Clark v. Guerrero

Filing 147

ORDER that the clerk of court enter default against defendant Adrian Guerrero. FURTHER ORDERED that plaintiff Michael Clark's failure to file a motion for default judgment within 60 days of the date of this order will result in dismissal pursuant to LR 41-1. Signed by Judge James C. Mahan on 9/25/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL E. CLARK,

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Plaintiff(s),

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Case No. 2:09-CV-141 JCM (PAL)
ORDER

v.
ADRIAN GUERRERO,

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Defendant(s).

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Presently before the court is the case of Clark v. Guerrero, No. 2:09-cv-00141-JCM-PAL.

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This matter is before the court on the parties’ failure to file a joint pretrial order as required by LR

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26-1(e)(5) and the court’s orders filed as documents numbers 138, 141, and 145. As of this date,

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plaintiff has not filed anything with the court in over a year, and defendant Adrian Guerrero has

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failed to file a single document since his attorney withdrew from the case two years ago. (Doc. #

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139).

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I.

Background and Relevant Procedural History

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In December 2008, plaintiff Michael Clark filed a complaint in Nevada state court, alleging

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claims under 42 U.S.C. § 1983 against Mr. Guerrero, a prison official at Southern Desert

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Correctional Center (“SDCC”). On January 21, 2009, the Nevada attorney general’s office

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removed this case to this court. (See doc. #1).

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Later, on September 28, 2010, Judge Hunt consolidated a related case, Clark v. Williams,

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No. 2:10-cv-00736-RLH-RJJ, with this case and vacated the trial date. See order to consolidate.

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(Doc. #80). Judge Hunt’s order screened plaintiff’s complaint in Clark v. Williams and directed

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plaintiff to file an amended complaint stating all the claims from both cases. Id. On December 2,

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2010, plaintiff filed his Amended Complaint.

James C. Mahan
U.S. District Judge

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On August 8, 2012, Magistrate Judge Leen recommended that all of plaintiff’s claims with

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respect to Brian Williams, defendant from the consolidated case, be dismissed without prejudice,

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leaving only the claims against defendant Guerrero. (Doc. # 102). However, Judge Leen also

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granted plaintiff leave to file a second amended complaint if he believed he could cure the defects

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in the Williams claims. (Id.). After plaintiff failed to file a second amended complaint by the

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deadline imposed by Judge Leen, this court adopted her report and recommendation in full,

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dismissing plaintiff’s claims against Mr. Williams. (Doc. # 122). At this point, Mr. Guerrero

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became the sole defendant.

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On May 13, 2013, Mr. Guerrero filed a motion to dismiss the amended complaint. (Doc. #

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133). The court denied that motion on August 8, 2013. (Doc. # 136). About a month after that

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order was filed, on September 12, 2013, Nevada’s attorney general’s office filed a motion to

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withdraw as counsel. (Doc. # 137). A few days later, on September 17, 2013, this court granted

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defendant’s counsel’s motion to withdraw, based on the fact that Mr. Guerrero refused to cooperate

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with defense counsel and “stated unequivocally that he does not want [the attorney general’s]

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[o]ffice to represent him.” (Docs. # 137 at 5, 138). The court further ordered that, “Guerrero shall

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have until October 16, 2013, in which to retain new counsel who shall file a notice of appearance

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in accordance with the local rules of practice or to file a statement that he will proceed pro se.”

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(Doc. 138).

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On March 28, 2014, after both parties failed to file a joint proposed pretrial order as

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required by Local Rule 26-1, Judge Leen ordered counsel for the parties to file a joint pretrial order

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in compliance with all Local Rules of Civil Practice no later than April 10, 2014. See LR 26-

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1(e)(5); Doc. # 141. On April 9, 2014, plaintiff filed what purported to be a joint pretrial order

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proposal, but on September 17, 2014, the court struck that pretrial order from the record because

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it did not comply with LR 16-3 and 16-4. (Docs. ## 143, 145). Also on April 9, 2014, plaintiff

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Michael E. Clark filed a motion for sanctions after Mr. Guerrero failed to make himself available

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for the filing of a joint proposed pretrial order. (Doc. # 142).

