Thompson v. Booth

22-978
Thompson v. Booth
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: J UNE 18, 2024
D ECIDED: N OVEMBER 25, 2024
Before: LYNCH, C ARNEY , 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.

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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. H ORTON, 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.

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C HARLES D. C OLE , J R., 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
1 In this litigation, the appellee has used the names Kevin Thompson and
James Moore. See Motion to Amend the Caption, Thompson v. Booth, No. 22-
978 (2d Cir. May 31, 2022), ECF No. 30 (seeking to amend the caption to
include the appellee’s “birth name” of James E. Moore, Jr. rather than the
“alias name” of Kevin Thompson); Notice of Change of Address, Thompson
v. Booth, No. 16-CV-3477 (S.D.N.Y. Apr. 10, 2017), ECF No. 47 (requesting
that correspondence include “James Moore on the envelope as [an] A.K.A.
name”). The appellee testified that at the time of the incident that gave rise
to this lawsuit he was using only the name Kevin Thompson, App’x 249,
and that is the name he uses in his briefing in this appeal. We therefore refer
to him as Kevin Thompson in the rest of this opinion.

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administrative remedies. However, the district court permitted
Thompson to seek a default judgment against Booth, whose answer—
including the same exhaustion defense as the other defendants—had
been struck. The district court granted the default judgment against
Booth and, after a damages inquest, awarded damages of $50,000.
Booth now appeals that judgment. We conclude that the district
court abused its discretion when it granted a default judgment against
Booth after it had already dismissed identical claims on the merits
against the litigating defendants based on a defense that applied
equally to Booth. “[A] default judgment that creates an ‘incongruity’
with a judgment on the merits is ‘unseemly and absurd, as well as
unauthorized by law.’” Henry v. Oluwole, 108 F.4th 45, 54 (2d Cir.
2024) (quoting Frow v. De La Vega, 82 U.S. 552, 554 (1872)). For that
reason, “if the suit should be decided against the complainant on the
merits, the bill will be dismissed as to all the defendants alike—the
defaulter as well as the others.” Frow, 82 U.S. at 554. Pursuant to this
“longstanding principle,” Henry, 108 F.4th at 54, once the district court
determined that Thompson could not maintain his claims against the
litigating defendants because he had 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 judgment for Booth.
BACKGROUND
In 2016, Thompson brought this action under 42 U.S.C. § 1983
against multiple defendants—including Booth and four other
corrections officers—asserting violations of the Eighth and
Fourteenth Amendments to the U.S. Constitution. The complaint
alleged that in 2014, when Thompson was incarcerated at Fishkill, the
five officers assaulted him while he was having a seizure. Allegedly,

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as a result of the assault and the subsequent failure of the prison to
provide adequate medical care, Thompson lost several teeth, suffered
hearing loss in one ear, and sustained injuries to his hand and neck.
In 2019, each of the officer defendants filed an answer asserting
affirmative defenses, including the defense that Thompson had failed
to exhaust administrative remedies before filing his lawsuit as the
PLRA required.2 At the time, the Attorney General represented all
five officers. In January 2020, however, the Attorney General moved
to withdraw as counsel for Booth because Booth had stopped
communicating with counsel. The district court granted the motion to
withdraw in April 2020. No substitute counsel appeared on Booth’s
behalf, and Booth did not file a pro se notice of appearance.
In February 2020, while the withdrawal request was still
pending, Thompson moved to compel Booth’s deposition. A
magistrate judge granted Thompson’s motion and ordered Booth to
appear at a deposition on March 3, 2020. The magistrate judge
ordered the Attorney General, who still represented Booth, to serve
the order on him. The Attorney General attempted to do so by calling
and texting Booth. Booth did not appear for the scheduled deposition.
The district court then set a pre-motion conference for May 11, 2020.
Thompson’s attorney attempted to notify Booth of the conference by
telephone, but Booth apparently hung up when the attorney
identified herself as Thompson’s counsel. Booth did not participate in
the pre-motion conference.
2 The record on appeal does not include a copy of Booth’s answer, but it
does include the four other officers’ answers, which are all identical and
assert the PLRA exhaustion defense. The parties do not dispute that Booth’s
answer asserted the same defense in the same manner.

