Cleare v. Jenkins et al

Filing 30

OPINION AND ORDER overruling 27 Objection to Report and Recommendation; adopting and affirming 22 Report and Recommendations; granting 17 Motion to Set Aside Default; and finding as moot 14 Motion for Default Judgment. Signed by Judge Greg ory L. Frost on 3/28/2016. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Roderick Cleare, 705-091 @ Lebanon Correctional Institution, PO Box 56, 3791 State Route 63, Lebanon OH 45036])

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RODERIK CLEARE,
Plaintiff,
Case No. 2:15-cv-2295
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

v.
CHAROLETTE JENKINS, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of the Magistrate Judge’s Report and
Recommendation (“R&R”) dated December 8, 2015 (ECF No. 22), and Plaintiff’s objections
thereto (ECF No. 27). In the R&R, the Magistrate Judge recommended that the Court grant
Defendants’ pending motion to set aside the Clerk’s entry of default. (ECF No. 17.) For the
reasons that follow, the Court OVERRULES Plaintiff’s objections, AFFIRMS AND ADOPTS
the R&R, and GRANTS Defendants’ motion to set aside the default.
I.

BACKGROUND

The facts of this case are more fully set forth in the R&R. Facts relevant to this Opinion
and Order are summarized below.
Plaintiff is an inmate at the Lebanon Correctional Institution in Lebanon, Ohio. At the
time the facts underlying this lawsuit took place, Plaintiff was being housed at the Chillicothe
Correctional Institution.
Plaintiff filed the operative complaint in this case on July 20, 2015 against multiple
prison officials. Plaintiff alleges that, on February 21, 2015, Defendants physically abused him

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and placed him in a segregation unit. Plaintiff further alleges that the abuse and segregation was
done in retaliation for filing an informal administrative complaint.
Defendants were served with the complaint on July 20, 2015. Defendants did not,
however, file an answer to the complaint. Plaintiff filed an application for entry of default on
October 13, 2015. The Clerk entered default on October 14, 2015. The next day, on October 15,
2015, Defendants filed a motion to set aside the default. Defendants filed a motion to dismiss
Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) shortly thereafter.
The Magistrate Judge recommended that the Court grant the motion to set aside the
default. In the R&R, the Magistrate Judge set forth the factors to be considered in adjudicating a
motion to set aside an entry of default. That is:
“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.
(ECF No. 22, at PAGEID # 123.)
The Magistrate Judge proceeded to analyze the three factors. In finding that the first
factor weighs in Defendants’ favor, the Magistrate Judge noted that, “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.’ ” (Id. (quoting Thompson v. American
Home Assur. Co., 95 F.3d 429, 433–34 (6th Cir. 1996).) The Magistrate Judge found that
Plaintiff did not claim any such concerns in this case.

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Regarding the second factor, the Magistrate Judge found that Defendants offered several
legal grounds in their motion to dismiss that constitute a “meritorious defense” for purposes of
this analysis. The Magistrate Judge therefore concluded that the second factor also weighs in
favor of setting aside the default.
The Magistrate Judge likewise concluded that the third factor weighs in Defendants’
favor. Defendants explained the process by which state employees apply for and receive legal
representation from the Office of the Ohio Attorney General. A clerical error in the process
caused Defendants to believe that they were being represented, while the Ohio Attorney
General’s office did not receive the forms and/or know about this lawsuit. The Magistrate Judge
found that Defendants’ conduct could not be considered culpable under these facts.
Plaintiff filed an objection to the R&R. In that filing, Plaintiff does not challenge the
Magistrate Judge’s findings with respect to the second and third factors. Plaintiff argues only
that he will suffer prejudice if the default is set aside because he has been transferred to a new
facility, “which has hindered Plaintiff from retrieving the Chief Inspector’s results regarding the
initial complaint and investigation.” (ECF No. 27, at PAGEID # 135.) Plaintiff also states that
granting the motion “will lend to further the prejudices already experienced” and will “allow
Defendants to erode the processes of this court’s procedures.” (Id.) The Court proceeds to
consider these arguments.
II.

ANALYSIS

When a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Here, Plaintiff challenges only the Magistrate Judge’s conclusion with respect to the first
factor in the three-factor test. This challenge fails for multiple reasons. First, Plaintiff does not
provide any detail or evidence in support of his assertion that he is unable to retrieve relevant
evidence from the facility in which he previously was housed. Second, Plaintiff’s conclusory
assertions that he will experience prejudice are insufficient to demonstrate that the first factor of
the three-factor test weighs in his favor. Third, because it appears that Plaintiff was transferred
after the Magistrate Judge issued the R&R, it is unclear how the transfer can be considered a
proper objection to the R&R when it was never presented to the Magistrate Judge. And finally,
Plaintiff does not attempt to challenge the Magistrate Judge’s conclusion that the second and
third factors weigh in Defendants’ favor. Plaintiff therefore does not argue that his arguments
regarding prejudice have any impact on the Magistrate Judge’s ultimate conclusion that good
cause supports Defendants’ request to set aside the default.
In short, Plaintiff objection is not well taken. The Court finds no reason to modify or
reject the R&R.
III.

CONCLUSION

For the foregoing reasons, the Court OVERRULES Plaintiff’s objection (ECF No. 27),
AFFIRMS AND ADOPTS the R&R (ECF No. 22), and GRANTS Defendants’ motion to set
aside the Clerk’s entry of default (ECF No. 17). In light of these findings, the Court DENIES
AS MOOT the pending motion for default judgment. (ECF No. 14.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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