United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
case, Roman Fabian brings constitutional and state-law tort
claims against Michael Bukowski-a corrections officer Fabian
alleges savagely beat him-and Anthony J. Annucci,
Commissioner of the New York State Department of Corrections
and Community Supervision (“DOCCS”). Dkt. No. 1
(“Complaint”) ¶¶ 1-2, 10-11. Presently
before the Court are two motions: one by Annucci to dismiss
the claims against him, Dkt. No. 23 (“Motion to
Dismiss); see also Dkt. Nos. 23-1
(“Memorandum”), 27 (“Opposition”), 29
(“Reply”), and another by Fabian seeking a
default judgment against Bukowski, Dkt. No. 31
(“Default Judgment Motion”); see also
Dkt. No. 31-1 (“Default Judgment Memorandum”).
For the following reasons, Annucci's Motion to Dismiss is
granted, and Fabian is ordered to provide additional briefing
and materials in support of his Default Judgment Motion.
lawsuit stems from Fabian's incarceration at Ulster
Correctional Facility (“Ulster C.F.”). Compl.
¶ 17. In July 2014-several days after Fabian first
arrived at the facility-Bukowski was conducting a morning
head count and yelled at Fabian, telling him to “shut
up.” Id. After the head count, Bukowski took
Fabian to an area of the prison outside the view of other
inmates and without camera coverage. Id. Bukowski
ordered Fabian to face a wall with his arms outstretched and
legs spread open. Id. Then, from behind, Bukowski
kicked Fabian between the legs. Id. Fabian
collapsed; despite Bukowski's orders to get up, Fabian
had to crawl back to his cubicle in the dormitory.
remained on the floor of his cubicle for almost an hour
before reporting to the mess hall for lunch. Id. A
sergeant then sent him to the facility's medical unit,
which in turn loaded him into a van and drove him to a
hospital in Albany. Id. The attack had ruptured
Fabian's right testicle, a part of which was subsequently
removed by doctors in emergency surgery. Id.
¶¶ 2, 17. Because of the attack, Bukowski was
eventually charged with misdemeanor assault and fired from
his job with DOCCS. Id. ¶ 10.
Bukowski's involvement in the attack is plainly alleged
in the Complaint, Fabian also sued three others: Annucci
(Commissioner of DOCCS), Colonel James Hanstein,
Ulster County Sheriff Paul J. Van Blarcum. Id.
¶¶ 11-12. In attempting to tie them to the attack,
Fabian alleges that Bukowski had beaten other inmates in the
past, and that Hanstein and Van Blarcum were aware of
complaints concerning this behavior. Id. ¶ 18.
Fabian does not allege that Annucci was aware of
Bukowski's past misconduct, id., but Fabian
later alleges that Annucci failed as a supervisor to prevent
this incident and was “aware of widespread beatings of
inmates by officers” within New York's corrections
system. Id. ¶¶ 29-30. The Complaint does
not mention any particular incident that Annucci was aware
of, and does not allege that he knew of past violations
committed by Bukowski.
filed his Complaint in July 2016, Compl., but voluntarily
dismissed his claims against Van Blarcum and Hanstein soon
after, Dkt. Nos. 6, 20. Still remaining were Fabian's
claims against Annucci as a supervisor for excessive force,
denial of medical care, and negligence. Compl. ¶¶
26-40, 52-55. Annucci then moved to dismiss these claims,
arguing that Fabian's claims against Annucci in his
official capacity were barred by sovereign immunity, that he
failed to sufficiently plead personal involvement for his
individual-capacity claims, and that the Court should not
exercise supplemental jurisdiction over his state-law claims.
Mem. at 4-11.
Annucci moved to dismiss the claims against him, Bukowski did
not answer or otherwise appear in this action, and the clerk
noted his default. Dkt. No. 22. Fabian then moved for a
default judgment against Bukowski. Default J. Mot.
Fabian's motion, however, asks “for an inquest to
determine” damages, Dkt. No. 31-2 (“Attorney
Affidavit”) ¶ 9, and does not include a proposed
damages amount or any evidence suggesting what amount of
damages would be appropriate, id.; Default J. Mem.
Motion to Dismiss
survive a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court
must accept as true the factual allegations contained in a
complaint and draw all inferences in favor of the plaintiff.
Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d
Cir. 2006). Plausibility, however, requires “enough
fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [the alleged misconduct].”
Twombly, 550 U.S. at 556. The plausibility standard
“asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Id. (quoting Twombly, 550 U.S. at 555).
Where a court is unable to infer more than the mere
possibility of the alleged misconduct based on the pleaded
facts, the pleader has not demonstrated that she is entitled
to relief and the action is subject to dismissal.
Id. at 678-79.
Rule of Civil Procedure 55 provides a two-step process that
the Court must follow before it may enter a default judgment
against a defendant.” Elec. Creations Corp. v.
Gigahertz, Inc., No. 12-CV-1423, 2013 WL 3229125, at *3
(N.D.N.Y. June 25, 2013) (quoting Robertson v. Doe,
No. 05-CV-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19,
2008)). “First, under Rule 55(a), when a party fails to
‘plead or otherwise defend . . . the clerk must enter
the party's default.'” Id. (alteration
in original) (quoting Robertson, 2008 WL 2519894, at
*3). Second, under Federal Rule of Civil Procedure 55(b)(2),
“the party seeking default judgment is required to
present its application for entry of judgment to the
court.” Id. (quoting Robertson, 2008
WL 2519894, at *3).
a default is entered, the defendant is deemed to have
admitted all of the well-pleaded factual allegations in the
complaint pertaining to liability. . . .” Bravado
Int'l Grp. Merch. Servs., Inc. v. Ninna, Inc., 655
F.Supp.2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 158 (2d Cir. 1992)). “While a default judgment
constitutes an admission of liability, the quantum of damages
remains to be established by proof unless the amount is
liquidated or susceptible of mathematical computation.”
Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974);
accord, e.g., Bravado Int'l, 655
F.Supp.2d at 189-90. “[E]ven upon default, a court may
not rubber-stamp the non-defaulting party's damages
calculation, but rather must ensure that there is a basis for
the damages that are sought.” United States v.
Hill, No. 12-CV-1413, 2013 WL 474535, at *1 (N.D.N.Y.
Feb. 7, 2013) (alteration in original) (quoting Overcash
v. United Abstract Grp., Inc., 549 F.Supp.2d 193, 196
(N.D.N.Y. 2008)). “The burden is on the plaintiff to
establish its entitlement to recovery.” Bravado
Int'l, 655 F.Supp.2d at 189. “While ‘the
court must ensure that there is a basis for the damages
specified in a default judgment, it may, but need not, make
the determination through a hearing.'” Id.
at 190 (quoting Fustok v. Conticommodity Servs.,
Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988),
aff'd, 873 F.2d 38 (2d Cir. 1989)).
Local Rule 55.2(b), the moving party must submit with its
motion for default judgment: (1) a clerk's certificate of
entry of default, (2) a proposed form of default judgment,
(3) a copy of the pleading to which no response has been
made, and (4) an affidavit. L.R. 55.2(b). The affidavit must
set forth that: (1) the party against whom judgment is sought
is not an infant, incompetent, or in military service; (2)
the party against whom judgment is sought “has
defaulted in appearance in the action”; (3) service was
properly effected under Federal Rule of Civil Procedure 4;
(4) the amount sought “is justly due and owing, ...