United States District Court, S.D. Ohio, Western Division
KENNETH J. RUTHERFORD, JR., Plaintiff,
WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
matter is before the Court on plaintiffs motion for default
judgment (Doc. 65) and defendant Randy Jackson's response
in opposition (Doc. 69). This matter is also before the Court
on defendants' motion for leave to file an answer
instanter (Doc. 70).
background, plaintiff, an inmate at the Toledo Correctional
Institution proceeding pro se, brings this civil rights
action under 42 U.S.C. § 1983 alleging violations of his
constitutional rights by current and former prison employees
at the Southern Ohio Correctional Facility. Plaintiff filed
his initial complaint in March 2015 and an amended complaint
in June 2015. (Docs. 4, 19). In July 2015, counsel from the
Ohio Attorney General's Office submitted an answer to the
amended complaint for defendants Ahmed, Butterbaugh, Distel,
and Joiner. (Doc. 21). In December 2015, after service was
perfected on the remaining defendants, the Ohio Attorney
General's Office submitted an answer to the amended
complaint for defendants Jackson, Lewis, and Sweeny. (Doc.
March 2016, the Ohio Attorney General first filed a motion to
withdraw as counsel of record for defendant Jackson. (Doc.
42). In May 2016, the Court denied the motion subject to
reconsideration because it did not comply with S.D. Ohio Civ.
R. 83.4(c)(2) in that it was not accompanied by an affidavit
or other evidence supporting the assertion of good cause for
the withdrawal of counsel. (Doc. 44). In July 2016, the Ohio
Attorney General moved for leave to file under seal a motion
to withdraw and supporting exhibits. (Doc. 45). In August
2016, the Court granted the Ohio Attorney General's
motion as to the exhibits but ruled that the proposed motion
to withdraw must be filed on the Court's public docket.
Ohio Attorney General then filed an amended motion to
withdraw as counsel for defendant Jackson. (Doc. 50). The
Ohio Attorney General asserted that his office had determined
that defendant Jackson was not entitled to representation and
indemnification by the State of Ohio because he acted
"manifestly outside the scope of his employment or
official responsibilities, with malicious purpose, in bad
faith, or in a wanton or reckless manner." (Id.
at 5-6) (quoting Ohio Rev. Code § 109.362(A)). On
October 19, 2016, the Court granted the Ohio Attorney
General's amended motion to withdraw as counsel for
defendant Jackson. (Doc. 55). In doing so, the Court ordered
the Ohio Attorney General to submit defendant Jackson's
address under seal, stayed the case for 30 days, and
ordered defendant Jackson to notify the Court whether he had
retained alternate counsel or would be proceeding pro se.
(Id. at 4-5).
defendant Jackson informed the Court that he would be
proceeding pro se. (Doc. 58). Accordingly, on November 15,
2016, the Court extended the stay in this matter until
January 3, 2017, directed the United States Marshal to serve
a summons and a copy of plaintiff s amended complaint on
defendant Jackson, and ordered defendant Jackson to file an
answer to plaintiffs amended complaint within 21 days of
service. (Doc. 59). Defendant Jackson was served with a
summons and a copy of the amended complaint on November 25,
2016. (See Doc. 61). Thus, defendant Jackson's
answer was due on or about December 16, 2016. See
Fed. R. Civ. P. 12(a)(1)(A). On January 6, 2017, the Court
found that given defendant Jackson's failure to move,
answer, or otherwise plead in response to the amended
complaint, an entry of default and default judgment against
defendant Jackson may be appropriate. (Doc. 62 at 1 -2).
Thus, the Court ordered plaintiff to either move to have
default entered against defendant Jackson or show cause why
this action should not be dismissed.
January 13, 2017, plaintiff applied to the Clerk of Court for
entry of default against defendant Jackson (Doc. 64) and
moved for default judgment against him (Doc. 65).
