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Santos v. Baca

United States District Court, D. Nevada

July 11, 2019

RONALD R. SANTOS, Plaintiff,
ISIDRO BACA, et al., Defendants.


          Kent J. Dawson, United States District Judge.

         Before the Court is Plaintiff Ronald Santos's Motion for Order Reopening Case to Resolve Issue of Unserved Defendants (#346). None of the remaining defendants responded.

         I. Background

         Plaintiff Ronald Santos seeks to resolve the issue of unrepresented defendants, so that he may appeal a final judgment before the Ninth Circuit. On March 29, 2017, the Court granted summary judgment in favor of all defendants represented by counsel. ECF No. 317. Three defendants were not named in the partial motions for summary judgment: Eric Burson, Fidel Camacho, and Mark Carabajal. See ECF Nos. 269-271. The Court's docket shows two of these three defendants-Camacho and Carabajal-were never properly served. See ECF Nos. 65, 80. Burson, on the other hand, received service but has not participated in the suit since he answered Santos's complaint. Given the inconsistent service and participation of these three alleged defendants, Santos seeks three potential means of relief. He asks the Court to either (1) enter default judgment against the remaining defendants; (2) grant him an extension of time to serve the remaining defendants; or (3) provide legal advice on any other option to finalize the Court's prior order. ECF No. 346. Although the Court construes Santos's pro se claims liberally, it will not provide him legal advice. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, the Court is left to construe Santos's motion as either a motion for default judgment or as an extension of time to properly serve Camacho and Carabajal.

         II. Legal Standard

         Federal Rule of Civil Procedure 4(m) governs the time limits for serving prospective defendants. If a plaintiff fails to serve a defendant within ninety days, the Court must order service within a specified time or dismiss the complaint without prejudice. Fed.R.Civ.P. 4(m). Where a plaintiff has shown good cause, however, the Court may extend the time for service. Id.; In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Good cause is determined on a case-by-case basis and, at a minimum, means excusable neglect. Id. To demonstrate good cause, the Court may consider the following factors: (a) whether the party to be served received actual notice of the lawsuit; (b) whether the defendant would suffer prejudice due to the extension; and (c) whether the plaintiff would be severely prejudiced if his complaint were dismissed. Id.

         III. Analysis

         A. Unserved Defendants Camacho and Carabajal

         Santos requests that the Court allow him to again attempt to serve Defendants Camacho and Carabajal. However, applying the standard for good cause from Sheehan, Santos failed to show the three factors outlined above. There is no evidence, nor has Santos pleaded, that Camacho or Carabajal had actual notice of the lawsuit. In fact, every time the U.S. Marshals Service (USMS) attempted service on either party, it was unsuccessful. See ECF Nos. 65, 80. Similarly, Santos failed to show an extension of time would not prejudice Camacho and Carabajal. Service now would notify them of a lawsuit that began almost eight years ago. See ECF No. 1. Expecting Camacho and Carabajal to recall events nearly a decade old would prejudice their defense. See Barker v. Wingo, 407 U.S. 514, 532 (1972). Further, Santos did not show he would be severely prejudiced if these defendants were dismissed because he failed to address claims against these defendants for over four years. See generally ECF No. 346. He did not make any claims showing that dismissing the defendants would adversely affect the judgment he seeks.

         Despite Santos's attempts to serve Camacho and Carabajal, he is not blameless here. The record is clear that he did not follow up on these service issues prior to his appeal, even though the Court ordered him to do so. In August 2014, Santos filed a Motion for Order to Carry Out Service. ECF No. 46. The Court granted the motion and stated that if the USMS is unable to serve Camacho and Carabajal, and Santos wishes to attempt service again, a motion shall be filed with the Court specifying another manner of service. ECF No. 48. In relevant part, the Order clearly stated, “Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service shall be accomplished within 120 days from the date this order is entered.” Id. That order was entered on August 27, 2014. Id. After that order, Santos attempted to serve Camacho five times in October 2014, to no avail. ECF No. 65. Likewise, Santos attempted to contact Carabajal without success in November 2014. ECF No. 80. Notwithstanding these failed attempts, Santos never requested alternate means of service such as service by publication. See, e.g., N.R.C.P. 4.4(c) (showing service by publication is available to plaintiffs who cannot, after due diligence, locate defendants). Because of his failure to serve within the time period set by the Court in August 2014, Santos cannot show good cause for failure to serve. Accordingly, the Court denies Santos's motion inasmuch as it seeks an extension of time to serve Camacho and Carabajal.

         B. Burson

         The remainder of Santos's motion relates to Defendant Eric Burson. Unlike Camacho and Carabajal, Santos properly served Burson while he was employed by the State. The Attorney General's office accepted service on his behalf and provided representation. On October 3, 2014, the Attorney General answered Santos's complaint on behalf of Burson. ECF No. 174. After the answer was filed, Burson left his employment and moved to Belize. Id. Because the state no longer employed Burson, the Attorney General moved to withdraw as Burson's counsel of record. The Court granted the motion. ECF No. 180. Since that time, the Court has attempted to contact Burson twenty-six times to no avail. See, e.g., ECF Nos. 185, 345.

         Because Santos properly served Burson, and because he participated in the suit initially, the Court will not dismiss him with Carabajal and Camacho. Accordingly, the Court must determine whether to grant a default judgment in Santos's favor. The Court weighs seven factors to determine whether default judgment is appropriate.[1] Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). Important here is whether Santos's complaint states a cognizable claim against Burson. See id. at 1471.

         The extent of Santos's claim against Burson is that some “white” inmates threatened Santos, and Burson determined that Santos needed to be moved to segregated housing. ECF No. 36, p. 6. Santos claims Burson violated his Eighth Amendment right against Cruel and Unusual Punishment when Burson failed to assign him to a segregation unit cell quickly and instead assigned him to be housed elsewhere temporarily. Id. at 6A. Santos claims conditions of the holding cell were very poor. Id. Santos also asserts that Burson wrongfully decided to not ...

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