Tate v. Lynch et al
Filing
208
OPINION: The motion to supplement and motion to withdraw filed by Dr. Koko's counsel are granted 204 , 206 . By November 26, 2014, Dr. Koko, on his own or with new counsel, may file a motion to set aside the entry of default. Pursuant to the Court's 10/27/2014 order granting Dr. Koko until November 7, 2014, to file his Answer, Dr. Koko's prior motions for an extension are denied as moot 198 , 202 . The clerk is directed to enter default against Dr. Koko. This case is referred to Magistrate Judge Schanzle- Haskins to conduct mediation by December 15, 2014. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 11/14/2014. (GL, ilcd)
E-FILED
Friday, 14 November, 2014 11:12:29 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CARL TATE,
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Plaintiff,
v.
TARRY WILLIAMS, et al.,
Defendant,
13-CV-3060
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
A conference was held on November 10, 2014, regarding the
request to withdraw from Dr. Koko’s counsel (204, 206), and the
letter received by the Court from Plaintiff (205). Dr. Koko appeared
by phone. Dr. Koko’s counsel appeared in person and by phone.
The Court held an in camera discussion with Dr. Koko and his
counsel. Dr. Koko’s counsel could not work with Dr. Koko in order
to file an Answer. At the conference, the Court granted the motion
to withdraw by Dr. Koko’s counsel.
The Court has granted several extensions for Dr. Koko to file
his Answer, the last extension to November 7, 2014. Yet, Dr. Koko
has still not filed an Answer, even though he first appeared through
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counsel almost nine months ago. Dr. Koko indicated at the status
hearing that he would obtain new counsel today, but this remains
to be seen.
Dr. Koko’s desire to hire different counsel does not excuse his
failure to file an Answer. No Answer from Dr. Koko appears to be
forthcoming. Accordingly, default will enter against Dr. Koko
pursuant to Federal Rule of Civil Procedure 55(a), which provides
“[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s
default.” Plaintiff’s counsel may apply for a default judgment
pursuant to the procedures in Federal Rule of Civil Procedure 55(b).
Dr. Koko’s counsel argued for an extension for Dr. Koko to find new
counsel, but the Court does not have confidence that Dr. Koko will
diligently try to find counsel, much less get an Answer on file.
Dr. Koko’s counsel also asserted that 42 U.S.C. Section
1997e(g) prohibits the entry of default unless the Court finds that
the claim against Dr. Koko has substantial merit. This section
provides:
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1)
Any defendant may waive the right to reply to any
action brought by a prisoner confined in any jail,
prison, or other correctional facility under section
1983 of this title or any other Federal law.
Notwithstanding any other law or rule of procedure,
such waiver shall not constitute an admission of the
allegations contained in the complaint. No relief shall
be granted to the plaintiff unless a reply has been filed.
2)
The court may require any defendant to reply to a
complaint brought under this section if it finds that
the plaintiff has a reasonable opportunity to prevail on
the merits.
This Court has already required Dr. Koko to file an Answer
and has already found that Plaintiff has a reasonable opportunity to
prevail on the merits against Dr. Koko. After the second
preliminary injunction hearing in which Dr. Koko testified, the
Court noted in its order that “[a]n inference of deliberate
indifference also arises against Dr. Koko and others who have
refused Plaintiff’s requests for treatment for her gender identity
disorder.” (d/e 91, p. 18.) Plaintiff’s counsel was given leave to file
an amended complaint, and the amended complaint added Dr.
Koko as a Defendant. Additionally, the Court denied Dr. Koko’s
motion to dismiss. (9/5/2014). Further, Dr. Koko has never
indicated an intent to waive the filing of an Answer, which would
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presumably also waive Dr. Koko’s ability to assert affirmative
defenses.
The other matters discussed at the hearing regarded Plaintiff’s
letter about Defendant Snyder and the counseling available to
Plaintiff. Attorney Fanning will look into whether Defendant
Snyder’s work assignments allow Snyder to come into contact with
Plaintiff. Defendant Snyder is ordered not to interact with Plaintiff.
Mr. Fanning will also look into the professional qualifications of the
individuals taking over the responsibility for conducting group and
individual counseling. Plaintiff is directed to follow the internal
procedures available to obtain counseling. Plaintiff is reminded
that his communications to the Court must come through his
attorneys.
IT IS ORDERED:
1) The motion to supplement and motion to withdraw filed by
Dr. Koko’s counsel are granted (204, 206).
2) By November 26, 2014, Dr. Koko, on his own or with new
counsel, may file a motion to set aside the entry of default.
See Fed. R. Civ. P. 55(c); Hood v. Menard Tactical Team,
2010 WL 1416108 (S.D. Ill. 2010). A motion to set aside
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shall attach Dr. Koko’s Answer to the Second Amended
Complaint.
3) Pursuant to the Court’s 10/27/2014 order granting Dr.
Koko until November 7, 2014, to file his Answer, Dr. Koko’s
prior motions for an extension are denied as moot (198,
202).
4) By December 1, 2014, Mr. Fanning shall notify the Court
regarding his inquiries about Defendant Snyder and the
counselors.
5) The clerk is directed to terminate Dr. Koko’s counsel
Andrew Ramage and Adam Guetzow.
6) The clerk is directed to add Dr. Koko’s address and
phone number to the docket, if not already done.
7) The clerk is directed to enter default against Dr. Koko.
8) This case is referred to Magistrate Judge SchanzleHaskins to conduct mediation by December 15, 2014.
The attorneys who will try the case shall attend the
mediation along with Dr. Koko, if Dr. Koko is not
represented by counsel. Individuals with final settlement
authority shall attend or be readily available by phone.
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9) The clerk is directed to mail and fax this order to Dr.
Koko.
ENTERED: November 14, 2014
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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