Kevin Ezell v. Department of Rehabilitation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN EZELL,
Plaintiff - Appellant,
v.
DEPARTMENT OF REHABILITATION,
Defendant - Appellee.
No. 12-55274
D.C. No. 2:11-cv-01940-DSF-
AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Kevin Ezell appeals pro se from the district court’s judgment dismissing his
Americans with Disabilities Act action for failure to prosecute. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Ash v.
Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), and we affirm.
FILED
JUN 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-55274 2
The district court did not abuse its discretion in dismissing Ezell’s action
without prejudice for failure to prosecute after Ezell failed properly to serve
defendant. See Fed. R. Civ. P. 4(j)(2) (requiring that a state-created agency be
served either by “delivering a copy of the summons and of the complaint to its
chief executive officer” or by “serving a copy of each in the manner prescribed by
that state’s law”). Plaintiff’s attempts at service did not constitute “delivery” on
defendant’s chief executive officer and did not comply with California’s
requirements for service on a state agency. See Cal. Civ. Proc. Code § 416.50(a)
(stating that service may be effectuated on a public entity by “delivering a copy of
the summons and of the complaint to the clerk, secretary, president, presiding
officer, or other head of its governing body”); see also id. § 415.20 (listing the
requirements for substituted service); id. § 415.30 (listing the requirements for
service by mail).
Ezell’s “motion for application for relief,” filed on August 10, 2012, is
denied.
AFFIRMED.

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