Gil v. Yates et al

Filing 71

ORDER to SHOW CAUSE signed by Magistrate Judge Dennis L. Beck on 11/6/2012. Show Cause Response due by 1/9/2013.(Lundstrom, T)

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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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Plaintiff,
v.

Case No.1:09-cv-00552-AWI-DLB PC
ORDER TO SHOW CAUSE
RESPONSE DUE WITHIN SIXTY DAYS

AMADI, et al.,
Defendants.

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Plaintiff Francisco Gil (“Plaintiff”) is a former California state prisoner proceeding pro se

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

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against Defendant Amadi for deliberate indifference to a serious medical need in violation of the

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Eighth Amendment. On March 16, 2012, default was entered against Defendant Amadi. ECF No.

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60. However, the Court denied Plaintiff’s motion for default judgment against Defendant Amadi,

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finding that Plaintiff had failed to present sufficient evidence that Defendant Amadi caused Plaintiff

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harm. Plaintiff has not further prosecuted this action.

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Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the Court’s inherent

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power, the Court may dismiss an action with prejudice sua sponte for failure to prosecute. Link v.

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Wabash R. Co., 370 U.S. 626, 629-30 (1962) (“The authority of a federal trial court to dismiss a

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plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted.[]

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The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of

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pending cases and to avoid congestion in the calendars of the District Courts.”).
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This case was initiated on March 24, 2009, and has been pending for over three years as of

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the date of this order. Default was entered against Defendant Amadi on March 16, 2012. However,

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Plaintiff has not further prosecuted this action for over seven months. “A party seeking a default

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judgment must state a claim upon which it may recover.” Philip Morris USA, Inc. v. Castworld

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Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). “If the Plaintiff is seeking money damages,

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however, the Plaintiff must ‘prove-up’ its damages.” Amini Innovation Corp. v. KTY Intern.

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Marketing, 768 F. Supp. 2d 1049, 1053 (C.D. Cal. 2011). Damages are not admitted. Geddes v.

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United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). Factors that the Court may consider in

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determining whether to grant or deny an application for default judgment include

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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.

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Eitel v. McCool, 782 F.3d 1470, 1471-72 (9th Cir. 1986). The Court cannot allow for undue delays

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in this action.

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Accordingly, it is HEREBY ORDERED that Plaintiff is to show cause within sixty (60)

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days1 why this action should not be dismissed for failure to prosecute. If Plaintiff intends to show

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cause, Plaintiff will be required to demonstrate how he is entitled to default judgment against

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Defendant Amadi. If Plaintiff fails to show cause or otherwise respond, the Court will dismiss this

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action with prejudice for failure to prosecute.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

November 6, 2012

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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Plaintiff currently resides in Mexico, and contends that the postal service in Mexico is often delayed. The Court thus
provides Plaintiff with appropriate time to respond to the Court’s order.

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