2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ***

6 ALFREDO PUENTES, Case No. 3:19-cv-00600-MMD-CSD

7 Plaintiff, ORDER v. 8 AITOR NARVAZIA, et al., 9 Defendants. 10 11 I. BACKGROUND 12 On August 31, 2020, the Court issued a screening order dismissing Plaintiff’s 13 Complaint in its entirety, without prejudice and with leave to amend within 30 days. (ECF 14 No. 7 at 7-8.) Plaintiff filed his First Amended Complaint on September 28, 2020. (ECF 15 No. 9.) On June 21, 2021, the Court issued a screening order and dismissed the First 16 Amended Complaint without prejudice with leave to amend within 30 days. (ECF No. 10 17 at 9-10.) Plaintiff submitted a Second Amended Complaint on July 19, 2021. (ECF No. 18 11.) 19 On October 28, 2021, the Court issued a screening order dismissing Count 1, 20 without prejudice and with leave to amend, to identify the name of the Doe Defendant 21 who made a deliberate decision not to provide Plaintiff with medication. (ECF No. 12 at 22 8-10.) The Court gave Plaintiff until January 25, 2022, to identify the Doe Defendant and 23 file a Third Amended Complaint. (Id. at 10.) The Court informed Plaintiff that one possible 24 method he could use to obtain the identity of the Doe Defendant was Federal Rule of Civil 25 Procedure 45. (Id. at 9.) The Court warned that, if Plaintiff did not file a Third Amended 26 Complaint identifying the name of the Doe Defendant in Count 1, the Court would dismiss 27 the action with prejudice and close the case. (Id. at 11.) After Plaintiff failed to file a Third 28 2 and closed the case on February 2, 2022. (ECF No. 14.) 3 On March 2, 2022, Plaintiff filed a motion for reconsideration under either Federal 4 Rule of Civil Procedure 59(e) or 60(b) and sought to reopen this case. (ECF No. 16.) In 5 the motion, Plaintiff asserts that he relied on various jailhouse lawyers throughout this 6 action. (Id. at 4.) However, some of the inmates who helped Plaintiff moved to different 7 housing units. (Id.) Prison officials moved Plaintiff and his most recent assistant to 8 different units. (Id.) Due to Covid-19, prison officials restricted contact between inmates. 9 (Id.) After Plaintiff received this Court’s October 28, 2021, order, prison officials 10 quarantined Plaintiff’s unit due to an active Covid-19 outbreak and later quarantined 11 Plaintiff’s jailhouse assistant’s unit. (Id.) As a result, Plaintiff could not consult with his 12 assistant or exchange papers. (Id.) Plaintiff believes that Covid-19 is a highly unusual 13 circumstance that satisfies Rule 60(b). (Id. at 5.) 14 II. DISCUSSION 15 Plaintiff in essence is asking this Court to set aside its judgment dismissing this 16 action with prejudice pursuant to Federal Rule of Civil Procedure 60(b)(1). This rule 17 provides that a court may relieve a party or its legal representative from a final judgment, 18 order, or proceeding for “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. 19 Civ. P. 60(b)(1). 20 In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993), 21 the Supreme Court interpreted “neglect” to encompass “both simple, faultless omissions 22 to act and, more commonly, omissions caused by carelessness.”

. In assessing 23 whether a set-side is justified by a party’s excusable neglect, courts apply a four-part test: 24 (1) the danger of prejudice to the opposing party; (2) the length of the delay and its 25 potential impact on judicial proceedings; (3) the reason for the delay, including whether it 26 was within the reasonable control of the movant; and (4) whether the movant acted in 27 good faith. See

. 28 /// 2 To be prejudicial, the “standard is whether [Defendants’] ability to pursue [their 3 defenses] will be hindered.” Falk v. Allen,

(9th Cir. 1984). The delay 4 must result in tangible harm such as loss of evidence, increased difficulties of discovery, 5 or greater opportunity for fraud or collusion. See TCI Grp. Life Ins. Plan v. Knoebber, 244

, 701 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. 7 Breiner,

(2001). The loss of a quick victory does not constitute prejudice. 8 See Bateman v. U.S. Postal Serv.,

(9th Cir. 2000). 9 This factor weighs in favor of setting aside judgment because Plaintiff has not 10 identified a defendant in this case. As such, the Court cannot assess any potential 11 prejudice to this unidentified defendant. 12 B. Length of the Delay 13 Next, the Court considers whether Plaintiff’s neglect caused significant delay and 14 its impact on the proceedings. See Pioneer,

