Coleman v. Erogul et al

Filing 108

ORDER denying ECF No. 103 Plaintiff's Motion to Reinstate Noreen Borino as a Defendant. Signed by Magistrate Judge William G. Cobb on 2/4/2020. (Copies have been distributed pursuant to the NEF - LW)

1

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

2
3
RONNIE MONEY COLEMAN,

Case No.: 3:17-cv-00649-MMD-WGC

4
Plaintiff,

ORDER

5
v.

Re: ECF No. 103

6
RICHARD WULFF, et al.,
7
Defendants.
8
9

Before the court is Plaintiff’s “Motion Noreen Borino as a Defendant” (ECF No. 103).

10 Plaintiff requests the court to reinstate Noreen Borino “as a Defendant and service be validated by
11 Plaintiff’s waiver of service to Borino last known address.” (Id. at 4.)
12

In the Screening Order entered by Chief District Judge Miranda M. Du, Plaintiff’s First

13 Amended Complaint was allowed to proceed on Count I alleging deliberate indifference to a
14 serious medical need against Defendants Borino, Moreda, Wolff, Erogul and Doe HDSP Medical
15 Staff, and on Count II alleging a due process violation against Doe NNCC Administrator.
16 (ECF No. 6 at 6, 7.) The screening order imposed a ninety (90) day stay to allow Plaintiff and
17 Defendant(s) an opportunity to settle their dispute before the $350.00 filing fee was paid, an answer
18 filed, or the discovery process began. (Id.)
19

On January 29, 2019, an early mediation conference was held, but a settlement was not

20 reached. (ECF No. 13.)
21

On February 11, 2019, the court entered its order (ECF No. 16) granting Plaintiff’s

22 application to proceed in forma pauperis and instructed the Clerk to electronically serve a copy of
23 its order and a copy of Plaintiff’s First Amended Complaint on the Office of the Attorney General.

1 Additionally, subject to the findings of the screening order (ECF No. 6), the court ordered the
2 Office of the Attorney General to file a notice within twenty-one (21) days advising the court and
3 Plaintiff of: (a) the names of the Defendants for whom it accepts service; (b) the names of the
4 Defendants for whom it does not accept service, and (c) the names of the Defendants for whom it
5 is filing the last-known-address information under seal. As to any of the named Defendants for
6 whom the Attorney General’s Office could not accept service, the Office was instructed to file,
7 under seal, the last known address(es) of the Defendant(s) for whom it had such information. The
8 court also advised Plaintiff that service must be perfected within ninety (90) days of February 11,
9 2019. (Id. at 2, 3.)
10

On February 28, 2019, the Office of the Attorney General filed its Notice of Acceptance

11 of Service accepting service on behalf of Defendant Patrick Moreda and advising that “service is
12 not accepted on behalf of Defendant Noreen Borino who is a former employee of the Nevada
13 Department of Corrections. The last known address for this Defendant will be filed under seal
14 concurrent with this filing.” (ECF No. 19 at 1.)
15

On March 1, 2019, the court issued its order instructing the Clerk to issue a summons for

16 Defendant Noreen Borino and to send the same to the U.S. Marshal with the Defendant’s last
17 known address provided under seal (ECF No. 20). (ECF No. 22.) Additionally, the court ordered
18 the Clerk to send Plaintiff a USM-285 form and instructed Plaintiff to return the completed form
19 to the U.S. Marshal for service on Defendant Borino. (Id.)
20

On April 22, 2019, the U.S. Marshal returned the USM-285 form unexecuted with the

21 notation that Borino “no long (sic) lives @ provided address.” (ECF No. 37 at 1.)
22
23

2

1

On July 23, 2019, the Clerk’s office issued a Rule 4(m) notice as to Defendant

2 Noreen Borino advising Plaintiff that his “amended complaint was filed on 8/31/2018 and to date
3 no proper proof of service has been filed as to this defendant.” (ECF No. 48.)
4

