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RIVERA v. HORTON

May 1, 1998

FELIBERTO RIVERA, JR., Plaintiff,
v.
T.P. HORTON; C.O. LUCIA, Corrections Officer at Coxsackie Correctional Facility; D. BRYNE; SGT. SPATH; SUPT. MANTELLO; THOMAS A. CAPEN, Commissioner; THOMAS COUGHLIN; C.O. HENDERSON, Corrections Officer at Coxsackie Correctional Facility; T. CHASE, Sergeant; E. BLY, Corrections Officer, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM-DECISION & ORDER

 McAvoy, Chief District Judge:

 Before the Court is plaintiff's motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988, and an application by plaintiff's pro bono stand-by trial counsel for reimbursement of his out-of-pocket expenses. For the reasons that follow, plaintiff is awarded attorney's fees in the amount of $ 0.66, and plaintiff's stand-by counsel shall be reimbursed $ 1482.04 from the Pro Bono Fund to cover his out-of-pocket expenses.

 I. BACKGROUND

 In 1994, plaintiff Feliberto Rivera, Jr. filed four civil rights complaints pursuant to 42 U.S.C. § 1983. The complaints assert claims of excessive force against various officers of the Cocksackie Correctional Facility in New York. Each complaint relates to specific incidents of excessive force involving different individuals.

 In 94-CV-404, plaintiff claims that on December 6, 1993, Corrections Officers Horton, St. Lucia, Bryne, and Sergeant Spath intentionally used excessive force against him. In 94-CV-406, plaintiff alleges that on December 10, 1993, Sergeant Chase and Corrections Officer Henderson intentionally used excessive force against him. In 94-CV-405, plaintiff asserts that on January 1, 1994, Sergeant Spath and Corrections Officer Bly intentionally used excessive force against him. Finally, in 94-CV-407, plaintiff claims that between October 1993 and January 1994, Superintendent Mantello failed to investigate his complaints regarding the above incidents and threats of excessive force.

 These four cases were consolidated for trial, and a four-day jury trial was held in Utica, New York. At the close of plaintiff's proof, the Court granted defendants' motion pursuant to FED. R. CIV. P. 50 dismissing the action against Superintendent Mantello ( 94-CV-907). After a day-and-a-half of deliberation, the jury returned verdicts in the remaining three actions.

 In 94-CV-404, the jury concluded that Officer Horton intentionally used excessive force against plaintiff on December 6, 1993, but that such force did not proximately cause plaintiff any injury. The jury concluded that Sergeant Spath and Officers St. Lucia and Bryne did not intentionally use excessive force against plaintiff. In 94-CV-406, the jury concluded that Sergeant Chase intentionally used excessive force against plaintiff on December 10, 1993 and that such force proximately caused plaintiff injury. The jury concluded that Officer Henderson did not intentionally use excessive force against plaintiff. In 94-CV-405, the jury found that Sergeant Spath intentionally used excessive force against plaintiff on January 1, 1994 and that such force proximately caused plaintiff injury. The jury concluded that Officer Bly did not intentionally use excessive force against plaintiff.

 In sum, the jury returned verdicts for the plaintiff against two of the defendants (Sergeant Chase, 94-CV-406 ; Sergeant Spath, 94-CV-405), finding that they used excessive force against plaintiff that proximately caused him injuries. The jury awarded plaintiff only nominal damages of $ 1.00 against each of these two defendants.

 Plaintiff now moves for attorney's fees and costs in the amount of $ 6,925.90 pursuant to 42 U.S.C. § 1988. Additionally, plaintiff's pro bono stand-by trial counsel seeks reimbursement for his out-of-pocket expenses.

 II. DISCUSSION

 A. Calculation of Reasonable Attorney's Fees

 In an action for attorney's fees pursuant to 42 U.S.C. § 1988, the threshold determination is whether plaintiff is a "prevailing party." "Plaintiff[] may be considered a 'prevailing party' for attorney fee purposes if [he] succeed[s] on any significant issue in litigation which achieves some benefit the party sought in bringing suit." Dillenbeck v. Hayes, 830 F. Supp. 673, 674 (N.D.N.Y. 1993), (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)). "In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992). A party who recovers "any amount" as a nominal damage award is deemed a "prevailing party." Id. at 113; Fassett v. Haeckel, 936 F.2d 118, 122 (2d Cir. 1991).

 In the present case, plaintiff is a "prevailing party" under § 1988 because he was awarded nominal damages. The next issue is the amount of a reasonable fee. Hensley, 461 U.S. at 433. 42 U.S.C. § 1988 provides for the discretionary award of attorney's fees, in that the court "may" award "reasonable attorney's fees" to the "prevailing party." Traditionally, the reasonable fee for an attorney is calculated by finding the "lodestar" figure (number of reasonably expended hours multiplied by a reasonable hourly rate), and adjusting the resultant figure, as necessary, based on twelve other factors. See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 568, 91 L. Ed. 2d 466, 106 ...


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