IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Wells, et al.,

Plaintiffs

 v.

Brandon Rhodes, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-00217

Judge Sargus

Magistrate Judge Abel

Report and Recommendation

This matter is before the Magistrate Judge on plaintiff’s motion for default

judgment against defendant Alisa Dawn Gandee (doc. 41). Defendant Alisa Dawn

Gandee was served with summons and complaint on June 8, 2011 (doc. 34). On August

2, 2011 the Court referred this matter to the Magistrate Judge for a hearing and report

and recommendation. The hearing was held on August 22, 2011, and defendants Alisa

Dawn Gandee and Larry Matthew Gandee appeared before the Magistrate Judge. At

the hearing, plaintiffs’ amended their motion for default judgment to include

defendants Larry Gandee and D.G. Defendants Larry Gandee and D.G. were served

with summons and complaint on June 8, 2011 (docs. 35 & 33). 

Allegations in the First Amended Complaint. Plaintiffs William Wells and

Priscilla Wells live in Marengo, Ohio with their four children, Jalisa Gibson, Shanay

Gibson, J.W., and J.D.W. Am. Compl. at ¶ 2. Plaintiff are African Americans, and there

are few, if any, African Americans living in Marengo. Id. 

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On March 2, 2011, defendants Brandon Rhodes and D.G., acting in conspiracy

with one another, soaked a large wooden cross with alcohol and wrote in large letters

“KKK Will Make U Pay” on the horizontal part of the cross and “NIGGER” on the

vertical part of the cross and set it on fire on the lawn of plaintiffs. Id. at ¶ 4.

Jalisa Gibson and Shanay Gibson saw the cross when they woke up on the

morning of March 3, 2011. William Wells and Priscilla Wells, who are truck drivers,

were working and not at home at the time. Shanay Gibson contacted the Morrow

County Sheriff’s department and the media. Id. at ¶ 6. 

On March 4, 2011, D.G. bragged to his friends that he was involved in the cross

burning. When he saw Shanay Gibson at school, he stared at her intensely. D.G. sent

Shanay Gibson a “friend request” on the social networking website Facebook. Id. at ¶ 7.

Prior to the cross burning, D.G. regularly made taunting, derogatory, intimidating and

harassing comments to Shanay Gibson and J.W. because of their race. Id. at ¶ 10.

Approximately one week after the cross burning incident, D.G. attempted to contact

J.W. by sending him a “friend request” on Facebook. Id. at ¶ 12.

The Morrow County Sheriff’s department began investigating the cross burning.

Plaintiffs were fearful that their lives were in danger. Id. at ¶ 8. Rhodes’ parents came to

plaintiffs’ residence and stated that Rhodes had confessed to them that he was involved

in the cross burning. Id. at ¶ 9. 

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The actions of defendants have terrorized plaintiffs. Plaintiffs are afraid for their

lives and are concerned that defendants, and/or their sympathizers, will try to harm

them. 

The complaint further alleges that defendants Larry Matthew Gandee and Alisa

Dawn Gandee are subject to Ohio Revised Code § 32307.07 because they are the parents

of the minor, D.G., and D.G. engaged in ethnic intimidation against plaintiffs based on

their race. 

Default Judgment. If a defendant who is served with summons and complaint or

who waives service fails to timely answer or otherwise respond to the complaint,

plaintiff may request and the Clerk of Court will normally enter default. Rule 55(a),

Fed. R. Civ. P. The Clerk may enter judgment only “[w]hen the plaintiff’s claim against

a defendant is for a sum certain or for a sum which can by computation be made certain

. . . .” Id.

When a defendant is in default, plaintiff’s well-pled factual allegations relating to

liability are normally accepted as true. See Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110

(6th Cir. 1995); Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002); Kelley v.

Carr, 567 F. Supp. 831, 841 (W.D. Mich 1983). On the other hand, allegations as to

damages are not accepted as true. See Antoine, 66 F.3d at 110; Kelley, 567 F. Supp. at 841;

see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.

1992) (“While a party’s default is deemed to constitute a concession of all well pleaded

allegations of liability, it is not considered an admission of damages.”). “Ordinarily, the

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District Court must hold ‘an evidentiary proceeding in which the defendant has the

opportunity to contest the amount [of damages].’” Antoine, 66 F.3d at 110 (quoting

Greyhound Exhibitgroup, Inc., 973 F.2d at 158).

Rule 55(b)(2) provides that a court may hold a hearing on a motion for default

judgment when “it is necessary to take an account or to determine the amount of

damages or to establish the truth of any averment by evidence or to make an

investigation of any other matter . . . .” When a motion for default judgment is filed and

the affidavits supporting the motion are insufficient for the Court to determine

damages, the District Judge usually refers the motion to the Magistrate Judge for a

hearing at which plaintiff has the burden of proving damages by a preponderance of

the evidence. The Court may also require a prima facie showing of liability. See, Moore v.

