Hernandez v. Russell et al, No. 3:2020cv00114 - Document 76 (D. Nev. 2022)
Court Description: ORDER/REPORT AND RECOMMENDATION. The Clerk shall SEND Plaintiff a copy of ECF No. 46 (sent to Plaintiff at WSCC via NEF regeneration). The dispositive motion and joint pretrial order deadlines set at the July 7, 2022 hearing are VACATED pending a ruling by Chief Judge Du on this Report and Recommendation. IT IS HEREBY RECOMMENDED that the District Judge enter an order GRANTING Plaintiff's motion (ECF No. 63 ). The order dismissing Lennon without prejudice unde r Federal Rule of Civil Procedure 4(m) (ECF No. 49 ) should be WITHDRAWN. Lennon should be REINSTATED as a defendant. Plaintiff should be given an additional 60 days from the date of any order adopting and accepting this Report and Recommendation to serve Lennon. Objections to R&R due by 7/26/2022. Signed by Magistrate Judge Craig S. Denney on 7/12/2022. (Copies have been distributed pursuant to the NEF - HKL)
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Hernandez v. Russell et al Doc. 76 Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 1 of 6 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 FRANK MANUEL HERNANDEZ, Case No.: 3:20-cv-00114-MMD -CSD 4 Order/Report & Recommendation of United States Magistrate Judge Plaintiff 5 v. Re: ECF No. 63 6 PERRY RUSSELL, et al. 7 Defendants 8 This Report and Recommendation is made to the Honorable Miranda M. Du, Chief 9 United States District Judge. The action was referred to the undersigned Magistrate Judge 10 pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. 11 Before the court is Plaintiff’s “second request and notice for change of order,” which 12 seeks reconsideration of the order dismissing Lennon as a defendant under Federal Rule of Civil 13 Procedure 4(m) for lack of timely service. (ECF No. 63.) 14 After a thorough review, it is recommended that Plaintiff’s motion be granted. In 15 addition, the court orders the Clerk to send Plaintiff a copy of ECF No. 46 and vacates the 16 remaining scheduling order deadlines pending an order on this Report and Recommendation. 17 I. BACKGROUND 18 Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), 19 proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 8.) The court 20 screened Plaintiff’s complaint and allowed him to proceed with an Eighth Amendment claim of 21 excessive force against defendants Lennon and Cregg. (ECF No. 7.) 22 The Office of the Attorney General (OAG) accepted service for Cregg. It did not accept 23 service for Lennon, but the OAG filed his last known address under seal. The U.S. Marshal Dockets.Justia.com Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 2 of 6 1 attempted to serve Lennon, but the summons was returned unexecuted because Lennon no longer 2 lived at the last known address. (See ECF Nos. 16, 17, 22.) 3 Plaintiff has filed various motions seeking assistance in serving Lennon. He filed a 4 motion to have the U.S. Marshal serve Lennon, which Magistrate Judge Cobb (now retired) 5 denied because the U.S. Marshal had already unsuccessfully attempted service; however, Judge 6 Cobb directed the OAG to advise whether it could locate another address for Lennon. (ECF No. 7 30.) The OAG was unable to locate another address. (ECF No. 31.) Plaintiff then asked the court 8 to direct the U.S. Marshal to appoint an investigator to locate Lennon, which Judge Cobb denied. 9 Judge Cobb again directed the OAG to advise whether it had an alternative address for Lennon, 10 but they still could not locate an alternative address. (ECF Nos. 36, 37.) 11 On January 4, 2022, a notice of intent to dismiss Lennon under Federal Rule of Civil 12 Procedure 4(m) was issued, advising that Lennon may be dismissed without prejudice unless a 13 proof of service or showing of good cause was filed by February 3, 2022. (ECF No. 40.) 14 Plaintiff then asked the court to allow a public notice to be posted in the court building, to 15 appoint a federal public defender to locate Lennon for service, or to require the OAG to accept 16 service for Lennon. (ECF No. 41.) Judge Cobb denied this motion, advising Plaintiff that posting 17 a public notice in the courthouse would not constitute proper service; that the mission of the 18 Federal Public Defender did not extend to representing pro se plaintiffs in civil rights cases; and 19 that the OAG had a policy of accepting service of former employees only when the former 20 employee consents to the OAG doing so, and the court could not order the OAG to accept 21 service for an employee who had not given consent. Judge Cobb also noted that Plaintiff could 22 pursue service by publication under Federal Rule of Civil Procedure 4(3)(1) and Nevada Rule of 23 Civil Procedure 4(d)(3). Judge Cobb explained that Plaintiff is responsible for ascertaining the 2 Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 3 of 6 1 name of the publication, paying the publication costs associated with that method of service and 2 complying with the other terms of the rules. (ECF No. 42.) 3 Plaintiff subsequently filed a motion to serve Lennon by publication and to stay Lennon’s 4 dismissal under Rule 4(m). (ECF Nos. 43, 44.) 5 On February 4, 2022, the undersigned (who was reassigned to this case upon Judge 6 Cobb’s retirement) issued an order that denied Plaintiff’s motion for service by publication, but 7 the court gave Plaintiff an extension of time to serve Lennon until March 21, 2022. (ECF No. 8 46.) The order noted Plaintiff did not demonstrate any due diligence had been undertaken to 9 locate and serve Lennon, and that the onus was on Plaintiff to ascertain this information. 