Vaughn v. Nash
| Decision Date | 29 October 2018 |
| Docket Number | Case No. 2:15-cv-02137-APG-PAL |
| Parties | JAMES VAUGHN, Plaintiff, v. WARDEN JENNIFER NASH, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
This matter is before the court on a review of the docket, which reflects that Plaintiff James Vaughn has failed to serve the defendants in this case. This review is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.
Mr. Vaughn is proceeding in this matter pro se. He commenced this action on November 6, 2015, by filing an Application to Proceed In Forma Pauperis (ECF No. 1) and a proposed complaint. At the time, Vaughn was prisoner in the custody of the Nevada Department of Corrections. However, he was subsequently released from custody and he paid the $400 filing fee in April 2016. See Notice of Change of Address (ECF No. 5); Receipt (ECF No. 8). Summonses (ECF No. 9) were issued to the defendants shortly after Vaughn paid the filing fee.
This case arises from Vaughn's allegations, pursuant to 42 U.S.C. § 1983, that the defendants violated his civil rights during events that took place while he was incarcerated at the Tonopah Conservation Camp. See Compl. (ECF No. 15); Am. Compl. (ECF No. 17). Mr. Vaughn sues Defendants Warden Jennifer Nash, Caseworker Dorinda Cox, and Sergeant Tom Stubbs (collectively, the "NDOC defendants").
Mr. Vaughn alleged two counts in his original Complaint. In Count I, Vaughn alleged he submitted a first level grievance regarding his credit time to Cox on July 7, 2015. Compl. (ECF No. 15) at 3-4. Cox, who was responsible for all grievances, allegedly "disregarded" his grievance and hindered his ability to exhaust his institutional remedies. Id. at 4. Stubbs and Nash had full knowledge of Vaughn's situation concerning "his work, stat, and merit days" and his attempt to exhaust his remedies, but they did nothing to correct Cox's hindrance. Id. Vaughn alleges he should have been "treated equally like all other inmates who use[d] the grievance procedure to seek relief for redress from government officials." Id. Mr. Vaughn claims his Fourteenth Amendment due process and equal protection rights were violated.
In Count II, Vaughn alleges that Cox deliberately disregarded his grievance, which hindered his ability to seek redress from governmental officials who had the power to correct his sentence structure. Id. at 5. Cox knew that Vaughn's sentence structure was incorrect. Id. Stubbs and Nash deliberately did nothing to Cox. Id. Mr. Vaughn alleged this conduct stated an Eighth Amendment claim for "deliberate indifference."
Upon initial review, the court issued a Screening Order (ECF No. 14) dismissing the Complaint in its entirety finding that the allegations failed to state colorable claims for violations of Fourteenth Amendment due process and equal protection or deliberate indifference under the Eighth Amendment. To state a plausible equal protection claim, the court informed Vaughn that he must "allege facts demonstrating that defendants acted with the intent and purpose to discriminate against him based upon membership in a protected class, or that defendants purposefully treated him differently than similarly situated individuals without any rational basis for the disparate treatment." Id. at 4. The Screening Order explained that Vaughn's equal protection claim failed because he had "not alleged that Cox discriminated against him because he was a member of a protected class," or provided any allegations showing that "similarly-situated individuals were treated differently than him." Id. The court gave Vaughn leave to amend within 30 days to correct the deficiencies in his equal protection claim.
Mr. Vaughn filed an Amended Complaint (ECF No. 17) on October 13, 2016, naming the same NDOC defendants in one equal protection claim. Vaughn alleges the same basic facts. Hiswork, stat, and merit credits were miscalculated. He submitted a grievance regarding his credit time through the proper channels, but the NDOC defendants deliberately disregarded his grievance and hindered his ability to exhaust his institutional remedies. Thus, the NDOC defendants caused the grievance procedure to be ineffective and Vaughn's incarceration was unjustifiably prolonged.
