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Johnson v. Williams

United States District Court, N.D. Mississippi, Greenville Division

February 14, 2019

VADELL C. JOHNSON PLAINTIFF
v.
SHERIFF KELVIN WILLIAMS, et al. DEFENDANTS

          ORDER SETTING ASIDE ENTRY OF DEFAULT

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         Before the Court is the motion to set aside entry of default filed by Rose Tate, Sylvester Hogan, Marvell June Simpson, Rosie Golliday, and James Carmichael. Doc. #55.

         I

         Procedural History

         On or about February 27, 2015, Vadell C. Johnson filed a pro se prisoner complaint in this Court against Kelvin Williams, Ora Starks, Gloria Westley, Joel Norvell, James Carmichael, “Ms. Tate, ” “Mr. Hogan, ” “Mr. Simpson, ” and “Ms. Golliday.” Doc. #1. The complaint alleges the various defendants violated Johnson's Eighth Amendment rights by failing to provide him medical treatment for a broken hand.

         On June 25, 2015, United States Magistrate Judge David A. Sanders held a Spears[1]hearing. Doc. #12. On February 1, 2017, Judge Sanders issued a Report and Recommendation recommending that Johnson's Eighth Amendment claims against Tate, Hogan, Simpson, Norvell, Carmichael, and Golliday be dismissed for failure to state a claim upon which relief can be granted; and that Johnson's claims against Williams, Starks, and Westley be dismissed for the same reason because § 1983 claims cannot be based upon a theory of respondeat superior. Doc. #13 at 7-8.

         On January 3, 2018, this Court adopted in part and rejected in part the Report and Recommendation. Doc. #16. The Court dismissed Johnson's claims against Williams, Starks, and Westley for failure to state a claim upon which relief can be granted but ordered that his Eighth Amendment claims against Norvell, Carmichael, Tate, Hogan, Simpson, and Golliday proceed. Id. at 12.

         Four days later, on February 7, 2018, Judge Sanders ordered that process issue against Norvell, Carmichael, Tate, Hogan, Simpson, and Golliday. Doc. #18 at 1. That day, the Clerk of the Court issued summonses as to them. Doc. #19. On March 23, 2018, the summonses for Carmichael and Norvell were returned as unexecuted, Doc. #22; and the summonses for Golliday, Hogan, Simpson, and Tate were returned as executed, Doc. #23.[2]

         In an order dated May 8, 2018, Judge Sanders explained that process on Norvell “was returned stating that this defendant is deceased” and that process on Carmichael “was returned stating that he was no longer employed at the address on the summons.” Doc. #24 at 1. Regarding the summonses served on Golliday, Simpson, Hogan, and Tate, Judge Sanders determined that “[t]hough the time for doing so has … expired, none of the[se] defendants have either acknowledged process or answered the complaint” and that “further steps are required to perfect service of process.” Id. To that end, Judge Sanders ordered (1) Johnson to “file the appropriate motion to substitute parties regarding … Norvell pursuant to Fed. Rule of Civil Procedure 25 within 28 days of this order;” (2) Johnson to “provide the Clerk of the court with an address at which … Carmichael can be served within 28 days of this order;” and (3) the Clerk of the Court to “issue alias process on … Golliday[, ] Simpson, Hogan and Tate.”[3] Id. at 1-2.

         The Clerk of the Court reissued summonses as to Golliday, Hogan, Simpson, and Tate the next day. Doc. #25. However, on May 21, 2018, Judge Sanders “determined that the order directing the issuance of alias process was entered in error and that the portion of the order directing personal service of process on … Golliday, Simpson, Hogan, and Tate should be and is set aside.” Doc. #27.

         On June 6, 2018, Johnson, in response to Judge Sanders' May 8 order, filed a motion to substitute Norvell, Doc. #31; and provided an updated address for Carmichael, Doc. #32. That day, Judge Sanders ordered the Clerk of the Court to “issue process for … Carmichael” and the United States Marshals Service to “serve process upon this defendant under … 28 U.S.C. §1915(d), using good faith efforts to identify and locate the proper person and obtain personal service by all approved alternative means as provided by F.R.Civ.P. 4 and Miss.R.Civ.P. 4.” Doc. #33 at 1. The following day, the Clerk of the Court issued a summons as to Carmichael and forwarded it to the United States Marshals Service for personal service. Doc. #34.

         On August 24, 2018, Judge Sanders, finding that “Tate, Hogan, Simpson, Golliday, and Carmichael have waived service of process, but have neither answered nor otherwise defended against the plaintiff's claims in the complaint, ” directed the Clerk of the Court “to enter default as to [them] under Fed.R.Civ.P. 55(a).” Doc. #39 at 2 (emphasis omitted). That day, the Clerk of the Court entered default against Tate, Hogan, Simpson, Golliday, and Carmichael (“defaulting defendants”). Doc. #40. At that point, none of the properly served defaulting defendants had answered or otherwise responded to Johnson's complaint, and the deadline to do so had expired.

         Four days later, on August 28, 2018, at a hearing before Judge Sanders in Oxford, Mississippi, Johnson made an ore tenus motion for entry of default judgment, was sworn in, and presented his case. Doc. #41. Judge Sanders took Johnson's ore tenus motion under advisement. Id.

         On August 31, 2018, Judge Sanders issued a Report and Recommendation recommending, among other things, that default judgment be entered in the amounts of: (1) $3, 000 against Carmichael; (2) $3, 000 against Hogan; (3) $3, 000 against Tate; (4) $3, 000 against Simpson; and (5) $5, 000 against Golliday.[4] Doc. #42 at 8. On September 12 and 14, 2018, attorneys entered appearances for the defaulting defendants and filed on their behalf a motion for an extension to object to the Report and Recommendation. Docs. #48, #49, #50. After Judge Sanders granted the requested extension, [5] the defaulting defendants filed a motion to set aside entry of default, Doc. #55, and objections to the Report and Recommendation, Doc. #57, on September 28, 2018; and a motion for leave to file an answer to the complaint, Doc. #58, on October 1, 2018. Johnson, also after ...


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