United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURATAYLORSWAIN United States District Judge
Erica Noonan (“Plaintiff”) brings this action
against Defendant Carlos Becker (“Defendant”),
alleging deprivation of her civil rights, pursuant to 42
U.S.C. §§ 1983, 1986, the Eighth and Fourteenth
Amendments to the United States Constitution, and the
constitution and common laws of the State of New York.
Plaintiff now moves, pursuant to Federal Rules of Civil
Procedure 55, 55(a), and 55(b)(2), for a default judgment
against Defendant as to each cause of action. Defendant has
yet to appear or respond to the claims asserted in this
action, despite being afforded ample time and opportunity to
do so. The Court has jurisdiction of this action pursuant to
28 U.S.C. §§ 1331 and 1367.
Court has reviewed Plaintiff's submissions carefully and,
for the following reasons, Plaintiff's motion for default
judgment is granted in part and denied in part.
following facts are alleged in the Complaint (“Compl.,
” Docket Entry No. 2). On March 11, 2013, Plaintiff was
pulled over by Defendant, a New York City Police Department
(“NYPD”) officer, while driving in Bronx County,
New York. (Compl. ¶ 16.) Defendant placed Plaintiff
under arrest and, as he placed her into the patrol car,
touched Plaintiff's breast, despite her objections.
(Id. ¶ 18.) Defendant brought Plaintiff to the
police precinct for booking and processing, where Defendant
forced Plaintiff to keep the restroom door open and watched
her while she used the facilities, and that, where he was
processing her arrest, Becker commented inappropriately on
her appearance, and video recorded her body, including her
buttocks. (Id. ¶¶ 19-21.) Throughout
booking and processing, Defendant told Plaintiff that he was
willing to assist in resolving any charges that might be
brought against her and that he was the “main person
who can help her with her case.” (Id. ¶
20.) Defendant then noted the nature and location of her
workplace and provided Plaintiff with his personal cell phone
number. (Id. ¶ 22.) Plaintiff was subsequently
arraigned and charged with driving while intoxicated.
(Id. ¶ 26.) More than a year later, those
criminal charges were dismissed and sealed. (Id.
her criminal case was pending, Becker pressured Plaintiff to
contact and meet with him, promising to help her with her
case and implicitly threatening that he would harm her case
if she did not comply with his requests. She engaged in a
series of text message exchanges, with the Defendant.
(Id. ¶¶ 28-29.) During these exchanges,
Defendant expressed an interest in meeting with Plaintiff.
(Id. ¶¶ 28-30.) Plaintiff agreed to meet
him on or about March 24, 2013, at a restaurant.
(Id. ¶¶ 40-43.) Plaintiff and Defendant
then went together to a bar, where Plaintiff began to feel
“groggy, her eyes felt heavy and she began to go in and
out of consciousness, ” after she consumed a drink,
which had been ordered by Defendant. (Id.
¶¶ 45-47.) In that state, Plaintiff nonetheless had
sufficient awareness “to realize that Defendant”
placed her in his car, drove her to his home, and sexually
assaulted her. (Id. ¶¶ 48-52.)
awoke in Defendant's bed on March 25, 2013, gasping for
air, with a bruised and swollen eye. (Id. ¶
53.) Once Plaintiff returned home, she reported the events to
the police, but they were “not cooperative,
understanding, and/or sympathetic” to her complaints
once they understood that she was accusing a police officer
of assaulting her. (Id. ¶¶ 58-59.) She
then went to the hospital to report the incident and to be
medically examined, after feeling “tightness and
soreness in her vaginal area/region.” (Id.
examination of Plaintiff at the hospital revealed that there
was “tearing and bruising by her thigh, a laceration
across her left breast/chest, contusion to left eye, swelling
and black and blue bruising to left eye, [ecchymosis] of left
eye, left periorbital tissue swelling” and scratches to
various parts of her body. (Id. ¶ 62.) NYPD
police officers and Internal Affairs officers responded to
Plaintiff's reports at the hospital, where Plaintiff
again provided her account of what had occurred. (See
id. ¶ 65.) A rape kit was tested and revealed that
there was DNA matching Defendant's family line, as well
as skin cells matching Defendant's family line, found in
Plaintiff's underpants. (Id. ¶ 67.)
