Wilcox v. Kalchert
| Decision Date | 14 March 2022 |
| Docket Number | 2:20-cv-234 |
| Parties | STEVEN J. WILCOX, #223862, Plaintiff, v. JOSHUA STEPHEN KALCHERT, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
REPORT AND RECOMMENDATION
This Report and Recommendation (R&R) addresses Plaintiff Steven J. Wilcox's motion for the determination of money damages. (ECF No. 93.)
This case arises out of incidents that took place while Wilcox and Defendant Joshua Stephen Kalchert were confined in Alger Correctional Facility (LMF) in Munising, Michigan. Wilcox and Kalchert were cellmates in LMF's Protective Custody Unit from September 2019 to April 2021. (ECF No. 1, PageID.2.) Because Wilcox has a physical disability that limits the use of his right arm, Kalchert also served as Wilcox's aid. (Id.) During this time, Wilcox says that Kalchert sexually assaulted and brutalized him on three occasions. (Id.)
On November 16, 2021, this Court entered default judgment in favor of Wilcox. (ECF No. 90.) On the same date, District Judge Hala Y. Jarbou directed the undersigned to address Wilcox's prior requests for discovery, conduct the necessary proceedings to determine damages, and issue an R&R on damages. (ECF No. 89.) The undersigned denied Wilcox's discovery requests and directed him to file evidence of his damages with the Court. (ECF No. 91, PageID.370.) The undersigned suggested that Wilcox could do this through medical records obtained via processes proscribed by the Michigan Department of Corrections (MDOC), analogous case law, and an affidavit laying out his damages and the justifications therefore. (Id., PageID.360-370.)
Wilcox now moves the Court to determine damages based on his declaration, three mental health treatment plans, analogous caselaw, and requests for admissions that Wilcox allegedly provided to Kalchert, which Wilcox says should be deemed admitted. (ECF No. 94, PageID.386-392.) He requests a total of $43, 335, 500 in damages.[1] (Id., PageID.393.)
After reviewing the evidence of damages provided by Wilcox, the undersigned respectfully recommends that the Court award Wilcox $1.5 million in non-economic damages. In the opinion of the undersigned, Wilcox has provided the Court with sufficient evidence of emotional distress and analogous caselaw from which the Court can reasonably ascertain those damages. However, Wilcox has not provided sufficient evidence from which the Court could reasonably ascertain economic damages. And exemplary damages, under the circumstances of this case, would be duplicative.
Wilcox initiated this action against Kalchert on October 27, 2020. In his complaint, Wilcox asserted three counts of sexual assault and intentional infliction of emotional distress. Wilcox also asserted damages exceeding $75, 000. (ECF No. 1.)
On February 12, 2021, Kalchert signed a waiver of service, acknowledging that judgment may be entered against him if he did not serve Wilcox with an answer or a Rule 12 motion within 60 days. (ECF No. 53.) Kalchert did not respond to attempts to reach him after waiving service and did not file an answer or a Rule 12 motion.
On May 24, 2021, Wilcox moved for default judgment. (ECF No. 58.) On May 25, 2021, the Clerk of Court entered default as to Kalchert (ECF No. 56), and on October 19, 2021, the undersigned scheduled a hearing on Wilcox's motion for default judgment (ECF No. 85). Kalchert did not appear. On October 26, 2021, the undersigned issued an R&R recommending that the Court grant default judgment in favor of Wilcox and either hold an evidentiary hearing regarding damages or require him to submit documentary evidence of his damages. (ECF No. 87.)
On November 16, 2021, District Judge Hala Y. Jarbou approved and adopted the R&R, but referred the matter of damages to the undersigned, and directed the undersigned to consider requests for discovery previously filed by Wilcox. (ECF No. 89, PageID.366.)
On November 11, 2021, the undersigned issued an Order denying Wilcox's request for discovery on the grounds that the discovery requests that Wilcox proposed to serve were directed to Kalchert, who by all indications would not respond, and included requests for production that Wilcox could obtain without a period of formal discovery. (ECF No. 91, PageID.369.) In the same Order, the undersigned directed Wilcox to file documentary evidence of his damages with the Court. (Id., PageID.370.)
On January 18, 2022, Wilcox moved for the determination of damages in this case. (ECF No. 93.)
