United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Lopez asserts claims pursuant to 42 U.S.C. § 1983 and
state law against Pennsylvania State Trooper John R.
Sromovsky for the use of excessive force during Lopez's
drunk driving arrest. Sromovsky has not answered or otherwise
defended, default has been entered against him and
Lopez moves for default judgment. (ECF Nos. 13, 18.) After a
May 10, 2018 evidentiary hearing on Lopez's Motion (ECF
No. 26) and upon consideration of counsel's supplemental
briefing (ECF No. 27), the Court grants in part and denies in
part the Motion for the reasons that follow. Judgment is
entered in Lopez's favor on Counts II, VI and VII of his
Amended Complaint alleging battery, excessive force and
retaliation and for Sromovsky on Count III for intentional
infliction of emotional distress.
Court relies on the facts asserted in the Amended Complaint
and the evidence submitted at the hearing,  including the
video evidence offered by Lopez. (See Am. Compl.,
ECF No. 8; Hr'g Tr., ECF No. 28; Pl.'s Ex.
On the evening of September 9, 2016, Lopez was pulled over by
Pennsylvania State Trooper Andrew Revels on suspicion of
driving under the influence of alcohol or a controlled
substance. (Am. Compl. ¶ 15; Pl.'s Ex. 2
“Revels Video” at 1:27; Hr'g Tr. at 16-17.)
The stop was video and audio recorded by Revels'
dashboard camera. (See Revels Video.) The footage
shows Revels conducting field sobriety and breathalyzer
tests, after which Lopez, who is visibly intoxicated, is
arrested. (Am. Compl. ¶ 16; Revels Video at 6:12-12:40.)
As Revels begins to handcuff Lopez, he stiffens his arms,
prompting Officer Cavanaugh, another responding officer
apparently from a local police department, to assist Revels
in restraining and cuffing Lopez. (Revels Video at
out of the camera's view, Trooper Revels then attempts to
put Lopez into his police car. (Id. at 13:23-28.)
The camera's audio captures a struggle between the two.
(Id. at 13:28-16:00.) Revels repeatedly tells Lopez,
who is belligerent and uncooperative, to sit but he
resists-grunting, raising his voice, saying no and hold on,
using obscenities and crying. (Id.) After about a
minute, Revels calls for backup stating, “He's
fighting.” (Id. at 14:43-46.) Eventually,
Revels gets Lopez seated and belted in the front passenger
seat of Revels' car (id. at 13:32, 16:00-10; Am.
Compl. ¶ 17) and rotates the dashboard camera to face
Lopez, (Revels Video at 16:00-10; Am. Compl. ¶ 18).
then arrives at the scene. (See Revels Video at
15:57; Pl.'s Ex. 2 “Sromovsky Video” at
1:42.) He immediately opens the front driver's side door
to speak to Lopez. (Revels Video at 16:16-28; Sromovsky Video
at 2:03.) Sromovsky asks Lopez “What the fuck are you
crying for, huh?” to which Lopez responds, “I
don't fucking cry for nothing.” (Revels Video at
16:24-28; 2:05-08; Sromovsky Video at 2:03-07; Am. Compl.
¶ 19.) Sromovsky then says, “I'll give you a
reason to cry, bitch” and hits Lopez in the face.
(Revels Video at 16:28-30, 16:33-34; Am. Compl. ¶ 19.)
Lopez yells, “Give me more, ” intermittently
grunting and struggling in the front seat of the police car
at times leaning out of view. (Revels Video at 16:30-56;
Sromovsky Video at 2:22-28; Am. Compl. ¶ 19.) Sromovsky
can be heard again goading Lopez, saying “Do you want
more?” and “Shut up you little bitch.”
(Id.) Lopez asserts that Sromovsky hit him again.
The second alleged strike is not apparent on the video,
though, at one point, Lopez jerks back as if hit for a second
time. (Am. Compl. ¶ 19; Revels Video at 16:37.)
is left alone in the front seat of Revels' car for
approximately two and a half minutes. (Revels Video at
16:56-19:27; Sromovsky Video at 4:53-58.) He continues to
struggle, repeatedly banging his head against the car door,
and his nose begins to bleed. (Revels Video at 17:14.) He is
then moved from Revels' car to the backseat of the car of
another responding Trooper, Brian Naylor. (Revels Video at
16:56-19:27; Sromovsky Video at 4:53-9:17; Pl.'s Ex 2
“Naylor Stream 2 Video” at 8:10; Am. Compl.
¶ 20.) Lopez asserts that, during the transfer,
Sromovsky further assaulted him. (Id.) The audio
picks up a struggle in which Lopez apparently falls to the
ground, after which Revels orders Lopez to stop resisting.
(Id. at 5:07-18; id. at 7:01-04
(“What did he fall face first onto the ground? Yeah, he
hit his face.”); Hr'g Tr. at 19 (“I fell face
down onto the cement.”).) Lopez can be heard wailing
and grunting as the police attempt to get him to cooperate.