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In June 2020, Thompson filed a motion for sanctions against
Booth that sought to strike Booth’s answer as a penalty for his lack of
participation in the litigation. Booth did not respond to the motion.
On March 10, 2021, the district court issued an order granting the
motion and striking Booth’s answer. The district court concluded that
“Booth’s failure to obey the court order directing him to appear at a
March 3, 2020 deposition coupled with his refusal to speak to counsel
on May 5, 2020, appear for the May 11, 2020 court conference, file
opposition to Plaintiff’s motion for sanctions, or communicate with
the [c]ourt in any way since the AG Office’s motion to withdraw as
counsel was granted on April 3, 2020, demonstrate the type of willful
and bad faith conduct that justifies the striking of Booth’s Answer.”
Thompson v. Booth, No. 16-CV-3477, 2021 WL 918708, at *11 (S.D.N.Y.
Mar. 10, 2021). The clerk of court mailed the order to Booth’s address
but it was returned as undeliverable. On April 9, 2021, Thompson
filed a proposed certificate of default, and the clerk entered the
default the same day. The certificate of default was sent to Booth’s
address via certified mail and U.S. mail.
In August 2021, the district court held an evidentiary hearing
to address whether Thompson had exhausted his administrative
remedies as the PLRA required for his claims to proceed. Based on
the evidence, the district court determined that Thompson had not
utilized the administrative grievance process and “failed … to
establish that the administrative grievance process was unavailable to
him.” Thompson v. Booth, No. 16-CV-3477, 2022 WL 769386, at *1
(S.D.N.Y. Mar. 14, 2022).3 As a result, the district court concluded that
3 See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to
prison conditions under section 1983 … by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as
are available are exhausted.”) (emphasis added).

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Thompson had “failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act” and that Thompson’s
claims against all of the defendants—except for Booth—must be
dismissed “with prejudice.” Thompson, 2022 WL 769386, at *1. At the
same time, “[i]n light of Booth’s failure to participate in the action,”
the district court granted Thompson “permission to seek a default
judgment on liability against him.” Id. But the district court required
that Thompson “specify” in his motion “why it is permissible for this
case to proceed with respect to Defendant Booth, despite the [c]ourt’s
finding that Plaintiff failed to exhaust his administrative remedies
under the PLRA.” Order at 1, Thompson v. Booth, No. 16-CV-3477
(S.D.N.Y. Aug. 4, 2021), ECF No. 193.
Thompson moved for a default judgment on October 8, 2021.
He argued that a default judgment was proper because (1) exhaustion
of administrative remedies is an affirmative defense that can be
waived, and (2) Booth had effectively waived the defense when the
district court struck his answer. The district court then ordered Booth
to show cause why a default judgment should not be entered against
him. On October 20, 2021, Booth responded to the district court for
the first time since the Attorney General withdrew from representing
him. In a letter to the district court, Booth stated that he had been
“under the impression that I was being represented by NYSCOPBA
lawyers in this case,” referring to the corrections officers’ union, and
he said that he “should have been awarded the same [judgment] as
my colleagues,” referring to his co-defendants who obtained a
judgment of dismissal. App’x 823. In response to the letter, the district
court directed Booth to file a brief in opposition to the pending motion
for a default judgment by November 22, 2021. Booth did not file a
brief in opposition. On December 7, 2021, the district court entered a

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default judgment against Booth on liability and scheduled a damages
inquest to be held on March 10, 2022.
On December 9, 2021, Booth wrote a second letter to the district
court requesting “assistance from the court” because he was entitled
to legal counsel but was “not being represented.” Id. at 31. The district
court then extended the deadline for Booth to file a brief in opposition
to Thompson’s damages assessment, but Booth neither filed a
responsive brief nor appeared at the damages hearing on March 10,
2022. Instead, Booth wrote a third letter to the district court that again
requested “assist[ance] from the [c]ourt” because he had “written
several letters” but had “not received any response.” Id. at 32. On
March 14, 2022, the district court received a fourth letter from Booth—
dated March 11, 2022—in which Booth explained that from 2016 to
2019 he “suffered from addiction” and as a result was “homeless and
lost everything,” but he was “now getting my life back on track.” Id.
at 999. Booth asked the district court to reopen the proceedings “due
to my life situation.” Id. On the same day—March 14, 2022—the
district court ordered that judgment be entered against Booth
awarding “compensatory damages in the amount of $50,000.”
Thompson, 2022 WL 769386, at *2.
On March 20, 2022, Booth wrote a fifth letter to the district court
by e-mail, stating that he was “being held accountable for $50,000”
and that “something unfair is going on with this case.” App’x 1005.
He wrote that, among other things, his “union went against a contract
agreement and stop[ped] representing me,” he was unaware that he
was representing himself, he “did not receive” certain documents,
and other documents had been sent “to the wrong address.” Id. The
district court construed the fifth letter “as a motion to vacate the
default judgment” and “denied it on the ground[] that [Booth’s]
reasons for continually failing to appear were insufficient to warrant

