United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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
Motions for entry of default/default judgment
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
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.
Plaintiffs motion for appointment of counsel (Doc.
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).
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.
IS THEREFORE ...