Kevin Ezell v. Department of Rehabilitation

FILED
NOT FOR PUBLICATION JUN 20 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KEVIN EZELL, No. 12-55274

Plaintiff - Appellant, D.C. No. 2:11-cv-01940-DSF-
AJW
v.

DEPARTMENT OF REHABILITATION, MEMORANDUM *

Defendant - Appellee.

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.

*
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).
 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.

2 12-55274