Patterson v. City of New York et al
MEMORANDUM & ORDER, Because Plaintiff's claims against all the Absent Defendants are unavailing as a matter of law, his 76 Motion for Default Judgment is DENIED. All claims against the Absent Defendants are DISMISSED WITH PREJUDICE. The Clerk of Court is respectfully DIRECTED to enter judgment against Plaintiff accordingly and to close this case. So Ordered by Judge Nicholas G. Garaufis on 2/13/2018. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstCITY OF NEW YORK;POLICE OFFICER RODRIGO
FERNANDEZ;SERGEANT IVAN FURDA;
SERGEANT ZADCOWSKI; WILLIAMSBURG
SAFETY PATROL,INC.: SHMIRA VOLUNTEER
PATROL CORP.; ABRAHAM WINKLER; AHARON
HOLLENDER;MAYER HERSKOVIC; JOSEPH
JOHN DOES 1-10.
NICHOLAS G. GARAUFIS,United States District Judge.
Before the court is Plaintiff's motion for a defaultjudgment against Defendants
Williamsburg Safety Patrol, Inc.("WSP"),Abraham Winkler, Aharon Hollender, Joseph Fried,
and Yoeli Itzkowitz.^ (Mot. for Default J.(Dkt. 76).) The court assumes familiarity with the
procedural history ofthis case and,in particular, with its August 8,2017, Memorandum & Order
(the "August 8 M&O"). (Aug. 8,2017, Mem.& Order("Aug. 8 M&O")
(Dkt. 64).) Because
'For ease ofreference, the court refers to Defendants Pinchas Braver and Mayer Herskovic as the "Appearing
Individual Defendants"; Winkler, Hollender, Fried, and Itzkowitz as the "Absent Individual Defendants"; the Absent
Individual Defendants, together with WSP,as the "Absent Defendants"; and the Appearing Individual Defendants,
together with the Absent Individual Defendants, as the "WSP Individual Defendants."
On January 22,2018,Plaintiff voluntarily dismissed his claims against defendant Shmira Volunteer Patrol Corp.
("Shmira") pursuant to Rule 41(a)(l)(A)(i) ofthe Federal Rules of Civil Procedure. (Notice ofDismissal(Dkt. 77);
see also Jan. 19,2018, Order to Show Cause.) Defendant is therefore dismissed from this action without prejudice.
Fed. R. Civ.P. 41(a)(1)(B). Additionally, aldiough the Amended Complaint names as defendants John Does 1-10,
Plaintiff has not alleged facts about these defendants in his pleading, served them with notice ofthis action, or
otherwise prosecuted this case against them. The John Doe defendants are therefore dismissed from this Action.
The Clerk ofCourt is respectfully directed to amend the caption by striking Shmira and the John Doe defendants.
the allegations in the Amended Complaint(Dkt. 43)are insufficient to establish the Absent
Defendants' liability under 42 U.S.C. § 1983 or § 1985,Plaintiff's motion is DENIED.
Under Rule 55 ofthe Federal Rules of Civil Procedure, a party seeking a default
judgment must follow a two-step process. Fed. R. Civ. P. 55; United States v. Calaman. No. 15CV-180(NGG)
(PK),2016 WL 8213831, at *3(E.D.N.Y. Nov. 16,2016), R&R adopted in
part. 2017 WL 462050(E.D.N.Y. Feb. 2,2017). First, the party must request the Clerk of Court
to enter default "[wjhen a party against whom ajudgment for affirmative reliefis sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R.
Civ. P. 55(a). "Second, after a default has been entered against [the opposing party], and the
[opposing party] fails to appear or move to set aside the default under Rule 55(c), the Court may
... enter a defaultjudgment." Calaman. 2016 WL 8213831, at *3 (citing Fed. R. Civ. P.
55(b)(2)). When a defendant has defaulted, the court must accept the plaintiff's well-pleaded
factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Finkel v.
Romanowicz. 577 F.3d 79,84(2d Cir. 2009)(citing Au Bon Pain Corp. v. Artect. Inc.. 653 F.2d
61,65(2d Cir. 1981)). Because a default is only an admission offactual allegations, not
conclusions oflaw, however,the court must determine ifthose factual allegations, taken as true,
establish the defendant's liability as a matter oflaw. See id. Only "ifliability is established as a
matter oflaw when the factual allegations are taken as true" may the court enter default
judgment. Bricklavers & Allied Craftworkers Local 2. Albanv. N. Pension Fund v. Moulton
Masonrv & Constr.. LLC.779 F.3d 182,187(2d Cir. 2015).
Plaintiff has obtained a certificate of default against the Absent Defendants,thereby
satisfying the first step of obtaining a defaultjudgment. (Req. for Certificate of Default(Dkt.
73); Am.Req. for Certificate ofDefault(Dkt. 74); Clerk's Entry of Default(Dkt. 75).)
PlaintifFs motion for a defaultjudgment is, however, unavailing because the factual
allegations in the Amended Complaint are insufficient to establish the Absent Defendants'
liability as a matter oflaw.
Taizhou Zhongneng Imp.& Exp. Co. v. Koutsobina. 509 F.
