Johnson v. Lopez et al

Filing 120

ORDER ADOPTING in part 118 Report and Recommendation. The Clerk of Court is directed to ENTER DEFAULT against defendant Brandon Lawrence. Signed by Judge Jennifer A. Dorsey on 12/27/2018. (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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Case No.: 2:15-cv-00884-JAD-NJK

4 Lausteveion Johnson,
Plaintiff

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6 v.

Order Adopting Report
& Recommendation in Part

7 Luis Lopez, et al.,

[ECF No. 118]

Defendants

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Lausteveion Johnson brings this civil rights action for events he claims occurred during

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12 his incarceration at three Nevada Department of Corrections facilities at which he is or was an
13 inmate. After defendant Brandon Lawrence failed to appear at the court-ordered settlement
14 conference, Magistrate Judge Koppe ordered Lawrence to show cause why judgment should not
15 be entered against him for failing to comply with the court’s orders. Lawrence did nothing, and
16 Magistrate Judge Koppe now recommends that I direct judgment to be entered against defendant
17 Lawrence.1 The deadline for Lawrence to object passed without any filing.
Johnson sues Lawrence for violating his First Amendment right to Free Exercise and the

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19 Religious Land Use and Institutionalized Person s Act (RLUIPA) by not permitting him to have
20 scented oils or observe the mealtime traditions of Ramadan. He pleads these claims collectively
21 against Lawrence, NDOC director James Cox, Ely Warden Renee Baker, and Kitchen Supervisor
22 Luis Lopez. Although I find that entry of default against Lawrence is presently appropriate as a
23 sanction for ignoring this court’s orders, default judgment would be premature under the Frow
24 doctrine because Lawrence’s liability is wrapped up with that of his co-defendants. The Frow
25 doctrine recognizes that, “where a complaint alleges that defendants are jointly liable and one of
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ECF No. 118.

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1 them defaults, judgment should not be entered against the defaulting defendant until the matter
2 has been adjudicated with regard to all defendants.”2 The Ninth Circuit extends this doctrine to
3 cases in which the co-defendants are “similarly situated” and defense of the claims will hinge on
4 the same legal theory because “it would be incongruous and unfair to allow a plaintiff to prevail
5 against defaulting defendants on a legal theory rejected by a court with regard to an answering
6 defendant in the same action.”3 Because Lawrence is similarly situated with his co-defendants in
7 Johnson’s Free Exercise and RLUIPA claims, I find that the Frow doctrine counsels against a
8 default judgment against Lawrence while these claims are still pending against Cox, Baker, and
9 Lopez.
Accordingly, IT IS HEREBY ORDERED that the Report and Recommendation [ECF

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11 No. 118] is ADOPTED in part. The Clerk of Court is directed to ENTER DEFAULT
12 against defendant Brandon Lawrence. Johnson may seek a default judgment against
13 Lawrence once his Free Exercise and RLUIPA claims are adjudicated against the other
14 defendants.
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Dated: December 27, 2018

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_________________________________
U.S. District Judge Jennifer A. Dorsey

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In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001) (citing Frow v. De La Vega, 82
U.S. 552 (1872)).
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Geramendi v. Henin, 683 F.3d 1069, 1082–83 (9th Cir. 2012) (quotation omitted).
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