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April 14, 2004.

CHARLES MICHAEL KEE, Plaintiff, -against- WARDEN D. HASTY, et al., Defendants

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge


In this action purportedly brought under 42 U.S.C. § 1983 by pro se plaintiff Charles Michael Kee ("Kee"),*fn1 the Court faces three motions. First, Kee seeks a default judgment against certain defendants who, he claims, have failed to appear despite proper service. Second, those defendants who have appeared in the action seek judgment on the pleadings and/or summary judgment dismissing Kee's claims. And third, Kee seeks leave to file a Third Amended Complaint, adding new factual allegations, as well as certain new defendants.

For the reasons set forth below, I respectfully recommend that Kee's motion for a partial default judgment be denied, defendants' motion for judgment on the pleadings and/or summary judgment be granted in part and denied in part, and that Kee's motion to amend also be granted in part and denied in part. BACKGROUND

  A. Plaintiff's Claims

  Kee's allegations arise out of an incident that took place at the Metropolitan Correctional Center ("MCC") in Manhattan, on May 25, 2000. According to Kee's Second Amended Complaint and attached documents,*fn2 at approximately 1:00 p.m. on that date, Kee was escorted to his cell in handcuffs by defendant Correctional Officer Steven Linder ("Linder"), after the conclusion of a legal visit, to find that the cell had been searched, leaving his legal papers "all over the cell floor," and his package of cookies opened. (Second Amended Complaint ("Second Am. CompL") filed May 9, 2002 (Dkt. 19), attached May 30, 2000 letter to Warden Dennis Hasty ("Ltr. to Hasty") at 1.) Upon this discovery, Kee, while he was still handcuffed, threw the cookies and a container of milk out of his food slot, and asked to speak with an officer about the condition of his cell. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion [for] Summary [Judgment], dated January 26, 2003 ("Pl's 1/26/03 Mem."), at 2.) Kee alleges that, although he initially refused to have his handcuffs removed until he received an explanation as to why his food had been opened and his papers disturbed, he eventually did allow defendant Correctional Officer Garcia ("Garcia") to uncuff him, after which he proceeded to clean up his cell and do "legal work." (See id.)

  At about 3:00 p.m. on that same date, Kee claims to have heard a disturbance involving another inmate. Kee reacted to the disturbance by "yell[ing] to the staff on the tier . . .['] don't do that to him![']" (Ltr. to Hasty at 2.) At some point thereafter, certain of the defendants, allegedly on the order of defendant Captain Michael Gassaway ("Gassaway"), placed Kee in four-point restraints,*fn3 and did the same to the inmate who was the subject of the disturbance and to "another inmate who yelled." (Id.; see Pl's 1/26/03 Mem. at 3.) Kee alleges that, despite the fact that he regained his composure quickly and complained of pain from the restraints, he was kept in the restraints for approximately 22 hours. (See Second Am. Compl. Attach. C; Declaration of Mark Glover, M.D., dated July 19, 2002 (Dkt. 31) ("Glover Dec!."), ¶ 4 (Kee placed in restraints at 3:35 p.m. on May 25, 2000); Defendants Local Civil Rule 56.1 Statement ("Def's 56.1 Stmt") dated July 22, 2002, ¶¶ 25-26 (except for three-hour legal visit, Kee remained in restraints until 3:30 p.m. May 26, 2000).)

  As a result of the restraints, Kee claims to have sustained "back, neck, and wrist injuries along with extreme mental suffering." (Second Am. Compl. ¶ IV.) Thereafter, Defendants provided Kee with Motrin, but allegedly denied him physical therapy (See Second Am. Compl. ¶ IV), and intentionally served him meals that he could not eat, as they included meat, which was "not [part of his] . . . diet." (Second Am. Compl. Attach. C.)

  Kee's claims, liberally construed,*fn4 charge that: (1) by placing him in four-point restraints in response to his acts of throwing cookies and milk out of his cell and shouting his objection to the mistreatment of another inmate, and by keeping him in the restraints long after he had regained his self-control, defendants used excessive force against Kee in violation of the Eighth Amendment (See Second Am. Compl. ¶ IV-A); (2) by continuing to restrain Kee despite his complaints of pain, and by inadequately treating his injuries and failing to meet his dietary needs after releasing him from the restraints, defendants were deliberately indifferent to Kee's medical needs, another Eighth Amendment violation (see id. ¶¶ IV, IV-A); and (3) by confiscating certain of Kee's "belongings and legal materials," certain defendants deprived Kee of property without due process of law, in violation of the Fifth Amendment (See Second Am. Compl. ¶¶ IV, IV-A).

