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Driver v. Fabish

United States District Court, M.D. Tennessee, Nashville Division

March 27, 2018

De'MARIO DRIVER
v.
FRANK J. FABISH, et al.

          Honorable Aleta A. Trauger, District Judge.

          REPORT AND RECOMENDATION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.

         This 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. 104).

         For the 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.

         I. BACKGROUND

         De'Mario 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, [1] 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.

         The 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.[2]

         Although 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.

         II. FINDINGS AND CONCLUSIONS

         A. Default Judgment

         At the 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 resolution.

         In 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.

         B. Attorney's Fees

         Plaintiff 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[3] supporting the request and showing that the ...


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