United Kingdom, 384 F.3d 1079, 1090 (9th Cir. 2004); Ramos-Falcon v. Autoridad de Energia

Electirica, 301 F.3d 1, 2 (1st Cir. 2002); Quirindongo Pacheco v. Rolon Morales, 953 F.2d 15,

16 (1st Cir. 2002); TeleVideo System, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987); Doe

v. Qi, 249 F. Supp.2d 1258, 1272 (C.D. Calif. 2004); In re DIRECTV, Inc., 2004 WL

2645971 (N.D. Cal. July 26, 2004).

Alisa Dawn Gandee. Ms. Gandee testified that she currently lives with her son,

D.G, who is enrolled at Highland High School.

Jalisa Gibson. Jalisa Gibson testified that on the morning of March 3, 2011, she

woke up and saw something out the window. She realized it was a cross. She was

shocked, hurt, and scared. The words “KKK will make you pay” and the “N word”

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were written on the cross. She testified that she was afraid that someone would come

back and do something if they didn’t leave. She could see an indentation in the lawn

where an attempt was made to stick it in the yard. Her sister called law enforcement

and contacted the media. At some point she learned that Brandon Rhodes and D.G.

were responsible for placing the cross in her yard. She was scared because she did not

know what would happen next. 

Following the incident, Jalisa began to experience bad headaches. She used to

work at Petsmart in Dublin, but she had to leave for work at 5 o’clock in the morning to

open the store. She was afraid to leave her house when it was still dark outside. She

changed her schedule, but she received a bad review for doing so. Ultimately, she had

to quit her job. The family dynamics have changed since the incident. She said that they

were all scared and frustrated. Her parents had changed the rules in the house and had

become more strict. Jalisa feared for her dog’s safety when she let him out of the house.

On one occasion her car indicated that her gas cap was not on securely, and she worried

that her car had been tampered with. 

Shanay Gibson. Shanay Gibson testified that when she woke up on March 3, 2011

at first she did not think anything about the cross because she thought it was a

neighbor’s mailbox that had been knocked down. When she learned it was a cross in

her yard, she was very scared and wanted to leave. The cross had “KKK will make you

pay” and “niggers” written on it. The area around the cross was burned. She called her

dad on the telephone. He was shocked and told her to call the police. She also called 

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Channel 4 news because the police did not seem to be taking it seriously. It took the

police an hour to arrive. Shanay said that her family was the only black family in the

area. She had seen D.G. at school a few times. Shanay was friends with Brandon’s sister

and had been to their house. After the cross burning, D.G. stared at her at school and

told people that he had done it. She didn’t feel safe because she didn’t know what he

would do next. She doesn’t sleep very much because she worries that something else

will happen. She is not able to do much. She also has headaches. 

J.W. J.W. testified that he did not see the cross in his yard until he returned home

from school on March 3, 2011. He saw the writing on the cross. He felt as though the

people who did this were still after him. He had seen D.G. at school and had the same

lunch period as him. He was worried for his family and worried that another incidence

would occur. His whole family was nervous and scared. He thought that this type of

thing no longer happened in 2011. He had only lived in Marengo for about a year before

the incident occurred. Prior to the cross burning, he had felt comfortable in Marengo. 

Priscilla Wells. Ms. Wells became aware of the incident when she overheard her

husband talking to her daughter. She immediately tried to figure out how she could get

home to her family as quickly as possible. Despite her concern, she could not abandon

her work or the truck. She and her husband work as a team driving a truck. It took them

8 1⁄2 hours to get home from Atlanta. By the time she returned home, the cross had been

removed. She viewed photographs of the cross, but not the cross itself. The photographs

were very disturbing. 

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At some point, she discovered through her daughter Shanay that Brandon

Rhodes, D.G., and a third party were responsible. She no longer trusts people and fears

for her family when she is away at work. She is still employed as an over the road truck

driver. She never expected something like this to occur and doesn’t know what to

expect in the future. 

Family rules changed as a result of the incident because she no longer knew who

to trust. They live near a wooded area, and she felt anything is possible. Although they

have a neighbor in the same housing development, no one saw anything the night the

cross burning occurred. Now, she always is on guard. Before the incident, she never

noticed cars, but now she worries every time she notices a car driving slowly past her

house. She is more stressed and experiences constant fear. She altered her work

schedule so that she could be at home. Her children lost their freedom, and initially no

one was allowed to go anywhere. She remains cautious. 

Immediately after the incident occurred, they considered moving but decided

not to because they felt as though they should not have to move. She described the

event as a nightmare. She had let her guard down and believed that she could live

wherever she chose to. She can no longer think of it as home because there are people

who actually hate her. A burning cross signifies hate. 