In nearly three years since the original Complaint was filed, Mr. Vaughn has not filed adequate proof of service, and no answers or responsive pleadings have been filed by any defendant. On June 17, 2016, summonses were issued to the NDOC Defendants. ECF No. 9. Vaughn filed a document he titled "Motion to Notify Courts of Summons Served to Defendants" (ECF No. 13) on September 9, 2016, in which he stated he "served through certified mail all defendants" and attached certified mail return receipts from the U.S. Postal Service. However, the mailing for Cox was returned to him "because she wasn't there." Id. Vaughn further represented, "I don't have the resources to serve, or deliver a summons to Dorinda Cox" since she no longer worked for NDOC and does not live in Las Vegas. Id.
On June 27, 2017, the court issued an Order (ECF No. 18) stating that the Amended Complaint (ECF No. 17) was not subject to the screening requirement of 28 U.S.C. § 1915A because Vaughn was no longer incarcerated when he filed the amendment. The court therefore informed Vaughn that the 1 Id. Vaughn was ordered to "perfect service within ninety (90) days from the date of this order" pursuant to Rule 4(m). Id. Thus, the deadline to complete service was September 26, 2017. The court also denied a motion for appointment of counsel, finding that Vaughn had not shown exceptional circumstances to warrant the appointment of counsel. Id.
On October 2, 2017, the Clerk of Court received a Letter (ECF No. 19-1) from Mr. Vaughn acknowledging that the court ordered him to perfect service by September 26, 2017. He stated he did not understand federal law and/or guidelines and did not know how to perfect service, but his lack of knowledge could be resolved if the court would grant him the assistance of an attorney. Id.A standard minute order was issued informing Vaughn, "Neither the Court nor the Clerk's Office can give legal advice." ECF No. 19.
On October 18, 2017, the Clerk of Court issued a Notice of Intent to Dismiss (ECF No. 20) pursuant to Rule 4(m). The Notice warned Mr. Vaughn this action would be dismissed without prejudice as to any unserved party(ies) unless proof of service was filed by November 17, 2017.
Summonses for the NDOC defendants were purportedly returned executed November 16, 2017. ECF No. 21. Vaughn filed a document titled "Notify Courts of Perfect Service" responding to the Notice of Intent to Dismiss stating that he "served Defendants Jennifer Nash, Dorinda Cox, and Tom Stubbs a certified copy of Amended Complaint filed on 10/13/2016" and enclosed "proof of said service." Id. Attached to the response are receipts, dated November 15, 2017, for his purchase of certified mail service from the U.S. Postal Service to deliver mail to all three NDOC defendants at the prison in Indian Springs, Nevada.
This case has been dormant for over 11 months since he filed his last notice (ECF No 21).
Although pro se parties are generally held to less stringent standards, a pro se litigant must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
"Service of process" is the legal term describing a formal delivery of documents giving the defendant notice of a pending lawsuit. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988); Charles A. Wright & Arthur R. Miller, 4A Federal Practice & Procedure, Civil § 1094 (4th ed. 2015) (). Rule 4 governs service of process in federal courts. Whidbee v. Pierce County, 857 F.3d 1019, 1023 (9th Cir. 2017). Federal courts lack personal jurisdiction over a defendant unless he or she has been properly served with process in accordance with Rule 4. Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013). As such, strict compliance with the rules governing manner of service is required. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999) ().
Rule 4 states that a defendant must be served within 90 days after a complaint is filed. Fed. R. Civ. P. 4(m). A court may dismiss an action without prejudice if a summons and complaint are not timely served on a defendant. Id.; see also Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). However, Rule 4(m) requires the court to extend the time for service if a plaintiff shows good cause for the failure to timely serve. Id. As a general matter, "good cause" requires more than simple inadvertence, mistake, or ignorance of the procedural rules, even where a party appears pro se. Martin v. Longbeach, 246 F.3d 674 (9th Cir. 2000); Kocsis v. Delta Air Lines, Inc., 963 F. Supp. 2d 1002, 1011 (D. Haw. 2013). Rule 4(m) is intended to force parties "to be diligent in prosecuting their causes of action." Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985); see also United States ex rel. DeLoss v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 710 (9th Cir. 1985) (). A district court also has inherent power to dismiss an action for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010).
Rule 4 requires a plaintiff to complete personal...
To continue reading
Request your trial