Opinion
Case No. 3:17-cv-01702-IM
03-03-2020
JESSICA PETERSON, Plaintiff, v. EDGAR MICKLES, MARSHA MCCORKHILL, CPT. ALANA BRUNS, LESTER A. KISER, ROB PERSSON, LISA HALL, FORREST LYONS, BOB K. NELSON, CO AMANDA RASMUSSEN, and DENNIS CASWELL, in their personal capacities; JOHN DOE 1-12; JANE DOES 1-12, Defendants.
Leonard R. Berman, 9220 SW Barbur Boulevard, Suite 119, Box 180, Portland, Oregon 97219. Attorney for Plaintiff.
OPINION AND ORDER
Leonard R. Berman, 9220 SW Barbur Boulevard, Suite 119, Box 180, Portland, Oregon 97219. Attorney for Plaintiff. IMMERGUT, District Judge.
Plaintiff Jessica Peterson filed claims under 42 U.S.C. § 1983 against current and past officials at the Coffee Creek Correctional Facility ("Coffee Creek"), where she was formerly incarcerated. This Court previously granted summary judgment to Defendants McCorkhill, Bruns, Kiser, Persson, Hall, Lyons, Nelson, Rasmussen, and Caswell ("State Defendants"). ECF 88. At Plaintiff's request, the Court also dismissed Plaintiff's claims against Defendants John Doe 1-12 and Jane Does 1-12. See ECF 82.
Currently before the Court is Plaintiff's amended motion for default judgment of $500,000 against Defendant Edgar Mickles. ECF 98. Defendant Mickles has not appeared to defend against this action, and the Clerk entered his default under Rule 55(a) on October 18, 2019. ECF 77. After considering the record and evidence submitted in support of this motion, the Court grants Plaintiff's motion and finds that Plaintiff is entitled to the $500,000 in damages requested.
The Court denied Plaintiff's previous motion for default judgment, ECF 95, because it did not comply with the requirements of Rule 7 of the Federal Rules of Civil Procedure. ECF 97.
Plaintiff filed a notice of appeal on February 2, 2020. ECF 94. On February 28, 2020, the Ninth Circuit dismissed the appeal for lack of jurisdiction. Peterson v. Mickles et al., No. 20-35083, Dkt. 6 (9th Cir. Feb. 28, 2020); see Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (holding that grant of partial summary judgment is a non-appealable interlocutory order). In dismissing the appeal, the court noted that its order would act as the mandate upon 21 days after issue. However, "[w]hen a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply." Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (citing Ruby v. Sec'y of Navy, 365 F.2d 385, 388-89 (9th Cir. 1966)). Therefore, the Court has jurisdiction to decide this motion.
STANDARDS
Following the clerk's entry of default under Federal Rule of Civil Procedure 55(a), the general rule is that "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). The court, however, does not accept as admitted legal conclusions or facts that are not well-pleaded. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007). "[N]ecessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).
After the clerk has entered a defendant's default, the court may enter a default judgment against that party. See Fed. R. Civ. P. 55(b)(2). The court's decision whether to enter a default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit has identified seven factors to guide a district court's consideration of whether to enter a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The "starting point," however, "is the general rule that default judgments are ordinarily disfavored." Id. at 1472.
BACKGROUND
In 2015 and 2016, Plaintiff was an inmate at Coffee Creek, an Oregon state prison. Second Am. Compl., ECF 21 at ¶¶ 1-2, 5. While incarcerated, Plaintiff worked in Coffee Creek's programs building. Id. at ¶ 11. Defendant Mickles was a Coffee Creek employee from 2013 to 2016, with responsibility for maintenance of the programs building. Id. at ¶¶ 12-13.
Plaintiff and Defendant Mickles met in August 2015, and he began grooming her for sexual abuse that month. Id. at ¶ 16. Using his responsibility for maintenance, Defendant Mickles found ways to be alone with Plaintiff. Id. at ¶ 19. He requested sexual contact with Plaintiff and touched her buttocks multiple times. Id. at ¶ 16. In October, Defendant Mickles asked Plaintiff to kiss her on numerous occasions, which she did. Id. That month, Defendant Mickles also asked Plaintiff, "You wanna do it?" which Plaintiff understood to be a request to engage in sexual activity. See id. at ¶ 17. In December 2015, Plaintiff and Defendant Mickles twice engaged in oral sex. Id. at ¶ 19. Plaintiff agreed to have sexual intercourse with Defendant Mickles for the first time in November or December of 2015. Id.