Afterward, people from the community came to her house. Some of the people

appeared to worry more about what people thought of the community rather than how

her family felt. 

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Brandon’s parents came to her house and apologized for their son’s behavior.

Although she could see that his mother was upset, she remains concerned about her

family. No one has spent a day in jail. She doesn’t know anything about the families of

the boys who did this, and the beliefs demonstrated by the cross burning must have

come from somewhere. 

Her work schedule consists of six days of driving and one day off. She and her

husband drive to Florida and Boston, Massachusetts to deliver pharmaceuticals. They

take turns driving, ten hours at a time. It is a dedicated account and they operate out of

Groveport. 

They moved to Marengo because she believed a rural community would be a

good place to raise children. They were originally from Akron. Children raised in the

city are exposed to a lot of negativity. They believed country living would be better for

them. They also believed they would have better schools. They had taken in other

family members. Although she had previously encountered racism here and there, she

never experienced anything like this before. 

William Wells. Mr. Wells testified that he first learned of the incident when

Shanay called him. He instructed Shanay to call the police. He was very worried and

wondered if his children would be safe until they got home. They could not abandon

the truck and had to drive back from Atlanta. When she didn’t get a response from the

police, he told Shanay to contact the media when because the media can get results.

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He saw pictures of the cross. He told his children to put it in the garage when the

sheriff had left it behind. He had not been familiar with Brandon Rhodes or D.G. prior

to this incident. 

The first thing that went through his mind when he learned of the cross burning

was hate and that they were not wanted in the community. He believes you should be

able to live where you want to live. He viewed the cross burning as a threat. Nothing

can take away the fear. Any person who builds it knows what it means. He did not

know what the perpetrators might come back to do. It is difficult for him to be

comfortable with his children in school.

He believed that if they had moved, hate would have prevailed. Although people

apologized for what happened, he felt as though some of them smirked when they were

doing it. His interactions with people have changed. He tells his children that they don’t

have any friends, just associates. Some people believe that they are only trying to get

money. Family dynamics also changed. The children were followed home from a Pilot

truck stop, and they had to speed to get home. For a period of time, the children were

no longer permitted to go to functions or parties or participate on the track team. His

wife had to stop working and he had to find another team member to work with. He

was so preoccupied by concerns about his family’s safety that he passed a weigh station

while working. He was pulled over and received a ticket. 

He currently is on light duty and works from 7 a.m. to 3 p.m. This is temporary,

and he misses the road. His children are permitted to visit friends on occasion. He does

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not believe his children can have friends, only acquaintances. His daughter was friends

with Brandon Rhodes’s sister. 

Deposition Testimony of Brandon Rhodes. Rhodes testified that he learned about

the Klu Klux Klan (“KKK”) in history class. He does not know of any one who is a

member of the KKK. He is not a member of the KKK. He understands the KKK to be

opposed to any non-white people and that they hurt or scared people. He has never

visited a KKK website or attended a meeting. All the information he knew about the

KKK came from what he learned in his history class. He did not agree with the beliefs of

the KKK. He believed that the KKK used to bully people, throw bricks through

windows, and burn crosses. Rhodes testified that he believed that everyone is created

equal, and he would not become a member of the KKK because he didn’t agree with

their philosophy. He believes non-white people are no different than white people. He

does not care if white people are friends with or date non-white people. 

Rhodes acknowledged that he participated in the cross burning at the Wells’s

home. D.G. assisted him the cross burning. He does not know who came up with the

idea of burning a cross. Prior to deciding to burn a cross, Rhodes, D.G., and D.G.’s

cousin had been drinking a 30 pack of beer at D.G.’s house. He does not remember the

events leading to the decision to burn the cross. He said that they were drunk and being

stupid. D.G. said that Rhodes’s sister had been hanging out with either J.W. or J.D.W.

and Shanay at school. D.G. asked him if it bothered him, and he said that it did not.

Then, D.G. brought up the idea of a burning a cross. He knew that his sister was friends

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with either J.W. or J.D.W. A few minutes later, D.G. went out to the barn and returned

with wood to make a cross. 

D.G.’s parents were not home. His father was in Georgia, and his mother was at

work. D.G. brought two boards on the porch and began nailing the boards together.

Rhodes did not help him put the boards together, and he did not say anything to D.G.

while he was doing it. One board was approximately five feet long, and the other was

four feet long. While D.G. put the boards together, Rhodes drank his beer. He does not

remember what they talked about as D.G. made the cross. Rhodes was not present

when D.G. wrote “KKK will make you pay” and the “n-word” on the cross. D.G. said

that they were going to put the cross in Shanay’s yard, and Rhodes said okay. 