App'x 54,56(2d Cir. 2013)(summary order). The court explained in the August 8 M&O why
Plaintiff had failed to state a claim against the Appearing Individual Defendants. Plaintiff has
expressly conceded that the same grounds on which the court dismissed his claims against the
Appearing Individual Defendants apply with equal force to his claims against the Absent
The grounds for the Court's [August 8 M&O] granting the
[Appearing Individual] Defendants' motions apply equally to the
claims against the defendants who have not yet appeared. In other
words,the Court's Order resolved dispositive legal issues that apply
in substance to ^ defendants, including the [Absent D]efendants.
Thus, if the remaining defendants had appeared and answered, the
claims asserted against them would have been dismissed. Requiring
Plaintiff to obtain another default judgment against the remaining
defendants to force them to appear and answer, simply so that the
Court can dismiss them on grounds already established as law ofthe
case in the August[8 M&O], would unnecessarily delay resolution
(PI. Mem.in Supp. of Mot.for Entry ofPartial Final J.(Dkt. 67-1)at 3.)
The court agrees that Plaintiff's claims against the Absent Defendants must be dismissed
for substantially the same reasons it dismissed his claims against the Appearing Individual
Defendants in the August 8 M&O. First, Plaintiff has not stated a claim against the Absent
Individual Defendants under § 1983 because he has not sufficiently alleged that they engaged in
"state action" when they allegedly assaulted and detained him. The court previously held that
Plaintiff had not plausibly alleged "state action" by any "WSP Individual Defendant," which by
definition included the Absent Individual Defendants. (Aug. 8 M&O at 14.) Moreover,the
allegations regarding these defendants' role in Plaintiff's assault are "substantially identical"
(id), so ifthe allegations against the Appearing Individual Defendants were insufficient to state a
claim,those allegations are necessarily also insufiScient to state a claim against the Absent
Individual Defendants. Plaintifftherefore fails to state a § 1983 claim against the Absent
Individual Defendants based on false imprisonment and excessive force. (Am. Compl. ^[115762.)
Plaintiffs § 1985 claims against the Absent Individual Defendants fare no better. (See
78-81 (assault); id
82-86 (investigation).) To the extent these claims are based on
Plaintiffs assault, they are untenable because Plaintiff has not alleged facts sufficient to create a
plausible inference that any Absent Individual Defendant assaulted him because of his sexuality,
or on account of another protected status. (Aug. 8 M&O at 30(stating that Plaintiff had not
plausibly alleged that Braver or Herskovic assaulted him "because of his sexuality").) To the
extent these claims are instead based on the Absent Individual Defendants' purported
interference with the City's investigation ofthat assault, these claims must be dismissed because
Plaintiff has made "no allegation that any WSP Individual Defendant played a role in the Officer
Defendants' actions that night." (Id at 31.) Accordingly, Plaintiff has not stated a § 1985 claim
against any Absent Individual Defendant.
Lastly,the court must also dismiss Plaintiffs claims against WSP. Although the
August 8 M&O only addresses Plaintiffs claims against the Appearing Individual Defendants,
that order explains why Plaintiff has not sufficiently alleged that WSP engaged in "state action,"
a prerequisite for liability under § 1983, when the WSP Individual Defendants allegedly
assaulted him. (Id at 9-14.) Plaintiffs second and third claims thus fail, to the extent they seek
to hold WSP liable under § 1983 for violating his Fourth and Fourteenth Amendment rights.
63-74.) Plaintiffs respondent superior claim against WSP(id
be dismissed because he fails to plead a primary violation of§ 1983 or § 1985 by any alleged
WSP member. See Tchatat v. Citv ofNew York. No. 14-CV-2385(LGS),2015 WL 5091197, at
*13(S.D.N.Y. Aug. 28, 2015).^
Because Plaintiffs claims against all the Absent Defendants are unavailing as a matter of
law, his motion for defaultjudgment(Dkt. 76)is DENIED. All claims against the Absent
Defendants are DISMISSED WITH PREJUDICE. The Clerk of Court is respectfully
DIRECTED to enterjudgment against Plaintiff accordingly and to close this case.
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
NICHOLAS G. GARAUFIS
United States District Judge
^ Moreover, a private entity may not be held liable under § 1983 on a respondeat superior theory. See Roias v.
Alexander's Den't Store. Inc.. 924 F.2d 406,408-09(2d Cir. 1990). The Second Circuit has held that the rule that a
municipality cannot be liable under § 1983 on a theory ofrespondeat superior,
^Monell v. Dep't of Soc. Servs..
436 U.S. 658(1978), also applies to § 1985 claims. See Zherka v. Citv ofNew York. 459 F. App'x 10,12(2d Cir.
2012)(summary order). It appears to be an open question in this circuit, however, whether a private entitv can be
liable under § 1985 solely on a theoiy ofrespondeat superior. Compare, e.g.. Jenkins v. Miller. No.2:12-CV-184,
2017 WL 4402431, at *19(D. Vt. Sept. 29,2017)Q)rivate entity can be liable on theoiy ofrespondeat superior for
employees' § 1985 violations), and Tchatat 2015 WL 5091197, at *13(same), with Bowen v. Rubin. 385 F. Supp.
2d 168, 176(E.D.N.Y. 2005)(applying Monell to § 1985 claims against private entities).
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