Develder v. Hirshler et al

Filing 33

ORDER signed by Magistrate Judge Edmund F. Brennan on 09/04/14 denying 32 Motion for Reconsideration. If plaintiff wishes to file an amended complaint as discussed in the order of 06/23/14, he shall do so within 21 days of the service of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. DEVELDER,

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Plaintiff,

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v.

No. 2:09-cv-1803-EFB P

ORDER

J. HIRSHLER, et al.,

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Defendants.

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This matter is before the court on plaintiff’s request for reconsideration.1 Plaintiff filed a

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written consent to have a magistrate judge conduct all further proceedings in this case. ECF No.

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4. Thereafter, plaintiff filed motions for entry of a default judgment against defendant J.

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Hershler. ECF Nos. 21 and 24. Those motions were denied by the assigned magistrate judge.

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ECF No. 22 (denying motion without prejudice due to insufficiency of the allegations as the the

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claim as to Hirshler and for failure to submit proof of damages) and 27 (denying renewed motion

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for failure to comply with 50 U.S.C. App. § 521(b)(1)). The order denying the second motion

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directed that the motion for default judgment be served on Hirshler. Plaintiff subsequently

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submitted the affidavit required by § 521(b)(1). Further, the motion was served on Hirshler but

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Hirshler failed to respond. Thus, the court addressed the question of whether, based on the

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983.
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allegation of the complaint and the evidence submitted by plaintiff, plaintiff is entitled to a default

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judgment. As stated in the court’s order, the plaintiff’s most recent motion for default judgment

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included factual allegation, which if contained in the complaint might have supported the granting

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of the motion, but that a default judgment may only be based on the facts alleged in the

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complaint. ECF No 31. Accordingly, the court again denied plaintiff’s motion but granted

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plaintiff leave to amend his complaint to include the missing factual assertions. Plaintiff now

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seeks reconsideration of that order by a district judge. ECF No. 32. For the reasons that follow,

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the motion must be denied.

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As an initial matter, plaintiff previously consented to have a magistrate judge conduct all

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proceedings and enter judgment under 28 U.S.C. § 636(c). ECF No. 5. Therefore, his request for

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reconsideration must be presented to the assigned magistrate judge. Gil v. Office of the Dist.

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Atty., No. 2:13-cv-2609 KJN P, 2014 U.S. Dist. LEXIS 27691, at *1-2 (E.D. Cal. Feb. 24, 2014).

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Accordingly, plaintiff’s motion will be construed as a request for reconsideration by the

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undersigned.

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As to the merits, plaintiff’s motion must be denied. He contends that the June 23rd order

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denying his motion for default judgment is inconsistent with the court’s prior order of September

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30, 2013 (ECF No. 27). That order stated that plaintiff was entitled to a “determination” of

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defendant Hirshler’s liability based on his failure to appear. ECF No. 27 at 4. The fact that a

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defendant is in default permits the court to assume as true the well pleaded facts of the complaint,

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but it in no way eliminated the requirement that the factual allegations be sufficient to support the

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entry of a judgment on the claim asserted. As the court noted in the June 23rd order, a

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determination of whether defendant may be held liable must be premised on the facts plaintiff

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pleaded in the complaint. The court has found that plaintiff’s complaint failed to plead facts

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showing that defendant Hirshler “had the requisite ‘deliberately indifferent’ mindset upon which

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Eighth Amendment liability may be imposed.” ECF No. 22 at 4. While plaintiff has alleged in

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his motion (as opposed to the complaint) facts showing deliberate indifference, these facts must

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be contained in the complaint itself to support entry of a default judgment. This was explained in

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the most recent order denying plaintiff’s motion. ECF No. 31 at 4-5.
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The court finds no justification for changing its order denying plaintiff’s motion for

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default judgment. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

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880 (9th Cir. 2009) (noting that reconsideration should not be granted absent newly discovered

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evidence, clear error, or intervening change in the law).

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The July 9, 2014 motion for reconsideration is therefore DENIED. If plaintiff wishes to

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file an amended complaint as discussed in the order of June 23, 2014, he shall do so within 21

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days of the service of this order.

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So ordered.

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Dated: September 4, 2014.

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