February 10, 2017, substitute counsel from the Ohio Attorney
General's Office took over this case for the other
defendants. (Doc. 66). That same day, substitute
counsel entered a notice of appearance for defendant Jackson.
(Doc. 67). Counsel also filed a response in opposition to the
motion for default judgment. (Doc. 69). On February 17, 2017,
counsel filed a motion for leave to file defendant
Jackson's answer instanter. (Doc. 70).
response on defendant Jackson's behalf to the motion for
default judgment, counsel ignores the unusual history of Mr.
Jackson's representation in this Court and provides no
explanation for the Ohio Attorney General's decision to
now represent Mr. Jackson after delaying the proceedings in
this case for nearly a year-and wasting plaintiffs and the
Court's time and resources-to pursue and gain leave to
withdraw as counsel for Mr. Jackson. (See generally
Doc. 69). It was this withdrawal of counsel from
representation of Mr. Jackson that precipitated the
Court's November 15, 2016 Order directing service of the
amended complaint on Mr. Jackson and ordering Mr. Jackson to
file an answer to plaintiffs amended complaint. (See
Doc. 59). The purpose of this Order was to ensure that
defendant Jackson-who was then proceeding in this matter pro
se as a result of the withdrawal of the Ohio Attorney
General's Office as his counsel-was on notice of
plaintiff s allegations against him in the amended complaint
and received an opportunity to raise any defenses to those
allegations that he wished to assert as the sole defendant
who was no longer being represented by the Ohio Attorney
of acknowledging this procedural history, present counsel
argues that former counsel already filed an answer on
defendant Jackson's behalf in December 2015. (Doc. 69 at
1) (citing Doc. 36). Counsel characterizes the Court's
November 15, 2016 Order as requiring defendant Jackson
"to essentially repeat the previous filing of his Answer
in response to Plaintiffs Amended Complaint." (Doc. 69
at 1). Counsel asserts that when as a result of the
Court's November 15, 2016 Order, defendant Jackson
"received the same Amended Complaint he knew he had
already responded to through former counsel, it is reasonable
to find that he believed it was unnecessary to file a second
identical response." (Id. at 2-3). Counsel
contends that default judgment is not appropriate because
"there is no indication that Defendant Jackson failed to
file an Answer or demonstrated any non-compliance with this
Court's other orders." (Id. at 3).
to the extent that present counsel takes issue with the
propriety of the Court's November 15, 2016 Order
requiring defendant Jackson to file an answer to the amended
complaint upon becoming a pro se defendant, the Court finds
that the procedural morass surrounding this issue is of the
Ohio Attorney General's own making. Further,
counsel's argument that "it is reasonable to find
that [defendant Jackson] believed it was unnecessary to file
a second identical response" is not well-taken when the
November 15, 2016 Order served upon defendant Jackson along
with plaintiffs amended complaint (see Doc. 59)
clearly and explicitly required defendant Jackson to file an
answer (whether identical to the answer filed by his former
counsel or not).
the foregoing, the Sixth Circuit has explained that default
judgment "is a drastic step which should be resorted to
only in the most extreme cases." United Coin Meter
Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 845
(6th Cir. 1983). The undersigned concludes that default
judgment is not appropriate in this case. On February 17,
2017, defendant Jackson filed an untimely answer that
complies with the November 15, 2016 Order. (See Doc.
70-1). This answer is identical to the answer that former
counsel filed in December 2015 and, thus, plaintiff is not
prejudiced as he need not address any additional affirmative
defenses. Additionally, the Court finds that it would be
unfair to make Mr. Jackson pay the price for the confusion
resulting from the missteps of the Ohio Attorney
General's Office in these proceedings.
on the foregoing, it is ORDERED that defendant Jackson's
motion for leave to file an answer to the amended complaint
instanter (Doc. 70) is GRANTED. The Clerk of Court
is DIRECTED to file defendant Jackson's answer (Doc.
70-1). Further, it is ...