The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a prisoner incarcerated in South Carolina proceeding pro se, this case having been removed to federal court from Sacramento County Superior Court on August 20, 2010, pursuant to 28 U.S.C. §§ 1441 and 1442. See Docket # 1. By Order, filed on March 9, 2011, plaintiff's motion for a default judgment against defendant Defense Technology U.S., filed on December 16, 2010 (Docket # 40), was denied.*fn1 See Docket # 53. Plaintiff was ordered to show cause within twenty-one days, why this case should not be dismissed on the grounds of res judicata or duplicativeness. Plaintiff's response was filed on April 11, 2011.*fn2
As set forth in the March 9, 2011, show cause order, noted at docket # 36, on November 22, 2010, is the Clerk's Entry of Default as to Defense Technology U.S.*fn3
Plaintiff was previously informed that Fed. R. Civ. P. 55 governs an entry of a default judgment. Philip Morris USA,Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C. D. Cal. 2003). But it is within the district court's discretion whether or not to enter a default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980).
Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (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.
[i]n order to obtain the entry of a default judgment ...[p]laintiff must prove the amount of damages to which [he] is entitled. See Shop Ironworkers Local 79 Pension Trust v. United Safe, Inc., No. C99-2745 VRW, 1999 WL 638504, *2 (N.D.Cal. Aug.18, 1999); see also Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944).
Shanghai Automation Instrument Co., Ltd. v. KUEI, et al., 194 F.Supp.2d 995, 1010 (N.D. Cal. 2001). See Order, filed on March 9, 2011 (docket # 53), p. 2.
Plaintiff was cautioned that the court had found his assertion of entitlement to a judgment of $200,000.00 in compensatory damages and $700,000.00 in punitive damages against defendant to be "bare, cursory and unsupported" and "woefully inadequate." Docket # 53, pp. 2-3. In his response, plaintiff references various paragraphs in his original complaint to substantiate his damages claims. Plaintiff's response, filed on April 11, 2011 (docket # 58), p. 2. Within those paragraphs, however, plaintiff alleges generally the various harmful effects of mace and claims the defendant is failing to disclose enough information about the use of their product. See Complaint, pp. 4-6. When plaintiff finally comes to the incident at issue, the August 9, 2008, spraying in which plaintiff claims he was intentionally left on the wing to be harmed by it, plaintiff fails to provide concrete evidence of injuries he actually sustained. Id., at 6-8. He does claim to have been left for several hours in mace-filled air without adequate medical attention suffering from "several painful" but unspecified "side effects." Id., at 8. He makes a claim for damages against all defendants for $300,000.00 in compensatory damages and $1,000,000.00 in punitive damages in the complaint. Id., at 9. Evidently plaintiff has somewhat reduced the damages sought as they are directed only to the defaulting defendant (see above). Plaintiff, however, in asking the court for damages to be adjudged against the defendant in default has failed altogether to provide any basis for the court to assess the amount of injury he has actually suffered. No medical report is submitted, nor is any medical expertise provided to show the extent or cost of treating any injuries actually sustained. In short, plaintiff has failed altogether to provide any foundation for any assessment of damages against the defendant Defense Technology U.S.
Plaintiff also points out that the court's order finding the defendant to be in default was returned (as noted earlier) and he maintains, as the order was served on the same address that plaintiff had served the defendant that the defendant's default is willful and in bad faith and it should be held to account for such misconduct. Response, pp. 1-2. However, plaintiff misinterprets the court's action of denying the assessment of damages plaintiff seeks, wholly without foundation, as setting aside the entry of default. The court has found the defendant to be in default, however, plaintiff has not made the requisite particularized showing to warrant the compensatory and punitive damages he seeks.
In the show cause order, the undersigned expressed significant reservations as to the merits of plaintiff's substantive claim and even as to the sufficiency of the complaint observing that this would constitute grounds for denying a default judgment. Eitel v. McCool, 782 F.2d at 1472. Docket # 53, p. 3. The court also took judicial notice*fn4 that plaintiff had filed at least six other actions around the country concerning alleged incidents of mace spraying to which he has been subjected, just as in the instant action. Id. The undersigned stated that in Bryan v. Campbell, et al., No. CV 10-882-ST, 2010 WL 4641683 *1 (D. Ore. Nov. 4, 2010), plaintiff was noted as a South Carolina prisoner who was alleging that in August 2008 correctional officers sprayed him with mace and medical staff denied him appropriate medical care. Id. A number of other cases this plaintiff had brought were noted therein, which, in addition to the instant one, Bryan v. Defense Technology U.S., et al., 2:10-cv-02241-MCE-GGH, also included:
Bryan v. Russell Campbell, et al., No. 3:10-641-J-99 MMH TEM (filed in the Middle District of Florida and transferred to the District of South Carolina);
Bryan v. Defense Technology U.S., et al., 2:10-cv-00152-ABJ (filed in the District of Wyoming and transferred to ...