WOODWARD & LOTHROP v. HILLARY

• Decision Date: 26 September 1991
• Docket Number: No. 89-1082,No. 89-994,89-994,89-1082
• Citation: 598 A.2d 1142
• Parties: WOODWARD & LOTHROP, et al., Appellants, v. Carnell HILLARY, Appellee. Carnell HILLARY, Appellant, v. WOODWARD & LOTHROP, et al., Appellees.
• Court: D.C. Court of Appeals

598 A.2d 1142

WOODWARD & LOTHROP, et al., Appellants, v. Carnell HILLARY, Appellee.Carnell HILLARY, Appellant, v. WOODWARD & LOTHROP, et al., Appellees.

Nos. 89-994, 89-1082.

District of Columbia Court of Appeals.

Argued April 16, 1990.

Decided September 26, 1991.

Appeal from the Superior Court, Steffen W. Graae, J.

Thomas B. Morrison, Rockville, Md., for appellants/cross-appellees.

Metcalfe C. King, Washington, D.C., for appellee/cross-appellant.

Before ROGERS, Chief Judge, FARRELL, Associate Judge, and REILLY, Senior Judge.

FARRELL, Associate Judge:

Woodward & Lothrop, which operates a downtown department store (among others), and Dwayne Wigfall and Earl Sellers, two security guards employed by the store, appeal from a jury verdict in favor of Carnell Hillary on Hillary's tort claims for false arrest, false imprisonment, assault and battery, and conversion, and his claim under 42 U.S.C. § 1983 (1989) for violation of his civil rights. Contesting the judgment on the constitutional tort claim, appellants assert that the trial judge erred in concluding as a matter of law that Wigfall and Sellers, who were special police officers commissioned under D.C.Code § 4-114 (1988),¹ acted under color of state law in subduing, arresting and detaining Hillary when he entered the store after closing time in May of 1986. Appellants also contend that the judge erred in allowing the jury to enter a separate finding as to damages on the § 1983 claim, arguing that the components of damages recoverable under the common law tort claims are identical to those comprising § 1983 damages, and thus Hillary received an excessive award for his compensable injuries. Appellants further assert that the judge erred in allowing Dwayne Wigfall to testify that Woodward & Lothrop had terminated his employment for misappropriation of funds. Finally, both sides challenge aspects of the trial judge's award of attorney's fees to Hillary under 42 U.S.C. § 1988.

For the reasons discussed below, we find no error in the judgment on the jury verdict, and affirm it. We must, however, vacate the award of attorney's fees and remand for a statement of findings and conclusions sufficient to permit meaningful review of that award.

I. Facts and Proceedings Below

On the evening of May 9, 1986, Hillary entered the Woodward & Lothrop store at 11th and F Streets, N.W., to buy clothing. A cashier told him the store was closing, According to Hillary, as he turned to leave, Sellers, a security guard employed by the store, grabbed him, turned him around, and told him to accompany him. As they were walking, Sellers struck him in the right eye without provocation. In the ensuing scuffle Sellers called out for assistance and was joined in the attempt to subdue Hillary by his supervisor, Wigfall. They wrestled Hillary to the floor employing a headlock and landing several punches in the process, and handcuffed him. At some point Hillary was searched and, he asserted, two hundred dollars was taken from his pocket. He was taken in handcuffs across the street to the Woodward & Lothrop security office located in a separate building, where he was detained. Metropolitan Police Department Officers were called to transport him, but after two unidentified officers arrived he was released, and no criminal charges were brought against him. Hillary testified that the two hundred dollars taken from him during the search was never returned. According to medical experts who testified at trial, he suffered a fracture of the zygoma (the cheek bone), permanent drooping of his right eyelid, and permanent restriction in his field of vision as a result of the injuries.

