United States District Court, M.D. Tennessee, Nashville Division
Honorable Aleta A. Trauger, District Judge.
REPORT AND RECOMENDATION
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.
civil rights action was referred to the Magistrate Judge for
pretrial proceedings under 28 U.S.C. §§
636(b)(1)(A) and (B) and Rule 72(b) of the Federal Rules of
Civil Procedure. See Orders entered October 11, 2013
(Docket Entry No. 4), and April 14, 2016 (Docket Entry No.
reasons set out below, the undersigned respectfully
recommends that default judgment be entered against Defendant
Jorge Santiago, an award of compensatory damages and
attorney's fees be made to Plaintiff, and a final
judgment be entered.
Driver (“Plaintiff”) is an inmate of the
Tennessee Department of Correction (“TDOC”). He
filed this lawsuit pro se and in forma
pauperis on October 4, 2013, alleging that eight
correctional officers at TDOC's Lois DeBerry Special
Needs Facility (“DeBerry”) used excessive force
against him on May 16, 2013, and seeking damages under 42
U.S.C. § 1983 and under state tort law. See
Complaint (Docket Entry No. 1). Plaintiff named the following
defendants - Quintez Burke, Earl Johnson, Frank Fabish, James
Lindsey, Michael Ferrish, Jorge Santiago
(“Santiago”), Leslie Mitchell,  and “John
Doe II.” Although the lawsuit was filed pro
se, Plaintiff has been represented by counsel since
August 2014. See Docket Entry No. 68.
somewhat torturous procedural history of the case has
previously been summarized, see Report and
Recommendation (Docket Entry No. 208) at 2-3, and need not be
restated again here other than to say that, at this point in
the lawsuit, all named Defendants other than Santiago have
been dismissed. See Docket Entry No. 103, 211, 214,
222, 224, and 245.
Plaintiff had a difficult time serving process upon Santiago,
he was personally served with process on October 6, 2014.
See Docket Entry No. 75. Defendant Santiago did not
answer the complaint or otherwise defend the action, however,
and default was entered against him on July 18, 2016.
See Docket Entry No. 143. Plaintiff's first
request for default judgment against Defendant Santiago was
denied without prejudice to being refiled after his claims
against all other defendants were adjudicated. See
Order entered March 15, 2017 (Docket Entry No. 187).
Plaintiff subsequently renewed his motion for default
judgment and the entry of an award of damages against
Defendant Santiago on December 28, 2017, see Docket
Entry No. 231, and the Court set the matter for a hearing.
See Docket Entry No. 233.
FINDINGS AND CONCLUSIONS
January 26, 2018, hearing, Defendant Santiago did not appear.
The Court heard argument from Plaintiff's counsel on the
issue of default judgment and damages and received into
evidence several exhibits. In lieu of live testimony,
Plaintiff was permitted to submit his affidavit. At the
conclusion of the hearing, the Court directed Plaintiff to
file as late filed exhibits copies of video and audio
exhibits that were played at the hearing and to file a motion
for an award of attorneys fees and supporting declarations.
See Order entered January 31, 2018 (Docket Entry No.
244). Plaintiff has now made these filings, see
Docket Entry Nos. 248 and 249-251, and the matter is ripe for
accordance with Rule 55(b)(2) of the Federal Rules of Civil
Procedure, default judgment should be granted in favor of
Plaintiff against Defendant Santiago. Because of Defendant
Santiago's default, the Court is entitled to take as true
the well-pleaded allegations of the complaint. Antoine v.
Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995).
The Court has jurisdiction over this lawsuit, which raises
federal civil rights claims, and also has personal
jurisdiction over Defendant Santiago, who resides and acted
within Tennessee. Based on Plaintiff's well-pleaded
allegations and the evidence presented at the hearing,
see Plaintiff's Exhibits ##1-8, the Court finds
that Defendant Santiago violated Plaintiff's Eighth
Amendment rights by using excessive force against him.
See Whitley v. Albers, 475 U.S. 312, 319-20, 106
S.Ct. 1078, 89 L.Ed.2d 251 (1986). The complaint is
sufficient and the merits of Plaintiff's claim is strong.
Defendant Santiago was given the opportunity to appear and
litigate the claim against him but failed to do so. No reason
exists not to enter default judgment against Defendant
Santiago. Based upon the proof presented by Plaintiff on the
issue of damages, Plaintiff has supported his claim of injury
and is entitled to an award of $20, 000.00 in compensatory
damages against Defendant Santiago.
seeks an award of attorney's fees in the amount of $16,
520.00 against Defendant Santiago. See Motion for
Attorney's Fees (Docket Entry No. 249). As the prevailing
party in this civil rights action, Plaintiff should be
granted a discretionary award of attorney's fees under 42
U.S.C. § 1988(b). See Hensley v. Eckerhart, 461
U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The
Court finds that no special circumstances are present that
would render an award of fees unjust and that Plaintiff is
entitled to an award of the attorney's fees he requests.
Plaintiff has provided sufficient and persuasive
evidence supporting the request and showing that