ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) the Report and Recommendation of the Magistrate Judge is approved and adopted; and (2) Plaintiff's claims against Defendant Ornelas are dismissed without prejudice.

IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment of this date on Plaintiff and counsel for Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff, a non-prisoner proceeding in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. section 1983 on May 9, 2016. The original Complaint named only one Defendant, Los Angeles Sheriff's Department Commander Ralph G. Ornelas, sued in his individual capacity only. Plaintiff alleged that Defendant Ornelas placed Plaintiff in "highly restrictive/discipline inmate housing" while Plaintiff was an inmate at the Los Angeles County Men's Central Jail, assertedly in retaliation for Plaintiff's exercise of constitutionally protected conduct.

On May 11, 2016, the Magistrate Judge issued an "Order Directing Service of Process by the United States Marshal," authorizing the Marshals Service to effect service of process on Defendant Ornelas. The "Order Directing Service of Process by the United States Marshal" incorrectly checked the "official capacity" box next to Ornelas' name as well as the "individual capacity" box. As indicated above, the Complaint sued Defendant Ornelas in his individual capacity only.

On July 1, 2016, two documents titled "Process Receipt and Return" were filed, indicating that the Marshals Service had been unable to effect service of process on Defendant Ornelas and bearing the notation "Commander Ornelas is no longer employed with Los Angeles Sheriff's Department."

On July 1, 2016, the Magistrate Judge issued a Minute Order stating that the Marshals Service had advised the Court that Plaintiff had failed to provide information or documentation necessary to effect service, and ordering Plaintiff to show cause, if there be any, why the action should not be dismissed for failure to prosecute.

On July 5, 2016, Plaintiff filed a "Declaration of Plaintiff (With Attached Exhibit)", acknowledging that the Marshals Service had been unable to effect service on Defendant Ornelas and stating that the Los Angeles County Sheriff's Department would not accept service on behalf of Ornelas. Plaintiff requested the Court to order the Marshals Service to serve the Complaint on the Sheriff's Department and to permit Plaintiff to use "discovery rules" to discover the location of Plaintiff Ornelas.

On July 6, 2016, the Magistrate Judge issued a Minute Order indicating that the checking of the "official capacity" box on the May 11, 2016 Order Directing Service of Process of United States Marshal had been a mistake, and correcting the May 11, 2016 Order nunc pro tunc to reflect that the Court authorized the Marshals Service to serve Ornelas in his individual capacity only. The Magistrate Judge advised Plaintiff that service of the Complaint on the Sheriff's Department was not an option, and that the action could not proceed without proper service on Defendant Ornelas in his individual capacity. The Magistrate Judge again ordered Plaintiff to show cause, if there be any, why the action should not be dismissed for failure to prosecute.

On July 7, 2016, Plaintiff filed "Plaintiff's Motion to Serve Defendant's Employer," seeking an order directing the Marshals Service to serve the Complaint on Defendant Ornelas' former employer, the Los Angeles County Sheriff's Department. On July 11, 2016, the Magistrate Judge issued a Minute Order denying this motion.

On July 20, 2016, Plaintiff filed "Plaintiff's Motion Requesting Pro Se Litigation's [sic] Office to Obtain Defendant[`]s Address from the Los Angeles County Sheriff's Department, etc." On July 21, 2016, the Magistrate Judge issued a Minute Order denying this motion, and advising Plaintiff that Plaintiff was free to request assistance directly from the Federal Pro Se Clinic or any other entity, but that the Clinic or any such entity was free to decide for itself how to utilize its resources and that the Court would not issue sui generis injunctive orders to non-parties.

On July 21, 2016, Plaintiff filed "Plaintiff's Motion for Leave to Amend Complaint, etc.," accompanied by a proposed First Amended Complaint identifying the Defendants as Defendant Ornelas and the Los Angeles County Sheriff's Department. On July 22, 2016, the Magistrate Judge issued a Minute Order stating that Plaintiff was not required to obtain leave of court to file the First Amended Complaint (see F.R.Civ.P. 15(a)) and ordering the First Amended Complaint filed. On July 22, 2016, the Magistrate Judge issued an "Order Directing Service of Process of First Amended Complaint by the United States Marshal," authorizing service of the First Amended Complaint on the Los Angeles County Sheriff's Department and Defendant Ornelas in his individual capacity.

On August 23, 2016, a "Process Receipt and Return" was filed indicating that the Marshals Service had been unable to locate Defendant Ornelas, and bearing the notations: "Mr. Ralph G. Ornelas is retired and no longer works at the Los Angeles County Sheriff's Department" and "Reitired [sic]; No forwarding information provided."

