United States District Court, W.D. Texas, San Antonio Division
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.
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).
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.
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. (Id.). On both occasions,
according to Green, Gamez's firm dropped the case.
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,  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.
filed his complaint on December 15, 2016. (ECF #3). He now
moves for default judgment to be entered against Gamez. (ECF
Motion for Default Judgment
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.
Green Failed to Follow the Proper Procedures to Obtain a
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)).
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
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)).
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 ...