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Lopez v. Sromovsky

United States District Court, E.D. Pennsylvania

June 27, 2018



          GERALD J. PAPPERT, J.

         Lorenzo 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, [1]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.


         A The Court relies on the facts asserted in the Amended Complaint and the evidence submitted at the hearing, [2] including the video evidence offered by Lopez. (See Am. Compl., ECF No. 8; Hr'g Tr., ECF No. 28; Pl.'s Ex. 2.)[3] 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, [4] prompting Officer Cavanaugh, another responding officer apparently from a local police department, to assist Revels in restraining and cuffing Lopez. (Revels Video at 12:40-13:23.)

         Moving 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).

         Sromovsky 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.[5] (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.)

         Lopez 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.)

         At the 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.[6] 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.)

         Lopez 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.)


         On 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).

         Lopez 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[7] 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).


         The 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 ...

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