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vacatur.” Thompson v. Booth, No. 16-CV-3477, 2022 WL 1501041, at *2
(S.D.N.Y. May 12, 2022). On March 29, 2022, the district court entered
a final judgment against Booth.
On March 30, 2022, Booth again moved to vacate the default
judgment. In his motion, Booth argued that (1) his default was not
willful because he believed he was represented by counsel and, given
his homelessness, did not receive the notices from the district court,
(2) he had a complete and meritorious defense to the claims against
him based on Thompson’s failure to exhaust administrative remedies,
and (3) Thompson would not be prejudiced by vacatur of the default
judgment because he was aware of the exhaustion issue and already
litigated it against the other defendants. See App’x 1016-21. On April
28, 2022, while the second motion to vacate remained pending, Booth
filed a notice of appeal from the final judgment entered on March 29,
2022. On May 12, 2022, the district court denied the second motion to
vacate on the grounds that (1) Booth’s default was willful because he
must have received some notices and his “attempts to rebut his
knowing decision to not appear, multiple times, are meager at best,”
(2) Booth lacked a meritorious defense to the claims against him
because his answer asserting the exhaustion defense had been struck,
and (3) Thompson “would suffer significant prejudice if the judgment
were set aside because he litigated this case for six years while [Booth]
ignored the proceedings.” Thompson, 2022 WL 1501041, at *3-4.
STANDARD OF REVIEW
We review the entry of a default judgment for abuse of
discretion. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 107 (2d Cir.
2006).

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DISCUSSION
Booth offers two arguments on appeal. First, he argues that the
district court erred in granting a default judgment against him after it
dismissed identical claims against the four other officers on a ground
equally applicable to Booth. Second, Booth argues that the district
court erred in striking his answer as a sanction. We agree with Booth’s
first argument and therefore need not reach the second.
Pursuant to the “longstanding principle” prohibiting “a default
judgment that is inconsistent with a judgment on the merits,” Henry,
108 F.4th at 53-54, once the district court determined that Thompson’s
complaint could not establish a viable cause of action against the four
other officers because Thompson had failed to exhaust administrative
remedies, it should have dismissed the claims against Booth for the
same reason. The district court abused its discretion by entering a
default judgment against Booth that was inconsistent with the
judgment on the merits in favor of his similarly situated co-
defendants. Accordingly, we vacate the default judgment and
remand the case to the district court with instructions to dismiss the
claims against Booth.
I
The Supreme Court held in Frow v. De La Vega that “a default
judgment that creates an ‘incongruity’ with a judgment on the merits
is ‘unseemly and absurd, as well as unauthorized by law.’” Henry, 108
F.4th at 54 (quoting Frow, 82 U.S. at 554). Frow involved several
defendants who were sued jointly. One defendant defaulted, and the
district court entered a default judgment against that defendant. The
litigation proceeded against the non-defaulting defendants, and the
claims were dismissed on the merits. The Supreme Court reversed the
default judgment, explaining that “[i]t would be unreasonable to

