United States District Court, D. Nevada
ORDER - AND - REPORT OF FINDINGS AND RECOMMENDATION
(MOTS. - ECF NOS. 137, 145, 153)
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
the court are Plaintiff Victor Tagle's Motion to Extend
Time (ECF No. 137), Motion to Expedite Service (ECF No. 145),
and Motion for Entry of Clerk's Default (ECF No. 153).
Also before the court are Tagle's Responses (ECF Nos.
135, 136) to the court's Order to Show Cause (ECF Nos.
131, 133) (“OSC”). These motions and OSC responses
are referred to me pursuant to 28 U.S.C. § 636(b)(1)(A)
and (B) and LR IB 1-3 and 1-4 of the Local Rules of Practice.
Tagle is a prisoner in the custody of the Nevada Department
of Corrections (“NDOC”) and currently housed at
the Saguaro Correctional Center, a privately-run facility in
Eloy, Arizona. This case arises from his allegations of civil
rights violations pursuant to 28 U.S.C. § 1983. Tagle
has received permission to proceed in forma pauperis
(“IFP”) in this case. He has an extensive history
of filing civil actions in this district that are either
frivilous or insufficiently pled. As a result, he is now
ineligible for IFP status unless he is “under imminent
danger of serious physical injury.” 28 U.S.C. §
Tagle commenced this action in April 2016 by filing an IFP
Application (ECF No. 1) and proposed Complaint (ECF No. 1-1).
He filed an Amended Complaint (ECF No. 8) several months
later. Based on Tagle's litigation history, the court
denied his IFP application and ordered him to pay the full
$400 filing fee within 30 days, otherwise this action would
be dismissed. Order (ECF No. 9). He did not pay the filing
fee; thus, the case was dismissed in January 2017. Order (ECF
No. 12). Tagle appealed. The Ninth Circuit reversed the
dismissal because three prior dismissals were improperly
counted as strikes since those cases were dismissed after
Tagle filed this action. ECF Nos. 17, 18. This case was
therefore remanded to the district court.
remand, the court reviewed the amended complaint in October
2017 and determined that it states four plausible claims: (1)
First Amendment mail violation, (2) denial of access to the
courts, (3) due process violation for authorized, intentional
deprivations of property, and (4) supervisory liability.
Screening Order (ECF No. 23). The case was stayed for 90 days
to allow the parties an opportunity to settle their dispute
through the Inmate Early Mediation Program before the filing
of an answer or starting the discovery process. Id.;
Order Setting Inmate Early Mediation Conference (ECF No. 28).
Two NDOC representatives appeared for the mediation on
December 22, 2017, but Mr. Tagle refused to leave his cell to
participate telephonically. Mins. of Proceedings (ECF No.
33). Since the mediation did not occur, the case was returned
to the normal litigation track. Id.
January 5, 2018, the court entered an Order (ECF No. 34)
(“service order”) directing Tagle to serve the
amended complaint within 90 days pursuant to Rule 4 of the
Federal Rules of Civil Procedure. Id. at 2, ¶ 5.
This set a deadline of April 9, 2018, for Tagle to complete
service of process on all defendants. The service order also
directed electronic service of the amended complaint on the
Nevada Office of the Attorney General (“Attorney
General”) and instructed that a notice be filed with
the court indicating the names of the defendants for whom the
Attorney General accepted service, and those it did not.
Id. at 2-3. If there were any named defendants for
which the Attorney General could not accept service, the
court ordered that the last known address(es) of those
defendant(s) for whom it has such information be filed under
seal, but not served on Tagle. Id. The order also
If service cannot be accepted for any of the named
defendant(s), Plaintiff shall file a
motion identifying the unserved defendant(s), requesting
issuance of a summons, and
specifying a full name and address for the defendant(s). For
the defendant(s) as to which the Attorney General has not
provided last-known-address information, Plaintiff shall
provide the full name and address for the
Id. at 2-3, ¶ 7 (emphasis added).
Attorney General accepted service on behalf of defendants
Artinger, Barrett, Boyd, Bulfer, Crowder, Douglas, Garcia,
Gregory, Hester, Marino, Ontiveros, Pascascio, Richardson,
Witter, Zelaya, Dugan, Sotomayor, Barfield, Matousek, and
Neven (jointly, the “NDOC Defendants”). Notice
Acceptance of Service (ECF No. 38). Service was not
accepted for defendants Michael Anderson, David Joseph,
Anthony Lepak, Clark Marcy, Paulina Simmons, Stacey Stark,
Smith, Howard, and Ward (“unserved defendants”).
See Notice of Sealed Submission (ECF No. 40); Sealed
Submission of Last Known Address (ECF No. 39). The Attorney
General also stated it had no record of a current or former
employee named (i) “Howard” that is/was a
correctional officer at Ely State Prison, (ii)
“Smith” that is/was a law library supervisor at
Southern Desert Correctional Center, or (iii)
“Ward” that is/was a correctional officer at High
Desert State Prison. Notice (ECF No. 38). As a result, their
last known address information could not be filed with the
NDOC Defendants filed their Answer (ECF No. 44) in early
March 2018. The court then entered its standard scheduling
order for civil rights actions filed by incarcerated pro se
plaintiffs. Scheduling Order (ECF No. 47). Mr. Tagle
requested an extension of the discovery deadlines. Mot. Ext.
Time (ECF No. 68). The court granted the request and extended
discovery through October 16, 2018. Order (ECF No. 82). Tagle
filed numerous discovery motions,  all of which were frivolous
and failed to comply with the Federal Rules or Local Rules of
Practice for this district. Orders (ECF Nos. 81, 129, 130).
five months after entry of the service order, Mr. Tagle did
not file a motion requesting issuance of a summons to any
unserved defendant or file proof of service for the unserved
defendants. In September 2018 and January 2019, Tagle filed a
Motion for Issue of Summons (ECF No. 85), Motion for Service
of USM 285 and Summons (ECF No. 116), and Motion for Stamped
Summons (ECF No. 120). The motions requested issuance of
summonses for the unserved defendants, as well as three
non-parties, Renee Baker, Harold Byrne, and Sergeant Torsky.
ECF No. 116 at 6-25; ECF No. 120 at 3-35.
court denied Tagle's motions on February 22, 2019. Order
(ECF No. 129). The order explained that Tagle failed to
comply with the service order by requesting issuance of
summonses as to any unserved defendant before the April 9,
2018 service deadline. Id. at 3. The court found
that the service order “clearly explained the procedure
for accomplishing service of process” by April 9, 2018.
Id. Although he requested an extension of discovery,
he did not request an extension of the service deadline.
Id. The court further found:
Tagle's motions generally assert that his mail has been
“tampered with” and he was unaware that nine
defendants were unserved, his assertion is demonstrably
false. Tagle filed a Response (ECF No. 42) to the NDOC
defendants' Notice Acceptance of Service (ECF No. 38) on