Lombrana-Perez v. Williams et al

Filing 96

ORDER RULING ON REPORT AND RECOMMENDATION 92 . it is hereby ORDERED that the Magistrate Judges Report 92 is adopted; Plaintiffs objections 93 are overruled; Defendants oral motion to set aside the entry of defaul t is granted; Plaintiffs motions for default judgment ECF's 72 84 are denied; and Defendants are instructed to file their answers or other responsive pleadings to Plaintiffs complaint within 30 days of the date this order is filed. L astly, the Court denies Plaintiffs motion for a copy of the transcript from the December 14 ECF 95 as it appears that no transcript has been prepared yet, and the Clerk of Court shall mail Plaintiff a letter explaining how he may attain copies of court documents in the future Signed by Honorable Bruce Howe Hendricks on 1/2/2018. (kric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Enrique Lombrana-Perez,

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Plaintiff,
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v.
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Diane Sheffield-Wilkes and
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Victor Basily, in their individual
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and official capacities,
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Defendants.
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________________________________)

Civil Action No. 6:16-cv-1842-BHH

ORDER

This matter is before the Court upon Plaintiff Enrique Lombrana-Perez’s (“Plaintiff”)
pro se complaint seeking relief pursuant to 42 U.S.C. § 1983. In accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a), D.S.C., the matter was referred
to a United States Magistrate Judge for preliminary review.
Plaintiff filed this action on June 6, 2016, seeking damages for alleged deliberate
indifference to his serious medical needs and excessive force during his time as a pretrial
detainee in the Darlington County Detention Center. The complaint originally named three
Defendants, but Officer Williams was dismissed, and the remaining Defendants were
named only in the claim for deliberate indifference.
On June 15, 2016, service of process was authorized for the remaining Defendants.
The summonses were returned executed on July 16, 2016, and the United States Marshals
Service noted on the Forms USM-285 that both Defendants were served on June 29, 2016,
making Defendants’ answers due on July 20, 2016. Defendants failed to file answers.
On October 27, 2016, United States Magistrate Judge Kevin McDonald issued an