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hold, that because one defendant had made default, the plaintiff
should have a decree even against him, where the court is satisfied
from the proofs offered by the other, that in fact the plaintiff is not
entitled to a decree.” Frow, 82 U.S. at 554 (quoting Clason v. Morris,
10 Johns. 524, 538 (N.Y. 1812) (opinion of Spencer, J.)). Rather, the
Court explained, “if the suit should be decided against the
complainant on the merits, the bill will be dismissed as to all the
defendants alike—the defaulter as well as the others.” Id.
As we and other courts have recognized, “Frow prohibits
directly inconsistent judgments.” Henry, 108 F.4th at 54 (quoting
Escalante v. Lidge, 34 F.4th 486, 495 (5th Cir. 2022)). For that reason, “if
an action against the answering defendants is decided in their favor,
then the action should be dismissed against both answering and
defaulting defendants.” In re First T.D. & Inv., Inc., 253 F.3d 520, 532
(9th Cir. 2001).
Thompson argues that the decision in Frow “hinged on joint
and several liability” and “does not apply here” because the district
court “did not impose joint liability.”4 We, along with the majority of
the federal appellate courts, have held that the Frow principle is not
limited to cases of joint liability but more generally “prohibits a
default judgment that is inconsistent with a judgment on the merits.”
Henry, 108 F.4th at 53. As the Third, Fourth, Fifth, Eighth, Ninth,
Tenth, and Eleventh Circuits have explained, the Frow principle
applies when the defendants are “similarly situated” or have “closely
related defenses” even if not jointly liable.5 The idea is that when
4 Rule 28(j) Letter at 1-2, Thompson v. Booth, No. 22-978 (2d Cir. Jun. 25,
2024), ECF No. 159.
5 See Garamendi v. Henin, 683 F.3d 1069, 1082-83 (9th Cir. 2012) (explaining
that the Ninth Circuit applies “the rule beyond jointly liable co-defendants

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to those that are ‘similarly situated,’ such that the case against each rests on
the same legal theory; it would be ‘incongruous and unfair’ to allow a
plaintiff to prevail against defaulting defendants on a legal theory rejected
by a court with regard to an answering defendant ‘in the same action’”)
(emphasis added) (quoting First T.D. & Inv., 253 F.3d at 532); United States
ex rel. Costner v. United States, 56 F. App’x 287, 288 (8th Cir. 2003) (“The
principle on which Frow relies is that logically inconsistent verdicts should
be avoided. Although joint liability is one circumstance in which such
inconsistency may arise, it is not the only one. … The leading treatise is in
accord with this view: ‘Although the rule developed in the Frow case
applies when the liability is joint and several, it probably can be extended
to situations in which several defendants have closely related defenses.’”)
(emphasis added) (quoting 10A Wright, Miller & Kane, Federal Practice &
Procedure § 2690 (3d ed. 1998)); Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir.
2001) (“[W]here a defending party establishes that [the] plaintiff has no
cause of action this defense generally inures also to the benefit of a
defaulting defendant. … The policy rationale for this rule is that it would
be incongruous and unfair to allow some defendants to prevail, while not
providing the same benefit to similarly situated defendants.”) (emphasis
added) (internal quotation marks, alteration, and citations omitted); Wilcox
v. Raintree Inns of Am., Inc., 76 F.3d 394, 1996 WL 48857, at *3 (10th Cir. 1996)
(“We do not … believe that the applicability of the Frow rule hinges on
whether the defendants are jointly and severally liable. The Frow rule is also
applicable in situations where multiple defendants have closely related
defenses.”) (emphasis added); Gulf Coast Fans, Inc. v. Midwest Elecs. Importers,
Inc., 740 F.2d 1499, 1512 (11th Cir. 1984) (“[E]ven when defendants are
similarly situated, but not jointly liable, judgment should not be entered
against a defaulting defendant if the other defendant prevails on the
merits.”) (emphasis added); see also Kelly v. Conner, 769 F. App’x 83, 87 n.1
(4th Cir. 2019) (rejecting the argument that “several liability” precludes the
application of Frow because “where a defending party establishes that
plaintiff has no cause of action whether on a motion to dismiss or a motion
for summary judgment[,] this defense generally inures also to the benefit of
a defaulting defendant”) (internal quotation marks and alterations
omitted).

