Gil v. Yates et al

Filing 59

ORDER DIRECTING Clerk of the Court to Enter Default Against Defendant Amadi and DENYING 57 Entry of Default Judgment, signed by Magistrate Judge Dennis L. Beck on 3/15/2012. Plaintiff's Motion for Entry of Default Judgment is Denied Without Prejudice. The Clerk of the Court is to Enter Default Against Defendant Amadi. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FRANCISCO GIL,

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CASE NO. 1:09-CV-00552-AWI-DLB PC
Plaintiff,

ORDER DIRECTING CLERK OF THE
COURT TO ENTER DEFAULT AGAINST
DEFENDANT AMADI AND DENYING
ENTRY OF DEFAULT JUDGMENT

v.
DOCTOR AMADI, et al.,

(DOC. 57)
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Defendants.

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Plaintiff Francisco Gil (“Plaintiff”) was formerly in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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on Plaintiff’s amended complaint, filed March 18, 2010, against Defendant Amadi for deliberate

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indifference in violation of the Eighth Amendment and negligence. On May 11, 2011, the Court

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directed the United States Marshal to effect service of process on Defendant Amadi. On August

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15, 2011, Defendant Amadi filed a waiver of service. Doc. 50. Defendant Amadi acknowledged

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receipt of the complaint and summons. As of the date of this order, Defendant Amadi has not

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filed an answer or otherwise responded.

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On December 19, 2011, Plaintiff filed a motion for entry of default and default judgment

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against Defendant Amadi. Doc. 57. Defendant Amadi has not responded to this motion. The

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matter is submitted pursuant to Local Rule 230(l).
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I.

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Entry Of Default
Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a

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judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure

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is shown by affidavit or otherwise, the clerk must enter the party’s default.” Defendant Amadi

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filed a waiver of service, acknowledging service of process, but did not plead or otherwise

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defend. Plaintiff submits his motion, verified under penalty of perjury, as an affidavit in support.

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Accordingly, it is HEREBY ORDERED that the Clerk of the Court is to enter default against

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Defendant Amadi.

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II.

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Default Judgment
Plaintiff seeks default judgment against Defendant Amadi. Plaintiff submits over two

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hundred pages of exhibits, which purports to demonstrate the extent of Plaintiff’s damages.

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Plaintiff seeks two million dollars as monetary damages, both compensatory and punitive, and

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costs of suit.

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Plaintiff submits documents concerning his alleged medical condition in 2002,

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crime/incident reports concerning when he was injured in January of 2006, and his numerous

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grievances concerning his alleged medical treatment afterwards. Plaintiff alleges that on

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February 25, 2009 Defendant Amadi allegedly examined Plaintiff’s MRI and x-rays, and despite

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Plaintiff’s extensive injuries, concluded that Plaintiff would not receive needed surgery because

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surgery was too expensive.

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In entering default judgment, the party must apply to the court. Fed. R. Civ. P. 55(b)(2).

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The factual allegations are admitted. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986).

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Damages are not admitted. Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).

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The defaulting party is entitled to be heard on the matter. Fed. R. Civ. P. 55(b)(2).

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Plaintiff’s submitted documents indicate a long history of complaints regarding his

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medical care at CDCR. However, these documents do not demonstrate the damage allegedly

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caused by Defendant Amadi, if any. It is unclear if Defendant Amadi was involved in treating

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Plaintiff, and whether Defendant Amadi caused any harm. Plaintiff has not made a showing that

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he is entitled to default judgment. The Court lacks sufficient evidence to determine damages
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based on the record. Accordingly, Plaintiff’s motion for entry of default judgment is denied

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without prejudice.

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IT IS SO ORDERED.
Dated:
3b142a

March 15, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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