Tagle v. Dept of Homeland Security

Filing 86

ORDER denying 68 Motion to Extend Time; ORDER denying 69 Motion; ORDER denying 70 Motion; ORDER denying 71 Motion; ORDER denying 73 Motion; ORDER denying 74 Motion; ORDER denying 77 Motion; ORDER denying 81 Motion; OR DER denying 82 Motion for Hearing; ORDER denying 84 Motion. The Clerk of Court is directed to reissue summons Service must be accomplished by November 5, 2018. Signed by Magistrate Judge Cam Ferenbach on 10/9/2018. (Copies have been distributed pursuant to the NEF, 285 Form to USM - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VICTOR TAGLE,
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Plaintiff,
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vs.
DEPARTMENT OF HOMELAND SECURITY,

2:15-cv-02506-APG-VCF
ORDER

Defendant.

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Before the Court are Plaintiff’s Motions for Extension of Time (ECF No. 68), Re-Issue of USM-

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285 Form (ECF No. 69), Intervention and Investigation (ECF Nos. 70, 81, 84), Transfer to Clark County

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Detention Center or Federal Facilities (ECF Nos. 71, 73, 77), Speedy Trial (ECF No. 74), and Motion to

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Set Hearing (ECF No. 82).

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Though the case was filed in 2015, Defendant has not been served. Plaintiff has had repeated

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difficulties in providing the necessary USM-285 Form to the U.S. Marshal to effectuate service. (ECF

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No. 66). On August 7, 2018, the Court once again directed Plaintiff to provide the USM-285 Form to the

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U.S. Marshal and ordered that service “must be accomplished by November 5, 2018.” (Id.).

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Plaintiff now moves to extend time to effectuate service and for a re-issue of the USM-285 Form.

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(ECF Nos. 68, 69). Plaintiff asserts that the facility where he is being held has repeatedly confiscated his

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mail and frustrated his attempts to serve Defendant. (Id.). Plaintiff was able to file a copy of the USM-

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285 Form with the Court. (ECF No. 76 at 2). However, on September 12, 2018, the summons was

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returned unexecuted by the U.S. Marshal for failure to receive the USM-285 Form. (ECF No. 78).

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To assist with service in this case, the Court now orders the Clerk’s Office to reissue summons to

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the named defendant(s) herein, and deliver same with copies of the Second Amended Complaint and the

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USM-285 Form filed by Plaintiff to the U.S. Marshal for service. The deadline to effectuate service is not

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until November 5, 2018, so the Court denies Plaintiff’s motion for extension of time. (ECF No. 68).

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Because Plaintiff filed a copy of the USM-285 Form with the Court, the Court denies Plaintiff’s motion

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to re-issue the USM-285 Form. (ECF No. 69). The Court also denies Plaintiff’s motion to set a hearing,

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as this order addresses Plaintiff’s current concerns regarding service. (ECF No. 82).

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Until the Defendant is served, the Court finds that transfer to Clark County Detention Center or

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federal facilities (ECF Nos. 71, 73, 77) and speedy trial (ECF No. 74) are premature. (See ECF No. 57).

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The Court also denies Plaintiff’s motions for intervention and investigation. (ECF Nos. 70, 81, 84). The

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motions raise issues that are not related to this case. (Id.). In addition, the Court is not persuaded that the

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facility holding Plaintiff is tampering with his mail. The Court notes that Plaintiff has successfully filed

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10 documents with the Court in the past two months. (ECF Nos. 68, 72, 76, 77, 79, 80, 81, 82, 84, 85).

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motions for Extension of Time (ECF No. 68), Re-

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Issue of USM-285 Form (ECF No. 69), Intervention and Investigation (ECF Nos. 70, 81, 84), Transfer to

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Clark County Detention Center or Federal Facilities (ECF Nos. 71, 73, 77), Speedy Trial (ECF No. 74),

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and Motion to Set Hearing (ECF No. 82) are DENIED.

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The Clerk of Court is directed to reissue summons to the named defendant(s) herein, and deliver

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same with copies of the Second Amended Complaint and the USM-285 Form filed by Plaintiff (ECF No.

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76 at 2) to the U.S. Marshal for service. Within twenty (20) days after receiving from the U.S. Marshal a

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copy of the Form USM-285 showing whether service has been accomplished, plaintiff must file a notice

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with the Court identifying which defendants were served and which were not served, if any. If plaintiff

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wishes to have service again attempted on an unserved defendant(s), then a motion must be filed with the

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Court identifying the unserved defendant(s) and specifying a more detailed name and/or address for said

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defendant(s), or whether some other manner of service should be attempted.

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Service must be

accomplished by November 5, 2018.
NOTICE

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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections

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within the specified time and (2) failure to properly address and brief the objectionable issues waives the

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right to appeal the District Court's order and/or appeal factual issues from the order of the District Court.

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Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452,

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454 (9th Cir. 1983).

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Pursuant to Local Special Rule 2-2, the Plaintiff must immediately file written notification with

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the court of any change of address. The notification must include proof of service upon each opposing

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party of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action. See

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LSR 2-2.

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DATED this 9th day of October, 2018.
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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE