United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He has filed a motion
for entry of default judgment against defendants Hein, Green,
Vale, McHenry, Cherry, and Belchamber. ECF No.
For the reasons that follow, the motion is denied.
this court is required to screen plaintiff’s
allegations and dismiss them if it determines that they fail
to state a claim on which relief may be granted. 28 U.S.C.
§ 1915A; 28 U.S.C. § 1915(e)(2). After review of
his complaint, the court finds that the excessive force
incident which gives rise to this action appears to fall
outside the statute of limitations. Accordingly, as discussed
below, plaintiff is ordered to show cause why this action
should not be dismissed as time-barred.
alleges that, on an unspecified date, defendant officers at
the Sacramento Main County Jail ordered him to lie on a bed
in order to receive a medical injection. ECF No. 1 at 3.
After this instruction was given he claims that, suddenly and
without warning, the officers ‘bum-rushed’ and
‘man-handled’ him. Id. Plaintiff alleges
that the force applied was excessive and left him with a
broken shoulder. Id. He seeks compensation in the
amount of 2.2 million dollars for his injuries. Id.
Default and Default Judgment
order to obtain a default judgment against a party, the
Federal Rules of Civil Procedure first require that the party
seeking the judgment ask the court clerk to enter the
defendant’s default under Federal Rule of Civil
Procedure 55(a). Eitel v. McCool, 782 F.2d 1470,
1471 (9th Cir. 1986). That rule provides: “When a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s default.” On August 26, 2015, the Clerk
of Court entered the default of defendants Hein, Green, Vale,
McHenry, Cherry, and Belchamber after each defendant, despite
having been served, failed to answer the complaint. ECF No.
20. As defendants are in default, the court must determine
whether a default judgment against them is appropriate.
Rule of Civil Procedure 55(b)(1) provides that, where the
plaintiff seeks “a sum certain or a sum that can be
made certain by computation” and provides an affidavit
showing the amount due, the clerk must enter judgment for
that amount and costs against a defendant who has been
defaulted. However, “[i]n all other cases, the party
must apply to the court for a default judgment.”
Fed.R.Civ.P. 55(b)(2). “The court may conduct hearings
or make referrals . . . when, to enter or effectuate
judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of
any allegation by evidence; or (C) investigate any other
claim is not a sum certain unless no doubt remains as to the
amount to which a plaintiff is entitled as a result of the
defendant’s default.” Franchise Holding II,
LLC v. Huntington Rests. Group, Inc., 375 F.3d 922,
928-29 (9th Cir. 2004) (following the First Circuit’s
definition of “sum certain” as set out in KPS
& Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1,
17-21 (1st Cir. 2003)). Plaintiff alleges that
defendants’ application of excessive force broke his
shoulder and subjected him to unnecessary pain and suffering.
ECF No. 1 at 3. He claims that, as of the date of the
complaint’s filing, he does not have full use of his
arm and shoulder. Id. at 4. The amount of
compensation due for such an injury is subject to
considerable doubt and thus the damages sought herein are not
of a “sum certain” under Federal Rule of Civil
the court has discretion as to whether to enter a default
judgment against defendants.
Factors which may be considered by courts in exercising
discretion as to the entry of 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.
Eitel, 782 F.2d at 1471-72.
general rule, once default is entered, well-pleaded factual
allegations in the operative complaint are taken as true,
except for those allegations relating to damages.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (per curiam) (citing Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)
(per curiam)); see also Fair Housing of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although
well-pleaded allegations in the complaint are admitted by a
defendant’s failure to respond, “necessary facts
not contained in the pleadings, and claims which are legally
insufficient, are not established by default.”
Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261,
1267 (9th Cir. 1992) (citing Danning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord
DIRECTV, Inc. v. Huynh, 503 F.3d 847, 854 (9th Cir.
2007) (“[A] defendant is not held to admit facts that
are not well-pleaded or to admit conclusions of law”
(citation and quotation marks omitted)); Abney v.
Alameida, 334 F.Supp.2d 1221, 1235 (S.D. Cal. 2004)
(“[A] default judgment may not be entered on a legally
insufficient claim.”). Thus, a party’s default
conclusively establishes that party’s liability on
sufficiently-pleaded claims, but does not establish the
amount of damages. Geddes, 559 F.2d at 560; see
also Adriana Int’l Corp. v. Thoeren, 913 F.2d
1406, 1414 (9th Cir. 1990); Doe v. Rafael Saravia,
348 F.Supp.2d 1112, 1143 (E.D. Cal. 2004). To obtain a
default judgment against a defendant for a claim for
uncertain damages, the plaintiff must prove the amount of
damages he seeks. Shanghai Automation Instrument Co.,
Ltd. v. KUEI, 194 F.Supp.2d 995, 1010 (N.D. Cal. 2001).
weighing the Eitel factors, the court finds that
default judgment is not appropriate at this time. It is true
that plaintiff would be prejudiced if default judgment were
denied, as he would be deprived of damages from the
defendants who have failed to appear. His allegations,
accepted as true, also establish that defendants used
excessive force to restrain him. The court finds, however,
that both the 2.2 million dollars sought in damages and
plaintiff’s failure to prove or even explain how he
arrived at that figure weigh against granting his motion.
Additionally, in the court’s experience, the facts
required to establish ...