United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff
is a state prisoner, proceeding through counsel, with a civil
rights action. Plaintiff's motion for default judgment
against “defendant Nunez-Ramirez”
(“Nunez”) is pending. The remaining defendants
(except defendant Johnson) filed an opposition to the motion
for default judgment being entered at this stage of the
proceedings. As set forth below, the undersigned recommends
that plaintiff's motion be denied without prejudice.
I.
Plaintiff's Fourth Amended Complaint
This
action proceeds on plaintiff's fourth amended complaint.
(ECF No. 104.) Plaintiff's claims against defendant
Nunez, a mailroom staff member at CSP-SAC, who also conducted
an informal level review of plaintiff's second 602 appeal
(ECF No. 104 at 14), are raised in plaintiff's first and
second causes of action.
In his
first cause of action, plaintiff alleges that defendants
Bradford, Morrow, Johnson, Walker, Virga, Donahoo, Nunez,
Gaddi, Quinn, Pool and Does 1-11 violated plaintiff's
right to access the courts in violation of the First and
Fourteenth Amendments. (ECF No. 104 at 20-21.) Plaintiff
alleges, inter alia, that defendant Pool prevented
plaintiff from using the inmate appeal system to proceed with
his denial of access to the courts claims arising from the
conduct of the remaining defendants. (ECF No. 104 at 24.)
“As a result, [plaintiff] was not able to challenge his
unconstitutionally increased sentence in light of the Ninth
Circuit's opinion in Butler v. Curry, ”
“constitut[ing] active interference with
[plaintiff's] right of access to the courts, and resulted
in a loss of a substantial, nonfrivolous claim.”
(Id.)
In his
second cause of action, plaintiff alleges that defendants
Johnson, Walker, Virga, Donahoo, Nunez, Gaddi, Quinn and Does
1-11, wrongfully withheld plaintiff's mail without notice
and with no legitimate penological reasons, from November 8,
2007, through July 29, 2008. (ECF No. 104 at 25.)
II.
Default Judgment
A.
Standards
Once
default has been entered, the plaintiff may apply to the
Court for entry of default judgment pursuant to Rule 55(b)(2)
of the Federal Rules of Civil Procedure. Generally, default
judgments are disfavored. See Eitel v. McCool, 782
F.2d 1470, 1472 (9th Cir. 1986). The choice whether a default
judgment should be entered is at the sole discretion of the
district court. See Aldabe v. Aldabe, 616 F.2d 1089,
1092 (9th Cir. 1980); Lau Ah Yew v. Dulles, 236 F.2d
415, 416 (9th Cir. 1956) (“It is conceded that the
grant or denial of a motion for the entry of a default
judgment is within the discretion of the court.”). A
defendant's default alone does not entitle a plaintiff to
a court-ordered judgment. See Aldabe, 616 F.2d at
1092. Instead, the Ninth Circuit has determined that a court
should look at seven discretionary factors before rendering a
decision on default judgment. See Eitel, 782 F.2d at
1471-72. Such factors are: (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. Id. In applying
these Eitel factors, “the factual allegations
of the complaint, except those relating to the amount of
damages, will be taken as true.” Geddes v. United
Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).
The
Court must also be satisfied that service was proper and that
the Court possesses personal jurisdiction over the defendant.
See, e.g., Tuli v. Republic of
Iraq, 172 F.3d 707, 712 (9th Cir. 1999).
B.
Discussion
First,
the undersigned expresses concern about the true name of
defendant Nunez. Plaintiff accomplished service of process on
defendant “Jolene Nunez” on June 13, 2018, and
filed a proof of service of summons attesting to proper
service. (ECF No. 125.) Therefore, the Court possesses
personal jurisdiction over defendant “Jolene
Nunez.” The Clerk entered default against defendant
“Nunez” on October 3, 2018. (ECF No. 142; see
also ECF No. 141.) Indeed, counsel for plaintiff
requested that default be entered against defendant
“Jolene Nunez.” (ECF No. 139.)
Now
plaintiff moves for default judgment against defendant
“Jolene Nunez-Ramirez, ” including “J.
Nunez-Ramirez” as a named defendant in the caption, and
claiming that “Jolene Nunez-Ramirez” was named in
the fourth amended complaint. (ECF No. 152 at 7.) Indeed, it
appears that counsel substituted the name
“Nunez-Ramirez” for Nunez, but without any
explanation, formal or otherwise, demonstrating that
“Jolene Nunez-Ramirez” is the same person as
“Jolene Nunez.” If plaintiff wishes to obtain a
judgment in the name of Jolene Nunez-Ramirez in a case where
the operative pleading asserts allegations against a
defendant “Nunez, ” service of process was
accomplished on “Jolene Nunez, ” and a
clerk's default was entered as to defendant “Nunez,
” arguably some evidence is required to demonstrate
they are one and the same person. In the alternative,
plaintiff could seek judgment in the name of Jolene Nunez,
but if Ms. Nunez has indeed changed her name or married,
plaintiff may have difficulty enforcing such judgment.
Because the record is unclear that defendant Jolene
Nunez-Ramirez is the same person as Jolene Nunez, the
undersigned recommends that plaintiff's motion be denied
without prejudice to renewal upon a proper showing as to the
defaulting defendant's true name. It is unclear whether
plaintiff is required to amend the complaint to identify
defendant Nunez by her true name, or whether the parties may
stipulate to have defendant Nunez's true name
interlineated by court order.
Second,
in his motion, plaintiff seeks $437, 775.00 in compensatory
damages, calculated by subtracting plaintiff's cumulative
2020 earnings from his cumulative 2008 earnings, and adding
interest at the rate of 2.54 percent per year. (ECF No. 152
at 27-28.) Plaintiff also seeks nominal damages “as
symbolic vindication for Nunez-Ramirez's unconstitutional
withholding of his mail.” (ECF No. 152 at 28.) However,
since the filing of plaintiff's motion, plaintiff's
habeas petition was denied over his newly-considered
objections.[1] The court agrees that plaintiff's
access to the courts claim is not barred by Heck,
[2] as
discussed in the December 5, 2019 findings and
recommendations. But it appears disingenuous for plaintiff to
seek damages based on lost wages allegedly sustained
“while imprisoned as a result of the withholding of his
mail and denied access to the court” (ECF No. 152 at
22), when plaintiff argued in opposition to defendants'
motion for judgment on the pleadings that plaintiff was not
seeking damages for wrongful incarceration but is pursuing
such relief through habeas. In his reply, plaintiff argues
that even if the court concludes the compensatory damages
figure sought “is inaccurate in any way, ” such
finding “should not prevent an entry of default
judgment against defendant Nunez-Ramirez for at least nominal
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