United States District Court, S.D. New York
October 13, 2005.
ECHO WESTLEY DIXON, Plaintiff,
CORRECTION OFFICER JEFFREY RAGLAND, CORRECTION OFFICER STEPHEN RYAN, CAPTAIN SALVO, CAPTAIN STEPHEN COTTONE, and CAPTAIN ANGEL LUYANDA, Defendants.
The opinion of the court was delivered by: LAURA SWAIN, District Judge
MEMORANDUM ORDER CONCERNING REPORT AND RECOMMENDATION
On May 19, 2005, Magistrate Judge Kevin Nathaniel Fox issued a
Report and Recommendation ("Report") recommending that the Court
vacate the defaults of defendants Correction Officer Jeffrey
Ragland ("Ragland"), Correction Officer Stephen Ryan ("Ryan")
(collectively, "Officer Defendants"); and Captain Stephen Cottone
("Cottone") and Captain Angel Luyanda ("Luyanda") (collectively,
"Captain Defendants"), and deny the Plaintiff's pending motion
for a default judgment as against all defendants. The Plaintiff,
Echo Westley Dixon ("Plaintiff' or "Dixon"), has filed a timely
objection to the May 19, 2005, Report.
In reviewing a Report and Recommendation, the Court "may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge."
28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2004). The Court is required to make a
de novo determination as to the aspects of the Report to
which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Plaintiff contends that the Report's recommendation to vacate
the default against the Captain Defendants and the Officer
Defendants was improper because the Defendants' delay in
responding to the summons and complaint was willful and
prejudicial. Additionally, Plaintiff argues that his default
judgment motion should have been granted as against both groups
of defendants because the Report found that all of the defendants
failed to proffer a meritorious defense. Asserting that his
default judgment motion was prompted by a suggestion from Judge
Fox's chambers, he also argues that the equities weigh in favor
of granting his motion and denying defendants' application to
vacate their defaults.
The Court has considered thoroughly the Report and Dixon's
objections thereto. For the following reasons, the Court adopts
the Report's recommendation to vacate the default as to the
Captain Defendants. However, as to the Officer Defendants, the
Court sustains the objection to the recommendation to vacate the
defaults and, finding that the complaint alleges facts sufficient
to demonstrate Plaintiff's entitlement to relief, grants
Plaintiff's motion for a default judgment as against those
defendants. The Court refers this case to Magistrate Judge Fox
for further proceedings, including any necessary inquest as to
Defendants' Motion to Vacate Defaults
The Second Circuit has determined that district courts must
consider the following factors in determining whether to vacate a
default: "(1) whether the default was willful, (2) whether the
defendant demonstrates the existence of a meritorious defense,
and (3) whether, and to what extent, vacating the default will cause the nondefaulting
party prejudice." S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir.
1998) (citations omitted). The Court has reviewed de novo the
questions of willfulness, prejudice, and whether, in light of the
relevant factors, the default of the Officer and Captain
Defendants should be vacated. Courts generally view the entry of
a default judgment as an extreme remedy. Moreover,"[t]he Second
Circuit strongly prefers dispute determination on the merits."
Springs v. Clement, 202 F.R.D. 387, 394 (E.D.N.Y. 2001) (citing
Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613
(2d Cir. 1999), Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995),
and Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.
1993)). The question of whether relief from a default is to be
granted is committed to the sound discretion of the district
court and is addressed based on the individual circumstances of
the case. Enron Oil Corp., 10 F.3d at 95.
The Court concurs in Judge Fox's findings that the Captain
Defendants' failure to respond was not willful. "[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 (citing Am. Alliance Ins.
Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 60-61 (2d Cir. 1996)).
Further, where there is no evidence that a client has diligently
sought out counsel, the courts are more likely to conclude that a
party's inaction is willful. See United States v. Cirami,
535 F.2d 736, 741 (2d Cir. 1976) (finding client's inaction willful
where the client failed to contact the attorney to ascertain
status of the litigation at any point or even to provide the
court below with any explanation for his failure to oppose the
motion for summary judgment). In the instant case, there is no evidence that the Captain
Defendants were aware of the pendency of this action until
shortly before they filed the instant application to set aside
their defaults. Furthermore, the record does not support
Plaintiff's suggestion that the Captain Defendants directed their
coworkers to withhold the summons and complaint from them. (Pl.'s
Mem. of Law ("Pl.'s Mem.") at 2-3.) Therefore, the Captain
Defendants' statements that they lacked knowledge of this action
raise sufficient doubts as to whether their defaults were willful
to warrant vacatur of their defaults.
The Court also concurs with Judge Fox's determination that the
actions of the Officer Defendants were willful. The Officer
Defendants offer no explanation for their failure to respond to
the complaint. Instead, they simply assert that the Legal
Division's inaction was "the result of inadvertence" and that the
materials sent to the Legal Division must have been misplaced.
(Defs.' Mem. of Law in Supp. of its Mot. to Vacate Default at 3,
4.) The Officer Defendants acknowledge that they failed to
diligently track the status of either their request for legal
assistance or the instant action during the twenty-two (22)
months that followed their receipt of the summons and complaint.
