Cleare v. Jenkins et al

Filing 22

REPORT AND RECOMMENDATION re 17 MOTION to Set Aside Default: The Magistrate Judge RECOMMENDS that Defendants' Motion to Set Aside Default be GRANTED. Objections to R&R due by 12/28/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/8/2015. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RODERIK CLEARE,
Plaintiff

Civil Action 2:15-cv-2295
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

CHAROLETTE JENKINS, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is now before the Court for consideration of Defendants’ Motion to Set Aside
Default (ECF No. 17) and Plaintiff’s Response in Opposition (ECF No. 18). For the reasons
explained below, the Undersigned RECOMMENDS that Defendants Motion to Set Aside
Default be GRANTED. (ECF No. 17.)
I. BACKGROUND
Plaintiff, an inmate under the control of the state of Ohio at the Chillicothe Correctional
Institution proceeding without the assistance of counsel, filed this suit on May 29, 2015
advancing certain civil rights claims under 42 U.S.C. § 1983. (ECF No. 1.) In response to this
Court’s June 18, 2015 Order, Plaintiff filed his Amended Complaint on July 8, 2015. (ECF Nos.
4 & 5.) The record reflects that Defendants Captain Brown, Lieutenant Brown, Higginbothem,
Free, and Irvin (collectively, “Defendants”) were served with process on July 20, 2015. (ECF
No. 8.) Defendants’ were due to answer Plaintiff’s Complaint by September 3, 2015. Plaintiff
filed his Application for Entry of Default on October 13, 2015. (ECF No. 13.) The Clerk of this
Court entered default against Defendants on October 14, 2015. (ECF No. 15.) Defendants filed

their Motion to Set Aside Default and Motion for Extension of Time on October 15, 2015 and
their proposed Motion to Dismiss for Failure to State a Claim on October 26, 2015. (ECF No.
17.)
In his Complaint, Plaintiff alleges that on February 21, 2015 following an allegation that
he broke prison rules, he was “physically abused” in a captain’s office by an unnamed lieutenant
while in the presence of an unidentified captain and three other officers. (ECF No. 1 at 5.)
Plaintiff also claims that he “was then dragged to segregation like I was cattle for no reason
whatsoever” by unidentified personnel. (Id.) Plaintiff asserts that on March 3, 2015 the prison
dropped the misconduct allegation against him and he was immediately released from
segregation. (Id.) On the same day, Plaintiff filed a complaint regarding the alleged excessive
force incident. (Id.) According to Plaintiff, he was placed back into segregation that same day.
(Id.) Plaintiff claims that, in addition to the alleged excessive force incident, Defendants are also
responsible for placing him in segregation as punishment for his informal administrative
complaint. (Id. at 5-6.)
In response to this Court’s June 18, 2015 Order, Plaintiff amended his Complaint on July
8, 2015 in order to clarify whom Plaintiff intended to name as defendants in this matter. In his
Amended Complaint, Defendant lists Defendants Captain Brown, Lieutenant Brown, Free and
Irvin as Defendants by name with no allegations of their individual roles in any of the alleged
incidents. (ECF No. 5 at 1.) Plaintiff named Defendant Higginbothem as an additional
defendant and accused him of “needless use of force on Plaintiff” without further elaboration.
(Id. at 2.)

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II. STANDARD OF REVIEW
“The court may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). In
determining whether good cause exists, the Court must consider the following: (1) whether the
opposing party will be prejudiced if the default is set aside; (2) whether the defaulting party has a
meritorious defense; and (3) whether culpable conduct on the part of the defaulting party led to
the default. Dassault Sys., SA v. Childress, 663 F.3d 832, 839 (6th Cir. 2011); United Coin
Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983). Although these factors
also apply to a motion to set aside a default judgment pursuant to Rule 60(b), the standard for
applying those factors is less demanding under Rule 55(c). Dassault Sys., SA, 663 F.3d at 839.
Further, there is a “general preference” for judgments on the merits as opposed to default
judgments. Id. at 841.
II. ANALYSIS
A. Prejudice
In order for a party to show prejudice from the setting aside of a default, a showing of
delay in tendering a response is insufficient. United Coin Meter Co., 705 F.2d at 845 (“[m]ere
delay in satisfying a plaintiff’s claim, if it should succeed at trial, is not sufficient prejudice to
require denial of a motion to set aside a default judgment”). An argument that delay will result
in increased litigation cost if the case is allowed to proceed to resolution on the merits does not
amount to prejudice that would support an entry of default. United States v. $22,050.00 United
States Currency, 595 F.3d 318, 325 (6th Cir. 2010). Rather, to be deemed prejudicial, “the delay
must result in tangible harm such as loss of evidence, increased difficulties of discovery, or
greater opportunity for fraud or collusion.” Thompson v. American Home Assur. Co., 95 F.3d
429, 433–34 (6th Cir. 1996) (citation omitted).

