Sotelo v. Birring, et al.

Filing 126

FINDINGS and RECOMMENDATIONS Recommending 122 Motion to Set Aside Entry of Default be Granted; Ten-Day Objection Deadline signed by Magistrate Judge Sheila K. Oberto on 6/13/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/27/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO A. SOTELO,

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Plaintiff,

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CASE NO. 1:08-cv-01342-LJO-SKO
FINDINGS AND RECOMMENDATIONS
RECOMMENDING MOTION TO SET ASIDE
ENTRY OF DEFAULT BE GRANTED

v.
T. BIRRING, et al.,

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(Doc. 122)
Defendants.

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TEN-DAY OBJECTION DEADLINE
/

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Findings and Recommendations Recommending
Motion to Set Aside Entry of Default be Granted

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I.

Procedural History

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Plaintiff Roberto A. Sotelo, a state prisoner proceeding in forma pauperis, filed this civil
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rights action pursuant to 42 U.S.C. § 1983 on September 10, 2008. This action is proceeding on
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Plaintiff’s second amended complaint, filed March 22, 2012, against Defendant Barry J. Green for
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acting with deliberate indifference to Plaintiff’s medical needs, in violation of the Eighth
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Amendment of the United States Constitution.
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On January 3, 2013, following the execution of personal service and Defendant’s failure to
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file a timely response to the complaint, the Clerk of the Court entered default against Defendant.
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Fed. R. Civ. P. 55(b)(1). Pending before the Court is Defendant’s motion to set aside entry of
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default, filed on April 4, 2013. Plaintiff did not file an opposition.
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II.

Discussion

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A.

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As a general rule, default is disfavored and cases should be decided on their merits whenever

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reasonably possible. Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009)

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(quotation marks omitted); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 693 (9th Cir. 2001);

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Eitel v. McCool, 782 F.3d 1470, 1472 (9th Cir. 1986). The Court may set aside entry of default for

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good cause, Fed. R. Civ. P. 55(c) (quotation marks omitted), which requires consideration of three

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factors: (1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious

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defense, and (3) whether culpable conduct of the defendant led to the default, Brandt v. American

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Bankers Ins. Co. of Florida, 653 F.3d 1108, 1111 (9th Cir. 2011) (citing Falk v. Allen, 739 F.2d 461,

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463 (9th Cir. 1984)) (quotation marks omitted).

Legal Standard

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B.

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In this case, no prejudice to Plaintiff has been shown. The standard is whether Plaintiff’s

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ability to pursue his claim will be hindered, Falk, 739 F.2d at 463 (quotation marks omitted), and

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neither mere delay nor merely having to litigate on the merits constitutes prejudice, TCI Group Life

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Ins. Plan, 244 F.3d at 701 (quotation marks omitted). Plaintiff did not oppose the motion to set aside

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entry of default, Plaintiff previously signed a stipulation to set aside default, and there is simply no

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other support in the record for a finding of prejudice.1 Thus, the first factor weighs in favor of setting

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aside the entry of default.

Prejudice to Plaintiff

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C.

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With respect to the existence of a meritorious defense, the burden “is not extraordinarily

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heavy,” TCI Group Life Ins. Plan, 244 F.3d at 700, and Defendant has submitted a declaration that

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his treatment of Plaintiff was reasonable and consistent with the accepted standard of care, Doc. 122-

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2, Green Dec., ¶8.

Meritorious Defense

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For an Eighth Amendment claim arising out of medical care in prison, Plaintiff “must show

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(1) a serious medical need by demonstrating that failure to treat [his] condition could result in further

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On January 23, 2013, the Court issued an order informing the parties that they may not stipulate to setting
aside the entry of default and requiring Defendant to file a motion demonstrating good cause. (Doc. 121.)

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significant injury or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s

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response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th

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Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). “A difference of opinion

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between a physician and the prisoner - or between medical professionals - concerning what medical

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care is appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978,

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987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d

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at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must

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show that the course of treatment the doctors chose was medically unacceptable under the

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circumstances and that the defendants chose this course in conscious disregard of an excessive risk

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to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks

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omitted).

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Therefore, a showing that the medical care delivered by Defendant fell within the accepted

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standard of care is sufficient to demonstrate the existence of a potentially meritorious defense and

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this factor also weighs in favor of setting aside entry of default.

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D.

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Finally, Defendant has provided a detailed explanation regarding the steps he took once his

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wife was served with the summons and complaint at their residence. Those steps included notifying

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Doctor Boparai, the Chief Physician and Surgeon who had been Defendant’s boss when he worked

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at the prison, and contacting the Registry of Physician Services, which was Defendant’s employer

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when he worked at the prison. Defendant believed nothing further was required of him at the time,

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and when he was subsequently notified that he needed to complete a request for representation, he

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did so.

Culpable Conduct by Defendant

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Conduct is considered culpable where no explanation inconsistent with a devious, deliberate,

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willful, or bad faith failure to respond is provided. TCI Group Life Ins. Plan, 244 F.3d at 698

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(quotation marks omitted). Here, the events leading to the entry of default support a finding of

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excusable neglect rather than any sort of willful misconduct. Id. at 697-99. As there is no evidence

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in the record that Defendant acted in bad faith or in an otherwise culpable manner, the third and final

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factor also supports setting aside entry of default.
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III.

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Recommendation
Accordingly, with all three factors weighing in favor of setting aside the entry of default, the

Court HEREBY RECOMMENDS that Defendant’s motion be GRANTED.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

June 13, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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