Frank Orlando Wells v. Jeffery Macomber, et al.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 FRANK ORLANDO WELLS, No. 2:25-cv-0521 CSK P 12 Plaintiff, 13 v. ORDER 14 JEFFERY MACOMBER, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding pro se with a civil rights complaint under 42 U.S.C. 18 § 1983. Plaintiff’s motion to reinstate default judgment and strike defendants’ waiver, and 19 defendants’ motion to opt out of the Post Screening ADR Project are before the Court. 20 As discussed below, plaintiff’s motion is denied, and defendants’ motion to opt out is 21 granted. In addition, plaintiff’s complaint is dismissed with leave to amend. 22 I. BACKGROUND 23 On September 11, 2025, the Court screened plaintiff’s complaint and ordered service on 24 defendants. (ECF No. 8.) On October 6, 2025, defendants filed a notice of intent to waive 25 service. (ECF No. 13.) On October 8, 2025, plaintiff filed a motion for default judgment. (ECF 26 No. 14.) On October 15, 2025, the Court denied, without prejudice, plaintiff’s motion for default 27 judgment. (ECF No. 15.) On October 31, 2025, defendants filed their waiver of service. (ECF 28 No. 16.) 1 On November 3, 2025, plaintiff filed a document styled, “Objections to Denial of 2 Judgment of Default and Motion to Reinstate Judgment of Default Request, and Motion to Strike 3 Defendants’ Waiver of Service as Dilatory and Improper.” (ECF No. 17.) 4 On November 5, 2025, the Court referred this case to the Post Screening ADR Project and 5 stayed the case for 120 days. (ECF No. 18.) On November 14, 2025, defendants filed a motion 6 to opt out of the Post Screening ADR Project. 7 II. GOVERNING AUTHORITIES 8 Local Rule 230(j) provides that a party seeking reconsideration shall set forth the material 9 facts and circumstances surrounding the motion for which reconsideration is sought, including: 10 “what new or different facts or circumstances are claimed to exist which did not exist or were not 11 shown upon such prior motion, or what other grounds exist for the motion;” and “why the facts or 12 circumstances were not shown at the time of the prior motion.” Local Rule 230(j). 13 III. PLAINTIFF’S MOTION 14 The Court construes plaintiff’s filing as a motion for reconsideration of the Court’s 15 October 15, 2025 order. Local Rule 230(j). Although plaintiff objects to the waiver process the 16 Court uses to expedite service of process in cases filed by prisoners held in state custody, plaintiff 17 fails to show that he was entitled to entry of Clerk’s default.1 At the time plaintiff filed his 18 motion for default judgment, defendants had indicated their intent to waive service and avoid the 19 time and expense of requiring the U.S. Marshal to serve them. (ECF No. 13.) Thus, under Rule 20 55(a), defendants were entitled to fourteen days’ written notice before plaintiff filed his motion, 21 and plaintiff was required to provide proof that such notice was given. Fed. R. Civ. P. 55(a). 22 Plaintiff provided a proof of service, but it did not reflect that defendants were provided fourteen 23 days’ notice before plaintiff filed his motion. (ECF No. 14 at 3.) 24 Further, defendants filed their waiver of service on October 31, 2025, before the Court 25 received plaintiff’s motion for reconsideration containing plaintiff’s objections. The waiver [26] 27 1 Although plaintiff points out that Rule 4(d)(1) provides that plaintiffs may notify defendants of the commencement of an action and request that the defendant waive service of a summons, Rule 28 4(d) does not prohibit the Court from doing so. 1 provided defendants sixty days from October 6, 2025, to file a responsive pleading. (ECF No. 2 16.) Because the deadline for filing a responsive pleading had not run by November 14, 2025, the 3 date plaintiff filed his motion for reconsideration and objections, the entry of Clerk’s default 4 remained inappropriate. Fed. R. Civ. P. 4(d), 12. The entry of default by the Clerk is required 5 before plaintiff may seek default judgment. Fed. R. Civ. P. 55(a). Subsequently, the action was 6 stayed on November 5, 2025, which relieved defendants of their obligation to file a responsive 7 pleading until the stay was lifted. (ECF No. 18.) The Court finds that any alleged delay incurred 8 by the Court’s use of the waiver process is not relevant to whether plaintiff was entitled to default 9 judgment. Therefore, plaintiff’s objections are overruled. 10 Importantly, it is well-established that policies favor resolution of cases on their merits 11 and generally disfavor default judgments. See United States v. Signed Pers. Check No. 730 of 12 Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (“Crucially, . . . judgment by default is a 13 drastic step appropriate only in extreme circumstances; a case should, whenever possible, be 14 decided on the merits”) (citations and quotation marks omitted); Westchester Fire Ins. Co. v. 15 Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As a general rule, default judgments are 16 disfavored; cases should be decided upon their merits whenever reasonably possible”). 