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Noonan v. Becker

United States District Court, S.D. New York

August 23, 2017

ERICA NOONAN, Plaintiff,
NEW YORK CITY POLICE DEPARTMENT OFFICER CARLOS BECKER, SHIELD #25985, Individually and in his official capacity as a New York City Police Officer and “JOHN DOES”, names being fictitious intended to be New York City Police Officers, individually and in their official capacities as New York City Police Officers, Defendant.


          LAURATAYLORSWAIN United States District Judge

         Plaintiff 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.

         The 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.


         The 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. ¶ 79.)

         While 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.)

         Plaintiff 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. ¶ 60.)

         An 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.)

         Plaintiff 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.)

         On 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. 52.)


         Default Judgment Standard

          In 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.

         First, 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.

         The 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. 2012).

         Plaintiff asserts sixteen causes of action against this Defendant.

          Plaintiff's Federal Claims

         First 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. ΒΆΒΆ 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 ...

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