Champagne v . Rivas, et a l . 05-cv-079-SM 09/28/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Palacio Paladin and Richard West, Plaintiffs

v. Civil N o . 05-cv-079-SM Opinion N o .

Cesar Rivas, Theresa Pendleton, and James O’Mara, Jr., Superintendent, Hillsborough County Department of Corrections, Defendants

O R D E R

This case is the third to go to trial on claims arising from

an incident that occurred on July 1 4 , 2002, at the Hillsborough

County House of Corrections. See Suprenant v . Rivas, et a l . ,

(1st Cir. 2005); King v . Rivas, et a l . , N o . 04-cv-356-SM,

D.N.H. Like the plaintiffs in those earlier cases, the

plaintiffs here, Palacio Paladin and Richard West, were also

pretrial detainees at the county jail, and were among a group of

nine inmates accused of rushing or cornering a correctional

officer, they say falsely. They, too, brought suit against the

accusing correctional officer, Cesar Rivas, a disciplinary

officer, Theresa Pendleton, and the superintendent of the jail,

James O’Mara, Jr., in his official capacity.1

1 Since O’Mara was sued in his official capacity only, the claim is deemed to be one against the governmental entity, here Plaintiffs claimed, respectively, that the correctional

officer falsely accused them of rushing and threatening him as

part of a group intending to take him hostage; that the

disciplinary officer who was assigned to investigate and

adjudicate the matter and who subsequently imposed administrative

discipline on them, was unconstitutionally unfair and biased; and

that the superintendent (the county) subjected them to

unconstitutional conditions of confinement. The case was tried

to a jury. Verdicts were returned in favor of the defendant

correctional officer, but against the disciplinary officer and

the superintendent. The jury awarded Paladin and West $1.00 each

in nominal damages, and $50,000 each in punitive damages against

the disciplinary officer, and awarded Paladin $50,000 in

compensatory damages and West $1.00 in nominal damages against

the superintendent.

Defendants Pendleton and O’Mara move for judgment as a

matter of law, remittitur, o r , alternatively, a new trial.

Plaintiffs object, and move for an award of attorney’s fees.

.

Hillsborough County. Wood v . Hancock County Sheriff’s Dep’t,

7 , 58 n.1 (1st Cir. 2003); Nereida-Gonzalez v . Tirado- Delgado,

0 1 , 705 (1st Cir. 1993).

2 Background

The evidence presented at trial, taken in the light most

favorable to the verdict, see Correa v . Hosp. San Francisco,

(1st Cir. 1995), would permit a rational jury

to find the following factual circumstances.

On the evening of July 1 4 , Cesar Rivas, a relatively new

corrections officer, was alone on duty in Unit 2 D , a medium

security pod within the county jail. During a period when half

of the roughly 100 inmates housed in the Unit were allowed out of

their cells (to shower, exercise, watch television, make phone

calls, e t c . ) , Rivas radioed an alarm — known as a “10-33” call —

designed to summon quick assistance from a trained stand-by team

of officers. The Unit was promptly locked down, with all inmates

confined to their cells. Rivas claimed that he had been rushed

or cornered by a large group of twenty or more inmates apparently

intent upon doing him harm. He identified nine inmates as being

among those who cornered him, including plaintiffs in this case,

Palacio Paladin and Richard West. The inmates Rivas identified

were “lugged,” or taken from Unit 2D to Unit 2 B , a restricted

isolation wing known among inmates as “the hole.”

3 Plaintiffs denied to correctional officials that the

incident ever happened as Rivas described i t . West said he was

on his way to the shower and, seeing Officer Rivas, engaged him

in a normal conversational tone in an effort to resolve what he

perceived to be friction between them. Inexplicably to West,

Rivas immediately made the “10-33” call and declared a lock down

on Unit 2D. Paladin said that he was not even in the area, but

was outside in the exercise yard, playing basketball with other

inmates.