17 The Court finds that plaintiff failed to show new or different facts or circumstances 18 support reconsideration of the October 15, 2025 order. Local Rule 230(j). Therefore, plaintiff’s 19 motion (ECF No. 17) is denied in its entirety. 20 IV. DEFENDANTS’ MOTION 21 On November 14, 2025, both defendants filed a motion to opt out of the referral to the 22 Court’s Post-Screening Early ADR (“Alternative Dispute Resolution”). (ECF No. 19.) After 23 reviewing defendants’ motion, and good cause appearing, defendants’ motion is granted, and the 24 stay of this action (ECF No. 18) is lifted. 25 V. LEAVE TO AMEND 26 In the motion to opt out, defense counsel points out that plaintiff sued both defendants in 27 their official capacity, and when counsel spoke with plaintiff and informed him of their position 28 that they are immune from this action under the Eleventh Amendment, plaintiff agreed to amend 1 the complaint to sue defendants in their individual capacities. The parties agreed that ADR is 2 premature until plaintiff amends the complaint. 3 Defendants are correct that claims for damages against the state, its agencies, or its 4 officers for actions performed in their official capacities are barred under the Eleventh 5 Amendment, unless the state waives its immunity. See Kentucky v. Graham, 473 U.S. 159 , 169 6 (1985). Section 1983 does not abrogate the states’ Eleventh Amendment immunity from suit. 7 See Quern v. Jordan, 440 U.S. 332, 344-45 (1979); see also Hafer v. Melo, 502 U.S. 21 , 30 8 (1991) (clarifying that the Eleventh Amendment does not bar suits against state officials sued in 9 their individual capacities, nor does it bar suits for prospective injunctive relief against state 10 officials sued in their official capacities). Therefore, plaintiff’s complaint is dismissed, and 11 plaintiff is granted leave to file an amended complaint naming defendants in their individual 12 capacity. Plaintiff is advised that this order relieves defendants of their obligation to file a 13 responsive pleading until plaintiff files an amended complaint and the Court screens the amended 14 complaint under 28 U.S.C. § 1915A. 15 VI. MOTION TO AMEND 16 On November 19, 2025, plaintiff filed a motion to amend the complaint, along with a 17 “Proposed First Amended Complaint.” (ECF Nos. 20, 21.) However, neither of these documents 18 were signed by plaintiff. Parties proceeding without counsel are required to sign all pleadings, 19 motions, and other papers submitted to the court for filing. Fed. R. Civ. P. 11(a). In addition, 20 plaintiff’s “Proposed First Amended Complaint” is not a true complaint, but rather plaintiff’s 21 description of how he intends to amend, and his request for an extension of time to file an 22 amended complaint. (ECF No. 21.) Ordinarily, the Court would require plaintiff to refile his 23 documents bearing his signatures. However, in light of this order dismissing plaintiff’s complaint 24 and granting him leave to amend, plaintiff does not need to re-file his motion to amend, and no 25 longer needs an extension of time to amend. Therefore, the Court disregards plaintiff’s unsigned 26 motion to amend and proposed first amended complaint. (ECF Nos. 20, 21.) 27 /// 28 /// 1 | VII. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion (ECF No. 17), construed as a motion for reconsideration, is denied. 4 2. Defendants’ motion to opt out (ECF No. 19) is granted. 5 3. The Court’s stay of this action (ECF No. 18) is lifted. 6 4. Plaintiffs complaint is dismissed. 7 5. Within thirty days from the date of this order, plaintiff shall complete the attached 8 Notice of Amendment and submit the following documents to the court: 9 a. The completed Notice of Amendment; and 10 b. An original of the Amended Complaint. 11 | Plaintiffs amended complaint shall comply with the requirements of the Civil Rights Act, the 12 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 13 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 14 | Failure to file an amended complaint in accordance with this order may result in the dismissal of 15 || this action. 16 6. Plaintiff's November 19, 2025 motion to amend and proposed first amended complaint 17 | (ECF Nos. 20, 21), which are unsigned, are disregarded. [18] 19 | Dated: November 24, 2025 A aA Aan Spe | CHI SOO KIM 71 UNITED STATES MAGISTRATE JUDGE 9 /A/well0521 rec.opt [6] 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA [9] FRANK ORLANDO WELLS, No. 2:25-cv-0521 CSK P [10] Plaintiff, [11] v. 12 NOTICE OF AMENDMENT JEFFERY MACOMBER, et al., [13] Defendants. [15] Plaintiff submits the following document in compliance with the court’s order [16] filed on ______________ (date). [18] Amended Complaint [19] (Check this box if submitting an Amended Complaint) [20] DATED: 21 ________________________________ Plaintiff