41-1. Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). However, dismissal “is a harsh penalty and is to be imposed only in extreme circumstances.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). Here, the Court ordered Plaintiff to submit one of three responsive filings depending on the result of his interrogatory to LASD. Instead, he filed the interrogatory but has otherwise not communicated with the Court about any response. Additionally, Plaintiff has the burden of establishing that he accomplished service of process in compliance with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4(l)(1). If a defendant has not been served within 90 days after the complaint is filed, “the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). Plaintiff filed the FAC on September 20, 2021. The Court issued the Initial Order in Civil Rights Cases on October 29, 2021 that ordered Plaintiff to file proof of service of the Summons and the FAC no later than December 30, 2021. The Court warned that failure to do so could result in a recommendation of dismissal. Plaintiff has not filed proof of service of the Summons upon Defendants. Accordingly, the Court orders Plaintiff to show cause on or before February 11, 2022 why this Court should not recommend that this action be dismissed: (1) for failure to comply with the Order of the Court dated October

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Case No. 2:21-cv-04200-JWH-PD Date: January 14, 2022 Title Christopher T Barone v Los Angeles County Sheriff’s Department, et al 29, 2021; and (2) for the failure to timely serve Defendants with the Summons. Plaintiff may also discharge this Order by filing on or before February 11, 2022: 1. one of the three responsive responses to the Order of the Court dated October 29, 2021; and 2. proof of service of the Summons upon Defendants Plaintiff is cautioned that, absent further order of the Court, his failure to fully comply with this Order in a timely manner may result in the dismissal of this action with or without prejudice on the grounds above or for failure to diligently prosecute.

IT IS SO ORDERED.

: Initials of Preparer im

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