Lewis, Edward v. Stenz, Leon et al

Filing 105

ORDER denying Plaintiff Edward Max Lewis's 65 Motion for Default Judgment; granting Defendant Betty Thunder's 87 , 93 Motion to Set Aside Default. Signed by District Judge William M. Conley on 11/22/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
EDWARD MAX LEWIS,
Plaintiff,

OPINION AND ORDER

v.
14-cv-446-wmc
GEORGE STAMPER, et al.,
Defendants.
In this pro se civil rights lawsuit, plaintiff Edward Max Lewis has been granted leave to
proceed on claims that the defendants violated his constitutional, statutory and state law rights
by failing to provide him with adequate medical and mental health treatment, subjecting him
to inhumane conditions of confinement, and using excessive force against him during his
confinement at the Forest County Jail between October 26, 2003, and June 28, 2004.
Currently before the court are related motions by defendant Betty Thunder to set aside default
(dkts. ## 87, 93), which the court will grant, and by plaintiff for default judgment (dkt. # 65),
which the court will deny.

OPINION
The Seventh Circuit favors disposing of cases on their merits as opposed to terminating
them by default judgment. Cracco v. Vitran Express, Inc., 559 F.3d 625, 631 (7th Cir. 2009).
Here, no default judgment was ever entered by the court, although a default order was entered
by the clerk of court. Under Rule 55(c), “[t]he court may set aside [the] entry of default for
good cause.” In applying Rule 55(c), “[a] party seeking to vacate an entry of default prior to
the entry of final judgment must show: ‘(1) good cause for the default; (2) quick action to
correct it; and (3) a meritorious defense to the complaint.’” Id. (quoting Sun v. Bd. of Trs. of the

Univ. of Ill., 473 F.3d 799, 810 (7th Cir. 2007)). Defendant Thunder as shown all three here.
As background, Lewis claims that Thunder ignored his mental health symptoms and
the fact that he was suicidal during the time that Lewis was housed in the Forest County Jail.
At that time, Thunder was employed by the Forest County Potawatomi Tribe (“FCP Tribe”),
but also allegedly served as the Behavioral and Mental Health Supervisor at the jail.
On January 13, 2017, Thunder was served with Lewis’s complaint, but she did not file
an answer or otherwise plead. On May 10, 2017, therefore, Lewis filed a motion for default
judgment as to Thunder. After finding that Thunder had failed to appear, plead or otherwise
defend, the clerk of court entered default against her on June 16, 2017. (Dkt. # 87.) Four
days later, on June 19, Thunder wrote the court a letter, stating that: she did not have an
attorney; she did not understand the need to file an answer; and she was waiting for the court
to direct her to appear. (Dkt. # 87.) In a subsequent pro se filing, Thunder clarified further
that although she learned about the lawsuit on January 17, 2017, she believed the FCP Tribe
was representing her until June 16, 2017, when she received notice of the clerk’s entry of
default. (Dkt. # 93.) Thunder further represents that as soon as she learned that the FCP
Tribe was not representing her, she called the court. Finally, Thunder argues that she never
worked at the jail and only would have learned about Lewis’s mental health needs from
speaking with a jail employee.
Thunder is entitled to the same deference that this court extends to all pro se litigants,
including plaintiff. Having satisfied the three-part showing required by Rule 55(c), therefore,
I will grant her motion to set aside the entry of default and deny plaintiff’s request for default
judgment. See Cracco, 559 F.3d at 631 (failure to respond due to inadvertence is good cause
for a late submission); see also Passarella v. Hilton Int’l Co., 810 F.2d 674, 675-76 (7th Cir. 1987)

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(“[D]efault judgments should generally be set aside . . . where the default has not been
willful.”). First, given her pro se status, it is understandable that Thunder might believe that
the FCP Tribe would be representing her because she was its employee during the relevant time
period. Second, in filing her motion four days after entry of default, Thunder certainly acted
promptly to correct her mistake. Third, without delving into the details of the merits, Thunder
may well be able to show that she lacked sufficient personal involvement in Lewis’s care and
treatment to be held liable. See Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010)
(“individual liability under § 1983 requires ‘personal involvement in the alleged constitutional
deprivation’”).

ORDER
IT IS ORDERED that:
(1)

Defendant Betty Thunder’s Motion to Set Aside Default (dkts. ##87, 93) is
GRANTED.

(2)

Plaintiff Edward Max Lewis’s Motion for Default Judgment (dkt. #65) is
DENIED.

Entered this 22nd day of November, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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