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Howard v. Polley

United States District Court, D. Nevada

February 6, 2017

ABDUL HOWARD, Plaintiff,
v.
BONNIE POLLEY, et al., Defendants.

          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. 23, 24)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff 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.[1] ECF No. 7 at 5-7, 9-11.

         Defendants 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.

         Polley 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.

         I. MOTION TO SET ASIDE THE DEFAULT

         Polley 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.

         Howard 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.

         The 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.

         To 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).

         Finally, 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.

         As to 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.

         As to 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 disciplinary record.

         Finally, 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.

         II. MOTION FOR ...


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