. 15 The Court finds that this factor weighs against setting aside judgment. The Court 16 started screening Plaintiff’s pleadings in August 2020 and has screened three of Plaintiff’s 17 complaints. Additionally, the last two screening orders warned Plaintiff that he could not 18 proceed solely against a Doe Defendant and told Plaintiff that he needed to amend to 19 identify the name of the Doe Defendant in Count 1. (See ECF No. 10 at 8; ECF No. 12 at 20 8-9.) Since June 2021, Plaintiff knew that his Doe Defendant was an issue. In October 21 2021, Plaintiff appears to have ignored the Court when it granted specific leave for Plaintiff 22 to discover the name of the Doe Defendant and file a Third Amended Complaint. 23 C. Reason for the Delay 24 When assessing the reason for the delay, the Supreme Court interprets 25 Congress’s intent as permitting courts “to accept late filings caused by inadvertence, 26 mistake, or carelessness, as well as by intervening circumstances beyond the party’s 27 control.” Pioneer,

. Delays in filing resulting from “negligence and 28 2 Bateman,

. 3 The Court finds that Plaintiff has not demonstrated excusable neglect. Although 4 Plaintiff’s unit and his inmate helper’s unit may have been quarantined for Covid that does 5 not explain the non-responsiveness for over 90 days. Plaintiff did not request an extension 6 of time or keep this Court notified of why he might need an extension. Instead, Plaintiff 7 filed a motion for reconsideration after the Court dismissed the case. In other words, it 8 appears that Plaintiff may have forgotten about his case until he received a dismissal 9 order. “Litigation is not a light switch that a party can turn off and on at his convenience.” 10 Turner v. Nevada Dep’t of Corr., Case No. 2:13-cv-01740-JAD-VCF,

, 11 at *4 (D. Nev. Aug. 8, 2016), aff’d sub nom. Turner v. High Desert State Prison,

App’x 336 (9th Cir. 2017). 13 D. Bad Faith 14 For the last factor, the Court examines whether Plaintiff acted in bad faith when he 15 failed to respond to the Court’s order and meet its deadline. While the Court cannot say 16 he acted in bad faith, the Court is also not persuaded that Plaintiff acted in good faith 17 when he failed to meet the Court’s deadline. As explained above, Plaintiff ignored the 18 Court’s order granting him 90 days to discover the identity of the Doe Defendant and to 19 file a Third Amended Complaint. Additionally, Plaintiff seems to suggest that he did 20 nothing with this case for 90 days and did not even attempt to discover the identity of the 21 Doe Defendant. 22 After considering all four of the Pioneer factors, the Court finds that the factors 23 weigh against setting aside judgment. The Court denies the motion for reconsideration 24 (ECF No. 16) but grants some relief, as discussed below. 25 E. Rule 60(b)(6) 26 Although the Pioneer factors weigh against setting aside judgment, the Court finds 27 that some relief is warranted under Federal Rule of Civil Procedure 60(b)(6). The rule 28 provides that the court may relieve a party or its legal representative from a final judgment, 1 || order, or proceeding for any other reason that justifies relief. See Fed. R. Civ. P. 60(b)(6). 2 || When deciding whether to dismiss an action for a plaintiff's failure to prosecute, the Ninth 3 || Circuit has directed the courts to weigh: “(1) the public’s interest in expeditious resolution 4 || of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 5 || defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 6 || availability of less drastic sanctions.” Carey v. King,

(9th Cir. 1988). 7 || In weighing these factors, the Court continues to find that dismissal of Plaintiff's case is 8 || warranted. However, the Court finds that the less drastic sanction of a without-prejudice 9 || dismissal is more appropriate considering Plaintiff's recent disclosures. 10 || Ill. CONCLUSION 11 It is therefore ordered that the motion for reconsideration (ECF No. 16) is denied 12 || in part and granted in part. 13 It is further ordered that the portion of the order dismissing Plaintiffs case with 14 || prejudice (ECF No. 14 at 3, lines 5-6) is struck and revised to dismiss Plaintiff's case 15 || without prejudice. The Clerk of the Court is directed to amend the judgment (ECF No. 15) 16 || to reflect a dismissal without prejudice. 17 It is further ordered that this case is dismissed without prejudice to Plaintiff's right 18 || to reassert his claims in another case because this case is closed. If Plaintiff wishes to 19 || pursue his claims, he must file a new lawsuit. No further motions will be considered in this 20 || closed case. 21 DATED THIS 5" Day of April 2022.

23 MIRANDA M. DU 24 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28

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