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Lester v. Ohio Department of Rehabilitation & Correction

United States District Court, S.D. Ohio, Western Division

June 12, 2017

JIMMIE LESTER, Plaintiff,
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.

          BLACK, JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at the Warren Correctional Institute, brings this pro se civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. This matter is before the Court on plaintiffs motions for default judgment against defendants the Ohio Department of Rehabilitation and Correction (ODRC) and DeAnn Osgood (Docs. 15, 21) and defendant Osgood's response in opposition (Doc. 24); plaintiffs second motion for appointment of counsel (Doc. 26), defendant Osgood's response in opposition (Doc. 28), and plaintiffs reply (Doc. 29); plaintiffs motion for a ruling on his second motion for appointment of counsel (Doc. 27); and defendant Osgood's motion for leave to file a surreply to plaintiffs second motion for appointment of counsel (Doc. 30).

         I. Procedural history

         On November 30, 2016, plaintiff was granted leave to proceed in forma pauperis and he filed his complaint in this matter. (Docs. 5, 6). Plaintiff named two defendants: the ODRC and Osgood, a former ODRC employee who left the ODRC's employ before plaintiff filed this lawsuit. (Doc. 6). The Court dismissed plaintiffs claim against the ODRC but allowed plaintiff to proceed with his claim for damages against defendant Osgood in her individual capacity. (Doc. 11).

         On September 28, 2017, summons which had been sent to defendant Osgood at the ODRC were returned unexecuted with a letter from the ODRC stating Osgood was no longer employed there. (Doc. 12). Plaintiff filed a motion to compel the ODRC to provide information regarding Osgood's location. (Doc. 13). The Court subsequently ordered the Ohio Attorney General to submit Osgood's current address to the Clerk of Court under seal. (Doc. 14). Osgood waived service and counsel entered an appearance on her behalf on April 24, 2017. (Doc. 22). Osgood filed her answer to the complaint on that same date. (Doc. 23).

         Plaintiff filed his first motion for default judgment against the ODRC and Osgood on March 3, 2017. (Doc. 15). Plaintiff acknowledged in the motion that Osgood had not yet been served and he did not state any reason why default should be entered against her. Plaintiff sought a default judgment against the ODRC on the ground it had not complied with the Court's Order directing the Ohio Attorney General to provide Osgood's current address. Plaintiff filed his second motion for entry of default/default judgment against the ODRC and Osgood on April 18, 2017. (Doc. 21). Plaintiff again relied on the ODRC's purported failure to comply with the Court's Order directed to the Ohio Attorney General, and he alleged that defendants had failed to defend this lawsuit. Defendant Osgood contends plaintiff is not entitled to a default judgment against her because the Court did not have jurisdiction over her at the time plaintiff filed his motions, and she has waived service and filed an answer to the complaint

         II. Motions for entry of default/default judgment

         Obtaining a default judgment is a two-step process governed by Fed.R.Civ.P. 55. First, under Rule 55(a), "[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." Fed.R.Civ.P. 55(a). After the clerk enters the party's default, the plaintiff must move the court for a default judgment under subsection (b)(2).

         Plaintiff is not entitled to an entry of default under Rule 55(a) or default judgment under Rule 55(b)(2) against either the ODRC or Osgood. The ODRC was dismissed from the lawsuit on December 15, 2016, and is no longer a party to this action. (Doc. 11). Defendant Osgood remains a party to the lawsuit, but plaintiff has not provided a reason for entering her default. The record shows Osgood waived service on April 24, 2017 (Doc. 22), several days after plaintiff filed his second motion for default judgment. She filed her answer to the complaint that same date. (Doc. 23). Thus, Osgood has not "failed to plead or otherwise defend." Fed.R.Civ.P. 55(a).

         III. Plaintiffs motion for appointment of counsel (Doc. 26)

         Plaintiffs motion to appoint counsel is nearly identical to an earlier motion for appointment of counsel he filed in this matter. (See Doc. 10). In support of his second motion, plaintiff alleges he is unable to afford counsel, his imprisonment will greatly limit his ability to litigate, he needs counsel's assistance to present evidence and cross-examine witnesses at trial, and he has made repeated unsuccessful efforts to find counsel. (Doc. 26).

         The law does not require the appointment of counsel for indigent plaintiffs in cases such as this, see Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993), nor has Congress provided funds with which to compensate lawyers who might agree to represent those plaintiffs. The appointment of counsel in a civil proceeding is not a constitutional right and is justified only by exceptional circumstances. Id. at 605-06. See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). As the Court has previously determined, no such circumstances appear in this case. (See Doc. 14). The Court will therefore deny plaintiffs second motion for appointment of counsel.

         IT IS THEREFORE ...


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