Moore v. Venice Police Department et al

Filing 55

ORDER MOOTING 33 Motion for Default Judgment; GRANTING 35 Motion for Leave to File; DENYING 37 Motion for Entry of Default; DENYING 42 Motion to Strike ; DENYING WITHOUT PREJUDICE 43 Motion to Appoint Counsel ; DENYING WITHOUT PREJUDI CE 44 Motion for Leave to File; MOOTING 49 Motion to Dismiss; MOOTING 53 Motion to Strike. Defendants to file Motion to Dismiss by 4/14/17. Clerk of Court to send to Plaintiff form Motion for Recruitment of Counsel. Signed by Magistrate Judge Donald G. Wilkerson on 4/11/17. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS D. MOORE,
Plaintiff,
v.
OFFICER
NGOMA
SHELLENBERG,

and

Defendants.

)
)
)
)
)
)
OFFICER)
)
)
)

Case No. 3: 16-cv-808-JPG-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion for Default Judgment filed by Plaintiff,
Demetrius D. Moore, on February 16, 2017 (Doc. 33), the Motion for Leave to File Motion to
Dismiss out of time filed by Defendants, Ngoma and Shellenberg, on February 23, 2017 (Doc. 35),
the Motion for Entry of Default filed by Plaintiff on February 23, 2017 (Doc. 37), the Motion to
Strike Motion for Leave to File filed by Plaintiff on March 6, 2017 (Doc. 42), the Motion for
Appointment of Counsel filed by Plaintiff on March 6, 2017 (Doc. 43), the Motion for Leave to
File Amended Complaint filed by Plaintiff on March 6, 2017 (Doc. 44), the Motion To Dismiss
filed by Defendants on March 21, 2017 (Doc. 49), and the Motion to Strike filed by Plaintiff on
March 28, 2017 (Doc. 53).
For the reasons set forth below, the Motion Default Judgment is MOOT and the Motion
for Entry of Default is DENIED (Docs. 33 and 37), the Motion for Leave to File Motion to
Dismiss out of time is GRANTED (Doc. 35), the Motion to Strike Motion for Leave to File is
DENIED (Doc. 42), the Motion for Recruitment of Counsel is DENIED WITHOUT
PREJUDICE (Doc. 43), the Motion for Leave to File Amended Complaint is DENIED

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WITHOUT PREJUDICE (Doc. 44), the Motion to Dismiss is MOOT (Doc. 49), and the Motion
to Strike is MOOT (Doc. 53).
Motion for Default
Plaintiff filed a 42 U.S.C. § 1983 complaint on July 18, 2016 alleging that Defendants,
police officers employed by Venice Police Department, violated his constitutional rights around
July 5, 2013

(Doc. 1). Plaintiff claims that they arrested him without a warrant, used excessive

force, failed to provide medical care, and searched him home without a warrant.

On September

13, 2016, after screening Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, the Court permitted
Plaintiff to proceed on the four counts related to his arrest and waivers of service of process were
issued by the Clerk of Court the next day (Docs. 10, 11, and 12).

The Waivers were due by

October 14, 2016 but were not filed (Doc. 25). Therefore, according to the September 13, 2016
Order, formal service would be initiated by the Clerk. In the meantime, Plaintiff had sought
default judgment, which was denied (Doc. 25). On December 30, 2016, summonses were issued
and on January 19, 2017 they were returned as executed. (Docs. 31 and 32). Responsive
pleadings were thus due on February 9, 2017. No responsive pleadings were filed by the deadline
and Plaintiff now seeks both default and default judgment (Docs. 33 and 37).
On February 23, 2017, however, Defendants entered an appearance and sought leave to file
a motion to dismiss (on statute of limitations grounds) out of time (Doc. 35). Defendants state
that they were formerly employed by the City of Venice and that they requested counsel from the
City which they reasonably believed would be provided. Counsel, however, was not formally
retained until February 21, 2017, two days prior to filing the motion.
When a Defendant fails to plead or defend an action, “and that failure is shown by affidavit
or otherwise, the Clerk “must enter the party’s default.” Fed.R.Civ.P. 55(a). Thereafter, default

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judgment must be entered by the Clerk if the Plaintiff’s claim is for a sum certain and is shown by
affidavit or the Court may enter default judgment upon motion. The entry of default comes first,
default judgment comes second where appropriate. See Lowe v. McGraw-Hill Companies, Inc.,
361 F.3d 335, 339 (7th Cir. 2004). Plaintiff sought default judgment prematurely, prior to the
entry of default and did not submit the necessary affidavit (Doc. 33). Therefore, the Motion (for
“Judgement [sic] by Default”) is MOOT as untimely (Doc. 33).

