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Smerling v. Dever

United States District Court, N.D. Illinois, Western Division

December 15, 2014

Robert Smerling, Plaintiff,
v.
Officer Dever, et al., Defendants.

REPORT AND RECOMMENDATION

IAIN D. JOHNSTON, Magistrate Judge.

Currently pending before the Court is the Motion for Default Judgment (Dkt. 85) of Robert Smerling (Plaintiff) against Christopher Dever (Defendant). For the reasons that follow, it is the Court's Report and Recommendation that a default judgment in the amount of $40, 000 (forty thousand dollars) be entered on behalf of Plaintiff and against Defendant. The reasons for the Report and Recommendation follow. Any objections to this Report and Recommendation must be filed within fourteen (14) days; namely, December 30, 2014.

FINDINGS OF FACT

1. On October 8, 2012, Robert Smerling (Plaintiff) filed a one-count complaint against Christopher Dever (Defendant). According to Plaintiff, Defendant used excessive force against him, when he was an inmate at Dixon Correctional Center (DCC) and Defendant was a correctional officer.

2. Plaintiff's complaint alleged that on October 8, 2011, during an unannounced search of Plaintiff's cell (a "shake down"), Defendant berated Plaintiff. According to the complaint, Defendant physically attacked Plaintiff, slammed Plaintiff's face against a bunk bed and into a wall, and jumped on top of Plaintiff, injuring his shoulder. Thereafter, Defendant placed handcuffs on Plaintiff and led Plaintiff down a hallway. Defendant then again attacked Plaintiff and slammed Plaintiff's face into a door multiple times. As a result of the attack, Plaintiff suffered a broken nose and was otherwise injured, including an injury to Plaintiff's shoulder.

3. An affidavit submitted by Plaintiff substantiates the allegations about the attack. Additionally, medical records show that Plaintiff had a bilateral non-displaced nasal fracture (a broken nose). Plaintiff avers that as a result of the broken nose he has difficulty breathing, as well as sinus problems. Plaintiff likewise avers that he has persistent shoulder pain and headaches. He claims that he experienced nightmares and avoided correctional officers after the incident. Plaintiff has attached medical records that allude to him possibly suffering from post traumatic stress disorder (PTSD).

4. As a result of the attack, Defendant was indicted on two counts of aggravated battery. Ultimately, Defendant pleaded guilty to a Class A misdemeanor of simple battery and received a sentence of 12 months' probation, according to publically available records.

5. Defendant was also discharged from his employment with the Illinois Department of Corrections, and no longer works at DCC.

6. On October 11, 2012, Plaintiff filed his first amended complaint. The operative allegations against Defendant remained unchanged.

7. On January 9, 2013, Plaintiff filed a Waiver of Service, establishing that Defendant waived service on January 1, 2013.

8. On January 14, 2013, an Assistant Attorney General informed Plaintiff's counsel that the Office of the Illinois Attorney General had denied Defendant's request for representation.

9. On February 1, 2013, Plaintiff filed a motion for entry of default against Defendant.

10. On March 13, 2013, Magistrate Judge P. Michael Mahoney denied the ...


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