Palmore v. Doe et al
Filing
46
ORDER signed by Judge Pamela Pepper on 7/5/2017. Wayne Gellings and Diane Levin DISMISSED as defendants. Clerk of Court to enter default as to defendants Meeks and Dance. The court will recruit counsel to represent plaintiff for the purpose of prepa ring and filing motion for default judgment and supporting documentation. Once counsel has been recruited, the court will schedule a telephone status conference to discuss briefing schedule. (cc: all counsel, via mail to Marlow Palmore at Racine Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARLOW PALMORE,
Plaintiff,
v.
Case No. 15-cv-575-pp
LORA BLASIUS, et al.,
Defendants.
______________________________________________________________________________
ORDER DISMISSING DEFENDANT WAYNE GELLINGS, DISMISSING
DEFENDANT DIANE LEVIN, AND DIRECTING CLERK’S OFFICE TO ENTER
DEFAULT AS TO DEFENDANTS MEEKS AND DANCE
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the defendants violated his
Eighth Amendment rights. Dkt. No. 1. On January 17, 2017, the parties
stipulated to the dismissal of every defendant who had made an appearance in
the case. Dkt. No. 41. The court approved that stipulation, and dismissed a
number of defendants. Dkt. No. 42.
One of the defendants who had made an appearance was Diane Levin.
Dkt. No. 29 (answer to complaint by several defendants, including Levin).
Consequently, the court should have dismissed Levin when it dismissed the
other defendants (on January 23, 2017). The court mentioned Levin on page 1
of its order, when it listed the parties who’d answered the amended complaint,
however, it failed to specifically name her in the final order paragraph on page
2. Dkt. No. 42. Consequently, Levin still appears as a named defendant,
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despite the fact that the parties stipulated to her dismissal. The court will
dismiss her in this order.
There are three defendants left in the case: Wayne Gellings, Sherine
Meeks and Kimberlee Dance.
Defendant Wayne Gellings is deceased. Dkt. No. 44 at 2. The court
should have dismissed him as a defendant back in January; it will do so now.
Defendant Kimberlee Dance was served on June 30, 2016 (dkt. no. 26),
and defendant Sherine Meeks was served on July 1, 2016 (dkt. no. 28). Neither
has filed an answer, although over a year has passed.
The court issued an order on January 23, 2017, asking the plaintiff to
indicate how he wished to proceed with regard to defendants Gellings, Dance
and Meeks. Id. On February 16, 2017, the plaintiff filed a motion for default
judgment, dkt. no. 43, which the court will construe as a motion for entry of
default under Federal Rule of Civil Procedure 55(a).
Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party's default.” Defendants Meeks and Dance were served and
failed to answer. The plaintiff submitted documents in which he shows the
defendants’ failure to defend. Dkt. Nos. 43-45. Therefore, the court will direct
the Clerk of Court to enter default as to those two defendants.
The entry of default means only that the two defendants have not
answered. The court still must consider whether to grant judgment in favor of
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the plaintiff against those two defendants; the fact that a defendant does not
answer does not entitle a plaintiff to judgment. The plaintiff still must show
that he could have made a prima facie case against those two defendants. The
court understands that this may be a confusing concept for the plaintiff, and
so it will recruit counsel to represent him for the purpose of preparing and
filing a motion for default judgment and any supporting documentation. Once
the court has found an attorney to represent the plaintiff, it will schedule a
telephone status conference with counsel to talk about a briefing schedule.
The court ORDERS that defendant Wayne Gellings is DISMISSED as a
defendant. The court ORDERS that Diane Levin is DISMISSED as a defendant.
The court ORDERS the Clerk of Court to enter default as to defendants Sherine
Meeks and Kimberlee Dance.
Dated in Milwaukee, Wisconsin this 5th day of July, 2016.
BY THE COURT:
__________________________________________
HON. PAMELA PEPPER
United States District Judge
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