Rhodes helped D.G. load the cross into the back of Rhodes’s truck. They drove to

the Wells’s house and parked down the road. They carried the cross to their yard and

laid it flat. D.G. poured gasoline on the cross and lit it on fire. They took off running.

They drove back to D.G.’s house, and Rhodes dropped him off and drove home. 

Rhodes viewed the cross burning as a senseless prank, a joke, and an act of

stupidity. At the time, he did not think about the meaning of the words, “KKK will

make you pay.” Afterwards he recognized it as a threat. He understands that a burning

cross signifies hate. If he would have been sober, he would have recognized that, but he

wasn’t thinking. At the time, he considered it a joke. It was not being constructed to

insinuate hate against African-Americans. Rhodes figured that everyone would look at

it as a prank or a joke and not as a threat. He did not believe it would be threatening

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because you could tell it was not from the KKK. Rhodes did not even know that the

KKK still existed until he talked to the detective. 

Discussion. Plaintiffs are seeking default judgment against defendants Alisa

Gandee, Larry Gandee, and D.G. Plaintiffs maintain that defendants Larry Gandee and

Alisa Gandee are subject to Ohio Revised Code § 2307.07 because they are parents of the

minor, D.G., and D.G. engaged in ethnic intimidation against plaintiffs based on their

race. Section 2307.07 states:

(A) Any person who suffers injury or loss to person or property as a result

of an act committed in violation of section . . . 2927.12 of the Revised Code

has a civil action against the offender and may recover in that action full

compensatory damages, including, but not limited to, damages for

emotional distress, and may recover punitive or exemplary damages,

court costs, other reasonable expenses incurred in maintaining that action,

and the reasonable attorney's fees incurred in maintaining that action.

(B)(1) Any person who suffers injury or loss to person or property as a

result of an act committed in violation of section . . . 2927.12 of the Revised

Code by a minor child has a civil action against the parent of the minor

child and may recover in that action compensatory damages not to exceed

fifteen thousand dollars, court costs, other reasonable expenses incurred

in maintaining that action, and reasonable attorney's fees incurred in

maintaining that action. A parent and the parent's minor child are jointly

and severally liable as specified in this division for the injury or loss to

person or property caused by the minor child's act committed in violation

of section 2909.05, 2927.11, or 2927.12 of the Revised Code. If a person

recovers compensatory damages from a parent of a minor child pursuant

to this division, that recovery does not preclude the person from

maintaining a civil action against the minor child pursuant to division (A)

of this section.

Ohio Rev. Code § 2307.70(A) & (B). Section 2927.12 of the Ohio Revised Code states:

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Section 2903.21 states in pertinent part:

(A) No person shall knowingly cause another to believe that the

offender will cause serious physical harm to the person or property

of the other person, the other person's unborn, or a member of the

other person's immediate family.

(B) Whoever violates this section is guilty of aggravated menacing.

Ohio Rev. Code § 2903.21.

13

(A) No person shall violate section 2903.21,1

 2903.22, 2909.06, or 2909.07, or

division (A)(3), (4), or (5) of section 2917.21 of the Revised Code by reason

of the race, color, religion, or national origin of another person or group of

persons.

(B) Whoever violates this section is guilty of ethnic intimidation. Ethnic

intimidation is an offense of the next higher degree than the offense the

commission of which is a necessary element of ethnic intimidation.

Ohio Rev. Code § 2927.12 

Despite testimony concerning lost wages resulting from Mrs. Wells’s need to

temporarily stop working with her husband, no evidence was submitted concerning the

amount of lost wages. Similarly, Jalisa testified that she had to leave her position at

Petsmart as a result of the cross burning and that she began to suffer severe headaches.

No evidence was submitted documenting Jalisa’s lost wages, and no medical evidence

was submitted demonstrating a link between the cross burning and Jalisa’s subsequent

headaches. As a result, plaintiffs have not demonstrated that they are entitled to

compensatory damages for lost wages or any physical impairment arising from the

conduct of Rhodes of D.G. 

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Plaintiffs have demonstrated, however, that they are entitled to compensatory

damages for emotional distress. As a result, I RECOMMEND that plaintiffs Jalisa

Gibson, Shanay Gibson, J.W., Priscilla Wells, and William Wells each be AWARDED

$2,500 in compensatory damages in addition to court costs, other reasonable expenses

incurred in maintaining that action, and reasonable attorney's fees incurred in filing suit

and obtaining default judgment against these defendants. 

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);

United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,

380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not

raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

The Clerk of Court is DIRECTED to serve this Order on defendant Alisa Dawn

Gandee, Larry Gandee, and D.G., 6160 St. Rt. 229, Marengo, Ohio 43334.

s/ Mark R. Abel 

United States Magistrate Judge 

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