Eventually, Lopez is placed in the back of Naylor's car,
bleeding from several gashes on his face. (Id. at
9:17; Naylor Stream 2 Video at 8:10-58.)
evidentiary hearing, Lopez testified that his memory of the
events was limited because he was intoxicated at the time and
could not remember anything that occurred after he fell to
the ground. (Hr'g Tr. at 19, 21.) He confirmed that
Sromovsky hit him in the face while he was handcuffed and
seated in Revels' car. (Id. at 19, 21, 28-29.)
He also testified, consistent with an allegation in his
Amended Complaint, that he was further assaulted by Sromovsky
outside of the vehicle. (Am. Compl. ¶ 20; Hr'g Tr.
at 22-23.) Lopez testified that this occurred both before and
after he was placed in Revels' car. (See
Hr'g Tr. at 22-24.) The video evidence, however, shows
that Sromovsky arrived at the scene when Lopez was in
Revels' car; Sromovsky could not have assaulted him
before then. With respect to the later assault, Lopez
testified that three or four troopers came over, hit him,
threw him to the ground, dragged him and then shoved him
inside of Naylor's car. (Hr'g Tr. at 24.) He believes
that Sromovsky is the one who dragged him. (Id.)
sustained injuries to his face, as well as other parts of his
body. (Am. Compl. ¶ 20; Pl.'s Ex. 1; Hr'g Tr. at
19, 22, 25-26.) Plaintiff's Exhibit 1 is a picture of
Lopez's face, taken twelve hours after the incident. The
picture shows significant bruising to the left side of his
face along with lacerations on his forehead, nose, lip, chin
and left cheek. (See Pl.'s Ex. 1; Hr'g Tr.
at 19, 26.) Lopez testified that following the incident, he
“had pain all over [his] body[, ]” including his
rib cage, thighs, legs, shoulders and neck. (Hr'g Tr. at
30.) The most significant injury was to his shoulder, which
he said he could not move for approximately one month.
(Id. at 32.) He also chipped some of his teeth.
(Id. at 30.) Lopez continues to have headaches,
swelling in his neck, difficulty sleeping and suffers from
depression as a result of the incident. (Id. at 31,
33-36; Am. Compl. ¶ 22.)
January 17, 2017, Sromovsky was arrested and charged with
assault, harassment, official oppression and making
terroristic threats. (Am. Compl. ¶ 24.) Lopez relies on
Sromovsky's criminal case and cites its docket in support
of his claims. (Id. at ¶¶ 24-25.)
Sromovsky was acquitted on November 16, 2017 on the official
oppression and terroristic threats charges but the jury was
unable to reach a verdict on the assault charge. See
Jury Verdict, Pennsylvania v. Sromovsky,
CP-15-CR-00001137-2017 (Chester County Pa. Ct. Common Pleas
Nov. 16, 2017). Sromovsky was retried and on May 16, 2018
convicted of simple assault and attempted simple assault.
See Jury Verdict, Pennsylvania v.
Sromovsky, CP-15-CR-00001137-2017 (Chester County Pa.
Ct. Common Pleas May 16, 2018).
filed suit on May 12, 2017 (ECF No. 1), later amending his
complaint (ECF No. 8). The Amended Complaint asserts seven
claims under 42 U.S.C. § 1983 and state law against
Sromovsky in his individual capacity and Pennsylvania State
Police Commissioner Tyree Blocker. The Court granted
Blocker's motion to dismiss all claims against him on
February 27, 2018 (ECF Nos. 14 & 15) and at the
evidentiary hearing Lopez withdrew Count I for abuse of
process against Sromovsky (Hr'g Tr. at 9; Supp. at 12).
The four remaining claims are Counts II and III, alleging
battery and intentional infliction of emotional distress (Am.
Compl. ¶¶ 33-52) and Counts VI and VII, asserting
excessive force and retaliation in violation of § 1983
(id. at ¶¶ 70-85).
entry of default judgment is within the Court's
discretion and is governed by Federal Rule of Civil Procedure
55. Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d
Cir. 2000). As an initial matter, the Court should determine
whether “the unchallenged facts constitute a legitimate
cause of action, ” Broad. Music, Inc. v. Spring
Mount Area Bavarian Resort, Ltd., 555 F.Supp.2d 537, 541
(E.D. Pa. 2008) (quotation omitted), and whether the Court
has jurisdiction over the subject matter and the parties,
including whether service was proper, see D'Onofrio
v. II Mattino, 430 F.Supp.2d 431, 436 (E.D. Pa. 2006)
(“A default judgment entered without personal
jurisdiction is void.”). If so, courts typically
consider three factors in assessing whether to enter default:
(1) prejudice to the plaintiff if default is denied, (2)
whether the defendant appears to have a litigable defense,
and (3) whether defendant's delay is due to ...