Villamor v. Metcalfe

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6

7 CHADWICK FABIAN VILLAMOR, Case No. 2:24-cv-00940-APG-NJK 8 Plaintiff(s), ORDER 9 v. [Docket No. 26] 10 OFFICER J. METCALFE, et al., 11 Defendant(s). 12 On November 21, 2024, the Court screened Plaintiff’s complaint and found that a colorable 13 excessive force claim was stated as to Defendants Metcalfe and Ketring. Docket No. 12. The 14 Court ordered that service had to be completed within 90 days. See id. at 3. The Court also, inter 15 alia, instructed the Clerk’s Office to send Plaintiff two blank copies of the required Form USM- 16 285 and ordered Plaintiff to furnish those forms to the U.S. Marshal to effectuate service. Docket 17 No. 12. On January 7, 2025, the summonses were returned unexecuted on the basis that the U.S. 18 Marshal had not received the USM-285 forms. Docket Nos. 22-23. On February 27, 2025, the 19 Court issued a notice of intent to dismiss for lack of service. Docket No. 25. On March 13, 2025, 20 Plaintiff filed a motion seeking relief on the ground that the Clerk’s Office had not sent him the 21 two copies of the Form USM-285. Docket No. 26. That motion is the matter currently before the 22 Court. 23 As a starting point, Plaintiff’s contention that he was never sent the proper forms is 24 contradicted by the docket. See Docket No. 12 (docket text that “Copies have been distributed 25 pursuant to the NEF cc Copies of USM 285 sent to Plaintiff”). Such docketing entries are given 26 significant weight against challenges that documents were not received by a litigant. Cf. American 27 Boat Co. v. Unknown Sunken Barge, 567 F.3d 348, 352-53 (8th Cir. 2009). In addition, it is unclear 28 why Plaintiff would wait four months to raise this issue of non-receipt with the Court if in fact he 1} did not receive these forms. Hence, Plaintiffs bald contention of non-receipt is not particularly 2|| persuasive. 3 Notwithstanding the above, given Plaintiffs pro se status and in an effort to try to have the 4] case decided on its merits, the Court will allow one additional opportunity for Plaintiff to effectuate 5]| service in accordance with the applicable procedures. Accordingly, Plaintiffs motion to show 6|| good cause (Docket No. 26) is GRANTED as follows: 7 1. The Clerk’s Office is instructed to re-issue summons to Defendants Officer J. Metcalfe 8 P#19186 and Officer D. Ketring P#16175, and deliver the same to the U.S. Marshal for 9 service. The Clerk’s Office must also deliver a copy of the first amended complaint 10 (Docket No. 20) to the U.S. Marshal for service. 11 2. The Clerk’s Office must send Plaintiff two blank copies of the required Form USM- 12 285. 13 3. Plaintiff shall have twenty days in which to furnish the U.S. Marshal with the required 14 Form USM-285. Within twenty days after receiving from the U.S. Marshal a copy of 15 the Form USM-285, showing whether service has been accomplished, Plaintiff must 16 file a notice with the court identifying whether Defendants were served. If Plaintiff 17 wishes to have service again attempted on an unserved defendant, a motion must be 18 filed with the Court identifying the unserved defendant and specifying a more detailed 19 name and/or address for said defendant, or whether some other manner of service 20 should be attempted. 21 4. Service must be completed by May 15, 2025. Failure to effectuate service by that 22 date may result in dismissal of this action. 23 IT IS SO ORDERED. 24 Dated: March 25, 2025 he. 0 fo A Bn. Nancy J~Képpe 26 United States Magistrate Judge 27 28