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Tagle v. Anderson

United States District Court, D. Nevada

April 26, 2019

VICTOR TAGLE, Plaintiff,
MICHAEL ANDERSON, et al., Defendants.



         Before 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”).[1] 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.


         Mr. 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.[2] As a result, he is now ineligible for IFP status unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

         Mr. 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.

         Upon 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.

         On 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.[3] 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 instructed:

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 defendant(s).

Id. at 2-3, ¶ 7 (emphasis added).

         The 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 court.

         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, [4] 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).

         For 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.

         The 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:

         Although 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 ...

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