Free Order to Show Cause - District Court of Delaware - Delaware

Case 1 :04-cv—OO863-GIVIS Document 32 Filed O1/10/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN GARRETT, )
Plaintiff, )
v. g Civil Action No. 04-863-GMS
DR. ALIE, )
Defendant. g
O R D E R
At Wilmington this jill day of January, 2008,
The court will set aside the entry of default against the defendant Dr. Alie, and will order
the Attorney General for the State of Delaware to show cause why he is not providing legal
representation for Dr. Alie, for the reasons that follows:
The plaintiff, John Garrett ("Garrett"), is a pro se litigant currently incarcerated at the
Delaware Correctional Center ("DCC"), Smyrna, Delaware, who tiled a civil rights complaint
alleging deliberate indifference to his serious medical needs. (D.I. 2.) A default in appearance
was entered against the defendant Dr. Alie ("Dr. Alie") pursuant to Fed. R. Civ. P. 55(a), and the
matter set for hearing on Garrett’s motion for default judgment. (D.I. l7, 24.) The matter was
continued after the court received a letter from Dr. Alie requesting a continuance and that stated
she had never been served and was not aware of the existence of the case until the prior week.
(D.I. 28.) The hearing was rescheduled and held on January l0, 2008. Both Garrett and Dr. Alie
appeared at the hearing.
At the time of the alleged constitutional violation, First Correctional Medical ("FCM")
had a contract with the Delaware Department of Correction to provide health care services to

Case 1:04-cv—OO863-G|\/IS Document 32 Filed O1/10/2008 Page 2 of 3
inmates, and Dr. Alie worked for FCM. The court docket indicates that the U.S. Marshal
effected service upon the Attorney General for the State of Delaware ("Attorney General") and
filed the return of service on February 2, 2005. (D.l. 10.)
During the hearing, Dr. Alie advised the court that she signed her waiver of service and,
as was the practice, turned the paperwork over to FCM. Dr. Alie advised the coun that FCM had
always taken care of such matters in the past, and when she became aware of the hearing in this
case, she contacted FCM who told her that it was unaware of the case, it was bankrupt, it was no
longer providing legal representation, and she would have to retain private counsel.
Rule 5 5(c) of the Federal Rules of Civil Procedure provides that "[f]or good cause shown
the court may set aside an entry of default .... " Fed. R. Civ. P. 55(c). "A decision to set aside
an entry of default pursuant to Fed. R. Civ. P. 55(c) ‘is left primarily to the discretion of the
district court."’ Bailey v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002) (quoting Hritz v.
Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984)). "[l]t is well established that a district court
ruling on a motion to set aside a default under Rule 55(c) . . . must consider the following three
factors: (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious
defense; and (3) whether the default was the result of the defendant’s culpable conduct." Gold
Kisi, Inc. v. Laurinburg Oil C0., 756 F.2d 14, 19 (3d Cir. 1985) (citations omitted). The court
finds that Dr. Alie has satisfied all three factors. Additionally, during the hearing, Garrett stated
that he did not obj ect to Dr. Alie’s motion to set aside the default.
As discussed, at the time of the alleged constitutional violation, Dr. Ali was employed by
FCM, who had a contract with the DOC to provide treatment of inmates. Therefore, she acted
under color of law for purposes of § 1983 when undertaking her duties in providing inmates with
-2-

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medical care. See West v. Atkins, 487 U.S. 42, 48—54 (1988) (holding that a physician who is
under contract with the State to provide medical services to inmates at a state-prison hospital on a
part-time basis acts "under color of state law" within the meaning of § 1983). It is the usual
practice of the Attorney General to provide legal representation to employees of the State of
Delaware who are named as defendants in § 1983 cases. The Attorney General has notice of this
matter as evidenced by the return of service. Accordingly, the court will order the Attomey
General to show cause why he is not providing legal representation to Dr. Alie in this § 1983
case.
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. The entry of default against the defendant Dr. Alie is set aside.
2. Within fourteen days from the date of this order, the Attomey General for the State of
Delaware shall show cause why he is not providing legal representation for Dr. Alie. The
Attomey General shall serve a copy of its response to this order to the parties in this case; John
Garrett and Dr. Alie.
3. The Clerk of the Court shall mail a copy of this order to all parties.
4. This matter is continued for thirty days.
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CHIEF I D STATES DISTRICT JUDGE
F I L E D
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