On October 6, 2016, Defendant County of Los Angeles, "for itself alone" and as allegedly erroneously sued as the Los Angeles County Sheriff's Department, filed a "Motion to Dismiss Action for Failure to State a Claim, etc." pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On November 10, 2016, Plaintiff filed an Opposition to the Motion to Dismiss. On December 21, 2016, the Court issued an "Order Denying Motion to Dismiss." On January 20, 2017, Defendant County of Los Angles filed an Answer to the First Amended Complaint.

However, Defendant Ornelas still had not appeared in the action, and there still was no proof of service showing service of process on Ornelas. Accordingly, on January 23, 2017, the Magistrate Judge issued a Minute Order again ordering Plaintiff to show cause, if there be any, why the action should not be dismissed as against Defendant Ornelas for failure to prosecute.

On February 16, 2017, Plaintiff filed "Plaintiff's Statement to Retain the Defendant Ralph G. Ornelas, etc." In this document, Plaintiff stated that at the time of the filing of this action Plaintiff assertedly was a "K-10" inmate at the Los Angeles County Jail confined to his cell. Plaintiff stated that, because Ornelas assertedly had retired and because Plaintiff was "living in restrictive housing," Plaintiff could not discover Ornelas' location without the assistance of the County of Los Angeles.

However, the title page of the Complaint indicates that, at the time Plaintiff filed this action, Plaintiff's address was a street address at 601 South San Pedro Street, Los Angeles, California. Plaintiff's accompanying "Application for In Forma Pauperis Status, etc." contained the same street address and alleged that Plaintiff received food stamps and general relief. In a declaration accompanying Plaintiff's July 7, 2016 "Motion to Serve Defendant's Employer," Plaintiff indicated that he purportedly was homeless and a mental health patient currently enrolled in the healthy living program and substance abuse treatment facility at the Midnight Mission at 601 South San Pedro Street. The title page of the First Amended Complaint shows Plaintiff's address as the "Healthy Living Program" at the San Pedro Street address.

In any event, on February 22, 2017, the Magistrate Judge issued a Minute Order discharging the Order to Show Cause and extending the time within which Plaintiff was required to file a proof of service showing proper service of the Summons and First Amended Complaint on Defendant Ornelas to thirty days from the date of the Order.

On March 8, 2017, Plaintiff filed "Plaintiff's Request for Time Extension to Serve the Complaint Upon Defendant Ornelas, etc." In an attached declaration, Plaintiff stated that he assertedly had made a "diligent effort" to locate Ornelas, but that all Plaintiff purportedly knew was that "as of September 4, 2013 he [Ornelas] lived in Orange County, California per Internet search." Plaintiff attached a one page document inter alia describing Defendant Ornelas' job history, stating that Ornelas recently had been appointed as Commander in the Sheriff's Department and identifying Ornelas' then-current city of residence.

On March 9, 2017, the Magistrate Judge issued a Minute Order extending the time within which Plaintiff was required to file a proof of service showing proper service of the Summons and First Amended Complaint on Defendant Ornelas to sixty days from the date of the Order.

The sixty-day period expired without any communication to the Court from Plaintiff. On May 17, 2017, the Magistrate Judge issued a Minute Order once again ordering Plaintiff to show cause, if there be any, within thirty days of the date of the Order, why the action should not be dismissed as against Defendant Ornelas for failure to prosecute. The Order advised Plaintiff that failure timely to comply with the terms of the Order could result in dismissal of the action as against Defendant Ornelas without prejudice.

On June 12, 2017, Plaintiff filed "Plaintiff's Request for Time Extension to Serve Defendant Ornelas, etc," seeking another sixty-day extension of time to effect service of process on Defendant Ornelas "due to [Plaintiff's] indigent status and transient living conditions." Plaintiff states that he "has no means at this point in which to locate Defendant Ornelas."

DISCUSSION

A district court may dismiss an action for failure to obey a court order or for failure to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 (2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992). This action has been pending against Defendant Ornelas for over a year, and yet Plaintiff has failed to effect service of process on Ornelas.

