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Hebeler v. Gonzales

United States District Court, C.D. Illinois, Springfield Division

August 8, 2016

EDWARD W. HEBELER, Plaintiff,
v.
M.D. ROSALINA GONZALES and DR. HUGHES P. LOCHARD, Defendants.

          BEFORE U.S. MAGISTRATE JUDGE.

          ORDER

          TOM SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff Edward W. Hebeler’s Motion for Default Judgment (d/e 36) (Motion) against Defendant Dr. Rosalina Gonzales. Defendant Hughes P. Lochard, M.D. has filed a Response (d/e 39) (Response) objecting to the Motion. For the reasons stated below the Motion is denied.

         BACKGROUND

         Plaintiff filed his Complaint on December 20, 2013. At the time the events alleged in Plaintiff’s Second Amended Complaint (d/e 19) occurred, Plaintiff was an inmate at the Taylorville Correctional Center located in Taylorville, Illinois. Drs. Rosalina Gonzales (Gonzales) and Hughes P. Lochard (Lochard) were physicians employed by Wexford Health Sources, Inc. which provided medical services to inmates at Taylorville Correctional Center during the time period alleged in the complaint.

         The Plaintiff alleges that on June 29, 2011, he injured his left knee. Plaintiff contends that Gonzales and Lochard were deliberately indifferent to a serious medical condition caused by his knee injury and that he sustained serious injuries which could have been prevented had he received proper treatment at the outset of his knee injury.

         On March 28, 2014, U.S. District Judge Sue Myerscough granted Plaintiff’s motion for appointment of counsel (Merit Review Opinion, d/e 7) and appointed Edward T. Graham, Jr. to represent Plaintiff pursuant to the Plan for Appointment of Counsel for Indigent Parties.

         Lochard answered the Second Amended Complaint (Answer, d/e 20) denying liability for Plaintiff’s injury.

         A proof of service showing service on Gonzales was filed on July 1, 2015 (d/e 23). The proof of service indicates that summons was served on Gonzales on June 23, 2015 by leaving a summons at her residence or usual place of abode with her son, a person of suitable age and discretion who resides there. The private process server who filled out the proof of service indicated that he mailed a copy to Gonzales’ last known address.

         On October 28, 2015, counsel for Lochard filed a Motion for Leave to Depose Artelino Gonzales (d/e 35), the son of Defendant Rosalina Gonzales. Counsel for Lochard acknowledged that he had represented Gonzales in another matter and had been unsuccessful in making contact with Gonzales who now lived in the Philippines. Counsel for Lochard indicated he had not been able to reach Artelino Gonzales since September 15, 2015, and Artelino Gonzales had been uncooperative in assisting counsel in locating Defendant Gonzales. Lochard’s counsel indicated he could not state with any certainty to the Court whether Gonzales was aware of this lawsuit. Defense counsel was unable to depose Artelino Gonzales in this case.

         In Lochard’s Response (d/e 39) to the instant Motion (d/e 36), counsel for Lochard objected to the default alleging that no service had been perfected against Gonzales in this litigation and default could adversely affect the outcome of this litigation.

         Attached to Lochard’s Response was a deposition of Artelino Gonzales taken in Trimble v. Gonzales, Case #13-cv-3133, on December 29, 2015 (d/e 39-3).

         ANALYSIS

         Plaintiff has filed a Motion for Default Judgment (d/e 36) (Motion). The Court will treat Plaintiff’s Motion for Default Judgment as a Motion for Default pursuant to Central District of Illinois, Springfield Division, Standing Order for Seeking and Obtaining a Default Judgment.[1] The Plaintiff’s Motion alleges that the Defendant has failed to make any appearance or responsively ...


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