CLEARWATER — A city attorney’s failure to pencil a date on a calendar has led a judge to deliver a partial victory to a man suing the city’s police department.

Pinellas County Circuit Court deputy clerk Thomas Smith signed a default against the city on April 29 after the city failed to respond to the defendant’s complaint within 20 days. When sued, a defendant has only a limited time in which to respond to the complaint. If there is no timely response, the plaintiff may ask the court to enter a “default judgment” against the defendant.

According to Assistant City Attorney Paul Richard Hull, who filed a July 2 motion in Pinellas County Circuit Court to set the judgment aside, the city was not served or notified of either the motion for default filed by the plaintiff or the default filed by the clerk.

Kevin McCue, the plaintiff in the case in question, is suing Clearwater Police officers Jeff Williams and Justin Murray — as city employees — for excessive force. Police arrested McCue at the Clearwater Beach Marina on Sept. 26, 2015 after he struggled with them and threatened to shoot himself and officers, Clearwater police said. McCue said he suffered serious injuries during the altercation.

McCue’s claim against the city is for damages in excess of $15,000, which is the minimal damages for which one can file to keep the case out of small claims court.

McCue’s civil suit is based on two complaints: First, that police denied him his constitutional rights against unreasonable search and seizure and due process; second, that officers committed battery under state law. The city had 20 days to respond to the first complaint and 30 days to respond to the state battery complaint.

April Goodwin, McCue’s attorney, did not respond to questions about the motion from the Beacon.

Hull confirmed to the Beacon that city legal staff properly noted the 30-day deadline, but "failed to calendar a response" date for the 20-day deadline in its office calendars.

“In our case, one cause of action was calendared appropriately while the difference in response time for the other cause of action was inadvertently overlooked,” Hull wrote in his motion to overturn the default judgment.

Hull also argued that “the city was not served or notified of either the motion for default filed by the plaintiff or the default filed by the clerk,” writing in his motion that he learned of the default “only by happenstance” as Hull or an associate “visited the clerk’s docket page for other reasons.”

Ken Burke, clerk of the Pinellas County Circuit Court, denied his staff failed to properly notify Hull’s office.

Cynthia N. Haumann, Burke’s manager of civil court records, reviewed the case’s filings.

“If you read the Affidavit Service, it reflects that the process server received the summons on April 1, 2019 and the summons was served to ‘Owen from the City of Clearwater Legal Office, who was authorized to accept service on behalf of the Mayor’ on April 2, 2019 at 11:15 a.m.,” she told the Beacon. “The motion for default and the default was filed by the Plaintiff’s attorney and the motion indicates that a copy of the motion was mailed to the City of Clearwater. Since the motion was e-filed, the defendant should have also received a copy of the filing via e-service. Either way, the clerk does not notify the parties on motions for default; that is the responsibility of the plaintiff.”

Hull remains adamant: “The city was not served or notified of the motion for default.”

Hull also argues in his motion that courts have set aside default judgments based on “excusable neglect” — such as when lawyers fail to properly note filing deadlines.

“Failing to calendar a response has been determined to be excusable neglect,” Hull said.

Hull said he is confident the clerk’s office will take back the default judgment and let the city argue its case in court. He has also asked a Circuit Court judge to dismiss the civil lawsuit.

The city attorney’s office met the 30-day deadline for responding to the state battery charges, arguing that officers used appropriate force and were protected by their status as police officers.

“The qualified immunity for an officer’s action is a defense against the federal civil rights claim for certain actions taken within the scope of their authority,” Hull told the Beacon in late June. “If there is no clearly established law that would clearly notify the officer that what he is doing or has done violates the plaintiff’s rights, the officer is entitled to immunity.” 

The last part of McCue’s encounter with police on the night of his arrest was captured on security video at Clearwater Beach Marina. The video of the nighttime incident, which aired on local cable news affiliates and is still available online, begins with McCue out of view in the back of the police vehicle. Williams, another officer and Clearwater paramedics can be seen standing outside the open side doors of the SUV.

Williams leans into the back door of the SUV and can be seen attempting to pull McCue from the vehicle. A second officer, Murray, assists. They pull him out and lay him on the ground. As McCue lays on his side and back, handcuffed, Williams briefly pushes his foot on the suspect’s chest. The rest of the 15-minute video shows paramedics tending to McCue, putting him on a stretcher and pushing the stretcher to an ambulance.

The alleged beating that McCue claims he received at the hands of the police is not on the tape. McCue’s first lawyer contended that police and an unnamed city employee edited or destroyed the tape to protect the officers.

Goodwin, who replaced that lawyer, would not say what role the videotape would play in the case.

“I have a policy on not speaking publicly about the facts of a case while it is pending,” Goodwin told the Beacon in March.