United States District Court, D. Nevada
ORDER(1)GRANTINGMOTIONTO SET ASIDE DEFAULT, (2)
GRANTING INPART AND DENYING INPART MOTION FOR DEFAULT
JUDGMENT, AND (3) REFERRING TO THE PROBONO PROGRAM (ECF Nos.
P. GORDON UNITED STATES DISTRICT JUDGE
Abdul Howard is a pretrial detainee at the Clark County
Detention Center. Following screening of his complaint,
Howard has four remaining claims: (1) a First Amendment free
exercise claim against religious coordinator Bonnie Polley
based on alleged denial of access to religious services; (2)
a Fourteenth Amendment equal protection claim against Polley
based on alleged disparate treatment for Muslim inmates to
get access to religious services; (3) a First Amendment free
exercise claim against kitchen supervisor Peggy Martinez
based on allegations that she refused to provide sufficient
food to sustain him while he fasted during Ramadan; and (4)
an Eighth Amendment cruel and unusual punishment claim
against Martinez for failing to provide sufficient food to
satisfy nutritional requirements while Howard was
fasting. ECF No. 7 at 5-7, 9-11.
Martinez and Polley were served on April 26, 2016. ECF Nos.
11, 12. Neither defendant answered or otherwise responded to
the complaint, so Howard moved for entry of clerk's
default. ECF No. 21. The clerk of court entered default
against Martinez and Polly on August 15, 2016. ECF No. 22.
moves to set aside the default. Howard moves for default
judgment. I grant Polley's motion to set aside the
clerk's entry of default. I deny Howard's motion for
default judgment as to Polley because the default has been
set aside as to her. I grant the motion for default judgment
against Martinez as to liability, but I will hold a prove up
hearing regarding damages and injunctive relief. Finally, I
refer this matter to the Pilot Pro Bono Program.
MOTION TO SET ASIDE THE DEFAULT
moves to set aside the clerk's entry of default, arguing
that she was “not aware of her responsibilities upon
being served.” ECF No. 24 at 2. Polley contends she has
meritorious defenses to Howard's claims, including that
he failed to exhaust his administrative remedies and that his
disciplinary record supported the restrictions on his access
to religious services. Polley contends Howard will not be
prejudiced because she moved to set aside the default only
two weeks after the default was entered.
responds that Polley has been sued before and knows she must
respond to complaints. Howard contends he would be prejudiced
by setting aside the default because his rights are still
being violated. He also contends he has exhausted his
administrative remedies and further attempts at exhaustion
would be futile.
clerk of court must enter default against a party who has
“failed to plead or otherwise defend” an action.
Fed.R.Civ.P. 55(a). “The court may set aside an entry
of default for good cause . . . .” Fed.R.Civ.P. 55(c).
When determining whether good cause exists, the court
considers (1) “whether the defendant's culpable
conduct led to the default, ” (2) “whether the
defendant has a meritorious defense, ” and (3)
“whether reopening the default judgment would prejudice
the plaintiff.” TCI Grp. Life Ins. Plan v.
Knoebber, 244 F.3d 691, 696 (9th Cir. 2001),
overruled on other grounds, Egelhoff v. Egelhoff
ex. rel. Breiner, 532 U.S. 141 (2001). With regard to
the first factor, “a defendant's conduct is
culpable if he has received actual or constructive notice of
the filing of the action and intentionally failed to
answer.” Id. at 697 (emphasis and quotation
omitted). However, if the defendant offers a good faith
explanation for her neglectful failure to answer, and that
explanation negates any intent to take advantage of the
plaintiff, interfere with judicial decision-making, or
otherwise manipulate the legal process, such failure is not
“intentional.” Id. at 697-98.
satisfy the “not extraordinarily heavy” burden of
presenting a meritorious defense, the defendant seeking to
vacate a default must present specific facts that would
constitute a defense. Id. at 700. There must be some
possibility that the suit would have a different outcome at
trial than the result achieved by default. Hawaii
Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513
(9th Cir. 1986).
with respect to prejudice, “[t]he standard is whether
[the plaintiff's] ability to pursue his claim will be
hindered.” Falk v. Allen, 739 F.2d 461, 463
(9th Cir. 1984). To be considered prejudicial to the
plaintiff, setting aside a default must do more than simply
delay resolution of the case. TCI, 244 F.3d at 701.
Rather, the delay must result in some tangible harm, such as
“loss of evidence, increased difficulties of discovery,
or greater opportunity for fraud or collusion.”
Id. (quotation omitted). Similarly, requiring a
plaintiff to adjudicate a claim on the merits does not
constitute prejudice. Id.
the first factor, although Polley's explanation of her
failure to respond is weak, there is no basis to conclude
that Polley intended to take advantage of the plaintiff,
interfere with judicial decision-making, or otherwise
manipulate the legal process, or that her failure to respond
was the result of bad faith. She moved to set aside the
default within two weeks of the clerk's entry of default,
thus suggesting that her failure to respond was the result of
neglect or misunderstanding rather than a willful decision
not to respond.
the second factor, Polley offers possible meritorious
defenses, including that Howard did not fully exhaust his
administrative remedies or that there were reasonable
restrictions on Howard's free exercise rights based on
legitimate penological interests due to Howard's
Howard will not be prejudiced by setting aside the default. A
two-week delay alone does not constitute prejudice. Howard
has not identified any loss of evidence, difficulty with
discovery, or other basis for finding prejudice. Requiring
him to adjudicate his claims against Polley on the merits is
not prejudice. I therefore grant Polley's motion to set
aside the clerk's entry of default as to her.
MOTION FOR ...