Opinion
No. 03 Civ. 826 (LTS)(KNF).
May 19, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE I. INTRODUCTION
Echo Westley Dixon ("Dixon") brought this action, pro se, pursuant to 42 U.S.C. § 1983, alleging violations of the Constitution. Defendants Correction Officer Jeffrey Ragland ("Ragland"), Correction Officer Stephen Ryan ("Ryan") (collectively, "officer defendants"), Captain Stephen Cottone ("Cottone"), and Captain Angel Luyanda ("Luyanda") (collectively, "captain defendants"), did not respond timely to the complaint. Thereafter, the Clerk of Court noted the defendants' defaults.
In this Report and Recommendation, "defaulting defendants" will refer to these four defendants, collectively. The summons and complaint were not served upon defendant Captain Salvo. Accordingly, no default was entered against him.
Before the Court are Dixon's application, pursuant to Fed.R.Civ.P. 55(b), for entry of a default judgment against the defaulting defendants, and the application by those defendants, pursuant to Fed.R.Civ.P. 55(c), to set aside their defaults.
II. BACKGROUND
Dixon filed the complaint in this action on February 5, 2003, and requested that the United States Marshals Service effect service of the summons and complaint upon the defendants. Subsequently, the Marshals Service filed proofs of service, indicating that service had been effected upon Luyanda on March 25, 2003, and upon Ragland, Ryan and Cottone on March 26, 2003. According to the proofs of service, copies of the summons and complaint were accepted: (a) on Cottone's behalf by an individual identified as "Captain Aronosky," at 100 Centre Street, New York, New York; (b) on Luyanda's behalf by an individual identified as "Captain Gonzalez," at 100 Centre Street, New York, New York; and (c) on Ryan's and Ragland's behalf by an individual identified as "Captain Murli (shield # 203)," at Rikers Island, East Elmhurst, New York. Accordingly, the defaulting defendants' answers were due on either April 14, 2003, or April 15, 2003. See Fed.R.Civ.P. 12(a)(1)(A).In support of their application, each of the defaulting defendants submitted a declaration concerning the circumstances of service upon him. Each of the captain defendants maintains that he did not receive copies of the summons and complaint personally and was unaware of the pendency of this action until the New York City Correction Department's Legal Division ("Legal Division") informed him about it in December 2004. Additionally, the captain defendants each maintain that "[i]mmediately upon being informed of the situation [he] requested legal representation and made [himself] available for [a] representational [interview]."
According to the officer defendants, the New York City Department of Correction's ("DOC") staff gave each of them copies of the summons and complaint in late March 2003. Immediately thereafter, the officer defendants maintain, that each forwarded these documents, along with a request for legal assistance, to the Legal Division. The officer defendants say that they believed the Legal Division would forward these documents to the Office of the Corporation Counsel of the City of New York.
None of the defaulting defendants served or filed a response to the complaint. Consequently, Dixon submitted the instant application for the entry of a default judgment.
On December 22, 2004, the Court received a letter from Julinda A. Dawkins ("Dawkins"), Assistant Corporation Counsel for the City of New York, stating that she had been assigned recently to investigate the circumstances surrounding the defaults and that she expected to file an application on behalf of the defaulting defendants prior to February 11, 2005. Other correspondence from Dawkins to the Court followed, in January and February 2004. On February 17, 2005, approximately 22 months after their answers were due, the defaulting defendants made the instant application to set aside their defaults, on the grounds that: (1) their failure to respond to the complaint was the result of inadvertence and was not willful or in bad faith; (2) they have meritorious defenses to the complaint, namely that they are entitled to qualified immunity and that the complaint fails to allege a violation of a federal right, as required for a § 1983 action; and (3) the plaintiff would not be prejudiced in the prosecution of this action by the delay caused by the defaulting defendants' failure to respond to the complaint timely.
On February 17, 2005, the Court also received a writing from Dixon, captioned as a motion, in which he again requested that a default judgment be entered against the defaulting defendants. In this writing, Dixon stated that his application was made pursuant to Rule 4 of the Federal Rules of Appellate Procedure, and Rules 55(a), 55(b)(1)-(2) and 55(g) of the Federal Rules of Civil Procedure. As the plaintiff has already submitted an application for entry of a default judgment, the Court construes this writing as a response to the letters from Dawkins, rather than as a separate application for relief.
If Dixon's February 17, 2005 writing were treated as a distinct application, it would be denied. Rule 4 of the Federal Rules of Appellate Procedure addresses the topic of "Appeal as of Right — When Taken." This is inapplicable here, as the Federal Rules of Appellate Procedure govern only actions pending before the United States Court of Appeals. See Fed.R.App.P. 1(a). An application pursuant to Rule 55(a) of the Federal Rules of Civil Procedure at this stage of the litigation would be moot, as that rule provides for the notation of default by the Clerk of Court, and the Clerk of Court has already noted the defaults of the relevant defendants in this action. Rule 55(b)(1) provides for the entry of default by the Clerk of the Court when the damages sought are a "sum certain or for a sum which by computation can be made certain." In this action, however, Dixon seeks damages for, among other things, pain and suffering, which must be established by competent evidence. Therefore, that rule is inapplicable. Furthermore, Rule 56(g) pertains to summary judgment and, thus, also has no application here.
In support of their application and in opposition to Dixon's, the defaulting defendants have submitted, in addition to the materials noted above, a memorandum of law, a reply memorandum of law, and a declaration by Dawkins. In support of his application and in opposition to that of the defaulting defendants, Dixon has submitted a declaration, a memorandum of law, dated February 13, 2005, an undated addendum to that memorandum and an additional addendum, dated April 8, 2005.
III. DISCUSSION
Fed.R.Civ.P. 55(c) provides: "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with rule 60(b)." A court must consider three factors in determining whether good cause exists for granting a defaulting party such relief: "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). In particular, "[t]he subjective inquiry into willfulness effectively distinguishes those defaults that, though due to neglect, are excusable, from those that are not." American Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996). These factors are to be construed generously in favor of defaulting parties. Enron, 10 F.3d at 96. However, "[a]n absence of prejudice to the nondefaulting party [does] not in itself entitle the defaulting party to relief from [a default] judgment." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998).
The determination to grant or deny an application for relief from a default or a default judgment is committed to the discretion of the district court. See Enron, 10 F.3d at 95. However, the scope of such discretion is narrowed by a "strong [policy of] favoring the resolution of genuine disputes on their merits." Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983) (internal quotation marks omitted) (quoting Jackson v. Beech, 636 F.2d 831, 835 [D.C. Cir. 1980]). In recognition of this policy, the case law is clear that "all doubts must be resolved in favor of trial on the merits." Enron, 10 F.3d at 98. In addition to considering these three factors, a court should consider "[o]ther relevant equitable" factors, such as whether a defendant was represented by counsel at the time of the default, and whether the entry of default judgment would bring about a harsh result. See Enron, 10 F.3d at 96-97.
1. Willfulness Captain Defendants
The captain defendants maintain that their failure to respond cannot be construed as willful, since they were unaware of the pendency of this action until shortly before they filed the instant application to set aside their defaults.
In response, Dixon contends that it is incredible that both Cottone and Luyanda would "have coworkers deliberately withhold the summons and complaint." The plaintiff also notes that 100 Centre Street is a short distance from the office of the United States Marshals Service for this judicial district and contends that one may infer from this fact that service was effected. Therefore, Dixon maintains that the captain defendants' inaction should be found to be willful.
Dixon has not provided any reason to doubt the veracity of the captain defendants' statements about service of process upon them. There is no evidence in the record before the Court to support Dixon's suggestion that either of the captain defendants directed his coworkers to withhold the summons and complaint from the defendants. The proximity of the office of United States Marshals Service to the site at which service was effected does not have any relevance to whether service was effected properly. Moreover, the captain defendants do not contend that service was not effected; they contend that, notwithstanding service of process, they were unaware of the pendency of this action. The captain defendants' statements that they lacked knowledge of this action are sufficient to raise doubt about whether their defaults were willful.
Officer Defendants
The officer defendants contend that their defaults are the result of the inadvertence of DOC and not a result of willful inaction on their part. They maintain that forwarding the officer summons and complaint to the Legal Division was an appropriate response. The officer defendants offer no explanation for their failure to respond to the complaint. Instead, they assert that the Legal Division, which did not represent them at the time, failed to provide them legal assistance and respond to the lawsuit on their behalf. They allege further that the Legal Division's inaction was "the result of inadvertence." The officer defendants do not indicate what steps, if any, they took after making their requests for legal assistance to ascertain the status of those requests and/or the status of the instant action.