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James C. Mahan
U.S. District Judge

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Judge Leen ordered that the parties file a compliant joint pretrial order no later than October

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15, 2014. (Doc. # 145). Judge Leen further cautioned: “If either party fails to fully comply with

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this order, the court may impose sanctions, up to and including case-dispositive sanctions.” (Id.).

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In her order denying plaintiff’s motion for sanctions, Judge Leen ordered defendant

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Guerrero to show cause as to why case-dispositive sanctions should not be imposed:

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Defendant Adrian Guerrero shall show cause, in writing, no later than October 15, 2014,
why sanctions, up to and including case-dispositive sanctions, should not be entered against
him for failure to comply with the court’s Order (Doc. #137) directing him to either file a
statement that he will proceed pro se or retain counsel who must file a notice of appearance
in accordance with the Local Rules of Civil Procedure.

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(Doc. # 144). Judge Leen continued: “[f]ailure to comply with this Order to Show Cause will result
in a recommendation to this court that default judgment be entered against defendant Guerrero.”

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(Id.).
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II.
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Relevant Procedural Rules
Local Rules Part IA (“LR IA”) 4-1(d) states that the court may impose any and all

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appropriate sanctions on an attorney or party appearing in pro se who, without just cause, fails to
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comply with any order of this court. LR IA 4-1(d).
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Federal Rule of Civil Procedure (“FRCP”) 41 also allows a court to dismiss a complaint

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with prejudice if the plaintiff fails to comply with a court order. However, the defendant must
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move for such a dismissal. See FED.R.CIV.P 41(b). In addition, court should not dismiss with
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prejudice under Rule 41 before considering less drastic alternatives. McHenry v. Renne, 84 F.3d
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1172, 1178 (9th Cir. 1996).
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FRCP 41 is refined though by LR 41-1, which states: “[a]ll civil actions that have been

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pending in this [c]ourt for more than two hundred seventy (270) days without any proceeding of
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record having been taken may, after notice, be dismissed for want of prosecution on motion of
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counsel or by the [c]ourt.”
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“When a party against whom a judgment for affirmative relief is sought has failed to plead

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or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
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James C. Mahan
U.S. District Judge

party’s default.” FED. R. CIV. P. 55(a). A motion is not necessary.
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III.

The case at bar has been pending for well over 270 days without any proceeding of record

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Discussion

having occurred.

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Judge Leen provided both parties with notice that failure to comply with her orders

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regarding the joint pretrial order and plaintiff’s motions for sanctions could result in case-

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dispositive sanctions under LR IA 4-1. (Docs. # 144, 145, supra). This was the third such notice

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provided by Judge Leen. (See docs. 138, 141, and 145). No pretrial order in the form prescribed

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has been filed by either party.

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The court notes, though, that until the last year, plaintiff diligently pursued his action for

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about 5 years, even after his discharge from prison. Because plaintiff is proceeding pro se, the

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court will give him the benefit of the doubt with respect to his failure to file a pretrial order.

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The court further finds that Mr. Guerrero has failed to show cause pursuant to Judge Leen’s

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order. Generally, Mr. Guerrero has not “otherwise defend[ed]” against the affirmative relief

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plaintiff seeks. See FED.R.CIV.P. 55(a).

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Conclusion

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Therefore, the court will instruct the clerk to enter default against the defendant as a

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sanction for his failure to show cause, and in accordance with Rule 55(a). Plaintiff shall have 60

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days in which to move for a default judgment against Mr. Guerrero. Otherwise, the court will

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dismiss the case pursuant to LR 41-1. The court further instructs plaintiff that the court will not

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provide more than declaratory judgment without plaintiff providing sufficient proof of any actual

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damages he suffered.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the clerk of court enter

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default against defendant Adrian Guerrero.

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...

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...

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...

James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that plaintiff Michael Clark’s failure to file a motion for

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default judgment within 60 days of the date of this order will result in dismissal pursuant to LR

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41-1.

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DATED September 25, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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