Whitfield v. Gustave

1

CALEB WHITFIELD, Plaintiff, v. CORRECTION OFFICER GUSTAVE, et al., Defendants.

No. 3:23-cv-23

United States District Court, S.D. Ohio, Western Division

February 12, 2024

Rose J.

ORDER AND REPORT AND RECOMMENDATION

Karen L. Litkovitz, United States Magistrate Judge

Plaintiff an inmate at the Toledo Correctional Institution in Toledo Ohio, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights while he was a pre-trial detainee at the Montgomery County Jail (MCJ) in Dayton, Ohio. This matter is before the Court on plaintiff's motions “for leave to Request the Court to Review and Consider both motions to Amend and to Join Counts Simultaneously” (Doc. 26), “for leave to Join Counts” (Doc. 27) and for default judgment (Doc. 29).^[1] Defendants Correction Officer Gustave, Correction Officer Molton, Sergeant Bemis, and Sergeant Eaton filed a combined response to plaintiff's first two motions (Doc. 33); a response to plaintiff's motion for default judgment (Doc. 34); and a motion to set aside the entry of default (Doc. 31). (See Doc. 23 (Entry of Default)). Plaintiff did not file replies in support of his motions.

I. Procedural history

On June 22, 2023, the undersigned Magistrate Judge issued an Order and Report and Recommendation recommending the dismissal with prejudice of Counts One, Two, and Seven of plaintiff's complaint, with the exception of Count One's Fourteenth Amendment excessive use of force claim and First and Fourteenth Amendment claims relating to the discontinuation of plaintiff's December 21, 2021 video visit against defendant Gustave for damages in his individual capacity; Count One's Fourteenth Amendment failure-to-intervene claim for damages against defendant Molton in his individual capacity; and Count Two's Fourteenth Amendment due process and conditions-of-confinement claims for damages against defendants Bemis and Eaton in their individual capacities. (Doc. 11 at PAGEID 113). The Magistrate Judge also recommended that the remaining four counts of the complaint (Counts Three through Six) be severed without prejudice to refiling a separate action or actions. (Id.).

The District Judge initially adopted this Report and Recommendation (Doc. 13) but later vacated this adoption based on plaintiff's subsequent “Motion for Leave to Join Counts and Object to Severance” (Doc. 15) and declaration (Doc. 16). (Doc. 17). In his Order, the District Judge also denied plaintiff's “Motion to Amend Complaint” (Doc. 14) without prejudice to refiling following consideration of plaintiff's “Motion for Leave to Join Counts and Object to Severance.” (Doc. 17).

On September 20, 2023, the District Judge issued an Order construing plaintiff's “Motion for Leave to Join Counts and Object to Severance” and declaration as untimely objections to the undersigned's Report and Recommendation (Doc. 11). (Doc. 19). The District Judge again adopted the Report and Recommendation, noting that it was denying plaintiff's “Motion for Leave to Join Counts and Object to Severance” without prejudice to refiling.^[2] (Id.).

On October 10, 2023, plaintiff was ordered to either move for the entry of default against defendants or show cause why his action should not be dismissed for lack of prosecution.

(Doc. 20).^[3] Defendants had previously been served with process on August 21, 2023, and had not responded to plaintiff's complaint. (Doc. 18). See Fed.R.Civ.P. 12(a)(1)(A). On October 23, 2023, the Clerk entered default against defendants. (Doc. 23).

II. Default

A. Applicable law

Pursuant to Rule 55(a), if a party “has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). “The court may set aside an entry of default for good cause....” Fed.R.Civ.P. 55(c). The court examines three factors to determine whether good cause exists for setting aside an entry of default. Dassault Systemes, SA v. Childress, 663 F.3d 832, 838-39 (6th Cir. 2011). These are: (1) whether the default was willful, (2) whether setting aside the entry of default would prejudice plaintiff, and (3) whether the alleged defense is meritorious. Id. (citing United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 844 (6th Cir. 1983)). Any doubt should be resolved in favor of the motion to set aside the entry of default “so that cases may be decided on their merits.” United Coin Meter, 705 F.2d at 846 (quoting Rooks v. Am. Brass Co., 263 F.2d 166, 169 (6th Cir. 1959)) (internal quotation marks omitted).

