United States District Court, D. South Carolina, Greenville Division
Honorable Bruce H. Hendricks United States District Judge.
matter is before the Court upon Plaintiff Enrique
Lombrana-Perez's (“Plaintiff”) pro se
complaint seeking relief pursuant to 42 U.S.C. § 1983.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(a), D.S.C., the matter was referred to
a United States Magistrate Judge for preliminary review.
filed this action on June 6, 2016, seeking damages for
alleged deliberate indifference to his serious medical needs
and excessive force during his time as a pretrial detainee in
the Darlington County Detention Center. The complaint
originally named three Defendants, but Officer Williams was
dismissed, and the remaining Defendants were named only in
the claim for deliberate indifference.
15, 2016, service of process was authorized for the remaining
Defendants. The summonses were returned executed on July 16,
2016, and the United States Marshals Service noted on the
Forms USM-285 that both Defendants were served on June 29,
2016, making Defendants' answers due on July 20, 2016.
Defendants failed to file answers.
October 27, 2016, United States Magistrate Judge Kevin
McDonald issued an order directing Defendants to answer or
other respond within 20 days. The order was sent by certified
mail, and the Court received the certified mail receipt on
November 3, 2016. Defendants failed to respond to the order,
and on January 31, 2017, Magistrate Judge McDonald issued
another order directing Defendants to show cause why the
Court should not enter default against them within fourteen
days. The order was again sent by certified mail, and the
Court received the certified mail receipt on February 6,
2017. Defendants' response was due on February 17, 2017,
but Defendants did not respond.
March 30, 2017, the undersigned entered default against
Defendants pursuant to Rule 55(a) of the Federal Rules of
Civil Procedure. On June 9, 2017, Plaintiff moved for default
judgment against Defendants pursuant to Rule 55(b), and the
motions were referred to the United States Magistrate Judge
August 18, 2017, the Court issued special interrogatories to
Major Coe, who accepted service of the summons and complaint
on behalf of Defendants, asking whether he was authorized to
accept such service. On October 23, 2017, Major Coe responded
to the special interrogatories, stating that he was
authorized to accept service on behalf of Defendants.
October 25, 2017, the Court scheduled a hearing on
Plaintiff's motions for default judgment for December 14,
2017, and ordered Defendants to appear at the hearing. The
Court directed the United States Marshals Service to serve
copies of the hearing notice on Defendants at 24 Public
Square, Darlington, South Carolina, and to serve a copy of
the notice on Major Coe at the Darlington County Detention
Center. The United States Marshals Service informed the Court
that Major Coe was served with the hearing notice; that
Defendant Wilkes was personally served with the hearing
notice on November 3, 2017; and that Victor Basily's wife
was personally served with the hearing notice on November 14,
Judge McDonald held a hearing on Plaintiff's motions for
default judgment on December 14, 2017. Plaintiff, who is
incarcerated in California, appeared telephonically with the
assistance of a translator. Defendants appeared at the
hearing without the assistance of counsel and informed the
Court that they were not served with the summons and
complaint in this case and that they only learned of this
lawsuit when the United States Marshals Service personally
served them with the hearing notice. Defendants stated that
they are employed by Hartsville Medical Enrichment Services,
LLC, and are not employed by the Darlington County Detention
Center, although they have worked there at times. Defendants
made an oral motion for the Court to set aside the entry of
default and to allow them to defend Plaintiff's claims.
the hearing, the Magistrate Judge entered a Report and
Recommendation (“Report”) on December 14, 2017,
outlining in the issues and recommending that the Court grant
Defendants' oral motion to set aside the entry of default
and deny Plaintiff's motions for default judgment.
Attached to the Magistrate Judge's Report was a notice
advising the parties of their right to file written, specific
objections to the Report within fourteen days of being served
with a copy. On December 27, 2017, Plaintiff filed objections
to the Report, asking the Court to reinstate the entry of
default until Defendants actually respond. Plaintiff also
filed a motion requesting a copy of the transcript from the
December 14 hearing.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination only of
those portions of the Report to which specific objections are
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1).
the Court has thoroughly reviewed the record and finds that
the Magistrate Judge's Report fairly summarizes the facts
and applies the correct principles of law. As the Magistrate
Judge noted, pursuant to Rule 55 of the Federal Rules of
Civil Procedure, a court may set aside an entry of default
for good cause. Fed.R.Civ.P. 55(c). Rule 55(c) is to be
liberally construed in favor of setting aside a default
because the law prefers adjudication on the merits.
Tolson v. Hodge, 411 F.2d 123, 130 (1969)
(“Any doubts about whether relief should be granted
should be resolved in favor of setting aside the default so
that the case may be heard on the merits.”). In
determining whether to set aside an entry of default, the
Fourth Circuit has indicated that “a district court
should consider whether the moving party has a meritorious
defense, whether it acts with reasonable promptness, the
personal responsibility of the defaulting party, the
prejudice to the party, whether there is a history of
dilatory action, and the availability of sanctions less
drastic.” Payne v. Brake, 439 F.3d 198, 204-05
(4th Cir. 2006).
as the Magistrate Judge determined, taking Defendants'
allegations as true, they were unaware of this action prior
to receiving the hearing notice in November, and both
appeared at the hearing and promptly requested relief from
the entry of default. Also, the Court agrees with the
Magistrate Judge that any prejudice to Plaintiff in setting
aside the entry of default is outweighed by the Court's
preference for deciding matters on their merits. There are
less drastic sanctions available, and indeed, the Court will
grant Defendants a limited time to file answers or other
responses to Plaintiff's complaint. Finally, although
Defendants have not yet presented a defense, they have
indicated that they wish to do so as they do not believe they
have violated Plaintiff's constitutional rights. In all,
the Court agrees with the Magistrate Judge that the
circumstances favor granting Defendants' oral motion to
set aside the entry of default.
objections, Plaintiff asks the Court to reinstate the entry
of default against Defendants until they file their answers.
After consideration, the Court finds this unnecessary and
agrees with the Magistrate Judge's findings and
conclusions. Accordingly, it is hereby
ORDERED that the Magistrate Judge's
Report (ECF No. 92) is adopted; Plaintiff's objections
(ECF No. 93) are overruled; Defendants' oral motion to
set aside the entry of default is granted; Plaintiff's
motions for default judgment (ECF Nos. 72 and 84) are denied;
and Defendants are instructed to file their answers or other
responsive pleadings to Plaintiff's complaint within 30
days of the date this order is filed. Lastly, the Court
denies Plaintiff's motion for a copy of the transcript