order directing Defendants to answer or other respond within 20 days. The order was sent
by certified mail, and the Court received the certified mail receipt on November 3, 2016.
Defendants failed to respond to the order, and on January 31, 2017, Magistrate Judge
McDonald issued another order directing Defendants to show cause why the Court should
not enter default against them within fourteen days. The order was again sent by certified
mail, and the Court received the certified mail receipt on February 6, 2017. Defendants’
response was due on February 17, 2017, but Defendants did not respond.
On March 30, 2017, the undersigned entered default against Defendants pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure. On June 9, 2017, Plaintiff moved for
default judgment against Defendants pursuant to Rule 55(b), and the motions were referred
to the United States Magistrate Judge for consideration.
On August 18, 2017, the Court issued special interrogatories to Major Coe, who
accepted service of the summons and complaint on behalf of Defendants, asking whether
he was authorized to accept such service. On October 23, 2017, Major Coe responded to
the special interrogatories, stating that he was authorized to accept service on behalf of
Defendants.
On October 25, 2017, the Court scheduled a hearing on Plaintiff’s motions for default
judgment for December 14, 2017, and ordered Defendants to appear at the hearing. The
Court directed the United States Marshals Service to serve copies of the hearing notice on
Defendants at 24 Public Square, Darlington, South Carolina, and to serve a copy of the
notice on Major Coe at the Darlington County Detention Center. The United States
Marshals Service informed the Court that Major Coe was served with the hearing notice;
that Defendant Wilkes was personally served with the hearing notice on November 3, 2017;
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and that Victor Basily’s wife was personally served with the hearing notice on November
14, 2017.
Magistrate Judge McDonald held a hearing on Plaintiff’s motions for default
judgment on December 14, 2017. Plaintiff, who is incarcerated in California, appeared
telephonically with the assistance of a translator. Defendants appeared at the hearing
without the assistance of counsel and informed the Court that they were not served with
the summons and complaint in this case and that they only learned of this lawsuit when the
United States Marshals Service personally served them with the hearing notice.
Defendants stated that they are employed by Hartsville Medical Enrichment Services, LLC,
and are not employed by the Darlington County Detention Center, although they have
worked there at times. Defendants made an oral motion for the Court to set aside the entry
of default and to allow them to defend Plaintiff’s claims.
Following the hearing, the Magistrate Judge entered a Report and Recommendation
(“Report”) on December 14, 2017, outlining in the issues and recommending that the Court
grant Defendants’ oral motion to set aside the entry of default and deny Plaintiff’s motions
for default judgment. Attached to the Magistrate Judge’s Report was a notice advising the
parties of their right to file written, specific objections to the Report within fourteen days of
being served with a copy. On December 27, 2017, Plaintiff filed objections to the Report,
asking the Court to reinstate the entry of default until Defendants actually respond. Plaintiff
also filed a motion requesting a copy of the transcript from the December 14 hearing.
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
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is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
Here, the Court has thoroughly reviewed the record and finds that the Magistrate
Judge’s Report fairly summarizes the facts and applies the correct principles of law. As the
Magistrate Judge noted, pursuant to Rule 55 of the Federal Rules of Civil Procedure, a
court may set aside an entry of default for good cause. Fed. R. Civ. P. 55(c). Rule 55(c)
is to be liberally construed in favor of setting aside a default because the law prefers
adjudication on the merits. Tolson v. Hodge, 411 F. 2d 123, 130 (1969) (“Any doubts about
whether relief should be granted should be resolved in favor of setting aside the default so
that the case may be heard on the merits.”). In determining whether to set aside an entry
of default, the Fourth Circuit has indicated that “a district court should consider whether the
moving party has a meritorious defense, whether it acts with reasonable promptness, the
personal responsibility of the defaulting party, the prejudice to the party, whether there is
a history of dilatory action, and the availability of sanctions less drastic.” Payne v. Brake,
439 F.3d 198, 204-05 (4th Cir. 2006).
Here, as the Magistrate Judge determined, taking Defendants’ allegations as true,
they were unaware of this action prior to receiving the hearing notice in November, and
both appeared at the hearing and promptly requested relief from the entry of default. Also,
the Court agrees with the Magistrate Judge that any prejudice to Plaintiff in setting aside
the entry of default is outweighed by the Court’s preference for deciding matters on their
merits. There are less drastic sanctions available, and indeed, the Court will grant
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Defendants a limited time to file answers or other responses to Plaintiff’s complaint. Finally,
although Defendants have not yet presented a defense, they have indicated that they wish
to do so as they do not believe they have violated Plaintiff’s constitutional rights. In all, the
Court agrees with the Magistrate Judge that the circumstances favor granting Defendants’
oral motion to set aside the entry of default.
In his objections, Plaintiff asks the Court to reinstate the entry of default against
Defendants until they file their answers.

After consideration, the Court finds this

unnecessary and agrees with the Magistrate Judge’s findings and conclusions.
Accordingly, it is hereby ORDERED that the Magistrate Judge’s Report (ECF No. 92) is
adopted; Plaintiff’s objections (ECF No. 93) are overruled; Defendants’ oral motion to set
aside the entry of default is granted; Plaintiff’s motions for default judgment (ECF Nos. 72
and 84) are denied; and Defendants are instructed to file their answers or other responsive
pleadings to Plaintiff’s complaint within 30 days of the date this order is filed. Lastly, the
Court denies Plaintiff’s motion for a copy of the transcript from the December 14 (ECF No.
95) as it appears that no transcript has been prepared yet, and the Clerk of Court shall mail
Plaintiff a letter explaining how he may attain copies of court documents in the future.
AND IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
January 2, 2018
Charleston, South Carolina

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