Wheatley v. Ford

• Citation: 679 F.2d 1037
• Decision Date: 18 May 1982
• Docket Number: 530,D,Nos. 307,s. 307
• Parties: Robert WHEATLEY, Plaintiff-Appellee, v. Police Officers Michael FORD, Roger Lafferty, Kevin Gorman, Detectives Edward Zaleski, Gary Tirelli, Jay Richards and Detective Sergeant William Wagner, Defendants-Appellants. ockets 81-7443, 81-7621.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1037

679 F.2d 1037

Robert WHEATLEY, Plaintiff-Appellee, v. Police Officers Michael FORD, Roger Lafferty, Kevin Gorman Detectives Edward Zaleski, Gary Tirelli, Jay Richards and Detective Sergeant William Wagner, Defendants-Appellants.

Nos. 307, 530, Dockets 81-7443, 81-7621.

United States Court of Appeals Second Circuit.

Argued Dec. 7, 1981.

Decided May 18, 1982.

Sydney J. Chase, Mineola, N. Y. (Ilene S. Cooper, Mineola, N. Y., on brief), for plaintiff-appellee.

Robert O. Boyhan, Deputy County Atty., Mineola, N. Y. (Edward G. McCabe, County Atty., of Nassau County, Mineola, N. Y., on brief), for defendants-appellants.

Before LUMBARD, WATERMAN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is the second appeal in plaintiff's action for unlawful arrest and excessive use of force by defendants, members of the Nassau County Police Department. Plaintiff sued in the United States District Court for the Eastern District of New York, seeking damages under 42 U.S.C. § 1983 for the alleged violation of his constitutional rights. On the first trial, the jury found that Wheatley had been subjected to both an unconstitutional arrest and the unconstitutional use of force. It awarded plaintiff $800 for the unlawful arrest and $1 for the unlawful use of force.

On appeal, this Court reversed the $1 award and remanded the use of force issue for a new trial solely on the issue of damages. Wheatley v. Beetar, 637 F.2d 863 (2d Cir. 1980). One panel member voted against limiting the retrial to the issue of damages, on the ground that the nature and extent of plaintiff's alleged injuries were inextricably intertwined with the nature and extent of the defendants' alleged use of force. Id. at 868-69. The dissent believed that the seven defendants would be unfairly prejudiced by instructions that all seven of them had subjected plaintiff to excessive force, otherwise undescribed. Id. Upon retrial, the $1 verdict became a $55,000 verdict. In addition, the district court awarded attorney's fees of $39,742 pursuant to 42 U.S.C. § 1988. Defendants appeal from what they consider an excessive award of compensatory damages and from the award of attorney's fees.

I.

When reviewing a claim of excessive damages, an appellate court must accord substantial deference to the jury's determination of factual issues. Wheatley v. Beetar, supra, 637 F.2d at 865; Music Research, Inc. v. Vanguard Recording Society, Inc., 547 F.2d 192, 195 (2d Cir. 1976). In examining a lower court's discretionary refusal to set aside a verdict, an appellate court must view the evidence and draw all factual inferences in favor of the appellee. Grunenthal v. Long Island R. R. Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968). Nevertheless, a judgment cannot be upheld where the damages awarded are so excessive "as to shock the judicial conscience." See United States ex rel Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975); Caskey v. Village of Wayland, 375 F.2d 1004, 1007 (2d Cir. 1967). When a judgment is grossly excessive, this Court may order the plaintiff to remit excessive damages or undergo a new trial. O'Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089-90 (2d Cir. 1978); DeMauro v. Central Gulf SS Corp., 514 F.2d 403, 405 (2d Cir. 1975). With these considerations firmly in mind, we examine the record to determine whether a verdict of $55,000 was warranted.

Most of Wheatley's alleged injuries were temporary in nature. He testified that he was struck with a "slapjack", that his bare feet were stomped on, and that he was cuffed in the ears. His only claim of permanency was a perforated eardrum in his left ear, a slight loss of hearing in the upper range and tinnitus, or ringing in the ear, a very common ear-related complaint.

Moreover, although plaintiff produced evidence that he had a punctured eardrum at the time of his post-arrest physical examination, Dr. Sharfin, the examining physician, was unable to state whether the puncture was a fresh one. Dr. Sharfin made no notation in his records of the bleeding that would ordinarily accompany a recent wound. Furthermore, plaintiff did not mention the ear injury at the time he made a report of police brutality and requested medical attention. His first complaint of tinnitus followed an altercation that occurred during a period of unrelated incarceration. In any event, expert testimony tended to show that any hearing loss resulting from the punctured eardrum was very minor and would not interfere with normal activity.

The foregoing testimony simply will not support a verdict of the magnitude of this award. While perhaps severe, Mr. Wheatley's temporary discomfort did not last for long. The testimony is largely uncontradicted that any permanent hearing impairment is very minor. After careful review of the evidence, we feel that an award of $25,000 is adequate compensation for the injuries sustained. Accordingly, the judgment of the district court is reversed and the case remanded for a new trial, unless plaintiff is willing to remit all damages in excess of $25,000.

II.

Judge Pratt awarded plaintiff attorney's fees of $39,742 pursuant to 42 U.S.C. § 1988. Defendants claim that attorney's fees are inappropriate in this case and that the amount of the award results in an unwarranted windfall for plaintiff's attorney.

Section 1988 makes the awarding of attorney's fees discretionary with the trial court, and this Court has on numerous occasions approved the favorable exercise of that discretion. See, e.g., Milwe v. Cavuoto, 653 F.2d 80, 82-84 (2d Cir. 1981); Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 504-07 (2d Cir. 1980). In Milwe v. Cavuoto, supra, we held that a factor to be considered in determining the propriety of a section 1988 award is whether a plaintiff in a similar situation would be deterred from bringing the action absent the likelihood of such an award. Milwe recognized that a request for attorney's fees should not be denied merely because the action provided a private benefit to the plaintiff rather than a public benefit to a class of similarly situated persons.

We believe that a plaintiff in Wheatley's position might well be deterred from pursuing his claim, absent some provision for attorney's fees. Yet, actions such as this which deter police overreaching benefit society as a whole. Milwe v. Cavuoto, supra, 653 F.2d at 84; Fox v. Parker, 626 F.2d 351, 353 (4th Cir. 1980). Under these circumstances, the trial court did not err in granting Wheatley's application for attorney's fees.

The magnitude of the award presents, however, a more serious question. Although awards of attorney's fees are within the discretion of the trial court, this Court has repeatedly stressed the need to view such awards with an "eye to moderation" so as to avoid even the appearance of windfall fees. Beazer v. New York City Transit Authority, 558 F.2d 96, 101 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-70 (2d Cir. 1974).

The total award of $39,742 was based upon a lodestar figure of $29,742 plus a bonus allowance of $10,000. Because defendants do not contest the number of hours or the hourly rates claimed by plaintiff's attorney, the appropriateness of the lodestar figure is not at issue. On the facts of this case, however, we cannot uphold the $10,000 bonus awarded by the district court. The legal issues involved were not inordinately complex. See Beazer v. New York City Transit Authority, supra, 558 F.2d at 100. Neither were the factual issues. Although the absence of any serious injuries precluded the possibility of a substantial verdict, there was little likelihood that plaintiff would be defeated on the issue...