Following an investigation, Defendant was indicted for
“Official Misconduct, ” in violation of N.Y.
Penal Law § 195.00, for video recording Plaintiff during
the arrest processing. (Id. ¶¶ 68-69.) The
misconduct charges were eventually dismissed, and Defendant
was never charged in connection with the sexual assault.
(Id. ¶¶ 73-74.)
commenced this action on June 6, 2014, by filing a complaint
against the City of New York (the “City”), the
NYPD, Carlos Becker, and various “John Does.”
(Docket Entry No. 2.) On June 26, 2015, the Court granted the
motion of the City and NYPD (“City Defendants”)
to dismiss the Complaint for failure to state a claim as to
those defendants upon which relief could be granted. (Docket
Entry No. 26.) To date, Defendant has failed to appear,
answer, or otherwise move or defend himself in this action.
(Docket Entry No. 51.)
January 18, 2017, the Clerk of Court issued a certificate of
default against Defendant. (Docket Entry No. 51.) That same
day, Plaintiff moved for default judgment. (Docket Entry No.
determining whether to grant a motion for default judgment,
courts within this district first consider three factors:
“(1) whether the defendant's default was willful;
(2) whether defendant has a meritorious defense to
plaintiff's claims; and (3) the level of prejudice the
non-defaulting party would suffer as a result of the denial
of the motion for default judgment.” Indymac Bank,
F.S.B. v. National Settlement Agency, Inc., No. 07 Civ.
6865 (LTS) (GWG), 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20,
2007) (internal citation omitted); see also Guggenheim
Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir.
2013) (applying these factors in review of lower court grant
of a default judgment). The Court finds that all three of the
foregoing factors weigh in Plaintiff's favor.
the Defendant's failure to make an appearance and failure
to respond to either Plaintiff's Complaint or her Motion
for Default Judgment are indicative of willful conduct.
See Indymac Bank, F.S.B., 2007 WL 4468652, at *1
(holding that non-appearance and failure to respond to a
compliant or motion for default judgment indicates willful
conduct). With respect to the second factor, because
Defendant has failed to make any appearance, there is no
information before the Court regarding any meritorious
defense to Plaintiff's claims that Defendant may have.
Finally, the Court finds that, in light of the considerable
amount of time that has elapsed since Plaintiff filed the
Complaint, Plaintiff will be prejudiced if she is denied the
ability to seek judgment by default.
Court must next determine whether Plaintiff has pleaded facts
sufficient to establish Defendant's liability with
respect to each cause of action. See Au Bon Pain Corp. v.
Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). “[A]
party's default is deemed to constitute a concession of
all well pleaded allegations of liability” except those
relating to damages.” Greyhound Exhibitgroup, Inc.
v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.
1992). “Without a response from [the defendant, a]
court must first determine whether the allegations in
Plaintiff's complaint are sufficiently pleaded to
establish [the defendant's] liability.” Lenard
v. Design Studio, 889 F.Supp.2d 518, 528 (S.D.N.Y.
asserts sixteen causes of action against this Defendant.
Plaintiff's Federal Claims
through Fifth Causes of Action
Plaintiff asserts several claims against Defendant pursuant
to 42 U.S.C. § 1983. These include claims of excessive
force (Cause of Action One) (Compl. ¶¶ 102-05),
wrongful arrest and malicious prosecution (Cause of Action
Three) (id. ¶¶ 110-15), violations of
Plaintiff's rights to freedom from cruel and unusual
punishment under the Eighth Amendment to the federal
constitution, and her rights to due process and equal
protection under the Fourteenth Amendment to the federal