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Fabian v. Bukowski

United States District Court, N.D. New York

October 30, 2017

RAMON FABIAN, Plaintiff,
MICHAEL BUKOWSKI, Corrections Officer, individually and in his official capacity, et al., Defendants.


          Lawrence E. Kahn U.S. District Judge


         This 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.


         In July 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 dormitory. Id.

         Fabian 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.

         Fabian 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, 2016. Mot.

         In a 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”).

         In 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.[1]


         “Federal 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).

         “When 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.

         Under 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)).

         In 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 ...

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