The nine inmates were all held in the segregation unit under

identical or virtually identical conditions. The evidence

regarding conditions experienced by plaintiffs in this case was

substantially the same as that presented in Suprenant, supra, and

supported the succinct description of conditions set out in that

opinion:

Inmates in segregation cells were allowed only a mattress, sheet, pillow and prison uniform. All other items were forbidden, even legal papers, writing instruments, and articles essential to personal hygiene (like soap and toilet paper). Although each cell contained a sink and toilet, the jailers restricted inmates’ water usage in order to prevent deliberate flooding. Thus, each cell’s water supply was turned off regardless of whether the occupant had ever been involved in a flooding incident. If an inmate needed to flush his toilet, get a drink, or wash his hands, he had to ask a correctional officer to turn on the water momentarily. Frequently, no correctional officer was

4 nearby and, even if one was in the vicinity, the inmate ran the risk that the officer would choose either to ignore his request or to dawdle in fulfilling i t .

[Plaintiffs] also [were] made subject to a “three-day rotation.” Inmates on three-day rotation were allowed out of their cells only once every three days, in shackles, for a quick shower. They could not make telephone calls, receive mail, or have visitors (although attorneys, on their own initiative, could see their clients). [Plaintiffs] remained . . . on a three-day rotation for upwards of three weeks.

To make matters worse, inmates on a three-day rotation were subjected to as many as five in-cell strip searches each day. The process required the inmate to manipulate several unclean areas of his body in order to show officers that those areas did not conceal contraband. The inmate then had to place his fingers in his mouth for the same purpose. The evidence indicated that the strip searchers often orchestrated these steps so that an inmate would have to manipulate his armpits, groin, and buttocks before manipulating his cheeks and tongue. Because of the in-cell water restrictions, an inmate ordinarily could not wash his hands prior to such a search. Not infrequently, a strip-searched inmate would have to eat his meals with the same unclean hands.

Suprenant,

.

In addition, the jury could have reasonably found that meals

provided to Paladin in the segregation unit were insufficient and

as a result he lost approximately 100 pounds during his stay on

Unit 2 B . (Paladin so testified and another inmate among the

nine, Nicholas Champagne, testified “half portions” were served

on Unit 2B.) And, the evidence supported the conclusion that,

5 due to his large size, the shackles placed on Paladin during the

abbreviated time allowed him outside the cell, caused unnecessary

pain and injury in the form of cuts and sores.

Defendant Teresa Pendleton, a disciplinary officer in the

jail, was assigned to investigate and adjudicate violations of

jail rules and policies. She reviewed Rivas’s report and

investigated the Rivas incident. She quickly charged plaintiffs

and the others with participating in rushing, threatening, and

attempting to take Rivas hostage.2

During the course of her investigation into the matter,

Pendleton was told by Inmate Suprenant, one of the nine, that he

was not at the alleged scene, but on an upper tier, lifting

weights with other inmates. He identified witnesses who could

support his alibi, but Pendleton chose not to interview them.

Similarly, others in the identified group — David Coulombe and

Champagne — said that they were in the telephone line on the

other side of the Unit, and were not near Rivas. Paladin told

Pendleton that he was in the outside yard playing basketball and

2 Rivas emphatically denied stating that the incident involved threatened hostage-taking, testifying that “That came down the road from somebody else, but I never used the word hostage at all.” The jury could have reasonably concluded that Pendleton added that embellishment.

6 was just coming inside when the lock down occurred, and

identified inmates who could corroborate his story.

From her testimony at trial it was apparent to the court,

and no doubt to the jury, that Pendleton’s investigation, and her

consideration of the charges against the nine inmates identified

by Rivas, was fundamentally unfair. She prejudged the matter,

seemingly from the outset, based solely upon Rivas’s incident

report, information she allegedly obtained from a confidential

informant within the jail, and a general predisposition not to

credit inmate testimony, at least not of an exculpatory nature.

She seemingly refused to accept or even consider information

inconsistent with the foregone conclusion that the named inmates

were in fact guilty of rushing, cornering and threatening Officer

Rivas, and, she assumed, attempting to take him hostage — all

very serious charges with very serious consequences.

Pendleton seemed to categorically dismiss exculpatory inmate

information from the outset as inherently unreliable, and

declined to even look into claims which, if true, would have

completely exonerated a charged inmate. For example, she

accepted as credible one member of the group’s statement that he

saw inmates near Rivas, but rejected as not credible his

7 statement that he was watching from a doorway and was not

involved (Waterman). It was not just what she said, but the tone

and manner in which she testified and the attitude she displayed,

that conveyed her complete disinterest in information not

supportive of the charges leveled against those inmates Rivas

identified.

In addition to finding that Pendleton categorically ignored

information inconsistent with Rivas’s version of events, the jury

could also have concluded that she exaggerated, if not outright

falsified, inculpatory information allegedly provided by a

confidential informant. Pendleton claimed that a cooperating

inmate, John Grady, told her that at the time of the Rivas

incident, he was among that group of 2D inmates still in their

cells (only half the Unit is allowed out-of-cell time in any

given period), and that he saw a group of inmates cornering

Rivas, albeit one smaller than that Rivas had described. But

Grady testified to the contrary at trial. He said he had not

told Pendleton that he witnessed inmates surrounding or rushing

Rivas. In fact, he pointed out that he could not have seen the

alleged confrontation from his cell, given its location and the

physical layout of the Unit, which effectively blocked his view

of the critical area — a fact not seriously contested. Pendleton

8 also claimed that Grady told her the ringleader was known as Mex

and occupied the cell Paladin was assigned. (Paladin was known

as “Big Mex.”) Grady’s testimony was not supportive of Pendleton

on that point. Grady also testified at trial that he saw Baker

and Champagne in line to use the telephone at the time of the

incident, and he told Pendleton that. But Pendleton, who relied

on Grady’s alleged corroboration of Rivas’s version of events as

credible, did not find his exculpatory observations credible,

because she also found Champagne and Baker guilty.

Plaintiffs contended at trial that Rivas falsely accused

them of rushing and threatening a corrections officer. They

suggested to the jury, with some evidentiary support, that Rivas

did so deliberately in order to “clean up” a particular corner in

the Unit — that i s , to punish or remove a group of inmates he

deemed troublesome. Alternatively, it was argued, he simply

panicked when West engaged him in conversation, being

inexperienced and alone on the Unit, and, having made a baseless

“10-33” call, Rivas fabricated a justification — the story of a

large group of inmates rushing and threatening him, conveniently

naming inmates whom he disliked, to cover up his panicked action.

They also claimed Pendleton deprived them of their right to an

impartial hearings officer before discipline was imposed, and

9 that O’Mara imposed unconstitutionally harsh conditions of

confinement.

Sufficiency of the Evidence

Conditions of Confinement

Defendant O’Mara challenges the verdicts against the county

on grounds that the conditions on Unit 2 B , “the hole,” did not

fall below constitutional standards, at least not for a

sufficient duration to rise to the level of a constitutional

deprivation. The court disagrees.

Viewing the facts in the light most favorable to the

verdict, as must be done, I find that the evidence presented

supported the jury’s verdict against O’Mara. The jury could have

reasonably concluded that plaintiffs were confined under

conditions that were so extreme, egregious and physically harsh

as to fall below the minimum standards of civilized decency and

thereby shock the conscience, and conditions that were not

reasonably related to a legitimate penalogical purpose.

Plaintiffs were subjected to a “three-day rotation” policy for

more than three weeks during which they were left in small cells,

in isolation, for twenty-four hours a day save for a five minute

release period every third day (at varying times, including in

10 the middle of the night) to take an abbreviated shower, while

handcuffed and shackled; that the jail administration withheld

all hygienic products and allowed limited access to water in

their cells, including water necessary to flush toilets, except

at the discretion of correctional officers, which often was

withheld for extended periods; and that plaintiffs were subjected

during that time to multiple daily strip searches (even though

they, and the other inmates on the block, had been allowed

outside their cells only rarely and then only under extremely

close supervision, while shackled, since the prior strip

searches). Depending on the officers conducting the searches,

they were also required to place unwashed fingers into their

mouths after first exposing genital and anal areas for

inspection. Additionally, the jury could have reasonably

concluded that plaintiffs were denied exercise, reading

materials, writing material, and all other external means to

occupy their time while in solitary confinement. Finally, the

evidence supported the conclusion that Paladin was provided with

inadequate nutrition and lost over one hundred pounds, and

suffered unnecessary pain, cuts, and sores from the use of

handcuffs and shackles too small for his large frame.

