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Green v. Gamez

United States District Court, W.D. Texas, San Antonio Division

November 27, 2017

ANTHONY SPENCER GREEN Plaintiff,
v.
JOE A. GAMEZ Defendant.

          MEMORANDUM OPINION: DENYING PLAINTIFFS MOTION FOR DEFAULT JUDGMENT DISMISSING PLAINTIFFS CASE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM

          HONORABLE ROYCE LAMBERTH UNITED STATES DISTRICT JUDGE.

         Before the Court is plaintiff Green's Motion for Default Judgment (ECF #11). For the following reasons, the Court will DENY Green's Motion for Default Judgment. The Court, acting sua sponte, will also DISMISS Green's lawsuit for frivolity and for failing to state a claim on which relief can be granted under 28 U.S.C. § 1915(e)(2)(B).

         Background

         Plaintiff Green is a pro se litigant proceeding in forma pauperis. (ECF #2; ECF #3). Although his complaint is poorly organized, the Court interprets it to allege the following facts and causes of action.

         Green alleges that he was struck by a minivan and taken to the Brooke Army Medical Center ("BAMC") at Fort Sam Houston in San Antonio, TX, for treatment in December 2012. (ECF #3 at 5). He alleges that, while there, the hospital implanted him with a radio-frequency identification ("RFID") chip connecting him to a "NASA/military/government computer cloning frequency monitoring program" against his will. (Id.). Following this incident, he claims that he retained defendant Gamez's law firm to represent him in the case on two separate occasions.[1] (Id.). On both occasions, according to Green, Gamez's firm dropped the case. (Id.).

         Green has now brought suit against Gamez (not his firm, not BAMC, not the Government, and not the driver of the minivan that allegedly hit him) under 42 U.S.C. § 1983, alleging that Gamez is part of a conspiracy involving the RFID "program that is holding me a prisoner with my life being threatened & in danger at all times." (Id. at 6). Green seeks between one and fifty million dollars to compensate him for his medical bills, back child support, lost income, [2] stress and mental anguish and also as damages for the "illegal program [the] Government has [Green] in ... put[ting] my life & family in danger." (Id.). Green also asks that this Court order an investigation into the alleged conspiracy. (Id.).

         Green filed his complaint on December 15, 2016. (ECF #3). He now moves for default judgment to be entered against Gamez. (ECF #11).

         Plaintiffs Motion for Default Judgment

         Green asks that the Court enter a judgment by default against Gamez pursuant to Rule 55(b)(1) of the Federal Rules of Civil Procedure. (ECF #11). The Court will deny this motion.

         I. Green Failed to Follow the Proper Procedures to Obtain a Default Judgment.

         Green has not followed the proper procedures for obtaining a default judgment. The procedural rules governing default are found in Rule 55. Rule 55 outlines two steps a party must follow in order to receive a judgment by default. For the first step, the party must ask the clerk of the court to enter default against the defendant due to the defendant's "failure to plead or otherwise defend." (Fed. R. Civ. P. 55(a)). Only once the clerk has entered default may the party then, as the second step, seek an entry of default judgment. (Fed. R. Civ. P. 55(b)).

         Here, the clerk has not entered default against Gamez and there is no indication that Green has asked the clerk to do so. For that reason alone, Green's Motion for Default must be denied.

         But even if the Clerk had entered default against Gamez, Green's Motion for Default Judgment is not procedurally proper. After the clerk enters default, the plaintiff may seek entry of default judgment. There are two ways of doing this. (Fed. R. Civ. P. 55(b)). If "the plaintiffs claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiffs request with an affidavit showing the amount due-must enter judgment for that amount and costs." (Fed. R. Civ. P. 55(b)(1)). But if the claim is not for a demonstrable, certain sum, then "the party must apply to the court for a default judgment, " and the grant of that judgment is within the Court's discretion. (Fed. R. Civ. P. 55(b)(2)).

         Here, Green moves for an entry of default judgment pursuant to Rule 55(b)(1). (ECF #11). The Court cannot enter default judgment in this case under Rule 55(b)(1) for two reasons. First, it is the clerk of the court, not the Court itself, that enters default judgment under Rule 55(b)(1). Second, default judgment may be entered under Rule 55(b)(1) only when the underlying claim "is for a sum certain or a sum that can be made certain by computation." (Fed. R. Civ. P. 55(b)(1)). But Green's is not such a claim. He asks for monetary damages in the range of "$1, 000, 000 to $50, 000, 000"-hardly a sum certain. (ECF #3 at 6). Green also asks for damages resulting from "stress & mental anguish" and damages relating to a conspiracy "holding [him] a prisoner with [his] life being threatened & in danger at all times." (Id.). Damages for claims such as these ...


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