10 Moreover, Plaintiff did not indicate who would pay for the cost of service by publication, and the 11 IFP statute does not provide that the court, the U.S. Marshal or the OAG pay for the costs 12 associated with service by publication. 13 On February 14, 2022, Plaintiff filed a request for the status of his motion for service by 14 publication. (ECF No. 47.) 15 On March 25, 2022, Chief District Judge Du dismissed Lennon without prejudice under 16 Rule 4(m) because Plaintiff had neither filed a proof of service nor supplied the court with the 17 required information for service by publication prior to the March 21, 2022 deadline. (ECF No. 18 49.) 19 On April 1, 2022, Plaintiff filed a “notice and request for change of order” indicating he 20 did not receive the court’s order denying the motion for service by publication and extension of 21 the deadline to serve Lennon set forth at ECF No. 46. (ECF No. 50.) 22 23 3 Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 4 of 6 1 On May 11, 2022, Plaintiff filed a notice requesting a status, indicating that he had been 2 told at a hearing regarding scheduling order deadlines that his request for reconsideration of the 3 dismissal of Lennon was under review by another judge. (ECF No. 54.) 4 On June 7, 2022, Plaintiff filed this “second request a notice for change of order,” again 5 asserting that he never received the court’s order at ECF No. 46. (ECF No. 63.) 6 The court held a hearing in this action on July 7, 2022. Plaintiff advised the court at that 7 time that he had not received the order at ECF No. 46. The Deputy Attorney General 8 acknowledged there was a delay in Plaintiff receiving ECF No. 46. The court heard from 9 Plaintiff regarding his request to reopen discovery for the purpose of serving Lennon by 10 publication and performing discovery on Lennon. The court specifically asked Plaintiff what 11 steps had been taken to locate Lennon. Plaintiff noted that the U.S. Marshal unsuccessfully 12 attempted to serve him. Plaintiff also asked family members to look Lennon up on the internet 13 and through various social media platforms, to no avail. The court denied Plaintiff’s request to 14 reopen discovery; however, the court extended the deadline for filing dispositive motions to 15 August 8, 2022, and the deadline for filing the joint pretrial order to September 7, 2022. (ECF 16 No. 75.) 17 II. DISCUSSION 18 In light of the fact that Plaintiff did not receive a copy of ECF No. 46—denying his 19 motion for service by publication and extending the deadline to serve Lennon—the court finds it 20 is appropriate to withdraw the order dismissing Lennon without prejudice under Federal Rule of 21 Civil Procedure 4(m) at ECF No. 49. Lennon should be reinstated as a defendant. Plaintiff should 22 be given an addition 60 days from the date of any order adopting and accepting this report and 23 recommendation to serve Lennon. Plaintiff shall consult Rule 4 and refer to the court’s order at 4 Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 5 of 6 1 ECF No. 46 if he seeks to file another motion to serve Lennon by publication. If Plaintiff does 2 not timely serve Lennon, he will be dismissed without prejudice under Rule 4(m). 3 There is still no basis to reopen discovery. Plaintiff had plenty of time to ask Cregg 4 questions about Lennon’s whereabouts while discovery was still open. Moreover, the OAG has 5 advised multiple times it does not have an alternative address for Lennon. As such, reopening 6 discovery at this time would be futile. The court will, however, vacate the remaining scheduling 7 order deadlines pending an order on this Report and Recommendation by Chief Judge Du. 8 9 10 III. ORDER The Clerk shall SEND Plaintiff a copy of ECF No. 46. The dispositive motion and joint pretrial order deadlines set at the July 7, 2022 hearing 11 are VACATED pending a ruling by Chief Judge Du on this Report and Recommendation. 12 13 IV. RECOMMENDATION IT IS HEREBY RECOMMENDED that the District Judge enter an order GRANTING 14 Plaintiff’s motion (ECF No. 63). The order dismissing Lennon without prejudice under Federal 15 Rule of Civil Procedure 4(m) (ECF No. 49) should be WITHDRAWN. Lennon should be 16 REINSTATED as a defendant. Plaintiff should be given an additional 60 days from the date of 17 any order adopting and accepting this Report and Recommendation to serve Lennon. 18 The parties should be aware of the following: 19 1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to 20 this Report and Recommendation within fourteen days of being served with a copy of the Report 21 and Recommendation. These objections should be titled “Objections to Magistrate Judge’s 22 Report and Recommendation” and should be accompanied by points and authorities for 23 consideration by the district judge. 5 Case 3:20-cv-00114-MMD-CSD Document 76 Filed 07/12/22 Page 6 of 6 1 2. That this Report and Recommendation is not an appealable order and that any notice of 2 appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed 3 until entry of judgment by the district court. 4 5 Dated: July 12, 2022 6 _________________________________ Craig S. Denney United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6
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