Opinion
02-CV-0847E(F).
October 27, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff Leroy Jones, an inmate of the Southport Correctional Facility, filed this pro se action on November 27, 2002 against defendants employees of Attica Correctional Facility ("Attica") — First Deputy James Conway, Correctional Officer T. Gebler, Superintendent Victor Herbert, Deputy Superintendent of Security Randy James, Correctional Officer J. Miller and Sergeant J.F. Wilson. Plaintiff seeks relief under 42 U.S.C. § 1983 claiming his Eighth Amendment rights were violated by the excessive force and punishment allegedly inflicted upon him by correctional officers at Attica. This Court's January 7, 2003 Order granted plaintiff permission to proceed in forma pauperis and directed the Clerk of the Court to cause the U.S. Marshal to serve the Summons and Complaint upon defendants. All the defendants except Herbert were served in February and March 2003 and all the "served" defendants except Wilson filed answers to the Complaint. This Court's March 23, 2004 Order directed plaintiff to show cause why defendants Herbert and Wilson should not be dismissed on account of plaintiff's failure to prosecute the case against them. Plaintiff filed an Answer to the Order on April 7, 2004 and this Court's May 27, 2004 Order found that the Complaint should not be dismissed as against either Herbert or Wilson and that, if plaintiff intended to prosecute this case against Wilson, he must file by June 10, 2004 both a request with the Clerk of the Court to enter Wilson's default and an affidavit establishing that Wilson's default should be entered by the Clerk pursuant to Rule 55(a) of the Federal Rules of Civil Procedure ("FRCvP"). Plaintiff filed his request and affidavit on June 7, 2004 and obtained an Entry of Default from the Clerk on June 14, 2004. Currently before the Court is defendant Wilson's June 10, 2004 Motion to Vacate the Order Directing Entry of Default pursuant to FRCvP 55(c). For the reasons set forth below, Wilson's Motion will be granted.
Defendants Conway, Gebler, James and Miller each received from the United States Marshal service by mail forms on February 10, 2003. Through the administrative offices of Attica, each of these defendants mailed to the New York State Attorney General ("AG") the acknowledgments of service and a request for representation. The matter was assigned to Ann C. Williams, Esq., Assistant AG. On behalf of these defendants, Williams returned the acknowledgment of service forms on March 12, 2003 and timely answered the Complaint on their behalf on April 1, 2003. Williams did not receive any acknowledgment of service or request for representation from Wilson or any notification that he had received service by mail forms from the Marshal. Williams thus erroneously believed that Wilson had not been served in this matter and an answer on his behalf was not required. Plaintiff did, however, send Wilson the Summons and Complaint on February 5, 2003 and Wilson returned the acknowledgment of service form to the Marshal on February 25, 2003. As such, Wilson's answer to the Complaint was due on March 17, 2003 but was not filed with this Court until June 10, 2004, after Williams had received the Court's Order directing default against Wilson and after plaintiff had filed his request for the Clerk's Entry of Default. Williams claims that she did not receive notice of plaintiff's Reply to the Order to Show Cause and thus did not respond on Wilson's behalf.
Williams also responded to plaintiff's interrogatories and to plaintiff's request for production of documents and otherwise pursued a defense in this matter on behalf of defendants Conway, Gebler, James and Miller.
Williams contends that Wilson's failure to answer was not his fault but hers. Wilson had been transferred to the Sing Sing Correctional Facility ("Sing Sing") and Sing Sing did not have any records of this matter or any matter in which Wilson was a defendant. Williams claims that Wilson did not know that he was required to do more than execute the acknowledgment of service form and return it to the Marshal's Office. Thus, he did not tell anyone at either Attica or Sing Sing that he had been served in this matter and did not ask the Inmate Records Office at either Attica or Sing Sing to prepare and forward to the AG a request for representation for review and signature. Had he sent the request, the AG would have received notice of this matter and provided Wilson with representation. As such, Williams apologizes to the Court for her failure to timely respond and asks the Court, pursuant to FRCvP 55(c), to vacate the May 27, 2004 Order directing entry of default.
FRCvP 55(c) expressly allows a court to set aside a default judgment pursuant to FRCvP 60(b). FRCvP 60(b)(1) provides, in part, that a court may relieve a final judgment or order for "mistake, inadvertence, surprise, or excusable neglect". A motion to vacate a default judgment brought pursuant to this provision is addressed to the sound discretion of the district court. State Street Bank Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 166 (2d Cir. 2004) (quotations and citation omitted). The Second Circuit has listed three criteria to determine whether to vacate a default judgment: "(1) whether the default was willful; (2) whether defendant has a meritorious defense; and (3) the level of prejudice that may occur to the non-defaulting party if relief is granted." Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983).
