DEFAULT JUDGMENT: $75,000, §1983, deprivations by private prisoner transporter… Lynch/Molloy.
Magistrate Lynch. Russell Avery was arrested in Iowa on a warrant from Missoula Co. for rape and assault. He was transported to the Missoula jail by Extradition Transport, arriving 10/6/11. According to Avery, he was shackled continuously during the 8-day transport, not given an opportunity to shower, not given proper hygiene, denied access to a restroom up to 8 hours at a time, he and the 5 other prisoners were told to urinate in water bottles, and the transport did not stop at any jail or related facility to allow an opportunity for shower, sleep, or rest until 10/5, at which time an inmate escaped in ND and Avery and the others were transported to a jail until 8 a.m. the next day where they were allowed to shower and sleep. He contends that he has scars on his wrists & ankles and the pain was “terrible beyond description,” and he also suffered stress, anxiety, and mental anguish. Extradition was served with his summons & complaint by the Marshals Service 4/30/12. It did not appear or answer and the Clerk entered default 7/11. At issue is whether default judgment should be entered.
Default judgment factors include: (1) the possibility of prejudice to the plaintiff, (2) the merits of the substantive claim, (3) sufficiency of the complaint, (4) the sum of money at stake, (5) the possibility of a dispute as to material facts, (6) whether the default was due to excusable neglect, (7) the strong policy underlying the FRCivP favoring decisions on the merits. McCool (9th Cir. 1986). The Court previously found that the 1st, 3rd, and 6th, factors have been met. There is no indication that Extradition’s default is due to excusable neglect or that the material facts are subject to dispute since it has not presented a defense or otherwise communicated with the Court. It does not appear that litigation of the merits will be possible due to its refusal to litigate.
To state a claim under §1983 a plaintiff must allege that a right secured by the federal Constitution or laws was violated by one acting under color of state law.West (US 1988). Although Extradition is a private company, it was performing an “exclusive government function,” something it could not have done without authorization from the state. Lugar (US 1982). Therefore it will be presumed that it was a state actor. Melesko (US 2001) (state prisoners enjoy right of action against private correctional providers under §1983). Various courts have allowed §1983 claims against private prisoner transport services. It will also be presumed that Avery was a pretrial detainee, so that his claims arise under the 14th Amendment. Mink (9th Cir. 2003). The 8th Amendment requires that prison officials take reasonable measures for inmate safety. Farmer (US 1994). An official violates the 8th when the deprivation is objectively sufficiently serious and the official is subjectively deliberately indifferent to safety. “Only those deprivations denying `the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson (US 1991). A court should consider the circumstances, nature, and duration of deprivation of such necessities as shelter, food, clothing, sanitation, medical care, and personal safety. Johnson (9th Cir. 2000). Given the duration of deprivations claimed by Avery, the Court finds that Extradition was deliberately indifferent to his safety and he was denied “the minimal civilized measure of life’s necessities.” Wilson.His well-pled allegations, taken as true in light of the entry of default, are sufficient to entitle him to damages. “It is a familiar practice and an act of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment accordingly.” Pope (US 1944). His requested $750,000 is not supported by the evidence; $75,000 is appropriate. Recommended, $75,000 default judgment.
Judge Molloy. The Court agreed with Judge Lynch’s conclusion that default judgment should be entered against Extradition and that it violated his 8th Amendment rights, but ordered a hearing on damages, which was held 2/7/13. Avery appeared by video from MSP and described his trip and suffering. Asked why he believed $750,000 is appropriate, he said it is simply a starting point for a reasonable award. In light of the pleadings and his testimony, Lynch’s recommended $75,000 is reasonable & appropriate. Lynch’s Findings & Recommendations are adopted in full. The Clerk is directed to enter default judgment against Extradition in the amount of $75,000.
Avery v. Extradition Transport, Lynch’s F&R, 40 MFR 184, 11/28/12; Molloy’s order, 40 MFR 192, 2/7/13.
Russell Avery, MSP, pro se.
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