(Id. at 4.) Accordingly, for substantially the reasons detailed
in the Report, the Court finds that the Officer Defendants'
failure to respond to the complaint in a timely fashion was
The Court, having considered the record presented to Judge Fox
and Plaintiff's proffers, in connection with this objections, of
evidence concerning the unavailability of photographs relevant to
the incident, concurs in Judge Fox's conclusion that there is
insufficient evidence of prejudice to the Plaintiff to warrant denial of the
request to vacate the defaults. "[D]elay alone is not a
sufficient basis for establishing prejudice. . . . 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.'" Davis v. Musler,
713 F.2d 907, 916 (2d Cir. 1983) (citations omitted).
Proffering evidence that his Freedom of Information Law request
to Downstate Correctional Facility for photographs taken of him
on the date of the incident underlying this action was denied on
the grounds that the photographs "cannot be located or otherwise
[do] not exist," (July 5, 2005 letter from Plaintiff to the
Court, with Attachment), Plaintiff argues that the unavailability
of the photographs demonstrates that he has suffered prejudice by
reason of the delay. He does not, however, proffer evidence that
any of the defendants played a role in procuring the current
unavailability of the photographs. While loss of evidence is a
serious and potentially prejudicial matter, the Court, having
weighed the policy preferring the resolution of disputes on their
merits and the tools available to the Court to sanction any
evidence of spoliation and to manage the presentation of proof,
concludes that the prejudice to Plaintiff arising from the delay
is insufficient to warrant denial of the application to vacate
3. Meritorious Defense
The Court also concurs in Judge Fox's determination that none
of the defendants offered a meritorious defense warranting
setting aside the default.
4. Whether Defaults Should be Vacated
Although the Captain Defendants have failed at this point to
proffer a meritorious defense, they have raised sufficient doubts as to whether their
defaults were willful to warrant the exercise of discretion to
permit them to defend the action on the merits. Therefore, the
Court adopts the Report's recommendation to vacate the defaults
of the Captain Defendants.
Having considered the matters discussed above and weighed de
novo, in accordance with the relevant legal standards, the
question of the propriety of vacating the defaults of the two
groups of defendants, the Court declines to adopt the Report's
recommendation that the Officer Defendants' default be set aside.
The Officer Defendants have failed to demonstrate that (1) their
actions were not willful, and (2) they have a meritorious
defense. The Officer Defendants, at best, have demonstrated only
that their failure to respond is not prejudicial to Dixon. The
Court finds that their pro se status during their twenty-two
months of inaction is insufficient to warrant vacatur. As Judge
Fox clearly noted, they acknowledged receiving summons that set
out, in plain language, their obligation to respond, and they did
nothing to ensure that timely responses were made or otherwise
follow up on the status of the case. Therefore, the Court
declines to exercise its discretion to set aside the defaults as
against the Officer Defendants.
5. Plaintiff's Default Judgment Motion
Because the Court has concluded, upon de novo
consideration, that vacatur of the Captain Defendants' default is
warranted, Plaintiff's motion for a default judgment as against
those defendants is denied. The fact that Judge Fox may have
prompted Plaintiff to move for a default judgment in no way
precludes Judge Fox, or this Court, from denying the motion. It
was Plaintiff's responsibility to pursue the litigation of his claims
in a timely and efficient manner following the effectuation of
service. When the defendants responded to the default judgment
motions with applications to vacate the defaults, it was the
Court's obligation to weigh and determine the issue in light of
the governing legal standards. Judge Fox did so and this Court,
after de novo review, concurs in his determination that
Plaintiff's default judgment motion should be denied as to the
The Court has reviewed Plaintiff's complaint, the factual
allegations of which (other than as to damages) are deemed
admitted by reason of the Officer Defendants' default.
Fed.R.Civ.P. 8(d). For substantially the reasons set forth in Judge
Fox's cogent discussion of the sufficiency of Plaintiff's
complaint to state a claim upon which relief may be granted, the
Court finds that Plaintiff has demonstrated his entitlement to
judgment by default as against the Officer Defendants. As
explained in the Report, the Officer Defendants have not
proffered any indication that they have a meritorious defense.
Accordingly, the Court finds that Officer Defendants Ragland and
Ryan violated Plaintiff's rights under the Eighth and Fourteenth
Amendments to the Constitution by using excessive force on
Plaintiff on December 2, 2002, as alleged in the complaint, and
Plaintiff's motion for a default judgment is granted as against
For the aforementioned reasons, the Report is adopted to the
extent it recommends vacatur of the defaults of the Captain
Defendants and denial of Plaintiff's default judgment motion as
against those defendants. The Captain Defendants shall file and
serve their response to the complaint by November 7, 2005.
The Officer Defendants' motion to vacate their default is
denied, and Plaintiff's motion for a default judgment is granted
as against Officer Defendants Ragland and Ryan.
The reference of this case to Magistrate Judge Fox for general
pretrial management continues. The case is further referred for
any necessary inquest in connection with the default judgment.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 444 (1962).
Magistrate Judge Fox's Report follows.
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,
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