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“facts are proved that exonerate certain defendants and that as a
matter of logic preclude the liability of another defendant, the plaintiff
should be collaterally estopped from obtaining a judgment against
the latter defendant, even though it failed to participate in the
proceeding in which the exculpatory facts were proved.”6
Against these authorities, only the Seventh and D.C. Circuits
have suggested—some time ago—that the Frow principle should be
“limited to exclusively joint liability claims or situations where there
is a single res in controversy.”7 Our court adheres to the majority
view.
II
We have not expressly considered whether the Frow principle
applies when the merits judgment was based on an affirmative
defense such as administrative exhaustion under the PLRA. Because
a plaintiff’s failure to exhaust administrative remedies is an
affirmative defense, it may be waived by a defendant and a plaintiff
may be entitled to a judgment even if the complaint does not plead—
or the facts do not establish—that he exhausted those remedies. We
have explained that the “[f]ailure to exhaust administrative remedies
is an affirmative defense under the PLRA, not a pleading
requirement,” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016), and
for that reason “inmates are not required to specially plead or
6 Farzetta v. Turner & Newall, Ltd., 797 F.2d 151, 154 (3d Cir. 1986).
7 In re Uranium Antitrust Litig., 617 F.2d 1248, 1258 n.40 (7th Cir. 1980); see
also Carter v. District of Columbia, 795 F.2d 116, 137 (D.C. Cir. 1986) (“Frow
was about ‘inconsistent adjudications as to joint liability or as to a single res
in controversy,’ and ‘remains good law’ in that setting. But the venerable
Frow case should not be extended ‘to a context for which it was never
intended.’”) (quoting Uranium Antitrust Litig., 617 F.2d at 1257-58 & n.40).

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demonstrate exhaustion in their complaints,” id. (quoting Jones v.
Bock, 549 U.S. 199, 216 (2007)).
Nevertheless, the exhaustion of administrative remedies “is
‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said more
conversationally, may not bring any action) absent exhaustion of
available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638
(2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)); see also Jones,
549 U.S. at 211 (“There is no question that exhaustion is mandatory
under the PLRA.”). Because a lack of exhaustion acts as a threshold
bar to the plaintiff’s claims, we have said that a district court “may
dismiss a complaint for failure to exhaust administrative remedies if
it is clear on the face of the complaint that the plaintiff did not satisfy
the PLRA exhaustion requirement.” Williams, 829 F.3d at 122. At least
one district court in this circuit has “concluded that dismissal with
prejudice is appropriate” even with respect to defendants who “have
not been served or appeared in [the] action” because unexhausted
claims “are equally futile against them” as against those litigating
defendants who have moved to dismiss. Massey v. City of New York,
No. 20-CV-5665, 2021 WL 4459459, at *4 (S.D.N.Y. Sept. 29, 2021). And
we have indicated that a district court may issue a “sua sponte
dismissal of [a prisoner’s] complaint for failure to exhaust his
administrative remedies”—even “before [the] defendants were
served”—as long as it provides the prisoner “notice and an
opportunity to respond.” Mojias v. Johnson, 351 F.3d 606, 608-11 & n.1
(2d Cir. 2003) (emphasis added).
In this way, an affirmative defense based on administrative
exhaustion resembles an affirmative defense based on the statute of
limitations, which may also be the basis for the dismissal of a
complaint. See Ellul v. Congregation of Christian Brothers, 774 F.3d 791,
798 n.12 (2d Cir. 2014) (“Although the statute of limitations is

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ordinarily an affirmative defense that must be raised in the answer, a
statute of limitations defense may be decided on a Rule 12(b)(6)
motion if the defense appears on the face of the complaint.”).
The Fifth Circuit has held that the Frow principle applies to a
statute-of-limitations defense. As the Fifth Circuit explained, a
“default judgment is only appropriate where the pleadings provide a
sufficient basis for relief.” Brown v. City of Central, No. 23-30146, 2024
WL 546340, at *9 (5th Cir. Feb. 12, 2024). “[P]leadings do not state a
claim for relief against any party in [the] case” when the “claims are
time-barred. It is no matter that the [statute-of-limitations] defense
was not raised by [a defaulting defendant] because ‘where a
defending party establishes that [the] plaintiff has no cause of action
this defense generally inures also to the benefit of a defaulting
defendant.’” Id. (internal quotation marks and alteration omitted)
(quoting Lewis, 236 F.3d at 768); see also Lewis, 236 F.3d at 768
(explaining that the “rationale for this rule is that it would be
‘incongruous’ and ‘unfair’ to allow some defendants to prevail, while
not providing the same benefit to similarly situated defendants”).
The Seventh Circuit, by contrast, has indicated that it might not
apply the Frow principle to such a defense. See Marshall & Ilsley Tr. Co.
v. Pate, 819 F.2d 806, 812 (7th Cir. 1987) (suggesting that “a default
judgment against non-answering defendants would not necessarily
be logically inconsistent with judgments in favor of other answering
defendants” when “the answering defendants prevailed on an
affirmative defense of statute of limitations” because “it is not clear
that such an affirmative defense ought automatically to be applied for
the benefit of non-answering defendants”).
We agree with the Fifth Circuit. As noted above, our court
along with the Fifth Circuit adheres to the majority view of the Frow

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principle. Like the Fifth Circuit, we have explained that “prior to
entering [a] default judgment, a district court is required to determine
whether the plaintiff’s allegations establish the defendant’s liability as
a matter of law.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d
114, 137 (2d Cir. 2011) (internal quotation marks and alterations
omitted); accord Henry, 108 F.4th at 55 (“To enter a default judgment,
a district court must determine whether … the plaintiff’s ‘allegations
establish liability as a matter of law.’”) (alteration omitted) (quoting
Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)). In other words,
“a district court may not enter a default judgment unless the
plaintiff’s complaint states a valid facial claim for relief.” Henry, 108
F.4th at 55 (quoting Mickalis Pawn Shop, 645 F.3d at 137 n.23). When
the plaintiff has failed to exhaust administrative remedies, the PLRA
bars his claims and therefore the “pleadings do not state a claim for
relief against any party in [the] case,” including defaulting defendants
to whom the exhaustion defense equally applies. Brown, 2024 WL
546340, at *9.
It is true that the plaintiff was not required to plead exhaustion
of administrative remedies in the complaint. But when the district
court evaluates whether the allegations of the complaint state a valid
claim for relief, the Frow principle requires the district court to take
into account the evidentiary record on which it based its judgment
with respect to the non-defaulting defendants. And when “facts are
proved that exonerate certain defendants and that as a matter of logic
preclude the liability of another defendant,” the plaintiff is “estopped
from obtaining a judgment against the latter defendant.” Farzetta,
797 F.2d at 154. That is why, if the case has proceeded to trial, “to
comply with the Frow principle prohibiting inconsistent judgments,
[the district court] must disregard the allegations in [the] complaint
that conflict with the jury verdict.” Henry, 108 F.4th at 55. And if, as

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in this case, the district court has conducted an evidentiary hearing to
determine whether the plaintiff has exhausted the administrative
remedies that were available to him, the district court must apply its
findings on that issue when deciding whether to award the default
judgment against the defaulting defendant.
III
Applying the Frow principle to this case, we conclude that the
district court abused its discretion when it entered a default judgment
against Booth that was inconsistent with its prior judgment
dismissing identical claims against the four other officers.
Thompson’s claims against each of the five officer defendants were
identical. Each claim arose from the same alleged incident in which
all five officers allegedly participated. Each claim was subject to the
same exhaustion requirement under the PLRA. See Porter v. Nussle,
534 U.S. 516, 532 (2002) (“[T]he PLRA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”). And because the claims
against each of the officers arose from the same incident, the remedies
Thompson was required to exhaust were the same.
The district court concluded that Thompson had failed to
exhaust his administrative remedies and therefore lacked a viable
cause of action against the four litigating officer defendants. That
conclusion also meant that Thompson’s pleadings could “not state a
claim for relief against any party in [the] case,” including Booth,
because the PLRA barred Thompson’s claims. Brown, 2024 WL
546340, at *9. It was “unreasonable” for the district court “to hold, that
because one defendant had made default, the plaintiff should have a
decree even against him, where the court is satisfied from the proofs

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offered by the other[s], that in fact the plaintiff is not entitled to a
decree.” Frow, 82 U.S. at 554 (quoting Clason, 10 Johns. at 538
(Spencer, J.)); see also First T.D. & Inv., 253 F.3d at 532 (“It would … be
incongruous and unfair to allow the [plaintiff] to prevail against
Defaulting Defendants on a legal theory rejected by the … court with
regard to the Answering Defendants in the same action.”). Once the
district court dismissed the claims against the other officers because
of a lack of exhaustion, it was required to deny the motion for a
default judgment against Booth because it had determined that the
complaint did not establish a viable claim for relief against Booth as
well as the four other officers. See Henry, 108 F.4th at 55; Mickalis Pawn
Shop, 645 F.3d at 137.
The district court abused its discretion in granting the motion
for a default judgment.
CONCLUSION
For the foregoing reasons, we vacate the default judgment and
remand the case to the district court with instructions to enter a
judgment dismissing the claims against Booth.

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