After Defendants appeared,

Plaintiff submitted a “Letter to the District Court Circuit Clerk” ostensibly seeking entry of
default. This request of entry of default came too late – Defendants had already entered an
appearance, thus “otherwise defend[ing] this action.”

The motion also did not contain an

affidavit. This motion is DENIED (Doc. 37).
In any event, the Seventh Circuit Court of Appeals “has a well-established policy favoring
a trial on the merits over a default judgment.” Sun v. Board of Trustees of University of IL, 473
F.3d 799, 811 (7th Cir. 2007). Plaintiff has not shown any prejudice to permitting Defendants the
opportunity to participate in this lawsuit. Defendants seek to file a motion to dismiss on statute of
limitations grounds. Plaintiff responded on the merits (Doc. 38) and also argues that because
Defendants failed to timely plead, their motion should be denied (Doc. 41). Plaintiff is not
completely off-base: generally affirmative defenses (like a statute of limitations defense) must be
pled first and then proved up. However, “if it is plain from the complaint that the defense is
indeed a bar to the suit dismissal is proper without further pleading.” Jay E. Hayden Foundation
v. First Neighbor Bank, N.A., 610 f.3d 382, 383 (7th Cir. 2010). Therefore, Defendants’ Motion
for Leave to File Motion to Dismiss out of time GRANTED (Doc. 35) and Plaintiff’s Motion to
Strike is accordingly DENIED (Doc. 42).

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Motion to Amend
Federal Rule of Civil Procedure 15 provides that leave to amend should be freely given
when justice so requires but may be denied if there is undue delay, futility, or prejudice. Life
Plans, Inc. v. Security Life of Denver Ins. Co., 800 F.3d 343, 357-358 (7th Cir. 2015). A
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. CIV. P. 8(a)(2). Plaintiff’s proposed amended complaint generally
complies with Rule 8; however, he has not signed the pleading as required by Federal Rule of Civil
Procedure 11(a). See Boriboune v. Berge, 391 F.3d 852, 854-855 (7th Cir. 2004). The Motion is
accordingly DENIED WITHOUT PREJUDICE (Doc. 44).1 In turn, Defendants’ Motion to
Dismiss is MOOT (Doc. 49), and Plaintiff’s Motion to Strike is also MOOT (Doc. 53). No
amended complaint has been filed; therefore, the motions (Docs. 49 and 53) are premature.
Motion for Recruitment of Counsel
Finally, Plaintiff seeks counsel.

Plaintiff’s Motion is DENIED WITHOUT

PREJUDICE (Doc. 43). Plaintiff has not used the form that is typically filled out by pro se
parties seeking counsel. In order to properly evaluate his request, Plaintiff is DIRECTED to fill
out the form “Motion for Recruitment of Counsel” that is being provided along with this Order and
to submit it to the Clerk for filing.
CONCLUSION
For the foregoing reasons, the Motion Default Judgment is MOOT and the Motion for
Entry of Default is DENIED (Docs. 33 and 37), the Motion for Leave to File Motion to Dismiss
out of time is GRANTED (Doc. 35), the Motion to Strike Motion for Leave to File is DENIED
(Doc. 42), the Motion for Recruitment of Counsel is DENIED WITHOUT PREJUDICE (Doc.
1

Document 48 is an entry by the Court noting the submission of a proposed amended complaint.
The entry, however, is not the pleading itself and should not be construed as a filing by a party.
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43), the Motion for Leave to File Amended Complaint is DENIED WITHOUT PREJUDICE
(Doc. 44), the Motion to Dismiss is MOOT (Doc. 49), and the Motion to Strike is MOOT (Doc.
53).
The Clerk of Court is DIRECTED to send to Plaintiff the form “Motion for Recruitment
of Counsel.” Plaintiff should fill out the form and submit it for consideration. Defendants shall
file their Rule 12(b)(6) Motion to Dismiss by April 14, 2017. Plaintiff shall respond within 30
days of service of the Motion. If Plaintiff seeks to amend his complaint, he may refile his motion
and submit a proposed amended pleading that is signed in accordance with Rule 11.
DATED: April 11, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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