On February 6, 1987, Hillary filed suit against Woodward & Lothrop in Superior Court alleging false arrest, false imprisonment,assault and battery, invasion of privacy, intentional infliction of emotional distress and conversion. On December 11, 1987, he filed an amended complaint joining Sellers and Wigfall as defendants and adding a count under 42 U.S.C. § 1983 for violation of his constitutional rights to bodily integrity and against unlawful search and seizure. The case proceeded to trial before Judge Graae and a jury, and at the close of the evidence the judge directed a verdict against Hillary on the invasion of privacy and intentional infliction of emotional distress counts. The judge also ruled as a matter of law that Sellers' and Wigfall's actions were taken under color of state law, and instructed the jury accordingly as part of the charge on the § 1983 claim.²

The judge prepared and submitted to the jury a verdict form containing places for the jury to indicate whether it found for or against the plaintiff on each of the remaining counts. For the common law torts, the form included a space for an award of compensatory damages against all defendants jointly and severally, and a space for punitive damages against the individual defendants only. It also contained a space for a separate award of damages on the constitutional tort claim. The jury returned a verdict in favor of Hillary on all counts, awarding him $845 in compensatory damages against all defendants, $10,000 in punitive damages against Sellers and Wigfall on the common law tort claims,³ and $40,000 against all defendants on the constitutional tort claim. The judge denied the defendants' motion for a new trial or for a remittitur, and an appeal was noted.

On May 16, 1989, Hillary applied for attorney's fees under 42 U.S.C. § 1988, requesting an award based on hours expended on the case and an upward adjustment owing to the uncertain prospect of success and delay in receipt of payment of fees. The judge entered an order granting the application in part by awarding the base amount, but denying the requested multipliers. The defendants noted a second appeal from the order awarding attorney's fees, and Hillary noted a cross-appeal from the judge's denial of his request for upward adjustment of the base amount.

II. Section 1983 Issues

A. Color of State Law

Appellants contend that the trial judge erred in concluding, as a matter of law, that Sellers and Wigfall acted under color of state law in subduing, arresting and detaining Hillary. We find no error in the judge's resolution of this issue, as Sellers and Wigfall were exercising authority conferred on them by their commission as special police officers.⁴

The trial judge relied on decisions of this court holding that special police officers act as agents or instrumentalities of the state in conducting searches and seizures incident to their power to arrest, and thus are subject to the restrictions of the Fourth Amendment. See, e.g., United States v. Lima, 424 A.2d 113, 119-20 (D.C. 1980) (en banc); Alston v. United States, supra note 4, 518 A.2d at 441-43; Lucas v. United States, 411 A.2d 360, 362 (D.C. 1980). We agree that this principle controls the question presented here.

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). A person acts "under color of state law" when he exercises a "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. at 49, 108 S.Ct. at 2255 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).⁵ In Lima, supra, we acknowledged that involvement by the state is necessary to trigger the protections of the Fourth Amendment: "a private individual [commits] no constitutional violation . . . absent governmental involvement in the intrusion." 424 A.2d at 117. The "state action" we deemed necessary to invoke the Fourth Amendment in Lima, Alston, and Lucas, and action "under color of state law" for § 1983 purposes, are "obviously related" if not coextensive concepts. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982). The Supreme Court recently iterated that if the defendant's conduct satisfies the "state action" requirement for purposes of the Fourteenth Amendment, "that conduct is also action under color of state law and will support a suit under § 1983." West v. Atkins, 487 U.S. at 49, 108 S.Ct. at 2255 (quoting Lugar v. Edmondson Oil, 457 U.S. at 935, 102 S.Ct. at 2753). Thus, we have little difficulty concluding that action by a special police officer fairly attributable to the state for purposes of the Fourth Amendment under Lima, Alston and Lucas also satisfies the "color of law" prerequisite for a § 1983 suit.

United States v. McDougald, 350 A.2d 375 (D.C. 1976), on which appellants rely, is not to the contrary. There we held that the mere fact a commissioned special police officer does the allegedly unconstitutional act does not itself denote official action. Id. at 378. In particular, we refused to attribute to the state an alleged due process violation — viz., a special police officer's instruction to a witness not to discuss a criminal case with defense counsel outside the presence of the prosecutor — because the officer, in conveying the policy to the witness, "was not performing a public function authorized by his commission as a special policeman." Id. In the present case, the required nexus with the state is furnished not by the fact of the commission alone — as in McDougald — but by the convergence of the authority bestowed by thecommission and the officers' actions.⁶ In Alston, citing McDougald, we recognized that special police officers are not "in all their actions" equated with regular police officers, 518 A.2d at 443 (emphasis added), but we held that a special police officer does act as a state agent or instrument when the challenge "involves the arrest of a suspect and actions related thereto — the broad ...