On August 26, 2019, Plaintiff filed a motion for summons for Borino (ECF No. 59). The

5 court issued an order instructing the Attorney General’s office to advise “within 15 days whether
6 it is able to find an alternative physical address for Defendant Noreen Borino. If a more current
7 address is secured for this Defendant, the Attorney General shall file the address under seal and
8 the court will direct the U.S. Marshal to again attempt to effect service.” (ECF No. 61.)
9

On September 12, 2019, Deputy Attorney General Harry Ward filed a Notice to the Court

10 advising that his “staff has left a voicemail message for Noreen Borino on the only phone number
11 known to my staff and believed to be that of Noreen Borino. That voicemail message left by our
12 office was for her to call our office at her earliest convenience.” (ECF No. 64, Ex.1.)
13

On October 11, 2019, the Clerk’s office issued a second Rule 4(m) notice advising

14 Plaintiff that there had been no proper proof of service as to Defendant Noreen Borino. (ECF No.
15 65.)
16

On October 21, 2019, Plaintiff filed a Request for Summons for Noreen Borino. (ECF No.

17 75.) On October 23, 2019, the court denied Plaintiff’s request and stated:
18
19
20
21

Pursuant to the court’s order of March 1, 2019 (ECF No. 22), the U.S.
Marshal attempted service on Defendant Noreen Borino on April 15,
2019, but was returned by the U.S. Marshal because Defendant Borino
apparently no longer resides at the address provided by the Attorney
General’s Office (under seal). (ECF No. 37.)
On August 26, 2019, Plaintiff filed a Motion for Court Oder for Court
Clerk to Issue Summons and Complaint to Borino. (ECF No. 59.)

22
23

3

1

On August 28, 2019, the court instructed the Office of the Attorney
General to advise the court within fifteen (15) days whether it was able to
find an alternative physical address for Defendant Borino. (ECF No. 61.)
In response to the court’s order, Defendants filed their Notice to the Court
advising that they did not have an updated address for Defendant Borino.
(ECF No. 64.)

2
3
4

Based on the above, the court finds that issuing another summons for
Defendant Borino would be an act of futility. Therefore, Plaintiff’s
“Request Summons from Court Clerk for Noreen Borino and Address”
(ECF No. 75) is DENIED.

5
6

7 (ECF No. 77.)
8

On October 28, 2019, Plaintiff filed three (3) motions: (1) “Motion for

9 Defendants/Attorney General to Serve Noreen Borino Plaintiff’s Summons and Complaint/or
10 Court Clerk” (ECF No. 78), (2) “Motion Attorney General Appointed by Court to Accept Service
11 of Process for Borino” (ECF No. 79), and (3) “Motion Court to Order Court Clerk to Seal Stamp,
12 Sign, and Date Summons” (ECF No. 80). On October 29, 2019, the court denied Plaintiff’s
13 motions. (ECF No. 84.)
14

On January 6, 2020, Chief District Judge Du entered an Order of Dismissal without

15 prejudice as to Defendant Noreen Borino for failure to effect service. (ECF No. 102.)
16

As indicated above, the court and the Office of the Attorney General have tried to locate

17 Defendant Noreen Borino and have been unsuccessful.
18

Therefore, Plaintiff’s Motion to Reinstate Noreen Borino as a Defendant (ECF No. 103) is

19 DENIED.
20

Plaintiff should be aware of the following:

21

1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 3-1, specific written

22 objections to this Order within fourteen days of being served with a copy of the Order. These
23

4

1 objections should be titled “Objections to Magistrate Judge’s Order” and should be accompanied
2 by points and authorities for consideration by the district judge.
3

2. This is not an appealable order and that any notice of appeal pursuant to Rule 4(a)(1) of

4 the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district
5 court.
6

IT IS SO ORDERED.

7

Dated: February 4, 2020.

8
9

_________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23

5