Downing v. Gentry

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 CURTIS L. DOWNING, Case No. 2:16-cv-02632-RFB-BNW 8 Plaintiff, ORDER 9 v. 10 JO GENTRY, et al., 11 Defendants. [12] 13 I. INTRODUCTION 14 Before the Court are Plaintiff Curtis L. Downing’s: MOTION for Entry of Clerk’s Default 15 as to Defendant Jose M Navarette (ECF No. 119), MOTION for Entry of Default Judgment (ECF 16 No. 121), and MOTION for Default Judgment (ECF No. 130). 17 For the foregoing reasons, the motions for Entry of Clerk’s Default (ECF No. 119) and 18 Entry of Default Judgment (ECF No. 121) are denied, while the motion for Default Judgment (ECF 19 No. 130) is granted. [20] 21 II. PROCEDURAL BACKGROUND 22 Plaintiff Curtis L. Downing is a pro se prisoner in the custody of the Nevada Department 23 of Corrections (“NDOC”) at the Southern Desert Correctional Center (“SDCC”). On November 24 14, 2016, Plaintiff commenced this action, filing a complaint alleging civil rights violations 25 pursuant to 28 U.S.C. § 1983 . ECF Nos. 1, 6. On October 25, 2017, the Court screened the 26 complaint and allowed Plaintiff’s First Amendment retaliation claim to proceed against 27 “Navatona.” ECF No. 6. On November 8, 2018, the Court ordered for the Clerk of the Court to 28 issue summons for “Navatona,” identified as Jose M. Navarette. ECF No. 47. Navarette was served 1 on December 3, 2018. ECF No. 56. An answer was due on December 24, 2018, but Navarette did 2 not provide any response. Id. 3 On February 21, 2019, Plaintiff filed an amended complaint. ECF No. 64. The amended 4 complaint alleges a First Amendment retaliation claim against, inter alia, Navarette in his 5 individual capacity as an NDOC senior correctional officer. Plaintiff alleges that Navarette took 6 property from him as an act of retaliation. The Court denied Defendants’ Motion Dismiss the 7 amended complaint on March 5, 2020. ECF No. 73.1 On March 25, 2020, Plaintiff filed a “Motion 8 to Amend Complaint,” requesting Jose M. Navarette be added to the amended complaint. ECF No. 9 80. On April 9, 2020, the Court, construing the motion as a Motion for Issuance of Summons and 10 Service, granted in part and denied in part the motion. ECF No. 84. It noted that the Amended 11 Complaint already named Navarette, and that he was successfully served, although he had not 12 responded to Plaintiff’s complaint in any way, despite having been served over one year ago. Id. 13 On July 22, 2022, Plaintiff filed the instant Motion for Entry of Clerk’s Default as to 14 Navarette “for the failure to plead or otherwise defend as provided by Federal Rules of Civil 15 Procedure.” ECF Nos. 119, 120. That same day, Plaintiff filed the instant Motion for Entry of 16 Default Judgment. ECF No. 121. Plaintiff’s motion for entry of default judgment requests that the 17 Clerk of the Court enter judgment in default. Id. Plaintiff also asserts that Navarette was not in the 18 military service of the United States because he believed that Navarette has worked at SDCC since 19 the date of the September 14, 2016 incident. ECF No. 122. Thus, given the lack of an answer or 20 effort to defend in this matter, entry of default against Navarette is in the interest of justice. ECF 21 No. 123. 22 On August 5, 2022, Defendants Rama Akash, Adam Burnside, Frank Dreesen, Jo Gentry, 23 Brian Kerby, John King, Timothy Knatz, Joseph Kobrick, Gillian Lambey, Ana Leos, Rashonda 24 Smith, and Elvin Worthey, represented by the Office of the Attorney General (“OAG”) filed a 25 Response in opposition to these motions. See ECF No. 125. Defendants argue that they have 26 defended against Plaintiff’s claims, and that the OAG does not represent Navarette. As such, [27] 28 1 Defendants filed a notice of appeal of this Court’s denial of the motion to dismiss. ECF No. 88. The Ninth Circuit dismissed the appeal for lack of jurisdiction. See ECF No. 91. 1 Plaintiff’s claims against Navarette should not be imputed against, or otherwise used as a means 2 of proof, against the other Defendants. Additionally, without proof of the identity of Navarette, the 3 State of Nevada, which indemnifies former employees for actions within the course and scope of 4 their employment, would be unable to offer indemnity to Navarette. Therefore, Plaintiff’s Motion, 5 as it pertains to Defendants, should be denied. Plaintiff filed a Reply on August 12, 2022. ECF No. 6 126. Plaintiff responded that he is only seeking default against Navarette. Id. Further, Plaintiff does 7 not oppose that Plaintiff’s entry of default only be imputed against Navarette and not against these 8 Defendants. Id. 9 On August 16, 2022, Plaintiff filed a subsequent Motion for Entry of Clerk’s Default 10 against Navarette, asserting the same bases for the earlier filed motion for entry of clerk’s default. 11 See ECF Nos. 127, 128. On September 8, 2022, the Clerk of the Court entered default against 12 Navarette. ECF No. 129. No opposition was filed by any Defendants, including Navarette. 