Opinion
CIVIL 4:21-CV-00218
02-01-2023
AARON J. NICHOLS, et al., Plaintiffs v. C.O. KONYCKI, et al., Defendants
MANNION, D.J.
REPORT AND RECOMMENDATION (MOTION FOR DEFAULT JUDGMENT, DOC. 31)
William I. Arbuckle U.S. Magistrate Judge
Before the Court is Plaintiffs' Motion for Default Judgment against Justin Kerschner. (Doc. 31). The Motion has a fatal procedural deficiency. Granting the motion, even if procedurally proper, is premature. For the reasons explained in this report, it will be recommended that the Motion be denied.
Plaintiffs have spelled this name as both Kirschner (Doc. 1, p. 5, ¶20) and Kerschner (Doc. 31).
I. BACKGROUND
According to the initial complaint, on Super Bowl Sunday, February 2, 2020, at SCI Retreat in Luzerne County four inmates were locked in adjacent cells on Range 2 of the FA Unit. (Doc. 1). Three second shift corrections officers (COs) sprayed pepper spray into their cells for no valid reason. Plaintiffs allege that prison officials ignored their pleas for medical attention, and that officials shut off water to their cells so Plaintiffs could not wash out the pepper spray from their eyes. Officers on the night shift were aware of this incident but did nothing to help. Officials on the day shift finally provided aid.
Based on these events, Plaintiffs allege their civil rights under the Eighth and Fourteenth Amendments were violated, and 42 U.S.C. § 1983 gives them a cause of action. The Complaint lists C.O. Konycki, C.O. Scott, and C.O. Kirschner, as defendants. (Doc. 1, ¶¶ 18-20).
This lawsuit was filed on February 6, 2021 (Doc. 1) and summons issued on February 8, 2021 (Doc. 2). No proof of service was placed on the docket within Federal Rule of Civil Procedure 4(m)'s prescribed ninety (90) days.
On July 07, 2021, the Court issued an Order to Show Cause requiring Plaintiffs to file Proofs of Service by August 5, 2021. (Doc. 3) On September 3, 2021, three Affidavits of Service were filed (Docs. 8, 9, 10). The Affidavit of Service for “Justin Kirschner” indicates that on July 8, 2021, the complaint was served at 106 E. 3rd Street, Kingston, PA 18644, upon a 6'0” 190 lbs. 55-year-old white male who refused to give his name. (Doc. 10)
On August 26, 2021, C.O. Konycki and C.O. Scott answered the Complaint and pleaded ten affirmative defenses. (Doc. 7). Defendant Kirschner did not respond to Plaintiffs' Complaint and no attorney has made an appearance on his behalf.
A Joint Case Management Plan (Doc. 12) was signed by SDAG Boland indicating that the Attorney General was acting as attorney for Defendants Konycki & Scott. No explanation is provided in the JCMP for why Kirschner did not participate.
On December 13, 2021, Plaintiffs filed a Motion for Joinder and Amend Pleadings. (Doc. 15). On December 21, 2021, Plaintiffs filed a Motion to Amend/Correct their Motion for Joinder and Amend Pleadings so they could file an updated concurrence listing. (Doc. 19). Service on or concurrence of Defendant Kirschner is not mentioned. The Motion was served by ECF only, but Kirschner is not an ECF filer. The Amended Complaint (Doc. 24) was docketed with a Certificate of Service (Doc. 24-1). In the Amended Complaint, (Doc. 24), the third officer involved in the pepper spray incident is named in paragraph 20 as follows:
Co-Defendant Sgt. Justin Kerschner is an adult resident Pennsylvania, with a home address believed to be 106 E. 3rd St., Kingston, PA 18644. It is believed that this Defendant is still employed as a correctional officer with the Pennsylvania Department of Corrections at SCI Frackville.
The change in spelling (i to e) and rank (C.O. to Sgt.) is not explained. The Certificate of Service recites that the Amended Complaint was filed using the CM/ECF system and Attorney Harper certified that “all participants in the case are registered CM/ECF users.” (Doc. 24-1). However, there is no Justin Kirschner or Justin Kerschner registered in the ECF System and no attorney has entered an appearance on his behalf. It is not clear if the Amended Complaint “asserts a new claim for relief” against Kerschner, requiring personal service under Rule 5(a)(2).
