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Wilson v. Lesher

United States District Court, S.D. West Virginia, Charleston

December 18, 2017

STEPHEN WILSON, Plaintiff,
v.
LYLE LESHER, Correctional Officer II, CORPORAL CHRISTOPHER HESS, SERGEANT CHARLES LEGG, [1] Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley, United States Magistral

         This matter is assigned to the Honorable John T. Copenhaver Jr., United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court is defendant Charles Legg's Motion to Set Aside Entry of Default (ECF No. 24), as well as the plaintiff's Request for Award of Damages Against Defendant Charles Legg (ECF No. 37), which the undersigned construes as a Motion for Default Judgment against defendant Legg.

         For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge GRANT the defendant Legg's Motion to Set Aside Entry of Default (ECF No. 24) and DENY the plaintiff's Request for Award of Damages Against Defendant Charles Legg (ECF No. 37).

         PROCEDURAL HISTORY

         On July 15, 2014, the plaintiff filed a Complaint alleging that, on July 17, 2012, while incarcerated at the Mount Olive Correctional Complex (“MOCC”), defendant Lesher sprayed the plaintiff with an excessive amount of chemical agent on his face, head and body while he was laying face down and being compliant and non-resistant. The Complaint further alleges that defendants Hess and Legg unconstitutionally failed to intervene to stop or temper Lesher's use of such force. The Complaint contends that the conduct of the defendants violated the plaintiff's rights under the Eighth Amendment of the United States Constitution and Article III, § 5 of the West Virginia Constitution. The plaintiff seeks a declaratory judgment and monetary damages.

         The plaintiff's Application to Proceed Without Prepayment of Fees and Costs was granted and summonses were issued on April 7, 2016. (ECF No. 13). According to the docket sheet, on April 13, 2016, the Clerk docketed a return receipt indicating that defendant Charles Legg signed for and received his Summons and Complaint packet on April 8, 2016. Thus, Legg's Answer to the Complaint or other responsive pleading was due by April 29, 2016.[2] However, defendant Legg did not file a timely responsive pleading and made no other appearance in this matter. Nor did the plaintiff thereafter request entry of default against defendant Legg or make any other inquiry concerning this matter. Therefore, on April 7, 2017, no action having been taken by the parties, the undersigned entered an Order directing the Clerk to enter default against defendant Legg (ECF No. 21), and default was thereafter entered on April 10, 2017 (ECF No. 22).

         Immediately thereafter, on April 13, 2017, attorneys Lou Ann Cyrus and Caleb David of the law firm of Shuman, McCuskey & Slicer, PLLC, entered an appearance on behalf of defendant Legg and, on April 14, 2017, filed the instant Motion to Set Aside Entry of Default (ECF No. 24), requesting that the default entered against defendant Legg be set aside. Legg's motion acknowledges that he received the Summons and Complaint and reported receipt thereof to his superiors at MOCC. However, “notice of the suit never reached the proper channels and counsel was not retained.” (Id. at 2, 4). Legg's motion maintains that he was unaware that he was in default and asserts that he has a meritorious defense to the plaintiff's allegations against him. (Id.) Therefore, he asserts that good cause exists to set aside the entry of default and to allow this matter to be resolved on its merits. (Id. at 4). Legg further contends that the plaintiff will not be prejudiced by the setting aside of the default, as the other defendants have not been served with process, and this matter has not progressed beyond its initial stages. (Id. at 5).

         On April 24, 2017, defendant Legg, by counsel, also filed a Supplement to his motion (ECF No. 26), providing an Affidavit setting forth his proposed defense(s) to the Complaint (id., Attach. 1).

         On May 8, 2017, the plaintiff filed a Response in Opposition to defendant Legg's Motion to Set Aside Entry of Default (ECF No. 27), in which he vigorously challenges defendant Legg's assertion that there is good cause to set aside the default. The plaintiff asserts that Legg's failure to ensure that he had counsel and timely filed a response to the Complaint was not a mistake or excusable neglect but, rather, was due to “laziness” and a “lack of concern.” (ECF No. 27 at 2-3). The plaintiff further contends that Legg is a “veteran litigator” who has been named as a defendant in prior lawsuits and, thus, “knows exactly how this process works and cannot claim ignorance . . .” (Id. at 2). The plaintiff further contends that Legg has affirmatively misrepresented facts in his Affidavit and briefs concerning the merits of his defense. (Id. at 3-5). Thus, he contends that Legg was not relieved of his responsibility to inquire about the status of his defense and that his conduct does not justify setting aside the default.

         On May 15, 2017, defendant Legg filed a Reply (ECF No. 28). The Reply asserts in pertinent part:

As the Court is aware, the State of West Virginia insures the West Virginia Division of Corrections, so it is somewhat understandable that Defendant Legg was under the mistaken belief that the matter was being handled by the state's insurance carrier. [Footnote omitted] When he learned a default had been entered, however, he acted promptly through counsel to try to remedy the matter. * * * Because Plaintiff disputes Defendant Legg's defense, the Entry of Default should be set aside and the instant action should be disposed of upon its merits.

(Id. at 4, 6).

         On May 30, 2017, the plaintiff filed an unauthorized sur-reply (ECF No. 30), which largely reiterates his assertions that Legg was not diligent in assuring that a timely response was filed, despite having been through previous litigation, and further disputes the accuracy of Legg's factual support for his defense. (Id.)

         Thereafter, the plaintiff served written discovery requests upon defendant Legg. (ECF Nos. 34, 35 and 39). Thus, the undersigned believed that the plaintiff may have abandoned his objection to defendant Legg's Motion to Set Aside Entry of Default. However, on December 6, 2017, the plaintiff filed a Request for Award of Damages Against Defendant Charles Legg (ECF No. 37), which, ...


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