13 On September 13, 2022, Plaintiff filed a Motion for Default Judgment against Navarette, 14 seeking an award in excess of $10,000.00. ECF No. 130. No opposition was filed by any 15 Defendants. 16 This Order follows. [17] 18 III. DISCUSSION 19 a. Legal Standard 20 Pursuant to the Federal Rules of Civil Procedure, the entry of default is only proper “[w]hen 21 a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise 22 defend” the complaint. Fed. R. Civ. P. 55(a). There is no right to a default judgment; its entry is 23 entirely within the discretion of the district court. See Draper v. Coombs, 792 F.2d 915, 925 (9th 24 Cir. 1986); see also Rashidi v. Albright, 818 F. Supp. 1354 , 1356 n.4 (D. Nev. 1993). Defaults are 25 generally disfavored, Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986), and courts will attempt 26 to resolve motions for entry of default “so as to encourage a decision on the merits.” See McMillen 27 v. J.C. Penney Co., Inc., 205 F.R.D. 557, 558 (D. Nev. 2002) (citing TCI Group Life Ins. Plan v. 28 Knoebber, 244 F.3d 691 , 696 (9th Cir. 2001)). 1 The granting of a default judgment is a two-step process directed by Rule 55 of the Federal 2 Rules of Civil Procedure. Eitel, 782 F.2d at 1471 . The first step is an entry of default, which must 3 be made by the clerk following a showing, by affidavit or otherwise, that the party against whom 4 the judgment is sought “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). 5 The second step is entry of a default judgment under Rule 55(b), either the clerk enters 6 judgment (only where the plaintiff’s claim is for a certain sum or where a sum can be made certain 7 by computation), see Federal Rule of Civil Procedure 55(b)(1), or the party must apply to the Court 8 for default judgment, see Federal Rule of Civil Procedure 55(b)(2).2 Factors which a court, in its 9 discretion, may consider in deciding whether to grant a default judgment include: (1) the possibility 10 of prejudice to the plaintiff, (2) the merits of the substantive claims, (3) the sufficiency of the 11 complaint, (4) the amount of money at stake, (5) the possibility of a dispute of material fact, (6) 12 whether the default was due to excusable neglect, and (7) the Federal Rules’ strong policy in favor 13 of deciding cases on the merits. Eitel, 782 F.2d at 1471-72 . 14 If an entry of default is made, the court accepts all well-pleaded factual allegations in the 15 complaint as true; however, conclusions of law and allegations of fact that are not well-pleaded 16 will not be deemed admitted by the defaulted party. DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847 , 17 854 (9th Cir. 2007). Additionally, the Court does not accept factual allegations relating to the 18 amount of damages as true. Geddes v. United Fin. Grp., 559 F.2d 557 , 560 (9th Cir. 1977). Default 19 establishes a party’s liability, but not the amount of damages claimed in the pleading. Id. 20 b. Motion for Entry of Clerk’s Default, ECF No. 119, and Motion for 21 Entry of Default Judgment, ECF No. 121 22 The Court finds that Plaintiff’s July 22, 2022 Motion for Entry of Clerk’s Default, ECF 23 No. 119, is moot because the Clerk of the Court subsequently entered default against Navarette on 24 September 8, 2022, following Plaintiff’s second Motion for Entry of Clerk’s Default filed on 25 August 16, 2022, ECF No. 127.3 [26] 2 Under Rule 55(b)(2), “[i]f the party against whom a default judgment is sought has appeared personally or 27 by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.” Fed. R. Civ. P. 55. [28] 3 The Court notes that, unlike with Plaintiff’s first motion for entry of default and motion for default judgment, 1 Plaintiff’s July 22, 2022 Motion for Entry of Default Judgment is addressed to the Clerk 2 of the Court, ECF No. 121, therefore the Court finds that it is brought pursuant to Federal Rule of 3 Civil Procedure 55(b)(1). Yet, the motion states that the amount in damages will be determined 4 pursuant to Rule 55(b)(2). Thus, Plaintiff’s claim against Navarette, as described in the July 12, 5 2022 Motion for Entry of Default Judgment, is not “a sum certain or a sum that can be made certain 6 by computation.” Fed. R. Civ. P. 55(b)(1). Accordingly, the Court denies this motion without 7 prejudice. 8 c. Motion for Default Judgment, ECF No. 130 9 The Court now addresses Plaintiff’s September 13, 2022 Motion for Default Judgment, 10 ECF No. 130. The Court finds that, because the motion is addressed to the Court, it is brought 11 pursuant to Federal Rule of Civil Procedure 55(b)(2). Plaintiff obtained the clerk’s default. 12 Navarette has not filed an answer, a motion to dismiss, or otherwise appeared in the action since 13 being served in December 2018. Therefore, Plaintiff is not required to serve Navarette with notice 14 of this motion. See Fed. R. Civ. P. 55(b)(2). 15 The Court now determines whether the Eitel factors weigh in favor of granting default 16 judgment in favor of Plaintiff. In doing so, the Court concludes that default judgment against 17 Navarette is warranted. 