  Kee seeks declaratory, injunctive, and monetary relief on his claims. (See Second Am. Compl. ¶ IV-A; id. Attach. D.)

  B. Procedural History

  Kee filed his original Complaint in this action on December 20, 2000. (Dkt. 2.)*fn5 On March 30, 2001, the case was referred to me for general pretrial supervision and for a report and recommendation as to any dispositive motions. (Dkt. 4.) Kee filed an Amended Complaint on November 5, 2001 (Dkt. 10) ("Am. Compl."), and, with leave of Court, a Second Amended Complaint on May 9, 2002 (Dkt. 19). On January 24, 2002, Kee filed an application for the Court to request counsel. (Dkt. 13.) He renewed that application on August 28, 2002, and the Court denied it on January 7, 2003. (Dkt. 40.)

  1. Kee's Motion for Partial Default Judgment

  On May 29, 2002, which was 20 days after filing his Second Amended Complaint, Kee moved for a default judgment against certain defendants — Lieutenant James Williams ("Williams"), Special Investigative Agent Robert Parrish ("Parrish"), Correctional Officers Garcia ("Garcia") and Victor Jean ("Jean"), and unidentified members of the MCC "Medical Department Staff." Despite the timing, however, the basis of Kee's motion for a default against these defendants was not that they had failed to answer the Second Amended Complaint within 20 days of service of that pleading (See Fed.R.Civ.P. 12(a)(1)(A)), but rather that they had failed to respond in timely fashion to KEE'S first Amended Complaint, which purportedly was served on them by the United States Marshal on January 10, 2002. (See Plaintiff's Affirmation in Support of Motion for Default Judgment, dated May 29, 2002 (Dkt. 21) ("Pl's Default Mot."), at ¶ 2; Amended Summons, dated January 10, 2002 (attached to Pl.'s Default Mot.)*fn6 On behalf of the purportedly defaulting defendants, the U.S. Attorney's Office opposed Kee's default motion on various grounds. (See Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated July 19, 2002 (Dkt. 28) ("Defs.' Mem."), at 20-21.) Kee replied on October 16, 2002. (See Plaintiff's Affirmation in Opposition to Defendants' Motion for Summary Judgment, dated October 16, 2002 ("Pl's 10/16/02 Mem.").)*fn7

  2. Defendants' Motion for Judgment on the Pleadings and/or for Summary Judgment

  After Kee served his motion for default as against certain defendants, all of the defendants who had appeared in the action as of July 26, 2002 — including Parrish and Jean (see n. 6, supra) — moved for judgment on the pleadings or, alternatively, for summary judgment dismissing the claims against them. (See Defendants' Notice of Motion for Judgment on the Pleadings and/or for Summary Judgment, dated July 22, 2002 ("Defs' Notice of Motion") (Dkt. 27).) The motion was based, inter alia, on the doctrines of sovereign and qualified immunity, on Kee's purported failure to allege the nature of individual defendants' personal involvement in the claimed constitutional violations, and on Kee's failure to plead and/or demonstrate the requisite elements of his claims. (See Defs' Mem at 2-3; Dkt. 27-32.) Kee opposed this motion on October 16, 2002 (See Pl's 10/16/02 Mem.; Notice of [] Opposition [to] Government's [Motion for Judgment] on [the] Pleadings and/or for Summary Judgment, dated October 16, 2002), and Defendants replied on December 23, 2002 (See Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment, dated December 13, 2002 (Dkt. 39) ("Defs.' Reply Mem."), at 3-9).

  3. Kee's Motion for Leave To File a Third Amended Complaint

  At the same time that he filed his reply on his motion for a partial default judgment and his opposition to defendants' motion for judgment on the pleadings and/or summary judgment, Kee also sought leave to file a Third Amended Complaint. (See Motion [for] Leave to File Amended Complaint Pursuant to Fed.R.Civ.P. [] 15(a) and [Affirmation] in Support, dated October 16, 2002 ("Pl.'s Mot. to Amend").) This motion to amend was supported by a new proposed pleading, which was handwritten on a form apparently intended for use by civil rights litigants in the Central District of California. (See U.S. District Court Central District of California Civil Rights Complaint Pursuant to Bivens v. Six Unknown Agents, dated October 16, 2002 ("Proposed Third Am. Compl.").)