After that first time, Plaintiff told Defendant Mickles that she no longer wanted to engage in sexual activity with him. Id. After a couple of weeks, Defendant Mickles told Plaintiff that he wanted to have sex with her again, which she declined. Id. He did not listen and began to make sexual gestures and remarks to her about further sexual behavior. Id. Every day, Defendant Mickles would make sexual comments and jokes to Plaintiff. Id. at ¶ 20. He also touched her buttocks, crotch, and breasts on a near-daily basis. Id. In December 2015, while Plaintiff was cleaning and listening to music through headphones, Defendant Mickles came up to Plaintiff, surprising her. See id. at ¶ 18. As he pulled her on top of a table, she protested physically and tried to get away from him. See id. When she asked what he was doing, he responded, "Shut up bitch!" Id. Holding his hand over her mouth, he forced her to have sexual intercourse with him. Id. He also subjected her to "non-forcible, but non-consensual" sexual intercourse in January 2016. Id.
In total, Defendant Mickles forced Plaintiff to engage in intercourse or oral sex on at least eight to ten occasions. Id. at ¶ 35(1). In order to do so, he threatened Plaintiff, telling her that she would lose her job and get in trouble if she reported his actions. Id. at ¶ 35(2)(a)-(b). He also took advantage of his position as a Coffee Creek employee. Id. at ¶ 35(2)(c). Because she did not believe that Defendant Mickles could be stopped in this conduct, Plaintiff was extremely afraid during this time. Id. at ¶ 36.
As a result of these actions, Plaintiff has suffered from severe emotional distress. Peterson Decl., ECF 96 at ¶ 19. She is now thirty-five years old, and she continues to have flashbacks to these events. Id. She believes that she will suffer from trauma from them for the rest of her life. Id.
DISCUSSION
A. Default Judgment
This Court finds that the Eitel factors weigh in favor of entering a default judgment against Defendant Mickles. First, because a default judgment is Plaintiff's only avenue of recovery, she will be prejudiced unless the motion is granted. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). On the second and third factors, the allegations in the complaint are sufficient and demonstrate the merits of Plaintiff's substantive claim against Defendant Mickles. Taken as true, these allegations establish that Defendant Mickles, acting under color of state law, sexually abused Plaintiff on multiple occasions while she was incarcerated. These facts are enough to state a claim under the Eighth Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000). On the sixth factor, this Court finds it unlikely that default was due to excusable neglect. Through his attorney, Defendant Mickles waived service of the summons on November 30, 2017. ECF 9. He has not contacted the Court or appeared to defend this action in any manner. Finally, the seventh factor does not preclude default judgment here. "Since Defendant[ has] refused to defend the action brought against [him], the Court is unable to adjudicate the case on the merits." Bd. of Trs. of Plumbers & Pipefitters Nat'l Pension Fund v. GS Air Conditioning, Inc., No. CV1002194GAFFMOX, 2010 WL 11597949, at *7 (C.D. Cal. Oct. 28, 2010). This Court therefore grants Plaintiff's request to enter default judgment.
Pleadings previously filed by the State Defendants indicate that on November 30, 2017, Defendant Mickles was admitted to the custody of the Oregon Department of Corrections on criminal convictions related to this action. ECF 22 ¶ 16; see also Berman Decl., Ex. 2, ECF 50-2 (indictment in State v. Mickles, No. 16CR64905 (Washington Cty. Cir. Ct.)); Spooner Decl., Ex. 1, ECF 56-3 (judgment of conviction in same case).
The other Eitel factors concern "the sum of money at stake in the action," and "the possibility of a dispute concerning material facts." Eitel, 782 F.2d at 1471-72. Although $500,000 is a substantial amount of money and there may be some possibility of dispute regarding material facts, the Court finds that these factors do not outweigh the other considerations. --------
B. Damages
Plaintiff must establish her damages on a motion for default judgment. See Geddes, 559 F.2d at 560. Under section 1983, a prisoner who is sexually abused while incarcerated may recover damages for mental and emotional distress. See 42 U.S.C. § 1997e(e); Carey v. Piphus, 435 U.S. 247, 263-64 (1978).
Here, Plaintiff seeks $500,000 for mental and emotional distress caused by sexual abuse committed by Defendant Mickles. ECF 98. In support of her motion, Plaintiff has submitted an affidavit describing how she was raped by Defendant Mickles and how she continues to suffer trauma from that abuse. Peterson Decl., ECF 96. Plaintiff is currently thirty-five years old, and she expects that she will suffer from this abuse for the rest of her life. Id. at ¶ 19. After considering this evidence, the Court finds that Plaintiff is entitled to $500,000 from Defendant Mickles in damages for mental and emotional distress.
CONCLUSION
Plaintiff's motion for default judgment, ECF 98, is GRANTED as to Defendant Mickles.
IT IS SO ORDERED.
DATED this 3rd day of March, 2020.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge