PAUL JOHNSON, No. 2:15cv1313 DJC KJN P Plaintiff, v. ORDER BEARD, et al., Defendants. Plaintiff is a state prisoner, proceeding pro se. On June 20, 2023, plaintiff filed a request for jury trial and scheduling order and renewed his request for the appointment of counsel. As discussed below, plaintiff’s request for jury trial is denied, and plaintiff shall file a motion for default judgment as to the sole remaining defendant, Dr. Naku. Plaintiff’s request for appointment of counsel is also denied. Request for Jury Trial In this action, plaintiff alleges defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. On May 12, 2023, plaintiff’s last request for reconsideration was denied by the district court. (ECF No. 224.) All defendants have now been dismissed except for Dr. Binoye Naku. After Dr. Naku failed to appear,1 plaintiff obtained a 1 Despite Dr. Naku’s initial response to the court’s order to show cause (ECF No. 94), Dr. Naku failed to file an answer or otherwise formally respond to plaintiff’s third amended complaint. clerk’s entry of default under Rule 55(a) of the Federal Rules of Civil Procedure. (ECF Nos. 136, 138.) Given the Clerk’s entry of default, no jury trial is required. Therefore, plaintiff’s request for jury trial is denied. The Court now sets a deadline for plaintiff to move for default judgment under Rule 55(b)(2). Operative Pleading This action proceeds on plaintiff’s third amended complaint. (ECF No. 54.) Plaintiff alleges that defendant Dr. Naku was deliberately indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment. Standards Governing Default Judgment Once default has been entered, a plaintiff may apply to the Court for entry of default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Generally, default judgments are disfavored. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). The choice whether a default judgment should be entered is at the sole discretion of the district court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956) (“It is conceded that the grant or denial of a motion for the entry of a default judgment is within the discretion of the court.”). A defendant’s default alone does not entitle a plaintiff to a court-ordered judgment. See Aldabe, 616 F.2d at 1092. Instead, the Ninth Circuit has determined that a court should look at seven discretionary factors before rendering a decision on default judgment. See Eitel, 782 F.2d at 1471-72. Such factors are: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Id. As a general rule, once default is entered, well-pleaded factual allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint are admitted by a defendant's failure to respond, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A] defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law” (citation and quotation marks omitted)); Abney v. Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 2004) (“[A] default judgment may not be entered on a legally insufficient claim.”). Thus, a party's default conclusively establishes that party's liability on sufficiently-pleaded claims, but does not establish the amount of damages. Geddes, 559 F.2d at 560; see also Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990); Doe v. Rafael Saravia, 348 F.Supp.2d 1112, 1143 (E.D. Cal. 2004). To obtain a default judgment against a defendant for a claim for uncertain damages, the plaintiff must prove the amount of damages he seeks. Shanghai Automation Instrument Co., Ltd. v. KUEI, 194 F.Supp.2d 995, 1010 (N.D. Cal. 2001). Discussion Plaintiff is granted sixty days from the date of this order in which to file a motion for default judgment as to remaining defendant Dr. Naku. Plaintiff’s motion for default judgment shall provide developed argument, including citation to the record and relevant legal authority, in addressing the requirements discussed above and any other applicable requirements. See Fed. R. Civ. P. 7(b)(1)(B) (noting that motions must “state with particularity the grounds for seeking the order”). Plaintiff’s motion should also provide evidence to support any claim for damages. Request for Counsel District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such a
Free access — add to your briefcase to read the full text and ask questions with AI
PAUL JOHNSON, No. 2:15cv1313 DJC KJN P Plaintiff, v. ORDER BEARD, et al., Defendants. Plaintiff is a state prisoner, proceeding pro se. On June 20, 2023, plaintiff filed a request for jury trial and scheduling order and renewed his request for the appointment of counsel. As discussed below, plaintiff’s request for jury trial is denied, and plaintiff shall file a motion for default judgment as to the sole remaining defendant, Dr. Naku. Plaintiff’s request for appointment of counsel is also denied. Request for Jury Trial In this action, plaintiff alleges defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. On May 12, 2023, plaintiff’s last request for reconsideration was denied by the district court. (ECF No. 224.) All defendants have now been dismissed except for Dr. Binoye Naku. After Dr. Naku failed to appear,1 plaintiff obtained a 1 Despite Dr. Naku’s initial response to the court’s order to show cause (ECF No. 94), Dr. Naku failed to file an answer or otherwise formally respond to plaintiff’s third amended complaint. clerk’s entry of default under Rule 55(a) of the Federal Rules of Civil Procedure. (ECF Nos. 136, 138.) Given the Clerk’s entry of default, no jury trial is required. Therefore, plaintiff’s request for jury trial is denied. The Court now sets a deadline for plaintiff to move for default judgment under Rule 55(b)(2). Operative Pleading This action proceeds on plaintiff’s third amended complaint. (ECF No. 54.) Plaintiff alleges that defendant Dr. Naku was deliberately indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment. Standards Governing Default Judgment Once default has been entered, a plaintiff may apply to the Court for entry of default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Generally, default judgments are disfavored. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). The choice whether a default judgment should be entered is at the sole discretion of the district court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956) (“It is conceded that the grant or denial of a motion for the entry of a default judgment is within the discretion of the court.”). A defendant’s default alone does not entitle a plaintiff to a court-ordered judgment. See Aldabe, 616 F.2d at 1092. Instead, the Ninth Circuit has determined that a court should look at seven discretionary factors before rendering a decision on default judgment. See Eitel, 782 F.2d at 1471-72. Such factors are: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Id. As a general rule, once default is entered, well-pleaded factual allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); see also Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although well-pleaded allegations in the complaint are admitted by a defendant's failure to respond, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A] defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law” (citation and quotation marks omitted)); Abney v. Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 2004) (“[A] default judgment may not be entered on a legally insufficient claim.”). Thus, a party's default conclusively establishes that party's liability on sufficiently-pleaded claims, but does not establish the amount of damages. Geddes, 559 F.2d at 560; see also Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990); Doe v. Rafael Saravia, 348 F.Supp.2d 1112, 1143 (E.D. Cal. 2004). To obtain a default judgment against a defendant for a claim for uncertain damages, the plaintiff must prove the amount of damages he seeks. Shanghai Automation Instrument Co., Ltd. v. KUEI, 194 F.Supp.2d 995, 1010 (N.D. Cal. 2001). Discussion Plaintiff is granted sixty days from the date of this order in which to file a motion for default judgment as to remaining defendant Dr. Naku. Plaintiff’s motion for default judgment shall provide developed argument, including citation to the record and relevant legal authority, in addressing the requirements discussed above and any other applicable requirements. See Fed. R. Civ. P. 7(b)(1)(B) (noting that motions must “state with particularity the grounds for seeking the order”). Plaintiff’s motion should also provide evidence to support any claim for damages. Request for Counsel District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel. Having considered the factors under Palmer, the court finds that plaintiff failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs motion for jury trial (ECF No. 225) is denied; 2. Plaintiff granted sixty days from the date of this order in which to file a motion for default judgment against defendant Dr. Binoye Naku consistent with the above order; and 3. Plaintiff's motion for the appointment of counsel (ECF No. 225) is denied without prejudice. Dated: June 29, 2023 Aectl Aharon UNITED STATES MAGISTRATE JUDGE /john1313.d).fb