Moore v. Shipley et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to Substitute verified motion (Doc. No. 88) is GRANTED, and Doc. No. 83 is DENIED as moot. IT IS FURTHER ORDERED that Plaintiffs motion for default judgment as to liability against Defendant Derek Dickey is DENIED without prejudice. (Doc. No. 88-2.) Dated this. Signed by District Judge Audrey G. Fleissig on 3/11/15. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DAVID SHIPLEY, et al.,
Case No. 4:13CV01928 AGF
MEMORANDUM AND ORDER
This action is before the Court on Plaintiff’s motion for default judgment as to
liability against one of the seven named Defendants, Derek Dickey.1 Plaintiff brought this
action2 seeking declaratory relief, injunctive relief, and damages for Eighth Amendment
and conspiracy claims under 42 U.S.C. § 1983. Plaintiff, a prisoner of the State of
Missouri, alleges that Defendants participated in beating and injuring him in retaliation for
a relationship with a female staff member. Six of the named Defendants have been served
and five of them filed timely answers, but Dickey did not. On March 6, 2015, Clerk’s
Entry of Default was entered as to Dickey.
Plaintiff now seeks default judgment as to liability against Dickey, in an amount to
be determined, as well as the entry of declaratory and injunctive relief against him. The
Court will deny without prejudice this motion for default judgment to avoid the possibility
Plaintiff filed a Motion for Leave to Substitute a verified motion for default, requesting
that the verified motion (Doc. No. 88) be substituted for his previously filed unverified
motion (Doc. No. 83). That motion will be granted, and the previously filed motion will
be denied as moot.
2 Plaintiff filed this action pro se, but counsel entered on Plaintiff’s behalf on August 1,
of inconsistent results in this case. See Pfanenstiel Architects, Inc. v. Chouteau Petroleum
Co., 978 F.2d 430, 433 (8th Cir. 1992) (“[w]hen there are multiple defendants who may be
jointly and severally liable for damages alleged by plaintiff, and some but less than all of
those defendants default, the better practice is for the district court to stay its determination
of damages against the defaulters until plaintiff's claim against the nondefaulters is
resolved.”); Angelo Iafrate Const., LLC v. Potashnick Const., Inc., 370 F.3d 715, 722 (8th
Cir. 2004) (“When co-defendants are similarly situated, inconsistent judgments will result
if one defendant defends and prevails on the merits and the other suffers a default
judgment.”); Edwards v. Dwyer, 1:06-CV-1 CAS, 2008 WL 222514, at *1-2 (E.D. Mo.
Jan. 25, 2008) (denying motion for default judgment without prejudice as to one defendant
in a multiple-defendant case, where the claims against similarly-situated non-defaulting
defendants were not yet resolved).
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to Substitute
verified motion (Doc. No. 88) is GRANTED, and Doc. No. 83 is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s motion for default judgment as to
liability against Defendant Derek Dickey is DENIED without prejudice. (Doc. No. 88-2.)
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of March, 2015.
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