Thornsberry v. Arkansas Department of Correction

• Court: District Court, E.D. Arkansas
• Decided: September 13, 2024
• Docket: 2:21-cv-00169
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION

CHRISTOPHER A. THORNSBERRY PLAINTIFF ADC #169180

v. No: 2:21-cv-00169 LPR-PSH

CARRIE GRANVILLE, et al. DEFENDANTS

ORDER Plaintiff Christopher A. Thornsberry, an Arkansas Division of Correction inmate, filed this 42 U.S.C. § 1983 action on December 17, 2021 (Doc. No. 2). Thornsberry filed a Second Amended Complaint on November 14, 2022 (Doc. No. 48). Some of Thornsberry’s claims have been dismissed for failure to state a claim upon which relief may be granted or for failure to exhaust available administrative remedies. See Doc. Nos. 27, 77 & 113. The following claims remain: Eighth Amendment failure-to-protect and pendent state law negligence claims against defendants Corporal Indigol Counselor and Corporal Jerrell Streeter in their individual capacities. Streeter has filed an answer in this case. See Doc. No. 109. On September 10, 2024, the Court held a show cause hearing with respect to Defendant Indigol Counselor. The Court set the show cause hearing because Counselor is currently in default in this case but had filed a response to a pending motion for summary judgment denying the allegations against her. See Doc. No. 139.1 Counselor appeared on her own behalf. She testified that she was served with Thornsberry’s complaint, but did not understand that she needed to file a response

and believed that her former employer, the Arkansas Division of Corrections, might represent her in this case.2 She also explained that she had moved during the pendency of the case and has not retrieved her mail from her previous address since

moving. Because Counselor appeared at the show cause hearing, it appears she intends to defend this case. However, she remains in default and has not yet filed an answer or other responsive pleading in the case. If Counselor intends to defend the

allegations against her in this case, she must move to set aside the default entered against her within 21 days from the date of this Order.3 She must attach a copy of

1 See also Doc. No. 104 (Clerk’s Default); Doc. No. 102 (Order referring matter to Clerk for entry of default); Doc. No. 50 (Order to Show Cause); and Doc. No. 57 (return of service indicating that Counselor was personally served).

2 Counselor is represented by the Arkansas Attorney General’s office in a new case filed by Plaintiff Christopher Thornsberry, Case No. 4:24-cv-86-DPM-PSH. Counsel in that case has confirmed that the AG’s office will not represent Counselor in this case.

3 An entry of default may be set aside for “good cause shown” pursuant to Fed. R. Civ. P. 55(c). The Eighth Circuit has held that in determining whether good cause exists, it looks “at whether the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has a meritorious defense, and whether the other party would be prejudiced if the default were excused.” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir. 1998) (citing Hoover v. Valley West D M, 823 F.2d 227, 230 (8th Cir. 1987)). her proposed Answer or other responsive pleading to that motion.’ Plaintiff's counsel will have the opportunity to respond. If Counselor does not timely move to set aside the entry of default, she will remain in default and the Court will entertain

a motion for default judgment and a hearing on damages will be set.? See Fed. R. Civ. P. 55(b). IT IS SO ORDERED this 13th day of September, 2024.

UNITED STATES Ot RATE JUDGE

4 See generally Fed. R. Civ. P. 7-8, 12. > If Counselor remains in default, Thornsberry’s well-pleaded factual allegations, other than those relating to damages, will be taken as true. Sampson v. Lambert, 903 F.3d 798, 805—06 (8th Cir. 2018) (quoting Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (Sth Cir. 1975) (“A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.”’)).