On June 28, 2022, Attorney Harper filed a Request for Default against Kerschner with a certificate of service that the “Motion for Entry of Default” was filed and served via ECF. (Doc. 28, 28-2). Also on June 28, 2022, Attorney Harper filed an Affidavit of Service showing that the Amended Complaint was physically delivered on June 1, 2022, to CSA Beth Lazusky at SCI Frackville calling it Kerschner's “usual place of Work.” (Doc. 29).
CSA, presumably Corrections Superintendent Assistant.
On July 7, 2022, the Clerk docketed the requested “Entry of Default” against Justin Kerschner for failure to file an answer and/or otherwise plead, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (Doc. 30).
On July 14, 2022, the Plaintiff's filed a Motion for Default Judgment against Justin Kerschner (Doc. 31). Along with the Motion for Default Judgment Attorney Harper filed a Verification in Support of Motion for Default Judgment (Doc. 31-1). The verification form does not contain any information regarding Kerschner's nonmilitary service as required by the Servicemembers Civil Relief Act, 50 U.S.C. §3901 et seq.
With that factual background we now turn to an analysis of the sufficiency of this record to allow a Default Judgment against Justin Kerschner.
II. ANALYSIS
Plaintiffs have shown that a copy of the Original Complaint naming a Justin Kirschner was left at a location (106 E. 3rd Street) with an unknown adult male on July 8, 2021. (Doc. 10). Nothing in the record to that point indicates why that address was chosen. The Amended Complaint (filed May 6, 2022, two years and three months after the incident) alleges the Justin Kerschner lives at the Third Street address. Plaintiffs have also shown that Justin Kerschner was served with the Amended Complaint “at his place of work” on June 1, 2022, two years and four months after the events that gave rise to this lawsuit. (Doc. 29).
A Motion for Default Judgment when a defendant has not entered an appearance must show that the defendant is not in the military service of the United States to comply with the Servicemembers Civil Relief Act, specifically 50 U.S.C. § 3931. The required Affidavit in this case (Doc. 31-1) does not include any mention of military service. The brief filed in support of the motion states that Kerschner “was not a member of the Armed Services when served with both the original complaint and the amended complaint as evidenced by the location and time he was serviced [sic], which was at a state correctional institution while he was leaving his work shift.” (Doc. 32, p. 3). This information is at odds with the Affidavit of Service (Doc. 29) which shows Kerschner served at SCI Frackville at 1 p.m. by delivering a copy of the amended complaint to the CSA and not Kerschner.
Inclusion of the allegation of non-military service in a brief and not in the affidavit is insufficient. Failure to include a proper allegation of non-military service is procedurally fatal. The Motion for Default Judgment should be denied on that basis.
Coss v. Clement, No. 3:10-CV-1479, 2011 WL 2632670 (M.D. Pa. 2011), report and recommendation adopted, No. 3:CV-10-1479, 2011 WL 2632646 (M.D. Pa. July 5, 2011).
Finally, there is a policy favoring not entering a default judgment against one defendant in a multi-defendant case. As noted by Judge Kane,
Courts exercise caution with respect to motions for default judgments in cases involving multiple defendants. See, e.g., West Am. Ins. Co. v. Boyarski, No. 11-cv-2139, 2012 WL 4755372, at *2 (M.D. Pa. Oct. 5, 2012) (quoting Tenn. Farmers Mut. Ins. Co. v. Tim W. Smith Props., LLC, No. 11-cv-0057, 2012 WL 956182, at *2 (E.D. Ark. Mar. 21, 2012)) (“In a multiple-defendant case, default judgment against one defendant should be avoided if the default judgment could create ‘inconsistent and unsupportable' results as to the non-defaulting defendants.”). Therefore, “if default is entered against some defendants in a multi-defendant case, the preferred practice is for the court to withhold granting default judgment until the action is resolved on its merits against non-defaulting defendants.” Id. (citing Animal Sci. Prods., Inc. v. China Nat'l Metals & Minerals Import & Export Corp., 596 F.Supp.2d 842, 850 (D.N.J. 2008)).
Fleckenstein v. Crawford, No. 1:14-CV-01085, 2018 WL 1453170, at *3 (M.D. Pa. Mar. 23, 2018) (footnotes omitted).
Even if the military service problem did not exist, the preferred practice is for the court to withhold granting default judgment until the action is resolved on its merits against non-defaulting defendants. For this policy reason, the entry of the default judgment against Justin Kerschner in this case should be delayed until judgment is entered on the merits for the remaining defendants.
III. RECOMMENDATION
Accordingly, it is RECOMMNEDED that:
(1) Plaintiffs' Motion for Default Judgment against Justin Kerschner (Doc. 31) BE DENIED without prejudice.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.