  Defendants opposed the motion to amend on December 23, 2002, in conjunction with their reply on their motion for judgment on the pleadings and/or summary judgment. (See Defs.' Reply Mem.) On January 26, 2003, Kee submitted papers which, as discussed further below, not only replied to defendants' arguments on his motion to amend, but also supplemented his earlier submissions opposing defendants' motion. (See Pl.'s 1/26/03 Mem. at 4; see also transcript of April 7, 2003 Case Management Conference ("4/7/03 Tr."), at 2 (accepting Kee's January 26, 2003 submission as, inter alia, Kee's reply on the motion to amend).) 4. Kee's Supplemental Submission

  As noted above, Kee's January 26, 2003 supplemental submission was in the nature of both a reply on his motion to amend and a sur-reply on defendants' motion for judgment.*fn8 Among other things, Kee used this submission to address a prison videotape — showing several minutes of the incident at issue — that had been belatedly produced by defendants. Defendants had submitted this videotape to the Court in connection with their alternative motion for summary judgment (See Reply Declaration of Les Owen, dated December 13, 2002 ("Owen Reply Decl."), Ex. A), but Kee apparently did not receive a copy of the tape until after he had submitted his October 16, 2002 opposition papers. (See Dkt. 41; see also letter from Kee to Pro Se Clerk, dated January 26, 2003 (noting "delay of filing due to prison's failure to release video tape and documents").) Accordingly, Kee presented argument about the tape for the first time in his January 26 submission. (See Pl.'s 1/26/03 Mem. at 3.)



  A. Applicable Legal Standards

  Rule 55(a) of the Federal Rules of Civil Procedure provides that the Clerk of the Court shall enter a default against a party who "has failed to plead or otherwise defend" an action in accordance with the applicable requirements, including timeliness. Fed.R.Civ.P. 55(a); see also Fed.R.Civ.P. 12(a)(1) (setting forth time limits to answer a complaint). Once the default has been entered, upon application of the party "entitled to a judgment by default," the Court may enter a default judgment against the defaulting party. Fed.R.Civ.P. 55(b).

  The decision to grant a motion for a default judgment lies in the sound discretion of the trial court. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). A default judgment, however, cannot be entered unless the Court has "jurisdiction over the party against whom the judgment is sought, which also means that [the defendant] must have been effectively served with process." Wright, Miller & Kane, Federal Practice and Procedure Civil 2d § 2682.

  Further, a default judgment is warranted only where a plaintiff establishes that he has been prejudiced by the defendant's default. See Cruz v. Coach Stores, No. 96 Civ. 8099 (JSR), 1998 WL 812045, at *3 (S.D.N.Y. Nov. 18, 1998) (default judgment "not remotely warranted" where, inter alia, plaintiff had failed to establish prejudice resulting from defendant's lateness in answering) (citation omitted). Delay, standing alone, will not suffice to show prejudice, see Enron Oil Corp., 10 F.3d at 98; rather, a plaintiff must show "that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (quoting Wright, Miller & Kane at § 2699) (internal quotation marks omitted)). Our judicial system does not favor default judgments, and, if a trial on the merits is possible despite the defendant's default, e.g., where a defendant answered a complaint belatedly, such a means of disposition is preferred. See Campbell v. Shenendehowa Cent. Sch. Dist., No. 93 Civ. 227, 1993 WL 133726, at *2 (N.D.N.Y. Apr. 23, 1993) (noting, in denying default motion where defendants had answered complaint belatedly, that courts disfavor defaults) (citing Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981)). The preference is for courts to "reach judgments on the merits and not by way of default judgments." Shah v. N.Y.S.tate Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999) (citations omitted). Further, a plaintiff is not entitled to a default judgment, regardless of whether the defendant has answered the complaint, if the complaint does not state a viable legal claim for relief. See, e.g., CPF Premium Funding, Inc. v. Ferrarini, No. 95 Civ. 4621 (CSH), 1997 WL 158361, at *14 (S.D.N.Y. Apr. 3, 1997) (The Court "may deny an application for entry of a default when the complaint fails to state a claim against the defaulting defendant.").

  B. The Defendants Against Whom Default Judgment Is Sought

  1. Parrish and Jean

  Kee is correct that, as of the date of his default motion, defendants Parrish and Jean had not answered his Amended Complaint. (See Pl.'s Default Mot. ¶ 3; Defs.' Am. Answer at 1 (listing defendants on whose behalf answer was filed).) Prior to filing his motion, however, Kee filed a Second Amended Complaint, which those defendants did answer, albeit belatedly. (See Second Am. Answer. at 1 (naming Parrish and Jean among answering defendants).) Indeed, Parrish and Jean have now joined in defendants' motion to dismiss Kee's claims, either on the pleadings or on summary judgment. (See Defs.' Notice of Motion at 1 (naming Parrish and Jean among moving defendants).)