“To be treated as culpable, the conduct of a defendant must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings.” Dassault Systemes, SA, 663 F.3d at 841 (quoting Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir. 1986)). As to the second prong, the relevant inquiry focuses on the future prejudice that will result from setting aside the entry of default, not prejudice that has already resulted from the defendant's conduct. Id. at 842 (citing Berthelsen v. Kane, 907 F.2d 617, 620-21 (6th Cir. 1990)). Delay, in and of itself, is not a sufficient basis for establishing prejudice. Id. (citing INVST Fin. Grp, Inc. v. Chem-Nuclear Sys, Inc., 815 F.2d 391, 398 (6th Cir. 1987)) (internal quotation marks omitted). Instead, “it must be shown that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion.” Id. (quoting INVST Fin. Grp, 815 F.2d at 398 (internal quotation marks omitted)). Increased litigation costs also do not generally support an entry of default. Id. (citing United States v. $22,050 Currency, 595 F.3d 318, 325 (6th Cir. 2010)). Finally, a defense is “meritorious” so as to satisfy the third element if the defense is “good at law.” Id. at 843 (quoting $22,050, 595 F.3d at 326). The test is not whether a defense is likely to succeed on the merits; rather, the test is whether “there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the default.” Id. (quoting $22,050, 595 F.3d at 326).

B. Analysis

The Court will set aside the entry of default. First, the default in this case was not willful. Defendants cite 42 U.S.C. § 1997e(g),^[4] which allows them to waive their response to plaintiff's complaint, and argue that the Court did not specifically invoke that provision and order defendants to reply to the complaint. See Castellon v. Hinkle, No. 2:20-cv-6420, 2022 WL 278163, at *2 (S.D. Ohio Jan. 31, 2022) (“If a court invokes the statute and orders a defendant to answer, . . . then the plaintiff would be justified in seeking default judgment for not responding to the complaint. However, the starting presumption is that defendants in such suits do not need to answer the complaint.”). Defendants' reliance on 42 U.S.C. § 1997e(g) mitigates against a finding of willfulness.

Second, the Court sees no prejudice to plaintiff in his ability to prosecute this case if the entry of default is set aside. Plaintiff did not respond to defendants' motion to set aside the entry of default to raise prejudice. Third, defendants argue that-if ordered to respond to the complaint-they will raise meritorious defenses including failure of service of process, qualified immunity, and failure to state constitutional violations. The Court finds that this representation coupled with the balance of the other two factors supports setting aside the Entry of Default (Doc. 23).

Given this conclusion, plaintiff's motion for default judgment (Doc. 29) must be denied. “Prior to obtaining default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a).” Johnson v. Humphrey, No. 1:18-cv-43, 2019 WL 861246, at *1 (S.D. Ohio Feb. 22, 2019) (quoting Heard v. Caruso, 351 Fed.Appx. 1, 15 (6th Cir. 2009) (citing 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2682, at 13 (3d ed. 1998))). With the entry of default set aside, plaintiff is not entitled to default judgment.

III. Plaintiff's motions

A. Arguments

The Court understands plaintiff's “Motion for leave to Request the Court to Review and Consider both Motions to Amend and to Join Counts Simultaneously” as seeking to amend his complaint to (1) revive Count Seven of his original complaint, which was dismissed by the Court (see Docs. 11, 19); and (2) add the Montgomery County Board of Commissioners (MCBC) as a defendant to a municipal liability claim under § 1983. (See Doc. 26 (hereafter, “motion to amend”)).

To support the first component of his motion to amend, plaintiff alleges that dismissed defendant Sheriff Robert Streck signed off on all use-of-force incidents at MCJ, including all those referenced in plaintiff's original complaint. (Doc. 26 at PAGEID 163). Plaintiff alleges that Sheriff Streck had a custom and pattern of practice of finding all uses of force justified, even if they were in fact unjustified, and he seeks to hold him individually liable as a supervisor. (Id.).

Regarding the second component of his motion to amend, plaintiff alleges that the MCBC should be liable as a municipality under an “inaction theory.” (Doc. 26 at PAGEID 164).

Plaintiff cites several § 1983 actions MCJ and its employees alleging uses of excessive force and other unconstitutional behavior. Plaintiff also alleges that MCBC should be liable for failing to train and/or supervise defendant Bemis in his handling of disciplinary proceedings, and for failing to train and/or supervise defendant Eaton and dismissed defendant Evers regarding unconstitutional conditions...