United States District Court, D. Nevada
RONALD R. SANTOS, Plaintiff,
ISIDRO BACA, et al., Defendants.
J. Dawson, United States District Judge.
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.
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.
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.
Unserved Defendants Camacho and Carabajal
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.
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.
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.
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. 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.
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 ...