11 Pretrial detainees, like these defendants, are protected

from unconstitutional conditions of confinement by the Fourteenth

Amendment, which operates to protect their liberty interest to

the same extent as the Eighth Amendment prohibits the imposition

of cruel and unusual punishment. Suprenant,

(citing Burrell v . Hampshire County,

, 7 (1st Cir.

2002)).

As the court of appeals pointed out in Suprenant, “[t]he

case law as to whether any one of these conditions by itself,

might be serious enough to work a constitutional violation is in

some disarray.”

(citations omitted). Some courts have

found one or more conditions described above violative of the

Eighth Amendment, while others have found similar conditions to

fall short of a violation. But here the conditions “are present

in combination,”

and given the duration that plaintiffs were

subjected to the combination of these conditions, the jury’s

verdict finding those conditions to be constitutionally offensive

is legally sustainable. The “three day rotation” conditions were

alleviated in very minor ways after three weeks or s o , but

plaintiffs remained in “the hole” under substantially similar

conditions, with less than one hour per day outside their cells —

for several more months.

12 Similarly, the evidence supported the jury’s finding that

the unconstitutional conditions were imposed pursuant to a

recognized prison policy, custom, or practice. The Chief of

Security for the jail, Captain Dionne, conceded that the “three-

day rotation” conditions were imposed pursuant to a policy and

practice in existence for years before July of 2002, one

developed and implemented by him. Senior correctional officers

were well aware of the policy, and supervised its implementation,

including all of the deprivations described. The evidence of

record supported the jury’s conclusion that the jail’s

administrators implemented the recited conditions pursuant to an

official policy, custom, or practice, knowing full well the

nature of the impositions and the obvious risks to health and

safety posed thereby.

“[I]n situations in which the allegation is that the policy

at issue itself violates or directs public officers to violate

the Constitution, proof of the existence of the policy

‘necessarily establishes that the [county] acted culpably.’”

Suprenant,

n.6 (citing Bd. of County Comm’rs v .

Brown,

9 7 , 405,

,

(1997)). This is such a case. The policy governing conditions

on Unit 2 B , particularly with regard to the three-day rotation,

13 was in place for years, the Chief of Security was responsible for

i t , implemented i t , and it was well known to policymakers, like

O’Mara, who had actual knowledge of it yet did not modify i t .

The evidence was sufficient to support the jury’s findings

against O’Mara (the county).

Disciplinary Officer Pendleton

Defendant Pendleton also challenges the sufficiency of the

evidence to support the verdicts against her.3 But, again,

considering the evidence in a light favorable to the verdicts, I

find it was sufficient to permit a reasonable jury to conclude

that Pendleton violated plaintiffs’ Fourteenth Amendment rights

to due process, specifically their right to an impartial hearings

officer.

Pendleton both investigated and adjudicated the charges she

brought against those inmates identified by Rivas as having been

3 Pendleton also argues that because the jury returned a verdict in favor of Officer Rivas, Pendleton is somehow entitled to judgment as a matter of law. The jury may have found that Rivas did not lie, o r , he lied but not to inflict punishment. In any event, Pendleton’s liability is premised on her breach of an independent duty to be a fair and impartial decisionmaker, without regard to whether an inmate is guilty or not guilty of a charged infraction. Even a guilty inmate is entitled to due process, which includes an impartial decisionmaker.

14 in the large group that supposedly cornered and threatened him.

From the evidence presented, the jury could reasonably have found

that with respect to her investigation as a whole, and her

adjudication of the charges against each inmate accused of being

in the group, including plaintiffs here, Pendleton prejudged all

of their cases. She accepted Rivas’s report as unfailingly true,

and adopted an attitude rooted in prejudice that precluded

consideration of any exculpatory information that she might

discover or that might be presented to her.

Although Pendleton’s conduct in one discrete inmate’s case

is not dispositive of her conduct in others, her overall approach

to the Rivas incident was undoubtedly reflected in her approach

to each individual’s case among the charged nine. The jury could

find on the evidence presented that Pendleton’s overall bias and

prejudgment extended necessarily and inevitably to each separate

case. When Paladin told her he was not in the Unit proper at the

time, but was outside playing basketball with other inmates, who

could corroborate that fact, his explanation fell on deaf ears

and a closed mind. His defense was presented to a disinterested

hearings officer who had no intention of seriously considering

his explanation or questioning potential inmates with relevant

15 information. His case, along with the others, had already been

prejudged by Pendleton based on Rivas’s report.