"An incarcerated pro se plaintiff, proceeding in forma pauperis, is entitled to rely on the marshal for service and should not be penalized by having his action dismissed for failure to effect service where the marshal has failed to perform his duties. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Nevertheless, a plaintiff relying upon the U.S. Marshal for service must provide the necessary information and documents to effectuate service. Myers v. Smalls, 644 Fed. App'x 752, 753 (9th Cir. 2016); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472 (1995) (it is the plaintiff/prisoner's responsibility to provide the Marshals Service with sufficient information with which to effect service). In the present case, Plaintiff is not incarcerated, and the Marshal has attempted to perform his duties, but Plaintiff evidently still has not provided the Marshal with the necessary information to effectuate service on Defendant Ornelas. Despite Plaintiff's alleged indigent and transient status, Plaintiff succeeded in effecting service on the County of Los Angeles and reportedly has had access to the Internet. Yet, for more than a year, and despite receiving multiple extensions of time, Plaintiff has proven unable to provide the Marshals Service with information sufficient to effect service of process on Ornelas.

The Court observes that this is not the first time Plaintiff has attempted to sue Ornelas in this Court. The Court takes judicial notice of the docket and documents in Haley v. Los Angeles Sheriff's Dep't, CV 15-7872-AG(E) ("the prior action"), filed on October 7, 2015. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). In a First Amended Complaint filed in the prior action, Plaintiff named Defendant Ornelas in his individual and official capacities. On February 1, 2016, the Court issued an Order re First Amended Complaint, dismissing the official capacity claim without leave to amend and with prejudice. After the Court issued an Order Directing Service by the United States Marshal upon Defendant Ornelas in his individual capacity, the Marshals Service advised the Court that Plaintiff had failed to provide information or documentation necessary to effect service. On April 5, 2016, the Magistrate Judge issued an order to show cause why the action should not be dismissed for failure to prosecute, to which Plaintiff filed no response. The Magistrate Judge then issued a Report and Recommendation on May 20, 2016, recommending dismissal of the action without prejudice for failure to obey a court order and failure to prosecute.1 After Plaintiff filed an objection stating that he was homeless and asking for re-issuance of service-related documents, the Magistrate Judge withdrew the Report and Recommendation and extended the time for service to July 27, 2016.

On July 1, 2016, a "Process Receipt and Return" was filed indicating that the Marshals Service was unable to effect service on Defendant Ornelas and stating: Commander Ornelas is no longer employed with the Los Angeles Sheriffs Department." On July 1, 2016, the Magistrate Judge issued an order indicating that the Marshals Service had advised the Court that Plaintiff still had failed to provide information or documentation necessary to effect service, and ordered Plaintiff to show cause why the action should not be dismissed for failure to prosecute. Plaintiff filed no timely response to the order to show cause. Therefore, on August 10, 2016, the Magistrate Judge issued a Report and Recommendation in the prior action recommending dismissal of the action without prejudice for failure to prosecute. The Court adopted the Report and Recommendation on September 30, 2016, and Judgment was entered on October 3, 2016.

Thus, Plaintiff has followed a pattern of filing suit, failing to provide the Marshals Service with sufficient information to effect service of process and then seeking multiple, fruitless extensions of time.2 Plaintiff's alleged transient housing status and indigency do not excuse Plaintiff's failure to obtain the information needed for the Marshals Service to effect service of process and do not justify extensions of unlimited duration. Plaintiff's apparent excuse that confinement in restrictive housing supposedly has hindered his ability to effect service is at best undocumented and at worst false. Under these circumstances, dismissal of the action as to Defendant Ornelas without prejudice for failure to prosecute is appropriate. See Walker v. Sumner, 14 F.3d at 1422.3

Under Rule 4(m) of the Federal Rules of Civil Procedure, a court may also dismiss an action without prejudice if the summons and complaint are not served on the defendant within 90 days after filing the complaint or such further time as ordered by the court. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) requires the Court to extend the time for service if a plaintiff shows good cause for the failure to serve. "At a minimum, `good cause' means excusable neglect." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). A court has "broad discretion" to extend the time for service under Rule 4(m), even absent a showing of good cause. See Efaw v. Williams, 473 F.3d at 1040-41; see also United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts "leeway to preserve meritorious lawsuits despite untimely service of process"). A court may consider various factors including prejudice to the defendant, actual notice, a possible limitations bar, and eventual service. See Efaw v. Williams, 473 F.3d at 1041. Any such dismissal should be without prejudice. See United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d at 772.

This Court should not exercise its "broad discretion" to extend further the time for service. The Court previously extended the time for service on multiple occasions, but Plaintiff repeatedly has proven unable or unwilling to supply the Marshals Service with sufficient information to effect service of the First Amended Complaint on Defendant Ornelas. Under these circumstances, a further extension of the service deadline would appear to be an idle act.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) dismissing without prejudice Plaintiff's claims against Defendant Ornelas.