Love v. Medical Unit E FMWCC

Opinion

3 * * *

4 SHERRI L. LOVE, Case No. 2:20-cv-00525-JAD-EJY

5 Plaintiff, ORDER 6 v. and 7 MEDICAL UNIT E FMWCC, et al.,

8 Defendants. REPORT AND RECOMMENDATION

9 10 Before the Court is Plaintiff’s Motion for Process of Service of Dolce Kabatay, Francisco 11 Sanchez, Seymour Omandac, Betty Omandac, and Ella Cordovez. ECF No. 188. Plaintiff alleges 12 “abuse of process … [that] it is not likely that all relevant defendant could not be found and given 13 summons.” Plaintiff also asks the Court to serve “all defendants.” Id. at 2. Also before the Court 14 is Plaintiff’s Motion for Response requesting the Court respond and grant her Motion for Process of 15 Service. ECF No. 191. The Court denies the Motion for Response as moot. The Court considers 16 the Motion for Process of Service below. 17 On March 16, 2022, the Court entered an Order instructing the Attorney General for the State 18 of Nevada to file a notice advising whether he would accept service on behalf of four unserved 19 defendants named in Plaintiff’s Third Amended Complaint. ECF No. 87. The four unserved 20 defendants included Gabrielle Garcia-Najera, Dulce S. Kabatay, Francisco M. Sanchez, and Nurse 21 Malita. Id. On April 6, 2022, the Attorney General responded stating that service is accepted on 22 behalf of Gabrielle Najera and Malita Sastrillo, current employees of Nevada Department of 23 Corrections. The Attorney General could not accept service on behalf of Kabatay and Sanchez 24 because these “former employees of the Nevada Department of Corrections … have not requested 25 representation in this matter.” ECF No. 96. The Attorney General’s Office provided last known 26 addresses for Kabatay and Sanchez under seal. ECF No. 97. However, service on Kabatay and 27 Sanchez was ineffective as they were not at the addresses provided. ECF Nos. 110, 112. 1 On April 21, 2022, Plaintiff filed a Motion for Service asking the Court to serve Betty 2 Omandac, Ella Cordovez, and the male Dr. Omandac. ECF No. 105. In the Court’s May 26, 2022 3 Order, the Court ordered the Attorney General to advise whether he would accept service for Betty 4 Omandac, Ella Cordovez, and the male Dr. Omandac. And, if he could not, to file their last known 5 address with the Court. ECF No. 113. The Court also provided the Attorney General and Plaintiff 6 an opportunity to provide additional information they might have to locate Kabatay and Sanchez. 7 Id. at 2. The Court stated if the Attorney General and/or Plaintiff “are unable to provide any 8 additional information to locate Defendants Dulce Kabatay and Francisco M. Sanchez so that they 9 may be served, the Court … [would] recommend these defendants be dismissed without prejudice.” 10 Id. No additional information for Kabatay and Sanchez was received by the Court from either 11 Plaintiff or the Attorney General. 12 On June 16, 2022, the Attorney General filed a notice stating “[a]t this time, service is not 13 accepted on behalf of Dr. Betty Omandac, Dr. Ella Cordovez, and Dr. Omandac (believed to be 14 Symour T. Omandac) … [because they] have not requested representation in this matter.” ECF No. 15 124. The Attorney General provided last known addresses for these Defendants under seal. ECF 16 No. 125. On June 22, 2022, summonses were issued for the Omandacs and Cordovez. ECF No. 17 128. On August 10, 2022, the summonses issued to the Omandacs were returned unexecuted. ECF 18 No. 142, 143. The return of service completed by the U.S. Marshal states three attempts to serve the 19 Omandacs were made but were ineffective as the “property appears vacant” and “no one home to 20 accept process.” Id. The summons issued to Cordovez was returned unexecuted on August 18, 21 2022. ECF No. 148. The U.S. Marshal indicated three attempts were also made to serve Cordovez 22 but was ineffective because “no one [was] home.” Id. 23 On September 8, 2022, the Court issued an Order granting Plaintiff through and including 24 September 30, 2022 to file “any additional information regarding the addresses, location or other 25 information that would assist in effecting service of process on the Omandacs and Cordovez.” ECF 26 No. 153. The Court advised Plaintiff that “failure to comply with the terms of [the] Order will result 27 in a recommendation to dismiss, without prejudice, those Defendants for whom no additional ] To date no additional information regarding addresses, location or any other informatic 2 || regarding Kabatay, Sanchez, the Omandacs, and Cordovez have been filed with the Court. TI 3 || undersigned therefore finds it appropriate to recommend dismissal of these Defendants witho 4 || prejudice. 5 Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Moti: 6 || for Process of Service of Dolce Kabatay, Francisco Sanchez, Seymour Omandac, Betty Omanda 7 || and Ella Cordovez (ECF No. 188) is DENIED. 8 IT IS FURTHER ORDERED that Plaintiff's Motion for Response (ECF No. 191) 9 || DENIED as moot. 10 IT IS HEREBY RECOMMENDED that Defendants Dolce Kabatay, Francisco Sanche 11 |} Seymour Omandac, Betty Omandac, and Ella Cordovez be dismissed from this case witho 12 || prejudice for failure to serve. 13 DATED this 21st day of February, 2023. 14 15 . ELAYNAY. YOU: 16 FAWN, mn JUDGE 17 19 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must | 20 || in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court h 21 || held that the courts of appeal may determine that an appeal has been waived due to the failure to fi 22 || objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has al 23 || held that (1) failure to file objections within the specified time and (2) failure to properly addre 24 || and brief the objectionable issues waives the right to appeal the District Court’s order and/or appe 25 || factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th C 26 || 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 27 28