With regard to the first criterion, the Second Circuit has held that "willfulness" does not require a showing of deliberate default or bad faith on the part of the defaulting party. Am. Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 59-60 (2d Cir. 1996). The Second Circuit looks for bad faith or for at least something more than mere negligence before rejecting a claim of excusable neglect based on an attorney's or a litigant's error. Id. at 60; see also Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1078 (2d Cir. 1995) (holding that defendant had not willfully defaulted where he had failed to file an answer because he had been mistaken as to the appropriate timing for filing the answer and because he had received the incorrect docket number from the clerk's office). In Am. Alliance Ins., the defendant's failure to answer the complaint was due to a filing mistake by its in-house counsel's clerk. Though the two notices that were mailed should have alerted the defendant to the lawsuit, these notices were routinely filed by an office manager who assumed that the case had been assigned and was being diligently handled by a staff attorney. The misfiling went unnoticed for two months. The Second Circuit found that "[s]uch conduct, though grossly negligent * * * was not willful, deliberate, or evidence of bad faith, though it weighs somewhat against granting relief." Am. Alliance Ins., at 61.
Similarly, in this case, Wilson's failure to timely answer the Complaint was due to his lack of information and Williams's lack of adequate thoroughness. Wilson's failure to answer went unnoticed for almost three months. Such conduct, though grossly negligent on Williams's part and very irresponsible on Wilson's part, was not willful, deliberate or evidence of bad faith. As such, it weighs against but does not necessarily preclude granting relief. See Id.
As a Sergeant in a correctional facility, Wilson should have known the proper procedure when being sued by an inmate, especially when he was being so sued. Plaintiff alleges that Wilson had been working in this capacity for over 20 years and as such knew the procedure but deliberately disregarded this action. This Court holds, however, that although Wilson's behavior is highly irresponsible, his prompt return of the acknowledgment of service form indicates that he did not intend to default.
If Williams had carefully read the Complaint, she would have realized that Wilson was a named defendant and would have looked into why she had not received any acknowledgment of service or request for representation from him.
To satisfy the second criterion of a "meritorious defense," the defendant need not establish his defense conclusively, but must present evidence of facts that, if proven at trial, would constitute a complete defense. State Street Bank Trust Co., at 167; see also Am. Alliance Ins. Co., at 61 (holding that to satisfy the "meritorious defense" prong, the defense need not be ultimately persuasive at this stage, but merely needs to present good law so as to give the factfinder some determination to make) (quotations and citation omitted); and Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 98 (2d Cir. 1993) (holding whether a defense is meritorious "is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense.").
In this case, plaintiff claims defendant Wilson failed to prevent and actually condoned an alleged assault against plaintiff in violation of the Eighth Amendment. The Supreme Court has held that the Eighth Amendment's protection against cruel and unusual punishment forbids "only the unnecessary and wanton infliction of pain" on those incarcerated. Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quotations and citation omitted). "[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quotations and citations omitted). Defendant Wilson claims that his behavior did not constitute "wantonness" of conduct; rather, he claims he acted in good faith to maintain order. Wilson's claim, if proven at trial, constitutes a complete defense to plaintiff's claims and thus is a meritorious defense.
The Supreme Court found: "To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited". Wilson, at 298-299. (quotations and citation omitted).
Finally, this Court must consider whether plaintiff will be prejudiced if defendant Wilson is granted the requested relief. For the delay in filing the answer to prejudice plaintiff, the delay must result in the loss of evidence, create increased difficulties of discovery or provide greater opportunity for fraud and collusion. Davis, at 916. Here, there is no loss of evidence, discovery will not be made more difficult and the chance of fraud will not increase. Moreover, plaintiff is suing five other defendants over the same incident. Each defendant has filed an Answer and has responded to plaintiff's interrogatories. No further action has occurred in this case. As soon as defendant Wilson responds to plaintiff's interrogatories, all defendants will be at the same stage of litigation and Wilson's default will not cause any further delay. Finally, Wilson's defense in this matter does not differ from the defenses already asserted and thus does not burden plaintiff and plaintiff is not prejudiced by this Court vacating the Order directing entry of default. Therefore, upon weighing of all relevant factors, defendant Wilson's Motion will be granted: (1) his failure to timely answer the Complaint was grossly negligent but not in bad faith, (2) he has a meritorious defense and (3) plaintiff will not be prejudiced by the Court's granting of relief.
Plaintiff has sent the same set of interrogatories to each defendant. As such, sending another of the same will not be difficult.
Accordingly, it is hereby ORDERED that defendant Wilson's Motion to Vacate Order Directing Entry of Default is granted.