(PC) Penton v. Hubard ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-0518 TLN KJN P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 L. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner, proceeds through counsel with a civil rights action. Plaintiff’s 18 motion for default judgment against defendant Jolene Nunez is pending. None of the appearing 19 defendants filed an opposition or other response to the motion. As set forth below, plaintiff’s 20 motion for default judgment should be denied without prejudice. 21 I. Plaintiff’s Fourth Amended Complaint 22 This action proceeds on plaintiff’s fourth amended complaint. (ECF No. 104.) Plaintiff’s 23 claims against defendant Nunez, a mailroom staff member at CSP-SAC, who also conducted an 24 informal level review of plaintiff’s second 602 appeal (ECF No. 104 at 14), are raised in 25 plaintiff’s first and second causes of action. 26 In his first cause of action, in relevant part, plaintiff alleges that defendants Johnson, 27 Nunez, and Does 1-11 violated plaintiff’s right to access the courts in violation of the First and 28 Fourteenth Amendments. (ECF No. 104 at 20-21.) As a result, plaintiff was not able to timely 1 file documents in his habeas action. In his second cause of action, in relevant part, plaintiff 2 alleges that defendants Johnson, Nunez, and Does 1-11, wrongfully withheld plaintiff’s mail 3 without notice and with no legitimate penological reasons, from November 8, 2007, through July 4 29, 2008. (ECF No. 104 at 25.) 5 II. Plaintiff’s Motion 6 Plaintiff moves for default judgment against defendant Jolene Nunez. (ECF No. 226.) 7 Plaintiff accomplished service of process on defendant Jolene Nunez on June 13, 2018, and filed 8 a proof of service of summons attesting to proper service. (ECF No. 125.) The Clerk entered 9 default against defendant Nunez on October 3, 2018. (ECF No. 142; see also ECF No. 141.) 10 III. Default Judgment 11 A. Standards 12 Once default has been entered, the plaintiff may apply to the Court for entry of default 13 judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Generally, default 14 judgments are disfavored. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). The choice 15 whether a default judgment should be entered is at the sole discretion of the district court. See 16 Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Lau Ah Yew v. Dulles, 236 F.2d 415, 17 416 (9th Cir. 1956) (“It is conceded that the grant or denial of a motion for the entry of a default 18 judgment is within the discretion of the court.”). 19 In an action with multiple defendants, entry of default judgment must comply with Fed. 20 R. Civ. P. 54, which states: 21 When an action presents more than one claim for relief -- whether as a claim, counterclaim, crossclaim, or third-party claim -- or when 22 multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only 23 if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that 24 adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the 25 claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and 26 liabilities. 27 Fed. R. Civ. P. 54 (emphasis added). 28 //// 1 The leading case on the subject of default judgments in actions involving multiple defendants is Frow v. De La Vega, 15 Wall. 552, 2 82 U.S. 552, 21 L.Ed. 60 (1872). The Court held in Frow that, where a complaint alleges that defendants are jointly liable and one of them 3 defaults, judgment should not be entered against the defaulting defendant until the matter has been adjudicated with regard to all 4 defendants. 5 In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001). The Ninth Circuit “extended the 6 rule beyond jointly liable co-defendants to those that are similarly situated, such that the case 7 against each rests on the same legal theory; it would be incongruous and unfair to allow a plaintiff 8 to prevail against defaulting defendants on a legal theory rejected by a court with regard to an 9 answering defendant in the same action.” Garamendi, 683 F.3d at 1082-83) (internal citations 10 omitted). 11 B. Discussion 12 The court finds that in this case, where the First and Fourteenth Amendment claims 13 against defendant Nunez are factually intertwined with the First and Fourteenth Amendment 14 claims against defendant Johnson and the remaining Doe defendants, it would be inappropriate to 15 enter default judgment before the claims against the remaining defendants have been adjudicated. 16 Defendant Nunez and defendant Johnson are similarly situated given that plaintiff’s First and 17 Fourteenth Amendment claims against them are based upon the same or a closely related set of 18 facts. Recently the undersigned recommended that summary judgment motions be denied as to 19 plaintiff’s First and Fourteenth Amendment claims against defendant Johnson; thus, such claims 20 are ongoing. Plaintiff’s claims against defendant Nunez may ultimately be appropriate for entry 21 of default judgment. However, the undersigned finds that ruling on the motion for default 22 judgment at this stage of the proceedings may end in inconsistent judgments or logically 23 inconsistent results. Under these circumstances, there is just reason for delay in entering default 24 judgment as to defendant Nunez. Therefore, the undersigned recommends that plaintiff’s motion 25 for default judgment be denied without prejudice to its renewal once all other claims against the 26 remaining defendants have been fully adjudicated. 27 //// 28 //// 1 || IV. Recommendations 2 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s renewed motion for 3 || default judgment (ECF No. 226) be denied without prejudice. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 || objections shall be filed and served within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 || Dated: February 16, 2022 i Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE IS |} jpenosis.aj2 16 17 18 19 20 21 22 23 24 25 26 27 28