Curanovic v. Houchin et al
Filing
72
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: Granting 41 Motion to Set Aside Default; Denying Without Prejudice 43 Motion for Default Judgment; and Adopting 57 REPORT AND RECOMMENDATION re 41 MOTION to Set Aside Default filed by Angela P. Dunbar, Jessica Houchin, Ms. Wilson, M. Weaver, Jennifer Saad, Dr. Anderson, Ian Conners, Lt. Duvall, and 43 MOTION for Default Judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 3/12/19. (copy to Pltff. by cert. mail)(soa) (Additional attachment(s) added on 3/12/2019: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EDWARD CURANOVIC,
Plaintiff,
v.
Civil Action No. 5:18CV88
(STAMP)
JESSICA HOUCHIN, R.N.,
MS. WILSON, P.A.,
LT. DUVALL,
DR. ANDERSON, M.D.,
M. WEAVER,
Medical Administrator,
ANGELA P. DUNBAR,
Regional Director,
JENNIFER SAAD, Warden
and IAN CONNERS,
Adm. National Inmate Appeals,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Background
On May 14, 2018, the pro se1 plaintiff filed a complaint under
42 U.S.C. § 1983.
ECF No. 1.
Plaintiff received a notice of
deficient pleading.
ECF No. 4.
Plaintiff then filed a complaint
on a court-approved form under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
ECF No. 7.
Plaintiff again received a notice of deficient pleading and intent
to strike pleading and dismiss action.
1
ECF No. 8.
Plaintiff then
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
filed another Bivens complaint.
ECF No. 10.
In his complaint,
plaintiff alleges that defendants were deliberately indifferent to
plaintiff’s medical conditions in violation of the Eighth Amendment
of the United States Constitution.
at 1-12, and ECF No. 10 at 8-10.
ECF No. 1-1 at 2, ECF No. 7-1
Plaintiff requests “a monetary
award of $1.9 [m]illion [d]ollars; for the physical anguish and
pain he experienced; $1.9 million for the emotional anguish the
[plaintiff] experienced during the ‘dilemma’ with FCI Gilmer Staff
on June 10, 2017; $1.9 million dollars for . . . [d]efendants[’]
‘deliberate indifference’ .
.
million dollars in damages.
recommended by Dr. Marsh.”
. for the total amount of $5.7
Also the necessary back fusion
ECF No. 10 at 10.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States
Magistrate
Judge
James
defendants
filed
a
P.
motion
Mazzone.
for
On
September
enlargement
of
consolidated response date of November 2, 2018.
26,
time
2018,
for
a
ECF No. 30.
Magistrate Judge Mazzone granted defendants’ motion for enlargement
of time and ordered that defendants answer or otherwise respond to
plaintiff’s complaint by November 2, 2018.
Defendants
failed
plaintiff’s complaint.
on November 8, 2018.
to
answer
or
ECF No. 31.
otherwise
respond
to
Plaintiff then filed a motion for default
ECF No. 38.
On November 13, 2018, Magistrate
Judge Mazzone granted plaintiff’s motion for default because it was
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“clear from the record that the defendants [] failed to plead or
otherwise defend this action.”
ECF No. 39 at 2.
On November 14, 2018, defendants filed a motion to set aside
default.
ECF No. 41.
In that motion, defendants contend that a
staff shortage at the Bureau of Prisons’ Consolidated Legal Center,
which is handling this matter, slowed the process of obtaining the
documents necessary to respond to plaintiff’s complaint. Id. at 2.
Moreover, defendants state that due to unknown reasons, their
second motion to extend the response date of November 2, 2018, and
their Motion for Permission for Nunc Pro Tunc Filing of Second
Motion for Enlargement of Time were never filed with the Court.
Id. at 3.
