Murray v. The State of New York

Filing 12

ORDER: Accordingly, within 45 days of the date of this Order, Plaintiff is directed to seek a default judgment pursuant to Federal Rule of Civil Procedure 55 and Local Civil Rules 55.1 and 55.2. If Plaintiff fails to seek a default judgment, the A ction may be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41 (b). The Clerk of the Court is directed to mail a copy of this Order to Plaintiff. The Clerk of the Court is also directed to mail a copy of this Order to Defendant S. Smythe, Correction Officer at Downstate Correctional Facility, 121 Red Schoolhouse Road, P.O. Box 445, Fishkill, NY 12524. The Clerk of the Court is also directed to mail a copy of this order to the Attorney General of the State of New York at 28 Liberty Street, New York, NY 10005. (Signed by Judge Kenneth M. Karas on 3/12/2020) (rj) Transmission to Docket Assistant Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAHEIM MURRAY,
Plaintiff,
No. 18-CV-4705 (KMK)
V.

ORDER
S. SMYTHE,
Defendant.
KENNETH M. KARAS, United States District Judge:
On May 29, 2018, pro se Plaintiff Jaheim Murray ("Plaintiff') filed a Complaint,
pursuant to 42 U.S.C. § 1983, against the State of New York and S. Smythe ("Defendant
Smythe"), a Correction Officer at Downstate Correctional Facility. (See Compl. (Dkt. No. 2).)
Plaintiff's application to proceed in forma pauperis ("IFP") was granted on July 16, 2018. (Dkt.
No. 7.) On July 17, 2018, the Court issued an Order dismissing Plaintiff's claims against the
State of New York as barred by the Eleventh Amendment and allowing Plaintiff to effect service
on Defendant Smythe through the U.S . Marshals Service. (Dkt. No. 8.) A summons was issued
on July 17, 2018, (see Dkt. (entry for July 17, 2018)), and on September 17, 2018, the U.S.
Marshals filed a "Marshal's Process Receipt and Return of Service Executed," indicating that
Defendant Smythe was served on September 10, 2018. (Dkt. No. 11.) Defendant Smythe's
Answer was due on October 1, 2018. (Id) Defendant Smythe did not answer or otherwise
respond to the Complaint, and Plaintiff has not filed a default judgment or otherwise
communicated with the Court since August 9, 2018. (Dkt. No. 10.)

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Accordingly, within 45 days of the date of this Order, Plaintiff is directed to seek a
default judgment pursuant to Federal Rule of Civil Procedure 55 1 and Local Civil Rules 55 .1 and
55.2.2

1

Federal Rule of Civil Procedure 55 provides, relevant here:

(a) Entering a Default. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that
can be made certain by computation, the clerk - on the plaintiff's
request, with an affidavit showing the amount due - must enter
judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an
incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a
default judgment. A default judgment may be entered against a minor
or incompetent person only if represented by a general guardian,
conservator, or other like fiduciary who has appeared. If the party
against whom a default judgment is sought has appeared personally or
by a representative, that party or its representative must be served with
written notice of the application at least 7 days before the hearing. The
court may conduct hearings or make referrals - preserving any federal
statutory right to a jury trial - when, to enter or effectuate judgment, it
needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
2

Local Civil Rule 55 .1 provides that "[a] party applying for entry of default under Fed.
R. Civ. P. 55(a) shall file: (a) a request for a Clerk's Certificate of Default; and (b) an affidavit
demonstrating that: (1) the party against whom a notation of default is sought is not an infant, in
the military, or an incompetent person; (2) the party has failed to plead or otherwise defend the
action; and (3) the pleading to which no response has been made was properly served." It further
provides that " [a] proposed Clerk's Certificate of Default form must be attached to the affidavit."
Id.

Local Civil Rule 55.2 provides:
(a) By the Clerk. Upon issuance of a Clerk's certificate of default, if the claim to
which no response has been made only sought payment of a sum certain, and

does not include a requf;st for anom@y's f@es or other subst9.Iltive relief, Rnd if

If Plaintiff fails to seek a default judgment, the Action may be dismissed for failure to

prosecute pursuant to Federal Rule of Civil Procedure 41 (b). 3
The Clerk of the Court is directed to mail a copy of this Order to Plaintiff. The Clerk of
the Court is also directed to mail a copy of this Order to Defendant S. Smythe, Correction Officer
at Downstate Correctional Facility, 121 Red Schoolhouse Road, P.O. Box 445 , Fishkill, NY
12524. The Clerk of the Court is also directed to mail a copy of this order to the Attorney
General of the State of New York at 28 Liberty Street, New York, NY 10005.
SO ORDERED.

_£l.__,

Dated:

March
2020
White Plains, New York

a default judgment is sought against all remaining parties to the action, the
moving party shall submit an affidavit showing the principal amount due and
owing, not exceeding the amount sought in the claim to which no response has
been made, plus interest, if any, computed by the party, with credit for all
payments received to date clearly set forth, and costs, if any, pursuant to 28
u.s.c. § 1920.
(b) By the Court. In all other cases the party seeking a judgment by default shall
apply to the Court as described in Fed. R. Civ. P. 55(b)(2), and shall append to
the application (1) the Clerk's certificate of default, (2) a copy of the claim to
which no response has been made, and (3) a proposed form of default judgment.
(c) Mailing of Papers. Unless otherwise ordered by the Court, all papers submitted
to the Court pursuant to Local Civil Rule 55.2(a) or (b) above shall
simultaneously be mailed to the party against whom a default judgment is
sought at the last known residence of such party (if an individual) or the last
known business address of such party (if a person other than an individual).
Proof of such mailing shall be filed with the Court. If the mailing is returned,
a supplemental affidavit shall be filed with the Court setting forth that fact,
together with the reason provided for return, if any.
3

Rule 41 (b) provides that a case may be involuntarily dismissed if a plaintiff "fails to

prmemte or to comply with these rule~ or a court order." Fed. R. Civ. P. 4l(h).