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Rose v. Zillioux

January 29, 2007

LYNNE ROSE, A MINOR, BY NEXT FRIEND, THE CHILDREN'S RIGHTS INITIATIVE, INC., PLAINTIFF,
v.
JIM ZILLIOUX, INDIVIDUALLY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion for "an Order directing the entry of a default judgment against JIM ZILLIOUX, Individually and as employee of the New York State Canal Corporation . . . ." See Notice of Motion at 1. Specifically, Plaintiff requests that the Court find Defendant Jim Zillioux in default in his individual capacity; grant a judgment in favor of Plaintiff; grant a hearing to determine the amount the Plaintiff is entitled to; the granting of costs, disbursements and attorney fees to the Plaintiff; and for such other and further relief as this Court may deem just and proper.

See Affidavit of A. J. Bosman in Support of Motion for Default Judgment dated November 1, 2006 ("Bosman Aff."), at WHEREFORE Clause.

II. BACKGROUND

On August 1, 2000, Plaintiff filed an amended complaint, asserting eleven causes of action, including § 1983 claims for violations of the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution, violations of the Fair Labor Standards Act, violations of the New York labor laws, and state-law claims for assault and battery, defamation and negligence. Plaintiff properly served all of the parties except Defendant Zillioux, whom the U.S. Marshals could not locate because he had moved. On December 27, 2001, after finding that Defendant Zillioux was not acting under color of state law, this Court granted the other Defendants' motion for summary judgment and dismissed all of the claims against them. In addition, the Court dismissed the claims against Defendant Zillioux without prejudice because Plaintiff had not served him with the amended complaint.

Plaintiff appealed from this Court's judgment dismissing her § 1983 and state-law claims against Defendant Zillioux, the New York State Thruway Authority, the New York State Canal Corporation, and at least four Canal Corporation employees. On December 2, 2003, the Second Circuit issued a summary order affirming this Court's determination that Defendant Zillioux was not acting under color of state law, that Plaintiff could not hold his supervisors liable for his conduct because she could not satisfy the special-relationship test that the Supreme Court had announced in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), and that the evidence did not support Plaintiff's claim that a municipal policy or custom caused her injuries. See Rose v. Zillioux, No. 02-9417, 2003 WL 22849850 (2d Cir. Dec. 2, 2003). Therefore, the Court of Appeals affirmed this Court's grant of summary judgment as to all of Plaintiff's claims against Defendants other than Defendant Zillioux individually and affirmed this Court's judgment as it related to Defendants other than Defendant Zillioux. See id. However, the Court of Appeals found that this Court's sua sponte dismissal of Plaintiff's claims against Defendant Zillioux was improper because this Court did not provide her with proper notice of its intent to do so. See id. Thus, the Court of Appeals vacated and remanded this Court's judgment to the extent that it dismissed Plaintiff's claims against Defendant Zillioux for failure to serve. See id.

On October 6, 2004, Plaintiff requested and the Clerk of the Court entered notice of default against Defendant Zillioux because he had not answered or otherwise responded to Plaintiff's amended complaint, which Plaintiff personally served on him on June 24, 2004. By Order dated October 11, 2006, Magistrate Judge Lowe instructed Plaintiff to move for entry of a default judgment against Defendant Zillioux by November 1, 2006, or the Court would dismiss this action. See Dkt. No. 104. In compliance with that Order, Plaintiff filed the current motion for entry of a default judgment against Defendant Zillioux on November 1, 2006. See Dkt. No. 105.

III. DISCUSSION

A. Plaintiff's Amended Complaint

Although Plaintiff's amended complaint contains eleven causes of action, only four of those claims relate to Defendant Zillioux: two § 1983 claims, one based upon a claim of false imprisonment and the other based upon a claim of substantive due process, and two state-law claims, one for defamation and the other for assault and battery. The Court will address each of these claims in turn.

B. Plaintiff's § 1983 Claims Against Defendant Zillioux

Although not entirely clear, based upon the papers that she submitted in support of her motion for entry of a default judgment, it appears that Plaintiff is asking the Court to enter a default judgment against Defendant Zillioux with respect to her § 1983 claims .

In its summary order, the Second Circuit explicitly stated that it "agree[d] with the district court's determination that Zillioux was not acting under color of state law, given that Zillioux did not 'exercise[] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Rose, 2003 WL 22849850, at *2 (quotation omitted) (emphasis added). "Under the law of the case doctrine, the district court may not ignore ...


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