Defendants then assert that default judgment should be
set aside for the following reasons: (1) respondeat superior
liability does not exist in a Bivens lawsuit, and because plaintiff
has
not
alleged
personal
involvement
by
certain
defendants,
dismissal should be granted as to defendants Weaver, Dunbar, Saad,
Connors, and Duvall from this civil action; (2) plaintiff will be
unable
to
successfully
allege
that
his
medical
care
was
so
deficient that it resulted in an Eighth Amendment violation; (3)
defendants were reasonably prompt to file the motion to set aside
the Court’s entry of default; (4) the failure to plead or otherwise
respond
to
plaintiff’s
complaint
was
not
the
personal
responsibility of defendants, but that of the undersigned attorney,
Assistant United States Attorney Erin K. Reisenweber; (5) setting
3
aside entry of default will not prejudice either party, since it is
unlikely that plaintiff began the process necessary for obtaining
default judgment; and (6) defendants have no history of delay. Id.
at 3-9.
Plaintiff responded to defendants’ motion to set aside default
judgment.
ECF No. 47.
In his response, plaintiff asserts, among
other things, that defendants had ample time to prepare their
defense.
Id. at 3.
Moreover, plaintiff states that delaying
proceedings would be prejudicial since he “is in continued pain and
suffering and in need of a(n) operation, which has been recommended
and his health continues to deteriorate for the delay postpones
[p]laintiff’s opportunity to accurately obtain needed operation
which has been put on ‘hold.’[,]” and that his “general position
would be prejudiced by granting defendant[s] relief from default in
[that] the [p]laintiff could never have confidence in it[]s service
of process and hence, in the timing of it[]s legal actions.”
Id.
Plaintiff then asserts that “[a]lternatively . . . the [m]otion to
[s]et [a]side [e]ntry of [d]efault, is not properly before the
Court,
as
.
Appearance.’”
.
.
Erin
Id. at 7.
K
Reisenweber,
appeared
by
‘Special
Plaintiff states that counsel did not
enter an appearance on behalf of defendants, and that defendants
provide no support demonstrating that they have a meritorious
defense.
Id.
4
Plaintiff also filed a motion for default judgment.
No. 43.
ECF
In that motion plaintiff states that defendants failed to
plead or otherwise respond to his complaint within 21 days of
service, that plaintiff’s allegations are deemed admitted, and that
he is entitled to default judgment.
Id. at 4.
The magistrate judge entered a report and recommendation, in
which he recommends that defendant’s motion to set aside default
(ECF No. 41) be granted and that plaintiff’s request for default
judgment (ECF No. 43) be denied without prejudice.
ECF No. 57
at 5.
The plaintiff has not filed objections.
This Court notes that there is a pending motion to dismiss or,
in the alternative, motion for summary judgment filed by defendants
(ECF No. 44) and that the magistrate judge granted plaintiff’s
motion for an extension of time to respond to defendants’ motion
(ECF No. 66).
ECF No. 67 at 1.
Specifically, the magistrate judge
stated that plaintiff shall have until April 1, 2019 to file his
response.
Id.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge (ECF No. 57) should be
adopted in its entirety.
II.
Applicable Law
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
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to which objection is timely made.
file
any
objections
to
the
Because the plaintiff did not
report
and
recommendation,
the
magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A).
III.
Discussion
In his report and recommendation, Magistrate Judge Mazzone
found that defendants provided facts to support a meritorious
defense and that plaintiff did not offer a response to defendants’
assertions.
ECF No. 57 at 5.
The magistrate judge further found
that defendants filed their motion promptly, one day after default.
Id.
Therefore, the magistrate judge concluded that defendants
established good cause to set aside entry of default against them.
Id.
This
Court
finds
no
error
in
the
determinations
of
the
magistrate judge and thus upholds his recommendation.
IV.
Conclusion
Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 57) is hereby AFFIRMED and ADOPTED in its entirety.
Specifically, the defendant’s motion to set aside default (ECF No.
41) is GRANTED, and the plaintiff’s request for default judgment
(ECF No. 43) is DENIED without prejudice.
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IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
DATED:
March 12, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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