United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is Plaintiff Gary Bailey's Joint Motion for
Preliminary Injunction and T.R.O. (Doc. 3), Defendants Warden
Darryl Vannoy, Asst. Warden Tracy Falgout, and Aimee
Zaunbrecher's Motion to Set Aside Clerk's Entries of
Default (Doc. 18), Defendants' Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies (Doc.
19), and Plaintiffs Cross-Motion for Summary Judgment (Doc.
se Plaintiff, an inmate confined at the Louisiana State
Penitentiary ("LSP"), Angola, Louisiana, brought
this action pursuant to 42 U.S.C. § 1983 against Medical
Director Raman Singh, Dr. Randy Lavespere, Secretary James
LeBlanc, Warden Darrell Vannoy and Ass't Warden Stephanie
Lamartiniere, complaining that Defendants have violated his
constitutional rights through deliberate indifference to his
serious medical needs, specifically by requiring that he
undergo an annual tuberculosis skin test notwithstanding that
he allegedly suffers an allergic reaction to the test and
notwithstanding that a non-invasive alternative is available,
i.e., a chest x-ray, that would allegedly permit him
to avoid the allergic reaction and that would also provide
for the safety of the prison.
Defendants' Motion to Set Aside Clerk's Entries of
first Defendants' Motion to Set Aside Clerk's Entries
of Default (Doc. 18), the record reflects that Defendants
were served with copies of the summons and Complaint on
November 6, 2017. See Doc. 15. This service
triggered a duty on the part of Defendants to respond to the
Complaint, and it is recognized that a failure to timely
respond may result in the entry of a default or a default
judgment in accordance with Fed.R.Civ.P. 55. Rogers v.
Hartford Life & Accident Ins. Co., 167 F.3d 933,
937-39 (5th Cir. 1999). Thereafter, upon the failure of
Defendants to appear or respond, the Clerk of Court, at
Plaintiffs request, entered a preliminary default against
Defendants on February 5, 2018. See Docs. 16 and 17.
Notwithstanding, shortly thereafter, on February 19, 2018,
Defendants filed the instant Motion to Set Aside the default
and also filed a Motion for Summary Judgment addressed to the
issue of administrative exhaustion. See Docs. 18 and 19.
Motion for Summary Judgment, Defendants assert the procedural
defense that Plaintiffs action is subject to dismissal
because of his failure to exhaust administrative remedies as
mandated by 42 U.S.C. § l997e. In addition, in support
of Defendants request to set aside the entry of the default
under Fed.R.Civ.P. 55, counsel for Defendants asserts that
Defendants' failure to timely respond to Plaintiffs
Complaint was not willful and that it resulted simply from a
delay that occurred between service of process and the
assignment of counsel, with counsel being assigned to
represent Defendants in this matter only after a responsive
pleading was already due. Moreover, counsel represents that
Defendants have meritorious defenses in response to
Plaintiffs claims and that Plaintiff will not be prejudiced
by the grant of the instant motion to set aside the entry of
55(a) provides that, upon the failure of a defendant, after
service of process, to file a pleading or otherwise defend,
the Clerk of Court shall enter a default against that
defendant. Thereafter, pursuant to Rule 55(b), a plaintiff
must apply to the Court for entry of a judgment of default. A
judgment of default, however, is not a matter of right, and
the awarding thereof is within the sound discretion of the
district court. Rogers v. Hartford Life and Ace. Ins.
Co., 167 F.3d 933 (5th Cir. 1999). In addition, the
decision to set aside a default lies within the sound
discretion of the district court. Id. See also United
States v. One Parcel of Real Property, 763 F.2d 181 (5th
Cir. 1985). Default judgments are not favored in the law, and
a trial on the merits is generally seen as being more in the
interest of justice and fair play. Id. See also Sun Bank
of Ocala v. Pelican Homestead & Sav. Ass'n, 874
F.2d 274, 276 (5th Cir. 1989); Lacy v. Sitel Corp.,
227 F.3d 290, 292 (5th Cir. 2000); 10A Wright, Miller and
Kane, Federal Practice and Procedure: Civil 3d
§ 2690 (1998). Further, a default judgment is considered
a drastic remedy that should only be available "when the
adversary process has been halted because of an essentially
unresponsive party." Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d at 276.
Therefore, a party is not entitled to a default judgment,
even where a defendant is technically in default. Ganther
v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996).
determining whether to set aside an entered default, the
district court considers (1) whether the default was willful,
(2) whether setting it aside would prejudice the adversary,
and (3) whether a meritorious defense is presented.
United States v. One Parcel of Real Property, 763
F.2d at 183. The standard for setting aside a default is less
rigorous even than that for setting aside a judgment for
excusable neglect. Id. at 183.
this standard to the instant case, the Court concludes, in
the exercise of its discretion, that the entry of default
should be vacated. Specifically, Defendants' failure to
appear in this case does not appear to have been willful, and
while the justification for the ensuing delay is not
addressed with any great specificity in Defendants'
Motion,  the minimal delay attendant to
Defendants' failure to timely appear will not prejudice
Plaintiff in presenting his case. In addition, Defendants
have raised a procedural defense in their Motion for Summary
Judgment that, as discussed below, appears to be meritorious.
Further, the Court notes that the meritorious procedural
defense is essentially apparent from the face of Plaintiffs
Complaint, including Plaintiffs explicit acknowledgement
therein that he failed to proceed to the second step of the
administrative process and so, from a legal standpoint,
failed to exhaust administrative remedies as mandated by
federal law. Finally, Defendants assert that they have
additional substantive defenses available to them, including
the defense of qualified immunity, that may prove to be
meritorious in this case, particularly in light of the high
bar that an inmate plaintiff must surpass to succeed in
establishing a claim of deliberate medical indifference. See
Domino v. Texas Dept. of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001). Accordingly, in the exercise of its
discretion, the Court finds that the scales are tipped in
favor of vacating the default and allowing this case to
to the parties' Cross-Motions for Summary Judgment (Docs.
19 and 20), these motions principally address the issue of
administrative exhaustion, which is a prerequisite for the
assertion of an inmate's claim arising under 42 U.S.C.
§ 1983. Defendants contend, relying upon the pleadings,
a Statement of Undisputed Facts, and the affidavit of LSP
Legal Programs Director Nyesha Kelly, that dismissal is
appropriate in the first instance based upon the procedural
argument that Plaintiff has failed to exhaust administrative
remedies as mandated by 42 U.S.C. § l997e.
well-established legal principles, summary judgment is
appropriate where there is no genuine disputed issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56. Celotex
Corp. v. Catrett,477 U.S. 317 (1986); Anderson v.
Liberty Lobby, Inc.,477 U.S. 242 (1986). A party moving
for summary judgment must inform the Court of the basis for
the motion and identify those portions of the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, that show that there
is no such genuine issue of material fact. Celotex,
477 U.S. at 323. If the moving party carries its burden of
proof under Rule 56, the opposing party must direct the
Court's attention to specific evidence in the record
which demonstrates that the non-moving party can satisfy a
reasonable jury that it is entitled to a verdict in its
favor. Anderson, 477 U.S. at 248. This burden is not
satisfied by some metaphysical doubt as to alleged material
facts, by unsworn and unsubstantiated assertions, by
conclusory allegations, or by a mere scintilla of evidence.
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