Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowery v. Unknown Barcklay

United States District Court, Ninth Circuit

June 12, 2013

Christian Dale Lowery, Plaintiff,
v.
Unknown Barcklay, Defendant.

ORDER TO SHOW CAUSE AND ORDER

LAWRENCE O. ANDERSON, District Judge.

This action is before the Court on pro se Plaintiff's two Motions for Default Judgment, one filed on April 24, 2013, and the other on June 3, 2013. (Docs. 15, 18) Also pending are Plaintiff's Motion to Serve Notice and Motion for Status. (Docs. 16-17)

I. Background

Plaintiff, an incarcerated inmate in the Arizona State Prison Complex-Yuma ("Yuma") in the custody of the Arizona Department of Corrections ("ADOC"), San Luis, Arizona, commenced this Section 1983 action on July 30, 2012. (Doc. 1) On September 6, 2012, the assigned District Judge screened the Complaint and ordered service upon Defendant Dr. Barcklay ("Defendant") after dismissing the other two named defendants. (Doc. 3 at 5)

Plaintiff alleges an Eighth Amendment medical claim of deliberate indifference against Defendant under 42 U.S.C. § 1983. (Doc. 1 at 3) The Complaint asserts Defendant is employed as a "Health Care Provider, Doctor" with ADOC. (Doc. 1 at 2) Plaintiff contends that, on March 14, 2011, while working at the prison as a plumber, he injured his left middle knuckle. ( Id. ) Plaintiff claims that, after his initial treatment for the injury, he contacted Health Services numerous times for further medical care. ( Id. ) Plaintiff contends Defendant waited until April 19, 2011 to notify Plaintiff she made a request for an "ortho" evaluation. ( Id. ) Plaintiff further claims when he was seen professionally by an orthopedic surgeon on May 5, 2011, the surgeon determined Plaintiff had severed a tendon and, because so much time had elapsed, the chance for a successful surgery and recovery were greatly diminished. ( Id. ) The surgeon performed surgery on Plaintiff's injured hand on June 6, 2011. ( Id. ) Plaintiff alleges Defendant's failure to provide him with adequate and timely medical care for his injury caused him to suffer pain and resulted in diminished use of his hand. ( Id. )

The District Court's docket reflects a Deputy United States Marshal personally served Defendant with a Summons and Complaint on February 14, 2013. (Doc. 6) The docket further reflects Defendant has neither filed an answer nor otherwise responded to the Complaint. Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12 provides, in pertinent part, that "[a] defendant must serve an answer... within 21 days after being served with the summons and complaint." Rule 12(a)(1)(A)(i), Fed.R.Civ.P. On April 12, 2013, nearly two months after service of process, Plaintiff submitted an Application for Entry of Default. (Doc. 11) Three days later and pursuant to Rule 55(a), Fed.R.Civ.P., the Clerk of Court issued an Entry of Default against Defendant "for failure to answer or otherwise plead." (Doc. 12) Pursuant to Rule 55(b)(2), Fed.R.Civ.P., a default damages hearing will be scheduled in the near future. Absent a timely written response to this OSC by Defendant, the Arizona Attorney General's Office, or Defendant's counsel and an equally timely Rule 55(c) motion filed, a default damages hearing will be held before the undersigned Magistrate Judge and a report and recommendation will be made to the assigned District Judge, addressing Plaintiff's request for a default judgment. See TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696-97 (9th Cir. 2001).

II. Motions for Default Judgment

Pursuant to Rule 55(b), Fed.R.Civ.P., Plaintiff now seeks default judgment against Defendant in the amounts of $90, 000.00 for compensatory damages, $150, 000.00 in punitive damages, and $350.00 for Plaintiff's filing fee. (Docs. 15, 18)

Default judgments are governed by Rule 55 of the Federal Rules of Civil Procedure. After a default has been entered by a clerk of court, the well-pleaded factual allegations of a complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); Discovery Communications, Inc. v. Animal Planet, Inc., 172 F.Supp.2d 1282, 1288 (C.D. Cal. 2001). Even if the entry of default is appropriate, it may not be sufficient to entitle a plaintiff to a default judgment against a defendant. A district court must decide "whether the unchallenged facts constitute a legitimate cause of action'" such that a default judgment should be entered. Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2688, at 63 (3d ed. 1998)); see also Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206-08 (5th Cir. 1975) (vacating district court's entry of default judgment because the pleadings were insufficient to support the judgment).

"As a general rule, default judgments are disfavored; cases should be decided upon their merits whenever reasonably possible." Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (citation omitted); see also Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986) (same). "The district court's decision whether to enter a default judgment is a discretionary one." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit Court of Appeals mandates that, in exercising its discretion to award a default judgment, a district court consider the following factors:

(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.

Eitel, 782 F.2d at 1471-72.

"A plaintiff's burden in proving up' damages is relatively lenient." Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). "[F]undamental fairness, required by due process of law, limits the scope of relief... which is, undoubtedly, why Rule 54(c), Fed.R.Civ.P., proscribes that a default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Freemyer v. Kyrene Village II, LLC, 2011 WL 42681, at *3 (D. Ariz. Jan. 6, 2011) (quoting Rule 54(c), Fed.R.Civ.P.) (internal quotation marks omitted). "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, 219 F.R.D. at 498 (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).

If entry of default judgment is appropriate, it "[m]ust not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c); see also In re Ferrell, 539 F.3d 1186, 1192-1193 (9th Cir. 2008) (attorneys' fees and costs may be awarded by default judgment only if the statutory basis for such an award is properly pled in the complaint.). Because the Complaint requests non-liquidated monetary damages, doc. 1 at 7, a default damages evidentiary hearing must be held, requiring Plaintiff to prove his damages allowed by law. See Liberty Media Holdings, LLC v. Vinigay.com, 2011 WL 7430062, at *1 (D. Ariz. Dec. 28, 2011) (citing, e.g., Holtsinger v. Briddle, 2007 WL 1080112, at *1 (E.D. Cal. 2007) ("[W]hen a plaintiff's damages are unliquidated ( i.e., [in]capable of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.