United States District Court, W.D. Virginia, Roanoke Division
TERRI G. MORTON, Plaintiff,
GILBERT L. JOHNSON, Defendant.
REPORT & RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Terri G. Morton has filed suit under 42 U.S.C. § 1983 alleging that Gilbert L. Johnson, a former prison guard, violated her rights under the Eighth Amendment to the United States Constitution. Compl. 2, ECF No. 1. After Johnson failed to respond to the Complaint, the Clerk entered default against him. ECF No. 22. Morton filed a pro se Motion for Default Judgment, ECF No. 26, and Johnson moved to set aside the Clerk's entry of default, ECF No. 38. The motions are before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 31.
On May 29, 2015, the undersigned Magistrate Judge held an evidentiary hearing. Having considered Morton's pleadings, the parties' evidence and oral arguments, and the applicable law, I respectfully recommend that the District Court deny Johnson's motion to set aside default and grant Morton's motion for default judgment. I also recommend that the Court award Morton $2, 000 in compensatory damages and $5, 000 in punitive damages against Johnson in his individual capacity.
I. Facts & Procedural History
Morton is an inmate at Fluvanna Correctional Center for Women ("FCCW") in Troy, Virginia. Compl. 1. In late March 2011, Morton was cleaning up a spill in the prison's Mental Health Department. See id. at 2-3. Johnson "walked up and told [her she] looked like [she] needed a hug." Id. at 3. Johnson then hugged Morton, touched her breast, and "rubbed down [her] stomach down to [her] private area and felt [her] up." Id. When Morton "got very upset, " Johnson said that "it's alright and he was going to be in the building all week." Id. On November 8, 2011, Morton filed a grievance stating that Johnson sexually assaulted her the previous March. See Pl. Ver. Stmnt. Ex. A, ECF No. 3. Two days later, Major J. E. Carroll responded that "this issue ha[d] already been addressed through the court system." Id.
Morton filed this lawsuit pro se on October 21, 2013, alleging that, by sexually assaulting her, Johnson violated her Eighth Amendment right to be free from cruel and unusual punishment. See Compl. at 2. She sought compensatory and punitive "damages for pain and suffering" against Johnson in his individual capacity. See id. On January 23, 2014, Johnson executed and returned a waiver of service form, in which he acknowledged receiving a copy of Morton's complaint. ECF No. 20. By signing that form, Johnson also acknowledged that he "must file and serve an answer" or a Rule 12 motion by March 8, 2014, and that "a default judgment will be entered against" him if he failed to do so. See id. That deadline passed without word from Johnson. The Clerk entered Johnson's default on March 17, 2014.
On October 21, 2014, the Court informed Morton that, because her complaint did not specify a damages amount, she must apply for a default judgment before the Court could enter judgment and award damages. ECF No. 25. Morton timely filed a pro se written response, which the Court construed as an application for default judgment. ECF Nos. 26, 27. The Court set the matter for a Rule 55(b) hearing to be held on April 16, 2015. ECF No. 28.
On April 9 and 10, Johnson called the Lynchburg Clerk's Office to say that he received Morton's motion and that he might appear at the hearing. On April 15, Johnson asked the Court to reschedule the hearing so that he could find an attorney to represent him. Def. Mot. for Extension of Time, ECF No. 30. The presiding District Judge granted Johnson's request and referred the matter to the undersigned Magistrate Judge on the same day. The Court held a Rule 55(b) hearing on May 29, 2015. At the hearing, Jordan McKay, Esq., entered an appearance for Morton, and Johnson proceeded pro se.
Before hearing evidence on damages, the Court inquired whether Johnson contested the entry of default. Johnson acknowledged that he waived service in January 2014 and explained that he did not respond to Morton's lawsuit by the March 2014 deadline because he was incarcerated between February 2014 and July 2014. See also id. ("[T]he reason for the default was because I was incarcerated from February 2014 to July 2014."). Johnson said that he did not contact this Court again until April 2015 because he "just forgot all about" the lawsuit until he received Morton's motion for default judgment. The Court construed Johnson's statements as an oral motion to set aside the Clerk's entry of default. See Fed.R.Civ.P. 7(b)(1)(A), 55(c). The Court then invited the parties to present evidence.
Morton testified that her emotional condition and mental health were "fine" before Johnson assaulted her in late March 2011, and she did not take any psychiatric medications. Morton also testified that she has "had asthma all [her] life, but it was under control" before Johnson's assault. By "under control, " Morton explained that she took "breathing treatments maybe once a day" and had a back-up inhaler.
After the March 2011 assault, a mental-health counselor spoke with Morton as a matter of prison "protocol" and "to make sure that [she] was okay." Morton has continued to meet with the counselor since that time to "talk about" Johnson's assault. Morton also testified that the assault brought back memories of two siblings molesting her when she was between the ages of four and ten. Morton has attended classes such as "Mindful Meditation, " "Seeking Power and Safety, " and "The Hero Within" to help her process the sexual abuse and control her anxiety.
Around October 2013, Morton "started having panic attacks and anxiety attacks that caused [her] asthma to act up." Morton explained that her symptoms manifested at that time, rather than two years before at the time of the assault, because she had tried not to think about or otherwise deal with the assault to avoid revisiting the trauma of her abuse as a child. At her friends' behest, she filed this lawsuit, causing her to "relive" the assault and revisit her childhood trauma. Morton testified that she now takes breathing treatments three times a day and uses two regular inhalers in addition to her back-up inhaler. Morton also described "multiple" occasions after October 2013 where she "was walking and [her] whole body went numb and [she] couldn't breathe." She testified that prison doctors prescribed Paxil after her first panic attack to "help [her] sleep and to ease [her] anxiety, " but the antidepressant just made her panic and anxiety attacks worse. Doctors took Morton off Paxil after "maybe two months" and have not prescribed any other psychiatric medications. Morton testified that she still suffers from panic and anxiety attacks, although she did not say how frequently.
Morton testified that continuing to talk about Johnson's assault and her past sexual abuse in counseling "is making it a little easier to deal with." Thus, she expects to keep attending "recommended" mental-health classes and treatment until she leaves FCCW in June 2017.
At the hearing, Morton's counsel requested $50, 000 each in compensatory and punitive damages.
Johnson did not testify about his version of events, cross-examine Morton, or otherwise contest the facts stated in her sworn complaint. During argument, Johnson said that he "pled guilty to giving [Morton] a hug and that was it." As to damages, Johnson said "there should be no damages awarded. She has always been through emotional stuff and being locked up is ...