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Dismissal of a Suit Based on 2023 Failures by Plaintiff Is Vacated in Light of 2022 Events
Ninth Circuit Reinstates Action Torpedoed by Judge in Light of Non-Service on Defendants Caused by Plaintiff’s Failure to Provide Necessary Documents to Marshal’s Office
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, based on a slip-up by the Marshal’s Office in 2022, has vacated an order dismissing an action for failure to effect service on the defendants—although the blunder spotlighted in the opinion was unrelated to the basis for the District Court’s action in 2023.
Reinstitution of the litigation occurred Tuesday through the filing of a memorandum opinion.
Plaintiff/appellant Eloy Mascorro, acting pro se, brought his lawsuit against the County of San Diego, its Sheriff’s Department, and others on Nov. 30, 2021. He alleged various violations of his constitutional rights occurring “[b]etween 2017 and 2021” while he was an inmate “at least 4 different times, at the San Diego County Jail.”
On March 3, 2022, District Court Judge Linda Lopez of the Southern District of California ordered Mascorro “to serve a copy of the summons and complaint on named Defendants, most importantly the County of San Diego, and to file proof of service” electronically “within 90 days after the summons is issued.” That issuance occurred on March 8.
Two days later, Lopez ordered that service be effected on behalf of Mascorro—who had been granted in forma pauperis (“IFP”) status—by the U.S. Marshal’s Service (”USMS”). She directed that Mascorro fill out the requisite forms by March 18 and said that “the U.S. Marshal shall, within thirty (30) days of receipt, serve the County of San Diego as directed by Plaintiff on the form, and shall promptly file proof of service thereafter.”
New Deadline
Complications arose, including a foul-up at one point by the USMS. On Feb. 28, 2023, District Court Judge Robert S. Huie, to whom the case had been transferred, granted Mascorro’s motion for more time within which to effect service, commanding:
“Plaintiff shall effectuate service of the summons and Complaint by May 1, 2023.”
Huie noted that the court had “mailed to Plaintiff an IFP packet with detailed instructions on how to request service by the U.S. Marshals Service” and that Mascorro had been given free access to the court’s Case Management/Electronic Case Files system from which documents can be downloaded.
The Marshal’s Service returned documents to Mascorro that had been submitted by him, explaining that the packet was incomplete. On May 11, 2023—no proof of service having been filed—Huie ordered a dismissal, without prejudice to the case being refiled. He declared:
“Plaintiff has not shown good cause for his failure to serve Defendants. Plaintiff has described his financial condition and lack of a permanent mailing address. The Court has granted Plaintiffs request to proceed IFP, and ordered the USMS to serve process on Plaintiffs behalf at no cost to him. Nonetheless, Plaintiff must complete the… required documents to the USMS for service.”
Huie noted:
“The Court declines to order the Clerk of Court to provide the documents to the USMS on Plaintiffs behalf.”
Ninth Circuit Decision
A three-judge Ninth Circuit panel—comprised of Judges Anthony S. Johnstone and Holly A. Thomas and Senior Judge Susan P. Graber—countermanded the District Court judge, saying:
“The district court dismissed Mascorro’s action because Mascorro had not shown good cause for his failure to serve defendants. Specifically, the district court considered whether Mascorro’s second attempt to serve defendants on April 17, 2023. was adequate and determined that Mascorro failed to show good cause for his failure to serve. However, the record indicates that Mascorro attempted to serve the Comity of San Diego over a year earlier, on March 18. 2022. but the U.S. Marshal failed to effect service because it erroneously believed that the County of San Diego was not named as a defendant in this action. Because Mascorro was entitled to rely on the U.S. Marshal for service and demonstrated that he provided the necessary information, we vacate the dismissal order and remand for further proceedings.”
The opinion says that the District Court, on remand, “should,” itself, provide the USMS with specified documents.
Contrary to the recitation in that opinion, Huie’s May 11, 2023 order of dismissal did not discuss “whether Mascorro’s second attempt to serve defendants on April 17, 2023. was adequate.” Rather, it was recited that on that date, the plaintiff filed an affidavit indicating that he had mailed a particular form to the USMS and protesting that an order requiring personal delivery to the USMS created “an unreasonable burden” on him due to his indigency.
The case is Mascorro v. County of San Diego, 3:21-cv-02012.
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