WHEELER v. POLITE et al

Filing 52

ORDER granting 49 Motion to Set Aside Default; granting 50 Amended Motion. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 6/5/2024. (elp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHNATHAN A. WHEELER,

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:
Plaintiff,
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v.
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Warden JOSEPH POLITE, et al.,
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Defendants. :
____________________________________:

Case No. 5:23-cv-199-MTT-CHW
Proceedings under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge

ORDER
Before the Court is Defendant Davis’s motion to set aside default. (Docs. 49, 50). 1
In the screening recommendation of Plaintiff Wheeler’s complaint, several claims were
permitted to move forward, including an excessive force claim against Defendant Davis.
(Docs. 12, 15). A request for waiver of service was issued for Defendant Davis at Georgia
Diagnostic and Classification Prison (Doc. 14), but it was returned unexecuted. (Doc. 16).
The Clerk of Court reissued service paperwork for personal service (Doc. 19), and
Defendant Davis was personally served by the U.S. Marshals Service on February 8, 2024.
(Doc. 36). Defendant Davis failed to answer Plaintiff’s complaint as required and is in
default, but no default has been entered upon the docket. Defendant Davis now seeks to
have the default set aside in a motion filed on May 14, 2024. (Doc. 49, 50).
In support of his motion to open default, Defendant Davi has submitted a declaration

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Defendant has filed two motions that are substantially the same, but the second motion includes
a declaration from Defendant Davis. (Doc. 50-2).
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indicating that he was not working for the Department of Corrections at the time he was
served with this suit. (Doc. 50-2, ¶¶ 1-3). Defendant Davis is also a defendant in a separate
case 2 with Plaintiff Wheeler, which involves similar conduct, and Defendant Davis
believed no further action was necessary because he is represented in the other case. (Id.,
¶ 7). When he discovered that action was needed in this matter, he worked with his attorney
to respond. (Id.)
Defaults are viewed with disfavor, and there is a “strong policy for determining
cases on their merits.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir.
2003). Rule 55(c)of the Federal Rules of Civil Procedure provides that the Court may set
aside any entry of default for “good cause,” which generally requires the consideration of
factors such as: “whether the default was culpable or willful, whether setting [the default]
aside would prejudice the adversary, and whether the defaulting party presents a
meritorious defense.” Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951-52 (11th Cir. 1996).
There is no genuine suggestion on the present record of any culpable conduct by
Defendant Davis. It appears that being served in another similar case caused confusion and
that Defendant Davis’s oversight was not intentional. Defendant has submitted a preanswer motion to dismiss (Doc. 51), which raises grounds for a potentially meritorious
defense in this action. Additionally, there is no indication that Plaintiff will suffer from
prejudice by litigating the merits of his claims through the ordinary legal process because

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Wheeler v. Polite, 5:22-cv-403-MTT-CHW (pending since November 14, 2022).
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another motion to dismiss is pending and discovery has been stayed. (Docs. 29, 32).
Therefore, Defendant’s motion to set aside default (Docs. 49, 50) is GRANTED.
Defendant Davis’s motion to dismiss (Doc. 51) is accepted his responsive pleading to
Plaintiff’s complaint.
SO ORDERED, this 5th day of June, 2024.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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