Dixon contends that the account proffered by the officer defendants is "absurd." He argues that the officer defendants should have contacted either the Legal Division or the Office of the Corporation Counsel in order to ascertain whether the documents they sent to the Legal Division had been received.
"[T]he court may find a default to have been willful where the conduct of counsel or the litigant was egregious and was not satisfactorily explained." McNulty, 137 F.3d at 738. For example, defaults have been found willful in instances where an attorney failed to respond to a motion for summary judgment and failed to proffer a reason. See United States v. Cirami, 535 F.2d 736, 739 (2d Cir. 1976). Moreover, "[d]istrict courts in this Circuit have held that attorney or client carelessness does not constitute excusable neglect." American Alliance Ins. Co., Ltd., 92 F.3d at 61 n. 1. Denial of a motion to vacate a default may be appropriate where defendants state that the reason for their "counsel's failure was unknown and the defendants [provide] no evidence to suggest that they had ever made any efforts to determine that counsel was tending to the lawsuit."McNulty, 137 F.3d at 739. Where there is no "indication of client diligence," Cirami, 535 F.2d at 741, courts will be more apt to find a party's inaction to be willful.
The officer defendants have not offered any explanation of their failure to respond to the complaint, except for a hypothesis that the materials sent to the Legal Division must have been misplaced. The officer defendants do not dispute that they were aware of the instant action and do not claim that they were unaware of their obligation to respond to the complaint. Indeed, the evidence in the record demonstrates that each personally received a summons, which advised him:
YOU ARE HEREBY SUMMONED and required to serve upon [the plaintiff] An answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of time after service.
Summons, at 1 (capitalization in original).
Moreover, the officer defendants have not provided any evidence that they made any effort to ascertain the status of their request for legal assistance or the status of the instant action during the 22 months that followed their receipt of the summons and complaint. Accordingly, the officer defendants have not demonstrated that their defaults were not willful.
2. Prejudice
Dixon claims that he has been prejudiced by the defaulting defendants' delay in responding to the complaint. However, "delay alone is not a sufficient basis for establishing prejudice."Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983). "Rather, it must be shown that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." Id. (citing C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 2699, at 536-37). Dixon has not identified any prejudice to the prosecution of this action that would result from setting aside the defaults. There is also nothing in the record before the Court to suggest that setting aside the defaults would cause any of the types of difficulties set forth in Davis. Under the circumstances, it does not appear that setting aside the defaults would prejudice Dixon.
3. Meritorious Defense
The defaulting defendants assert two defenses to the claims made against them: (1) the complaint does not allege a violation of any federal right, and thus it fails to state a claim upon which relief may be granted; and (2) even if the complaint were found to state a violation of such a right, that right would not be clearly established, and so the defendants would be entitled to qualified immunity.
A defendant seeking relief from a default or a default judgment based upon an assertion of a meritorious defense need not establish that defense conclusively. See Davis, 713 F.2d at 916; McNulty, 137 F.3d at 740. In general, however, the defendant must present evidence of those facts, that "if proven at trial, would constitute a complete defense." See McNulty 137 F.3d at 740 (quoting Enron, 10 F.3d at 98). Insofar as the first defense asserted by the defaulting defendants requires only an analysis of the legal sufficiency of the complaint, no evidence is needed in order to establish that defense.
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dept. of Education, 131 F.3d 326, 329 (2d Cir. 1997). In considering this defense, "the court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff."Id. The court may also consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Furthermore, in a case such as this, in which the plaintiff is a pro se litigant, a court must be mindful that the plaintiff's pleadings "are [to be] held 'to less stringent standards than formal pleadings drafted by lawyers,'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595), and courts are to construe the complaint liberally, see Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).
Dixon alleges that Ragland, Ryan and Salvo kicked him repeatedly, punched him repeatedly, and sprayed him with a chemical agent, causing him various significant injuries, including a laceration to his eye, bruises to his ribs and lower back, periodic lack of mobility, and blurry vision. He alleges further that Cottone and Luyanda "stood by laughing and gave no orders to [the other defendants] to stop." The complaint indicates that Dixon was a prisoner in the care of DOC and that the defendants were employees of DOC with immediate, physical custody of Dixon.