18 The first and sixth factors favor granting default judgment because Navarette failed to 19 defend—or appear at all in this matter—since being served with the summons and the complaint. 20 Navarette’s failure to appear for the past four years prejudices Plaintiff by preventing him from 21 determining liability, including damages, against Naverette. Further, Navarette’s failure to appear 22 for a substantial period of time demonstrates the lack of excusable neglect. 23 The second and third factors also favor granting default judgement. Plaintiff’s amended 24 complaint alleges a First Amendment retaliation claim against Defendants Navarette, Akash, 25 Burnside, and John Doe for the destruction of a television in his dorm (Count II). Specifically, on 26 September 14, 2016, Navarette, Akash, Burnside, and Doe came to Plaintiff’s dorm, asked what 27 Defendants Rama Akash, Adam Burnside, Frank Dreesen, Jo Gentry, Brian Kerby, John King, Timothy Knatz, Joseph Kobrick, Gillian Lambey, Ana Leos, Rashonda Smith, and Elvin Worthey did not file a Response to Plaintiff’s second 28 motion for entry of default or motion for default judgment. Indeed, Plaintiff asserted in his August 12, 2022 Reply that the instant motions for default were limited to Navarette’s liability. 1 property belonged to him to which he identified boxes, a television, and other items on his bunk. 2 Navarette, Akash, Burnside, and Doe then escorted him out of the dorm and placed him on a “cush 3 cart” with some of his property. According to the amended complaint Navarette, Akash, Burnside, 4 and Doe did not return his television to dissuade him from litigating his own case. 5 Prisoners have a First Amendment right to file prison grievances and to pursue civil rights 6 litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). To state a viable 7 First Amendment retaliation claim in the prison context, a plaintiff must allege: “(1) [a]n assertion 8 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 9 protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 10 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Id. at 567-68 . 11 The Court denied Defendants’ motion to dismiss, finding that Plaintiff’s claim sufficiently 12 alleged that Navarette and the others took his television and other property in retaliation for 13 exercising his right to litigate which is protected conduct. 14 The Fourth factor weighs against granting default judgment. Plaintiff’s amended complaint 15 seeks general, compensatory, and punitive damages against Defendants Naverette, Akash, 16 Burnside, and John Doe that exceed $10,000 for their alleged first amendment retaliation. Plaintiff, 17 however, does not provide a basis for the amounts sought, nor does he explain how Navarette’s 18 alleged liability caused him damages in excess of $10,000. The claim also alleges that Defendants 19 Akash and Burnside took part in the conduct underlying Plaintiff’s First Amended Complaint. As 20 Navarette’s liability is intertwined with Akash and Burnside’s liability, determining Akash and 21 Burnside’s liability may directly impact any amount in damages Naverette may be liable for. Thus, 22 the Court finds that it would be premature at this stage to attempt to assess Navarette’s liability, 23 even if it granted Plaintiff default judgment against Navarette. This is not fatal, however, as Rule 24 55(b) allows a court to conduct a subsequent hearing to determine the amount in damages 25 Navarette would be liable for if the Court grants Plaintiff’s default judgment motion. See Fed. R. 26 Civ. P. 55(b)(2)(B). 27 The Fifth factor also weighs against granting default judgment. Defendants Akash and 28 Burnside are represented by the OAG, and the Court anticipates that there will be a dispute 1 | concerning material facts, including those surrounding the First Amendment Retaliation claim; therefore, this factor weighs against entry of default judgment. 3 Finally, while the seventh factor generally counsels against the granting of default 4] judgment, Navarette’s failure to appear prevents the Court from determining the First Amendment 5 | retaliation claims against Navarette on its merits. 6 In sum, the Eitel factors weigh in favor of the entry of default judgment against Navarette. [7] 8 IV. CONCLUSION 9 IT IS THEREFORE ORDERED that Plaintiff Curtis L. Downing’s MOTION for Entry 10 | of Clerk’s Default as to Defendant Jose M. Navarette (ECF No. 119) is DENIED as moot. 11 IT IS FURTHER ORDERED that Plaintiff Curtis L. Downing’s MOTION for Entry of Default Judgment (ECF No. 121) is DENIED without prejudice. 13 IT IS FURTHER ORDERED that Plaintiff Curtis L. Downing’s MOTION for Default 14} Judgment (ECF No. 130) is GRANTED. The Clerk of the Court shall enter JUDGMENT for 15 | Plaintiff and against Jose M. Navarette. Plaintiff is further granted leave to file a motion for the 16 | Court to determine the amount of damages, upon resolution of this case as to the remaining 17 | Defendants. [19] 20 DATED: February 13, 2023 21 AS 22 RICHARD F. BOULWARE, II 3 UNITED STATES DISTRICT JUDGE [28] -7-