Mizzoni v. State of Nevada ex rel et al

Filing 54

ORDER - Plaintiff's Response/Motion (ECF No. 51 ) is GRANTED to the extent Plaintiff seeks to have a default entered against Defendant Smith. Plaintiff must make a separate application for entry of a default judgment against Defen dant Smith. To the extent Plaintiff's motion seeks to have a default judgment entered as to Defendant Smith, Plaintiff's motion is denied. Signed by Magistrate Judge William G. Cobb on 5/16/2017. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
JOSEPH MIZZONI,
9
10
11
12
13

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF NEVADA, et al.,
)
)
Defendants.
)
______________________________________)

3:15-cv-00499-MMD-WGC
ORDER

14
Before the court is Plaintiff’s Motion to Respond to Defendant Supplemental Notice of
15
Acceptance of Service and File a Default of Judgment under Rule 55(a) for Failing to Plead or Otherwise
16
Defend on C. Smith (ECF No. 51). Plaintiff’s motion reflects it was served by mail on the “Office of the
17
Attorney General, Nevada” on April 23, 2017. (ECF No. 51 at 11.) A Notice of Electronic Filing (NEF)
18
of Plaintiff’s motion was entered by the Clerk of the Court on May 1, 2017. (ECF No. 51, NEF.)
19
Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),
20
proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.’s Am. Compl., ECF No. 7.) On
21
screening, the court allowed Plaintiff to proceed with a due process claim against Ira Brannon based on
22
the allegations that Brannon denied him evidence and witnesses during the disciplinary hearing, and was
23
punished for prior acts. (ECF No. 10 at 6.) He was also allowed to proceed with a due process claim
24
against Christopher Smith based on the allegation that Smith made a false disciplinary report. (Id.)
25
Pursuant to the court’s order of December 12, 2016 (ECF No. 18), the court instructed the
26
Attorney General’s Office to file a notice advising the Court and Plaintiff of: (a) the names of the
27
defendants for whom it accepts service; (b) the names of the defendants for whom it does not accept
28
service, and (c) the names of the defendants for whom it is filing the last-known-address information

1

under seal. As to any of the named defendants for whom the Attorney General’s Office could not accept

2

service, the Office was instructed to file, under seal, the last known address(es) of those defendant(s)

3

for whom it has such information. (ECF No. 18 at 2.)

4

On December 30, 2016, the Attorney General’s Office filed its Acceptance of Service on behalf

5

of Defendant Ira Brannon. (ECF No. 19.) On January 30, 2017, Plaintiff filed a motion to respond to

6

Defendant’s notice of acceptance of service seeking clarification whether as the Attorney General’s

7

Office only accepted service on behalf of Defendant Brannon, and did not include Defendant C. Smith.

8

(ECF No. 21.) The court granted Plaintiff’s motion and ordered the Attorney General’s Office to advise

9

within ten (10) days of the date of the order whether it would accept service on behalf of Defendant C.

10

Smith. (ECF No. 24 at 2.) The court further ordered that if the Attorney General’s Office could not

11

accept service, the Office should file Defendant Smith’s last known address under seal. (Id.)

12

On February 9, 2017, the Attorney General’s Office filed Defendant Smith’s last known address

13

under seal. (ECF No. 27.) Pursuant to that filing, the court issued its order instructing the Clerk to issue

14

a summons for Defendant Smith and provided Plaintiff with instructions as to effecting service on the

15

Defendant. (ECF No. 33.)

16
17

On March 29, 2017, the U.S. Marshal filed the return of the summons indicating that service of
process was completed as to Defendant Smith on March 22, 2017. (ECF No. 43.)

18

Although the Attorney General’s Office filed a Supplemental Notice of Acceptance of Service

19

(ECF No. 48) on April 19, 2017, indicating it would accept service on behalf of Defendant Smith, an

20

answer or other response to Plaintiff’s amended complaint has never been filed on behalf of this

21

Defendant as is required by Fed. R. Civ. P. 12(a).

22

Plaintiff’s Motion to Respond to Defendant Supplemental Notice of Acceptance of Service and

23

File a Default of Judgment under Rule 55(a) for Failing to Plead or Otherwise Defend on C. Smith

24

(ECF No. 51) is GRANTED to the extent Plaintiff seeks to have a default entered against Defendant

25

Smith.

26

///

27

///

28

///
2

1

In accordance with Fed. R. Civ. P. 55(b), Plaintiff must make a separate application for entry of

2

a default judgment against Defendant Smith. To the extent Plaintiff’s motion seeks to have a default

3

judgment entered as to Defendant Smith, Plaintiff’s motion is denied.

4

IT IS SO ORDERED.

5

DATED: May 16, 2017.

6
7
8

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3