Gil v. Yates et al

Filing 79

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 31 Action for Failure to Prosecute; Objections, if any, Due within Thirty Days signed by Magistrate Judge Dennis L. Beck on 4/20/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 5/28/2013. (Sant Agata, S)

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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.

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JAMES A. YATES, et al.,

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Defendants.

Case No. 1:09-cv-00552-AWI-DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION FOR FAILURE TO PROSECUTE
ECF No. 71
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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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 and negligence. ON

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March 16, 2012, the Clerk of the Court entered default against Defendant Amadi for failure to

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respond to Plaintiff’s complaint. However, Plaintiff has not further prosecuted this action against

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Defendant Amadi. On November 6, 2012, the Court issued an Order to Show Cause why this action

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should not be dismissed for failure to prosecute. On February 25, 2013, the Court received

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Plaintiff’s response to the Order to Show Cause. ECF No. 77.

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This case was initiated on March 24, 2009, and has been pending for over four years as of the

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date of this order. Default was entered against Defendant Amadi on March 16, 2012. “A party

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

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

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

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

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v. 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.
Plaintiff submits in his response what he considers proof of Defendant Amadi’s conduct in

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causing Plaintiff harm. Plaintiff submits his medical records. However, Plaintiff is not a medical

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professional and thus cannot testify or provide explanation as to the medical cause of any medical

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issues that Plaintiff suffered. The Court is not in a position to meaningfully interpret Plaintiff’s

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medical records to determine whether Defendant Amadi caused harm to Plaintiff.

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The Court does not find that default judgment should be entered against Defendant Amadi.

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Plaintiff has been unable to further prosecute his action against Defendant Amadi. Accordingly, the

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undersigned HEREBY RECOMMENDS dismissal of this action for failure to prosecute. Fed. R.

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Civ. P. 41(b).

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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 28 U.S.C. § 636(b)(1). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff 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.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

April 20, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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