  In support of his default motion, Kee asserts only that "[t]he time to respond to [the Amended Complaint] has expired, and the defendants [have] not answered or made a motion," and that "[t]he defendants are not infants or incompetent people, nor [are they] serving in the United States Armed Forces." (Pl's Default Mot. ¶¶ 3-4.) Although these statements, when made, were apparently correct as to defendants Parrish and Jean, Kee has made no attempt to demonstrate that these defendants' failure to answer the Amended Complaint — or to file a timely response to the Second Amended Complaint — has negatively affected the evidence or Kee's ability to conduct discovery in this case, or has enabled the defendants to engage in fraud or collusion. Cf. Davis, 713 F.2d at 916 (granting defendants' motion to set aside default judgment where, although "some delay will result," plaintiff, by failing to allege effects regarding evidence, discovery or fraud, did not establish prejudice). Given that any delay in these defendants' appearance is minor when the case is viewed as a whole, and that policy interests strongly favor the resolution of claims on the merits, I recommend that the motion for default judgment against these defendants be denied.

  2. Garcia

  Although the Marshal's return of service suggests that defendant Garcia was served with process, defendants contend that this particular defendant has never been sufficiently identified to enable effective service or a response. (See Defs.' Mem. at 20 (stating that Kee "has not provided sufficient identifying information, such as Garcia's first name or any actions Garcia allegedly took concerning [Kee], and the BOP consequently has been unable to identify who[m] [Kee] purports to sue").) Having heard this argument, Kee now appears to concede that the BOP's inability to identify Garcia has precluded effective service upon him, and Kee has thus requested that his motion for a default judgment be stayed as to Garcia "until he can be properly identified." (See Pl's 10/16/02 Mem. at ¶ 48.)

  Where, however, attempted service has been ineffective, the Court does not have jurisdiction over the defendant and should not entertain a default motion nor stay such a motion pending adequate service. Rather, the default motion should simply be denied. See, e.g, American Inst. of Certified Pub. Accountants v. Affinity Card, 8 F. Supp.2d 372, 375 (S.D.N.Y. 1998) (vacating default judgment where plaintiff had failed to effectuate proper service because the court never had jurisdiction over the defendant to allow entry of the judgment); Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Forman 635 Joint Venture, No. 94 Civ. 1312 (LLS), 1996 WL 272074, at *3 (S.D.N.Y. May 21, 1996) (default judgment may not be entered where the service of process, on which it rests, was ineffective). Here, if Kee is, at some point, able to identify Garcia sufficiently to effectuate valid service, then Kee's pleading should be amended at that time to reflect the identifying information; service should be made; and Garcia should be given a fair opportunity to respond to any claims against him. As there does not appear to be any present dispute that any prior service on Garcia was ineffective, I recommend that Kee's default motion as to this defendant be denied.

  3. Williams

  Defendants assert that Williams has not appeared in this action because he has been on active duty overseas in the U.S. Air Force and is on leave from the BOP. (See Defs.' Mem. at 20-21; Declaration of Les Owen, dated July 19, 2002 (Dkt. 32) ("Owen Decl."), ¶ 10.) Therefore, Defendants request that, if this action is not dismissed in its entirety, it be stayed as to Williams, pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. § 521, which protects service members who have not appeared in an action against default judgments. (See Defs.' Mem. at 20-21.) That section provides, in pertinent part:
In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection upon application of counsel, or on the court's own motion, if the court determines that — (1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or
(2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.
50 U.S.C. App. § 521(d); see also Conroy v. Aniskoff, 507 U.S. 511, 516 n.9 (1993) (noting that Section 521 provides for stays of legal proceedings against persons engaged in military service).

  The fact that Williams is on active duty overseas materially affects his ability to conduct a defense in this case. See 59 U.S.C. App. § 521(d)(1); Franklin v. Police Officer Balestrieri, No. 00 Civ. 5883 (BJS) (DFE), 2002 WL 54600, at *1 (S.D.N.Y. Jan. 15, 2002) (finding that activation of defendant Navy reservist officer to military duty materially affected his ability to conduct his defense); see also U.S. v. Kaufman, 453 F.2d 306, 308-309 (2d Cir. 1971) ("The purpose of the Soldiers' and Sailors' Civil Relief Act is to prevent default judgments from being entered against members of the armed services in circumstances where they might be unable to appear and defend themselves."). Further, Kee has not presented any evidence that Williams is not overseas on active duty, see 59 U.S.C. App. § 521(b)(1); Kaufman, 453 F.2d at 309 (noting that before a plaintiff can obtain a default judgment against a person in the military he must file an affidavit with the court stating that the individual being sued is not in the service), nor does he appear to object to the Court's granting Defendants' request for a stay. (See Pl's 10/16/02 Mem. ¶ 48 ("This action should also be stayed as to Lt. Williams who is alleged to be overseas on active duty.").)*fn9 For these reasons, I recommend that Kee's motion for a default judgment as to defendant Williams be denied, and that this action be stayed as to him, pending his release from Air Force duty. I further recommend that counsel for defendants be directed to notify Kee and the Court of any changes in Williams's military duty status. See Franklin, 2002 WL 54600, at *1 (directing Assistant Corporation Counsel to update court and plaintiff as to status of defendant officer's military duty).