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Plaintiff does not claim that setting aside the default would result in loss of evidence,
create discovery difficulties, or increase the chances for fraud. Rather, Plaintiff claims that
setting aside the Clerk’s entry of default will prejudice his interest in having his claims heard by
the Court. (ECF No. 18 at 2.) Plaintiff’s concerns, however, are misplaced. The Courts share
Plaintiff’s preference for deciding his case on its merits. Dassault Sys., SA, 663 F.3d at 841. By
setting aside the Clerk’s entry of default, moreover, the Court may determine Plaintiff’s claims
on their merits, rather than by default operation of the procedural rules. The first factor,
therefore, weighs in Defendants’ favor.
B. Meritorious Defense
The second factor considers whether or not Defendants have a meritorious defense. To
establish a meritorious defense, the defaulting defendants must simply state a defense that is
“good at law.” United Coin Meter Co., 705 F.2d at 845. The likelihood of success is not a
determining factor in deciding that a defense is meritorious. Id. Rather, “the criterion is merely
whether ‘there is some possibility that the outcome of the suit after a full trial will be contrary to
the result achieved by the default.’” Dassault Sys., SA 663 F.3d at 843 (citations and internal
quotations omitted). “Thus, even conclusory assertions may be sufficient to establish the ‘hint of
a suggestion’ needed to present a meritorious defense.” Id. Defendants, in their proposed
Motion to Dismiss, offer several grounds upon which to find, pursuant to Federal Rule of Civil
Procedure 12(b)(6), that Plaintiff has failed to state a claim upon which relief may be granted.
Defendants argue that Plaintiff’s Complaint, taken as true, fails to establish Defendants’ personal
liability for any alleged constitutional wrongdoing, as required by §1983. (ECF No. 19 at 4-6, 911.) Defendants’ proposed defense is “good at law” because, if successful, it would allow

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Defendants to prevail upon consideration of their Motion to Dismiss. The second factor,
therefore, weighs in favor of Defendants.
C. Culpable Conduct of the Defendants
Finally, with respect to the culpable conduct of the defaulting party, if the other two
factors generally favor setting aside the default, the Court may accept any “credible explanation
for the delay that does not exhibit disregard for the judicial proceedings.” Shepard Claim Serv.,
Inc. v. William Darrah & Assoc., 796 F.2d 190, 195 (6th Cir. 1986). In other words, “a court
considers . . . defendant’s culpability, in the general context of determining whether a petitioner
is deserving of equitable relief.” Waifersong, Ltd. v. Classic Music Vendors, 976 F.2d 290, 292
(6th Cir. 1992). “To be treated as culpable, the conduct of a defendant must display either an
intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those
proceedings.” Shepard Claim Serv., Inc., 796 F.2d at 194. In determining if the conduct is
culpable, the Court may consider the length of delay beyond the deadlines, and also whether the
conduct has established a “pattern of disregard for court orders or rules.” Id. Carelessness,
without some expressed intent to impede proceedings, is not sufficient to constitute culpable
conduct. Id.
In their Motion to Set Aside Default, Defendants explain the process by which state
employees apply for and receive legal representation from the Office of the Ohio Attorney
General. According to Defendants, a state employee first obtains a Request for Representation
form, which he completes and submits to his employer. (ECF No. 17 at 2-3.) The employer then
determines whether the employee qualifies for representation. (Id. at 3.) The employer forwards
its Report Regarding Representation Request, along with the employee’s Request for
Representation, to the Ohio Department of Rehabilitation and Correction Legal Services

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Division. (Id.) It is at this point that the forms are also forwarded to the Office of the Ohio
Attorney General, which then makes its own determination of whether the employee is entitled
to representation. (Id.) According to Defendants, their forms were emailed to an address at
“attorneygeneral.gov” rather than “ohioattorneygeneral.gov,” which resulted in neither the Office
of the Attorney General nor Defendants having reason to know anything was amiss. (Id.) The
Attorney General’s Office, therefore, was completely unaware that Defendants had requested
representation, while Defendants simultaneously thought the Attorney General’s Office was
handling their entire defense.
Defendants further claim they did not learn about their default until October 15, 2015
because Plaintiff’s motions were not served on Defendants personally. (ECF No. 17 at 3.)
Indeed, a review of the docket shows that Plaintiff’s Application for Entry of Default and
Motions for Default Judgment were served upon the Ohio Attorney General, not upon
Defendants personally. (ECF Nos. 11 at 3, 13 at 3 & 14 at 4.) Because Defendants were at that
time unrepresented, service was not only improper but failed to give Defendants actual notice of
their default. In light of these circumstances, and the fact that Defendants filed their Motion
immediately upon discovering the Clerk’s entry of default, the Undersigned cannot characterize
Defendants’ conduct with respect to their default as culpable. Accordingly, the third factor
weighs in Defendants’ favor.
III. CONCLUSION
For the reasons explained above, the Undersigned RECOMMENDS that Defendants’
Motion to Set Aside Default be GRANTED. (ECF No. 17.)
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that

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party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

/s/ Elizabeth A. Preston Deavers           
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

Date: December 8, 2015

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