Although the complaint does not identify a specific right of the plaintiff that might have been violated by the defendants, that alleged misconduct implicates Dixon's rights, under the Eighth and Fourteenth Amendments, to be free from the use of excessive force. "The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment . . . prohibits the infliction of cruel and unusual punishments, . . . including the unnecessary and wanton infliction of pain."Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (citations and quotation marks omitted). "[T]he Eighth Amendment serves as the primary source of substantive protection to convicted prisoners in cases . . . where the deliberate use of force is challenged as excessive and unjustified." Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 1088 (1986).
In this action, the above-noted factual allegations in the complaint are sufficient to state a claim that Ragland and Ryan used excessive force against Dixon, in violation of his Eighth and Fourteenth Amendment rights against cruel and unusual punishment. The allegation that Cottone and Luyanda watched the alleged misconduct and did nothing to stop it is also sufficient to state a claim that these defendants caused a deprivation of Dixon's constitutional rights. See, e.g., Blyden v. Mancusi, 186 F.3d 252, 264-65 (2d Cir. 1999). Accordingly, the defaulting defendants' contention, that the complaint does not allege a violation of any federal right, is without merit.
In support of their second defense, qualified immunity, the defaulting defendants have recited the elements of that defense. They have not explained what facts they might prove at trial in order to satisfy the elements of that defense. In addition, they have not submitted any evidence that might support such facts. Relying on Gonzalez v. City of New York, 104 F. Supp. 2d 193 (S.D.N.Y. 2000), the defaulting defendants contend that a default maybe set aside "based upon the mere invocation of potentially valid defenses." That contention is wrong, and the defaulting defendants have misstated the holding of Gonzalez. TheGonzalez court found that the defendants in that action, in connection with an application to set aside their defaults, had proffered facts that, if proven at trial, would support the defense of qualified immunity. Id. at 197. Therefore, in granting the Gonzalez defendants' application to set aside their defaults, the Gonzalez court did not rely upon a "mere invocation" of qualified immunity. Moreover, in Gonzalez, the court explained that "[i]n order to make a sufficient showing of a meritorious defense in connection with a motion to vacate a default judgment, a defendant . . . must present evidence of facts that, 'if proven at trial, would constitute a complete defense.'" Id. at 197 (quoting Enron, 10 F.3d at 98). The defaulting defendants have not explained how their statement of the holding of Gonzalez might be reconciled with the passage of that opinion just quoted.
The defaulting defendants have not demonstrated that they have any meritorious defense to the claims made against them in the instant action. 4. Application of Enron Factors to defaulting defendants
While default judgments are disfavored, see Traguth, 710 F.2d at 94, and while the factors set forth above are to be construed generously in favor of a defaulting party, see Enron, 10 F.3d at 96, these policies do not relieve such a party completely of its burden, under Fed.R.Civ.P. 55(c), to show good cause for setting aside a default.
The officer defendants have not demonstrated that their defaults were not willful or that they have a meritorious defense to the claim against them. These defendants have demonstrated only that no prejudice to Dixon has resulted from their failure to respond. The mere absence of prejudice does not warrant such relief from a default. See McNulty, 137 F.3d at 738. However, the Court must also consider any equitable considerations that may bear upon the defendants' application. Among these considerations is whether a defendant is proceeding pro se.
Evidence in the record suggests that the officer defendants were not represented by counsel at the time their defaults were noted. Although the officer defendants' pro se status at the time of their defaults is not itself probative of their willfulness, it is a mitigating factor that favors granting them relief from their defaults. See Enron, 10 F.3d at 97. The Court finds that this consideration, when combined with the absence of prejudice to the plaintiff, warrants setting aside the officer defendants' defaults.
The captain defendants have raised some doubt about whether their failure to file an answer was willful. As there is no basis upon which to conclude that prejudice to the plaintiff would result if the defaults against the captain defendants were vacated, the Court finds that this fact militates in favor of granting the captain defendants the relief they seek.
In light of the foregoing, a judgment by default should not be entered against the defaulting defendants, and the defendants' defaults should be set aside.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defaulting defendants' application to set aside their defaults be granted. Consequently, I recommend further that the plaintiff's application for entry of a default judgment be denied.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura T. Swain, 40 Centre Street, Room 410, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).