Mitchell v. Sizemore et al
Filing
125
MEMORANDUM OPINION and Award of Judgment. A status conference was held as scheduled on 2/7/2012. Defendant Lisa Winston failed to appear and the Court has determined that she is in default. It is ORDERED that default judgment is rendered in favor of the Plaintiff Ivory R. Mitchell and against the Defendant Lisa Winston in the amount of $100,000.00, with interest accruing at the rate of 0.13 percent per annuum. Any and all motions which may be pending in this case are DENIED. Signed by Magistrate Judge Judith K. Guthrie on 2/8/2012. (leh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
IVORY R. MITCHELL
§
v.
§
MICHAEL SIZEMORE, ET AL.
§
CIVIL ACTION NO. 6:09cv348
MEMORANDUM OPINION AND AWARD OF JUDGMENT
The Plaintiff Ivory Mitchell, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. The parties have consented to
allow the undersigned United States Magistrate Judge to enter final judgment in the proceeding
pursuant to 28 U.S.C. §636(c). The sole remaining defendant in the lawsuit is former TDCJ officer
Lisa Winston.
The evidence in the case shows that Mitchell was administrative porter at the Powledge Unit.
Winston sexually assaulted him on three occasions, forcing him to perform sexual acts upon her.
When the Office of the Inspector General conducted an investigation, Winston admitted the
allegations and resigned on April 3, 2009. An arrest warrant was issued for her on charges of
improper sexual activity with a person in custody. Winston was arrested on June 23, 2009, and taken
to the Anderson County Jail. Mitchell testified that Winston was convicted on these charges and
received a two-year sentence.
Winston was ordered to answer the lawsuit and did so. She retained private counsel, who
filed a motion to withdraw from the case on October 21, 2011. This motion stated that Winston
requested to proceed pro se and without counsel, and that she consented to counsel’s withdrawal
from the case. This motion was granted on November 11, 2011, and counsel provided Winston’s
last known mailing address, in Oakwood, Leon County, Texas, on December 9, 2011.
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On January 3, 2012, the Court set a status conference hearing to be held in Tyler on February
7, 2011. Notice of the order was sent to Winston by certified mail, and the mail card was returned
with the notation that it had been refused. On January 30, 2012, the Court issued an order denying
the plaintiff’s motion for production of documents; this order also made specific reference to the
status conference on February 7. A copy of this order was also sent to Winston.
The status conference hearing was held as scheduled on February 7, 2011, but Winston did
not appear. The Court determined, and so finds, that Winston is in default.
At the hearing, Mitchell testified concerning what had happened to him and the damages
which he suffered. See Rule 55(b)(2), Fed. R. Civ. P.; Bonanza International, Inc. v. Corcellor, 480
F.2d 613, 614 (5th Cir. 1973). The Court has considered the facts and evidence and it is hereby
ORDERED that default judgment is hereby rendered in favor of the Plaintiff Ivory R.
Mitchell and against the Defendant Lisa Winston in the amount of $100,000.00, with interest
accruing thereafter at the rate of 0.13 percent per annum, as set by the weekly average one-year
constant maturity Treasury yield for the calendar week preceding the date of judgment. 28 U.S.C.
§1961. It is further
ORDERED that any and all motions which may be pending in this cause are hereby
DENIED.
So ORDERED and SIGNED this 8
day of February, 2012.
____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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