United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
matter is before the Court on the issue of damages following
entry of default against Michael Bukowski, a former
corrections officer with the New York State Department of
Corrections and Community Supervision (“DOCCS”).
Dkt. No. 22 (“Entry of Default”). Plaintiff Roman
Fabian seeks a default judgment and compensatory damages of
$800, 000 for physical and emotional injuries he claims to
have suffered as a result of Bukowski's use of excessive
force. Dkt. Nos. 31 (“Motion”), 40-2
(“DeSimone Affirmation”) at 2. For the following
reasons, the Motion is granted in part.
2014, Plaintiff became an inmate at Ulster Correctional
Facility. Dkt. No. 1 (“Complaint”) ¶ 17.
Several days after Fabian arrived at Ulster, 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
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.
commenced this action on July 18, 2016, alleging
constitutional and state-law tort claims against Bukowski and
other defendants who are no longer parties to the case.
Id. ¶¶ 10-11. Bukowski has not answered or
otherwise appeared in this action, and the Clerk of the Court
noted his default on October 20, 2016. Default. Fabian then
moved for a default judgment against Bukowski on November 29,
Memorandum-Decision and Order dated April 25, 2017, the Court
withheld decision on Fabian's Motion, “[b]ecause
Fabian included no evidence or argument as to the appropriate
amount of damages.” Dkt. No. 32 (“April
Order”) at 13. The Court ordered Fabian to provide
additional briefing and materials in support of his Motion.
Id. at 14. Fabian filed such materials on August 21,
2017, Dkt. No. 38, but again the Court withheld decision on
the Motion, because Fabian failed to provide sufficient
particularity regarding the amount and types of damages to
which he is allegedly entitled, Dkt. No. 39 (“September
Order”) at 4. Therefore, the Court again requested that
he file supplemental briefing and materials in support of his
Motion. Fabian provided these materials on October 12, 2017.
Dkt. Nos. 40 (“Letter Brief”), 40-1
(“Fabian Declaration”), DeSimone Affirmation,
40-3 (“Albany Medical Records”), 40-4
(“DOCCS Medical Records”).
these latest filings, Plaintiff has narrowed his request for
damages to compensatory damages “in the amount of $800,
000 . . .; $400, 000 for past pain and suffering and $400,
000 for future pain and suffering.” DeSimone
Affirmation at 2. Fabian alleges that he “experienced
extreme pain and suffering” due to Bukowski's acts,
“which continues to this day.” Fabian Decl. at 2.
He has submitted authenticated medical records in support of
his claims. See Albany Med. Records at 1; DOCCS Med.
Records at 1-2.
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 Rule 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)). Nevertheless, “judgment
against a defaulting party should be granted only after
careful examination of the moving party's claim by the
district court . . . . Indeed, a defendant's default does
not in itself warrant a court in entering a default judgment
because there must be a sufficient basis in the pleadings for
the judgment entered.” Amador v. Galbreath,
No. 10-CV-6702, 2013 WL 1755784, at *2 (W.D.N.Y. Apr. 24,
2013) (quoting Bianco v. Seaway Indus. Servs, Inc.,
No. 03-CV-84, 2004 WL 912916, at *1 (W.D.N.Y. Apr. 1, 2004)).
“The Court . . . must review the allegations in the
complaint to determine if the elements of each claim have
been adequately plead.” Colon v. City of New
York, No. 09-CV-8, 2012 WL 691544, at *4 (E.D.N.Y. Feb.
9, 2012), adopted by 2012 WL 686878 (E.D.N.Y. Mar.
2, 2012). “The burden is on the plaintiff to establish
its entitlement to recovery.” Bravado
Int'l, 655 F.Supp.2d at 189.
Rule 55, damages in a default judgment may be determined by
the court through a hearing. Fed.R.Civ.P. 55(b)(2); see
also Greyhound, 973 F.2d at 158 (“Damages, which
are neither susceptible of mathematical computation nor
liquidated as of the default, usually must be established by
the plaintiff in an evidentiary proceeding in which the
defendant has the opportunity to contest the amount.”).
However, a hearing is not necessary when the court relies
“upon detailed affidavits and documentary evidence,
supplemented by the District Judge's personal knowledge
of the record, ” to calculate a damage award.
Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d
Cir. 1993). “[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)); see also Braccia v. D'Blass
Corp., No. 08-CV-08927, 2011 WL 2848146, at *3 (S.D.N.Y.
Jun. 13, 2011) (“When assessing damages, a court cannot
rely on the plaintiff's statement of damages; rather
damages must be established ‘with reasonable
certainty.'” (quoting Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105,
111 (2d Cir. 1997))), adopted by 2011 WL 2848202
(S.D.N.Y. Jul. 18, 2011). Such assessment “must be
based on admissible evidence.” Braccia, 2011
WL 2848146, at *3 (citing Smith v. Islamic Emirate of
Afghanistan, 262 F.Supp.2d 217, 224 (S.D.N.Y. 2003)).
addition, under Rule 54(c), “a default judgment must
not differ in kind from, or exceed in amount, what is
demanded in the pleadings.” “By limiting damages
to what is specified in the demand for judgment, [Rule 54(c)]
ensures that a defendant who is considering default can look
at the damages clause, satisfy himself that he is willing to
suffer judgment in that amount, and then default without the
need to hire a lawyer.” Pauta v. Aena Mech.
Corp., No. 11-CV-6374, 2014 WL 3855025, at *1 (S.D.N.Y.
Jul. 25, 2014) (quoting Silge v. Merz, 510 F.3d 157,
160 (2d Cir. 2007)). While a plaintiff is not required
“to have demanded a sum certain [in the complaint] in
order to recover on default, ” Ames v. STAT Fire
Suppression, Inc., 227 F.R.D. 361, 362 (E.D.N.Y. 2005),
the plaintiff must provide sufficient certainty in the motion
for default judgment to afford defendant ...