  4. Medical Department Staff

  Kee also seeks a default judgment as to the defendant identified only as "Medical Department Staff." (See Pl's Default Mot.) Defendants argue that, by failing in his Second Amended Complaint to name any members of that staff who allegedly were involved in a violation of his constitutional rights, Kee has failed to state a claim against any such staff members. (See Defs.' Mem. at n.1.)

  Defendants are correct that, under Bivens, a plaintiff must identify defendants by name and demonstrate the nature of their individual liability in order to state a claim for excessive force. (See generally discussion infra at 24-25.) Therefore, Kee is not entitled to a default judgment against the "Medical Department Staff," regardless of whether the Marshal purportedly served that entity with process and even though it has not, to date, appeared. See, e.g., CPF Premium Funding, Inc., 1997 WL 158361, at *14 (The Court "may deny an application for entry of a default when the complaint fails to state a claim against the defaulting defendant."); see also Hernandez v. Coughlin, No. 83 Civ. 8882 (RWS), 1984 WL 211, at *2 (S.D.N.Y. Apr. 17, 1984) (granting defendants' motion to dismiss where plaintiff, inter alia, "alleges that his requests [to defendant `Medical Staff for attention] were denied, but he does not specify to whom those requests were made").

  Further, as Kee has not named the "Medical Department Staff as a defendant in his Proposed Third Amended Complaint (instead naming as defendants two individuals who were apparently members of that staff), it appears that Kee wishes to dismiss his claim voluntarily against the staff as an entity. Accordingly, I recommend that Kee's motion for a default judgment as to defendant Medical Department Staff be denied, and I further recommend that the "Medical Department Staff be dropped as a named defendant in this case.


  A. Kee's Claims for Declaratory and Injunctive Relief

  Although not raised in defendants' motion, the Court notes that, since the date when Kee filed this action, he has been transferred out of the MCC,*fn10 and, thus, he no longer has viable claims for declaratory or injunctive relief with respect to any improper practices to which he was allegedly subjected at that facility. Regardless of whether defendants have raised this argument, the Court may consider it, see Prins v. Coughlin III, 76 F.3d 504, 506 (2d Cir. 1996), and, logically, it should be considered before otherwise focusing on the merits of defendants' motion. For a federal court to retain jurisdiction over a case, an actual controversy must exist "at all stages of review, not merely at the time the complaint is filed." Prins, 76 F.3d at 506 (quoting Preiser v. Newkirk, 422 U.S. 395, 402 (1975)) (where inmate had been transferred to third facility, his request for injunctive relief against first and second facilities was moot). "A case is deemed moot where the problem sought to be remedied has ceased, or where there is `no reasonable expectation that the wrong will be repeated.'" Id. (quoting U.S. v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Under this reasoning, an incarcerated plaintiff's transfer out of the prison facility at which the cause of action arose moots his claim against that facility, insofar as it seeks injunctive and declaratory relief. See Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir. 1989); accord Williams v. Goord, 142 F. Supp.2d 416, 420 n.2 (S.D.N.Y. 2001); Graham v. Perez, 121 F. Supp.2d 317, 325 (S.D.N.Y. 2000). An action for monetary damages, however, is not mooted by a transfer. Prins, 76 F.3d at 506.

  In this case, Kee seeks declaratory and injunctive relief, as well as monetary damages. Specifically, Kee requests that, in addition to awarding him compensatory and punitive damages, the Court: (1) declare that Defendants "violated the U.S. Constitution" (Second Am. Compl. at ¶ IV-A); and (2) enjoin Defendants "from using physical force against [P]laintiff except when necessary; from [confiscating]. . . personal property and legal material from [P]laintiff; from [engaging in] retaliation [against Plaintiff in any]. . . form[]; and from abusing authority over [P]laintiff" (Second Am. Compl. Attach. D). Since Kee is no longer being held at the MCC, there is "no reasonable expectation" that alleged wrongful conduct directed toward him will be repeated. Therefore, to the extent that they request prospective relief, Kee's claims are moot, and I ...

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