On December 31, 2019, Kalchert allegedly attempted to solicit sex from Wilcox, who declined. (ECF No. 1., PageID.3.) Upon Wilcox's rejection, Kalchert made the men coffee. When Wilcox drank the coffee, he became drowsy, and lost consciousness. (Id.) When Wilcox regained consciousness, he realized that he was naked, gagged, and bound, and that Kalchert was raping him. (Id.) At the same time, Kalchert was biting Wilcox's ears, neck, and shoulders. (Id.) At some point later, Kalchert placed Wilcox's genitals in his (Kalchert's) mouth and forced Wilcox to place his (Kalchert's) genitals in Wilcox's mouth. (Id.) When he was done, Kalchert left Wilcox bound, and tattooed the back of Wilcox's neck. (Id., PageID.4.) Kalchert then beat Wilcox, threatening further harm if Wilcox told anyone about the assault. (Id.)
On February 14, 2020, Kalchert again allegedly solicited sex from Wilcox. (Id., PageID.5.) When Wilcox again refused, Kalchert choked Wilcox until he lost consciousness. (Id.) When Wilcox regained consciousness this time, Kalchert was again raping and biting him. (Id.) Kalchert then choked Wilcox until he lost consciousness a second time. (Id.) When Wilcox regained consciousness, Kalchert's genitals were in his (Wilcox's) mouth, and Kalchert was penetrating Wilcox with his fingers. (Id.) When he was done, Kalchert again beat and threatened Wilcox. (Id.)
On March 13, 2020, Kalchert allegedly solicited sex from Wilcox for the third and final time. (Id., PageID.6.) Wilcox said no, and Kalchert choked Wilcox with a belt, beat him, and urinated on him. (Id.) After, Kalchert put Wilcox's genitals in his (Kalchert's) mouth before moving to touch and penetrate Wilcox's genitals. (Id.)
Under the circumstances of this case, Kalchert's default served only to admit liability; Wilcox must prove the amount of his damages. “A default judgment on well-pleaded allegations establishes only defendant's liability; plaintiff must still establish the extent of damages.” Kelley v. Carr, 567 F.Supp. 831, 841 (W.D. Mich. 1983); see also Vesligaj v. Peterson, 331 Fed.Appx. 351, 355 (6th Cir. 2009) ; Ohio Natl Life, Assurance Corp. v. Crescent Fin. & Ins. Agency, Inc., No. 1:15-CV-727, 2016 WL 8199123, at *1 (S.D. Ohio June 20, 2016) ().
Although Fed.R.Civ.P. 55(b)(2) allows this Court to conduct a hearing to ascertain damages, the undersigned determined after careful consideration that such a hearing was unnecessary, as Wilcox could instead establish his damages with documentary evidence including affidavits, medical records, and analogous case law. (ECF No. 93.) On January 18, 2022, Wilcox filed a motion for the determination of damages (ECF No. 93) and an accompanying brief (ECF No. 94). As evidence of his damages, Wilcox included in his filings: (1) a declaration dated January 11, 2022 (ECF No. 93-1), (2) records of three mental health evaluations, (ECF No. 93-3), (3) references to damages awarded in nine sexual assault cases throughout the country, (ECF No. 94, PageID.390-392), and (4) the requests for admissions Wilcox says a third-party mailed to Kalchert on December 3, 2021, (ECF No. 94-1).[2]
In his declaration dated January 11, 2022, Wilcox says that he requested his medical records from the MDOC, but that the costs associated with his records totaled $149.50, which he could not afford. (ECF No. 93-1, PageID.379.) Wilcox then detailed the injuries he received as a result of Kalchert's rape and assaults, which include: (1) a prolapsed rectum, (2) a non-healing anal fissure, (3) anal incontinence, (4) loss of sexual function, (5) a 40% loss in hearing, (6) Tinnitus, (7) scars on his thighs, chest, back, shoulders, and neck, (8) Post-Traumatic Stress Disorder, and (9) Temporal Mandibular Joint Dysfunction (TMJ). (Id., PageID.379-380.) According to Wilcox, a mental health provider determined that he will need mental health treatment and medication for at least five years, and possibly for the remainder of his life. (Id., PageID.380.)
Although Wilcox did not have the funds to provide the Court with his medical records, he did provide three of his MDOC Outpatient Treatment Plans (OTPs). (ECF No. 93-3, PageID.383.) The first OTP, which is dated October 27, 2020, sets forth Wilcox's “problems” as obsessive-compulsive disorder and PTSD. (Id.) Among Wilcox's goals were to decrease and better manage his anxiety. (Id.) This OTP did not say anything about Wilcox's prior sexual assaults. The second OTP, which is dated November 23, 2020 listed the same problems, and noted that one of Wilcox's goals was to identify the triggers that led to his anxiety. (Id., PageID.384.) This OTP did not say anything about Wilcox's prior sexual assaults. The third and final OTP, which is...
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