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ZARCONE v. PERRY

September 21, 1977

Thomas ZARCONE, Plaintiff,
v.
William M. PERRY, James Windsor, Robert J. Anderson, Patrick Giambalvo, Philip F. Corso, Eugene R. Kelley and the County of Suffolk, New York, Defendants



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

On April 30, 1975, at about 7:20 P.M., William M. Perry, a district judge of Suffolk County, presiding over night traffic court in Hauppauge, requested Deputy Sheriff James Windsor to buy coffee from Thomas Zarcone, a coffee vendor, who was regularly stationed outside the courthouse. After tasting the coffee and expressing disapproval of its quality, Perry directed Windsor to bring Zarcone before him, and, if necessary, place him in handcuffs. He also suggested that Robert J. Anderson and Patrick Giambalvo, police officers present in his chambers at the time, accompany Windsor. Zarcone was handcuffed and brought before Perry. On September 30, 1975, Zarcone filed a complaint against Perry, Windsor, Anderson, Giambalvo and the County of Suffolk under 42 U.S.C. § 1983, and against Eugene R. Kelley, Commissioner of Police of Suffolk County, and Frank J. Corso, Sheriff of Suffolk County, charging the negligent training and supervision of police officers and deputy sheriffs. The court dismissed the complaint against the County of Suffolk in a memorandum of decision and order dated March 22, 1976, and against Corso and Kelley in a memorandum of decision and order dated April 6, 1976. *fn1"

On July 20, 1977, a verdict was rendered after trial by jury in favor of Zarcone and against Perry and Windsor. The jury awarded compensatory damages of $ 80,000 and punitive damages of $ 61,000 ($ 60,000 against Perry and $ 1,000 against Windsor). The jury found in favor of Anderson and Giambalvo. Judgment was entered on July 20, 1977. Plaintiff now moves under 42 U.S.C. § 1988 for ". . . a reasonable attorney's fee as part of the costs." *fn2"

 The Congress authorized the award of reasonable attorneys' fees as part of the costs in Civil Rights Acts not otherwise authorized, *fn3" in response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) and Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976). *fn4" In those cases, the Supreme Court refused to award attorneys' fees to the prevailing plaintiffs on the ground that such costs are not usually recoverable in federal litigation unless Congress so provides. The Court held in Runyon :

 
As the court recounted in some detail in Alyeska, supra, 421 U.S. at 247, 95 S. Ct. at 1616 passim, the law of the United States, but for a few well recognized exceptions not present in this case, has always been that absent explicit congressional authorization, attorney's fees are not a recoverable cost of litigation. Hence, in order to 'furnish' an award of attorney's fees, we would have to find that at least as to cases brought under statutes to which § 1988 applies, Congress intended to set aside this longstanding American rule of law. We are unable to conclude, however, from the generalized commands of § 1988 that Congress intended any such result.

 Id. at 2601 (footnote omitted).

 The award of an attorney's fee is not mandatory. The discretionary authority preserved in the amendment indicates a Congressional intent that some prevailing litigants in civil rights actions should not be awarded an attorney's fee. In providing for the award of an attorney's fee in the civil rights area, Congress recognized that such laws, to a large degree, are privately enforced, and that often the citizen who sues to enforce the law is unable to bear the cost of litigation. As was stated in the Senate Report:

 
(a)ll of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.

 S.Rep. No. 94-1011, 94th Cong., 2nd Sess. 2 (1976) reprinted in 5 U.S. Code Cong. & Admin.News pp. 5908, 5910.

 The reference in the Senate Report *fn5" to the opinions in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968) and Hall v. Cole, 412 U.S. 1, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973) is significant. Newman was a class action seeking to enjoin racial discrimination at five drive-in restaurants and a sandwich shop. The Court noted:

 
When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only.

 Id. at 401, 88 S. Ct. 966 (footnote omitted). In Cole v. Hall, 462 F.2d 777 (2d Cir. 1972), aff'd sub nom. Hall v. Cole, supra, Mr. Justice Clark, writing for the Court of Appeals, held that in vindicating the right of free speech of union members under Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(2) ". . . he (Cole) was not vindicating his rights of free speech alone but those of every member of the union as well. Indeed, his success in maintaining this right at union meetings inured to the benefit of union members everywhere." Id. at 780.

 Plaintiff's claim is one solely for damages. It is basically a tort action for false arrest and imprisonment couched in the language of a violation of the constitutional right to due process. Only in a general, indirect sense did Zarcone's successful litigation vindicate the public's right to due process. It did so to the degree that every successful plaintiff in a personal injury action vindicates the public's right not to be injured through the negligent conduct of an operator of a motor vehicle, a doctor, or a lawyer.

 Prevailing plaintiffs in civil rights actions are not routinely granted attorneys' fees simply because they are awarded damages. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Rather, it is only when plaintiffs advance the public interest by bringing the action that an award of attorneys' fees is proper. The award of damages to this type of litigant does not detract from the concept that their lawyers are acting as private attorneys general. Thus, in actions based on Title VII of the Civil Rights Act of 1964, litigants who were awarded monetary damages and who also vindicated rights of a class based on race, color or sex have been granted attorneys' fees. E. g., Allen v. Amalgamated Transit Union, Local 788, 415 F.Supp. 662 (E.D.Mo.1976) (back pay and punitive damages granted on a claim of racial discrimination by the union); Harrington v. Vandalia-Butler Board of Education, 418 F.Supp. 603 (S.D.Ohio 1976) (back pay denied but damages granted on a claim of sex discrimination female working conditions inferior to those of male); Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974) (damages for back pay and harassment granted on claim of sex discrimination by union and employer hotel). Our research has disclosed that in every action brought under Title VII of the Civil Rights Act of 1964 where damages have been awarded and attorneys' fees granted, the interest of the public or an identifiable class has been benefited. *fn6"

 We find support for our position in Fort v. White, 530 F.2d 1113 (2d Cir. 1976). *fn7" In discussing the factors it considers in awarding attorneys' fees to prevailing parties in private fair housing suits pursuant to 42 U.S.C. § 3612(c), *fn8" the Court stated:

 
The award of counsel fees encourages private enforcement of statutes directing the elimination of discriminatory practices. . . . An award of counsel fees (encourages) individuals to seek judicial relief which, through the injunctive remedy (achieves) success not only for the individual plaintiff but others similarly circumstanced. § 3612(c) however as we have noted, expressly provides for actual as well as punitive damages so that the successful litigant in the usual case will be able to pay his counsel fees out of damages; hence we cannot accept the argument that every successful litigant is entitled to counsel fees as a matter of course.

 Id. at 1118.

 In directing the award of counsel fees, the Court further said:

 
It is a matter of discretion for the trial judge but in the exercise of that discretion the role of counsel acting not only on behalf of his client but others similarly situated cannot be ignored. . . . In view of this contribution we feel that the plaintiffs may be recognized as having rendered substantial service to the community and that on this basis ...

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