Driver v. Fabish et al

Filing 261

REPORT AND RECOMMENDATION: Based on the foregoing, the undersigned Magistrate Judge respectfully RECOMMENDS that: (1) Plaintiff's motion (Docket Entry No. 231) for default judgment against Defendant Jorge Santiago be GRANTED and that defa ult judgment be entered against Defendant Jorge Santiago in the amount of $20,000.00;. Signed by Magistrate Judge Barbara D. Holmes on 3/27/2018. (2) Plaintiff's motion for an award of attorneys fees (Docket Entry No. 249) be GRA NTED and that Plaintiff be awarded attorney's fees against Defendant Jorge Santiago in the amount of $16,520.00; (3) the "John Doe II" defendant be DISMISSED; and, (4) a final judgment be entered in this action in accordance with Rule 58 of the Federal Rules of Civil Procedure. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

De’MARIO DRIVER

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v.
FRANK J. FABISH, et al.

NO. 3:13-1087

TO: Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMENDATION
This civil rights action was referred to the Magistrate Judge for pretrial proceedings under
28 U.S.C. §§ 636(b)(1)(A) and (B) and Rule 72(b) of the Federal Rules of Civil Procedure. See
Orders entered October 11, 2013 (Docket Entry No. 4), and April 14, 2016 (Docket Entry No. 104).
For the reasons set out below, the undersigned respectfully recommends that default
judgment be entered against Defendant Jorge Santiago, an award of compensatory damages and
attorney’s fees be made to Plaintiff, and a final judgment be entered.

I. BACKGROUND
De’Mario Driver (“Plaintiff”) is an inmate of the Tennessee Department of Correction
(“TDOC”). He filed this lawsuit pro se and in forma pauperis on October 4, 2013, alleging that
eight correctional officers at TDOC’s Lois DeBerry Special Needs Facility (“DeBerry”) used
excessive force against him on May 16, 2013, and seeking damages under 42 U.S.C. § 1983 and
under state tort law. See Complaint (Docket Entry No. 1). Plaintiff named the following defendants

- Quintez Burke, Earl Johnson, Frank Fabish, James Lindsey, Michael Ferrish, Jorge Santiago
(“Santiago”), Leslie Mitchell,1 and “John Doe II.” Although the lawsuit was filed pro se, Plaintiff
has been represented by counsel since August 2014. See Docket Entry No. 68.
The somewhat torturous procedural history of the case has previously been summarized, see
Report and Recommendation (Docket Entry No. 208) at 2-3, and need not be restated again here
other than to say that, at this point in the lawsuit, all named Defendants other than Santiago have
been dismissed. See Docket Entry No. 103, 211, 214, 222, 224, and 245.2
Although Plaintiff had a difficult time serving process upon Santiago, he was personally
served with process on October 6, 2014. See Docket Entry No. 75. Defendant Santiago did not
answer the complaint or otherwise defend the action, however, and default was entered against him
on July 18, 2016. See Docket Entry No. 143. Plaintiff’s first request for default judgment against
Defendant Santiago was denied without prejudice to being refiled after his claims against all other
defendants were adjudicated. See Order entered March 15, 2017 (Docket Entry No. 187). Plaintiff
subsequently renewed his motion for default judgment and the entry of an award of damages against
Defendant Santiago on December 28, 2017, see Docket Entry No. 231, and the Court set the matter
for a hearing. See Docket Entry No. 233.

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Defendant Mitchell was initially named as “John Doe I” but was later identified by Plaintiff.
See Docket Entry No. 51.
2

At the hearing, counsel for Plaintiff represented that he is no longer pursuing claims against
the Defendant identified as “John Doe II."
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II. FINDINGS AND CONCLUSIONS
A. Default Judgment
At the January 26, 2018, hearing, Defendant Santiago did not appear. The Court heard
argument from Plaintiff’s counsel on the issue of default judgment and damages and received into
evidence several exhibits. In lieu of live testimony, Plaintiff was permitted to submit his affidavit.
At the conclusion of the hearing, the Court directed Plaintiff to file as late filed exhibits copies of
video and audio exhibits that were played at the hearing and to file a motion for an award of
attorneys fees and supporting declarations. See Order entered January 31, 2018 (Docket Entry
No. 244). Plaintiff has now made these filings, see Docket Entry Nos. 248 and 249-251, and the
matter is ripe for resolution.
In accordance with Rule 55(b)(2) of the Federal Rules of Civil Procedure, default judgment
should be granted in favor of Plaintiff against Defendant Santiago. Because of Defendant Santiago’s
default, the Court is entitled to take as true the well-pleaded allegations of the complaint. Antoine
v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995). The Court has jurisdiction over this
lawsuit, which raises federal civil rights claims, and also has personal jurisdiction over Defendant
Santiago, who resides and acted within Tennessee. Based on Plaintiff’s well-pleaded allegations and
the evidence presented at the hearing, see Plaintiff’s Exhibits ##1-8, the Court finds that Defendant
Santiago violated Plaintiff’s Eighth Amendment rights by using excessive force against him. See
Whitley v. Albers, 475 U.S. 312, 319-20, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). The complaint is
sufficient and the merits of Plaintiff’s claim is strong. Defendant Santiago was given the opportunity
to appear and litigate the claim against him but failed to do so. No reason exists not to enter default
judgment against Defendant Santiago. Based upon the proof presented by Plaintiff on the issue of
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damages, Plaintiff has supported his claim of injury and is entitled to an award of $20,000.00 in
compensatory damages against Defendant Santiago.

B. Attorney’s Fees
Plaintiff seeks an award of attorney’s fees in the amount of $16,520.00 against Defendant
Santiago. See Motion for Attorney’s Fees (Docket Entry No. 249). As the prevailing party in this
civil rights action, Plaintiff should be granted a discretionary award of attorney’s fees under
42 U.S.C. § 1988(b). See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983). The Court finds that no special circumstances are present that would render an award of fees
unjust and that Plaintiff is entitled to an award of the attorney’s fees he requests. Plaintiff has
provided sufficient and persuasive evidence3 supporting the request and showing that the requested
award is reasonable. See Building Service Local 47 v. Grandview Raceway, 46 F.3d 1392, 1402 (6th
Cir. 1995); U.S. Structures v. J.P. Structures, 130 F.3d 1185, 1193 (6th Cir. 1997).

RECOMMENDATION
Based on the foregoing, the undersigned Magistrate Judge respectfully RECOMMENDS
that:
(1) Plaintiff’s motion (Docket Entry No. 231) for default judgment against Defendant Jorge
Santiago be GRANTED and that default judgment be entered against Defendant Jorge Santiago in
the amount of $20,000.00;

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See Docket Entry Nos. 251 and 260.
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(2) Plaintiff’s motion for an award of attorney’s fees (Docket Entry No. 249) be GRANTED
and that Plaintiff be awarded attorney’s fees against Defendant Jorge Santiago in the amount of
$16,520.00;
(3) the “John Doe II” defendant be DISMISSED; and,
(4) a final judgment be entered in this action in accordance with Rule 58 of the Federal Rules
of Civil Procedure.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
See Rule 72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.03(b)(1). A failure to
file written objections within the specified time can be deemed a waiver of the right to appeal the
District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any
other party wishing to respond to the objections shall file a response within fourteen (14) days after
being served with a copy of such objections. See Federal Rule 72(b)(2) and Local Rule 72.03(b)(2).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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