Hickson v. Hebert et al
Filing
108
ORDER denying 106 Motion for Default Judgment for Failing to Comply with a Court Order. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/9/2016. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HENRY HICKSON (#369635)
CIVIL ACTION
VERSUS
GABRIEL HEBERT, ET AL.
NO. 13-580-SDD-RLB
ORDER
This matter comes before the Court on the plaintiff’s Motion for Default Judgment for
Failing to Comply with a Court Order (R. Doc. 106). This Motion is opposed. See R. Doc. 107.
The plaintiff asserts that the defendant has failed to comply with the Court’s Order of October
30, 2015 (R. Doc. 102), which required the defendant to produce information pertaining to the
chemical agent used on the plaintiff by the defendant. Specifically, the plaintiff alleges that the
information provided pertains to “Sabre Phantom-Evaporating Delivery MK-4,” which cannot be
the chemical agent used on the plaintiff because the documents provided reflect that the
beginning weight of a can of MK-4 is 109.2 grams and contains 15 one-second bursts, resulting
in just over 7 grams of the chemical agent being dispersed per one, one-second burst. The
chemical logbook previously filed of record reflects that the can of chemical agent used on the
plaintiff weighed 108 grams, and the directions provided by the defendant for “Sabre Aerosol
PR-Objectors Phantom Delivery” state that the “spray should be deployed in one, three-second
burst, which the plaintiff asserts would result in over an ounce of agent being released.
The plaintiff therefore asserts that the information provided by the defendant cannot be
for the chemical agent used on the plaintiff, and he requests a judgment by default based upon
the defendant’s failure to comply with the Court’s Order of October 30, 2015. The plaintiff also
complains regarding previous incorrect information provided by former counsel for the
defendant.
In response to the plaintiff’s Motion, the defendant asserts that he has timely complied
with the Court’s Order by providing the Material Safety Data Sheet for Sabre Red Phantom, the
manufacturer’s specifications for Sabre Phantom-Evaporating Delivery MK-4, and the Affidavit
of Joe Lamartiniere. See R. Docs. 103 through 103-4, and 107.
Federal Rule of Civil Procedure 37(b)(2) permits the court to inter alia enter a default
judgment against a party for violation of discovery orders. Before granting a default judgment,
however, the district court must consider four factors: (1) whether the violation was willful or in
bad faith rather than simply due to inability to comply, (2) whether less drastic sanctions would
effect the goals of Rule 37(b), (3) whether the violation prejudiced the opposing party's trial
preparation, and (4) whether the client knew of or participated in the violation or simply
misunderstood a court order or innocently hired a derelict attorney. U.S. For Use of M–CO
Const., Inc. v. Shipco General, Inc., 814 F.2d 1011, 1013 (5th Cir.1987) (citing Batson v. Neal
Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985)). A default judgment is a “draconian”
sanction that should be imposed only as a last resort. Id. (citation omitted).
In the instant matter there does not appear to be any violation of the Court’s Order, much
less one that is willful or in bad faith. The Affidavit of Joseph Lamartiniere (R. Doc. 103-2)
states that Sabre Phantom MK-4 – Evaporating Delivery was released into the plaintiff’s cell on
April 16, 2013. The Affidavit further states that the names Sabre Red Phantom and Sabre
Phantom are used interchangeably, that the Material Safety Data Sheet for Sabre Red Phantom
(R. Doc. 103-1) is the only document the prison retains on the chemical agent, and the technical
specifications sheet for MK-4 (R. Doc. 103-3) was obtained from the Internet. Based on the
defendant’s responses, it appears that the defendant has provided the plaintiff with all
information in the prison’s possession regarding Sabre Red Phantom/Sabre Phantom.
Furthermore, the plaintiff has not been prejudiced in his trial preparation. The plaintiff
is free to cross-examine the defendant regarding the issues presented in his Motion for Default
Judgment. The Affidavit of Joseph Lamartiniere also explains that the document regarding
Sabre Phantom Cell Buster – Evaporating Delivery, previously provided by former counsel for
the defendant, was not provided to the defendant’s former counsel by the prison. As such, the
record reflects a lack of knowledge or participation by the defendant in the provision of the
incorrect information regarding Sabre Phantom Cell Buster – Evaporating Delivery. Therefore,
having considered the factors set forth in Shipco, supra, the Court finds that a judgment by
default is not warranted in this case. Accordingly,
IT IS ORDERED that the plaintiff’s Motion for Default Judgment for Failing to Comply
with a Court Order (R. Doc. 106) be and is hereby DENIED.
Signed in Baton Rouge, Louisiana, on February 9, 2016.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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