In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2023 No. 22-978

JAMES E. MOORE, JR., AKA KEVIN THOMPSON, Plaintiff-Appellee,

v.

TROY BOOTH, Defendant-Appellant. *

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JUNE 18, 2024 DECIDED: NOVEMBER 25, 2024

Before: LYNCH, CARNEY, and MENASHI, Circuit Judges.

In 2016, Plaintiff-Appellee James E. Moore, Jr.—also known as Kevin Thompson—brought an action under 42 U.S.C. § 1983 against Defendant-Appellant Troy Booth and four other corrections officers at Fishkill Correctional Facility. The five officers—represented by the * The Clerk of Court is directed to amend the caption as set forth above. New York State Attorney General—each filed an answer asserting the affirmative defense that Thompson failed to exhaust administrative remedies as the Prison Litigation Reform Act required. In 2020, the Attorney General withdrew as counsel for Booth because Booth was not participating in the litigation. Booth then failed to appear for a deposition and a pre-motion conference. As a sanction for that non- participation, the district court struck Booth’s answer. The district court eventually dismissed the claims against the four other officers on the ground that Thompson failed to exhaust administrative remedies. However, the district court granted a default judgment against Booth—because his answer, including the exhaustion defense, had been struck—and awarded damages of $50,000.

We conclude that the district court abused its discretion in granting the default judgment against Booth while dismissing on the merits the claims against the litigating defendants. Pursuant to the prohibition on inconsistent judgments set forth in Frow v. De La Vega, 82 U.S. 552 (1872), once the district court determined that Thompson could not maintain his claims against the litigating defendants because he failed to exhaust administrative remedies, it should have dismissed the claims against Booth for the same reason. We vacate the default judgment and remand to the district court with instructions to enter a judgment in favor of Booth.

RACHEL A.H. HORTON, DLA Piper LLP (US), Philadelphia, PA (Simeon S. Poles, DLA Piper LLP (US), Philadelphia, PA; Samantha L. Chaifetz, Julia Deutsch, DLA Piper LLP (US), Washington, DC, on the brief), for Plaintiff-Appellee.

2 CHARLES D. COLE, JR., Newman Myers Kreines Harris, P.C., New York, NY, for Defendant-Appellant.

MENASHI, Circuit Judge:

Plaintiff-Appellee James E. Moore, Jr.—also known as Kevin Thompson—was an inmate at Fishkill Correctional Facility, where Defendant-Appellant Troy Booth was a corrections officer. 1 In 2016, Thompson sued Booth and four other corrections officers under 42 U.S.C. § 1983 for excessive force. The five officers—represented by the New York State Attorney General—each filed an answer asserting the affirmative defense that Thompson had failed to exhaust administrative remedies before bringing his lawsuit as the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), required. In 2020, the Attorney General withdrew as counsel for Booth because Booth was no longer participating in the litigation. Booth then failed to appear for a deposition and a pre-motion conference. As a sanction for his non-participation, the district court struck Booth’s answer. The district court eventually dismissed the claims against the four other officers on the ground that Thompson had failed to exhaust his