Similarly, West, while conceding he engaged Rivas in

conversation, downplayed the “confrontation” and explained that

Rivas called the “10-33” without a legitimate basis — that there

was no large group of threatening inmates, and no cause for him

to have initiated the alarm and its serious consequences. True,

Pendleton was not required to accept West’s version of events,

but on the other hand, as the adjudicator, she was required to

have not prejudged his guilt. The jury could have reasonably

found that whatever the weight or merit of West’s defense, the

process was a complete sham in that Pendleton had already

prejudged the guilt of every inmate charged in the Rivas

incident, including West.

Worse, still, the evidence plausibly established that

Pendleton at the least exaggerated, and may well have fabricated,

inculpatory evidence allegedly provided by a confidential

informant, an inmate named John Grady, while at the same time

ignoring exculpatory information provided by him. Pendleton

claimed that Grady told her, during her investigation, that he

saw a group of inmates cornering Rivas, substantially as Rivas

16 claimed. But Grady was locked in his cell at the time, and it

was not seriously disputed that Grady could not have seen the

area where the incident allegedly occurred. Moreover, Grady

testified at trial not only that he never saw the incident, given

the physical layout of the Unit, but also that he never told

Pendleton that he did. Grady said the first time he saw Rivas,

Rivas was walking, at a good pace, toward the control console.

The jury was free to accept Grady’s testimony, and conclude that

Pendleton exaggerated or fabricated the inculpatory information.

The jury likely also noted that Grady, whom Pendleton said

she found credible, testified that he told Pendleton that Baker

and Champagne were in line for the telephone at the time of the

incident. Pendleton did not credit those exculpatory statements

and found Baker and Champagne guilty as well. The jury could

have rationally concluded from this evidence as well that

Pendleton was simply blind to any information inconsistent with

each member of the accused group’s guilt, as charged by Rivas.

The jury was also free to assess Pendleton’s demeanor, tone,

and manner while testifying, and likely concluded, as the court

did, that she exhibited a firm hostility to the notion that

inmates could provide credible information related to a

17 disciplinary matter, and a decided aversion to following up o n ,

much less considering, information that might prove helpful to

any inmate charged in this incident, whether it was interviewing

Suprenant’s witnesses, or checking Paladin’s alibis, or

considering West’s benign explanation of his involvement, or

verifying Coulombe’s or Champagne’s telephone-line alibis or

acknowledging Grady’s corroboration, or considering Baker’s

telephone record. (Inmate Baker, one of the nine charged,

claimed that telephone records would demonstrate that he was on

the telephone when Rivas called the “10-33.” A record did show

that he was on the telephone at approximately the same time as

the incident but Pendleton dismissed its relevance on grounds

that it showed a two minute period during which Baker could have

left the phone and joined the group already supposedly rushing

Rivas.)

The jury plainly did not overlook either the evidence of

bias and partiality on her part, or Pendleton’s failure to

acknowledge the rudiments of fair consideration when it came to

this incident and the nine charged inmates, including these

plaintiffs.

18 The “essence of a fair hearing is an impartial

decisionmaker,” Suprenant,

(citing Wolf v .

McDonald,

(1974)), and plaintiffs were

constitutionally entitled to due process associated with their

disciplinary hearings in the form of a fair hearing and an

impartial decisionmaker. The evidence, described above, was

sufficient to permit a rational jury to find that, whatever the

actual merits of plaintiffs’ defenses to the disciplinary charge,

Pendleton was hardly an impartial decisionmaker.

As noted in Suprenant, and pertinent here as well: “we

think it self-evident that any reasonable officer in Pendleton’s

position would have understood that prejudging alibi witnesses

without even interviewing them or hearing their testimony . . .

constitute[s] a course of action inconsistent with the proper

role of an impartial adjudicator.” Id. at 18 (citations

omitted).

The evidence, viewed in the light most favorable to the

verdicts, is sufficient to support the jury’s conclusions.

19 The Heck v . Humphrey Favorable Termination Rule

Next, Pendleton asserts that she is entitled to judgment as

a matter of law on grounds that plaintiffs’ section 1983 claims

are barred by Heck v . Humphrey,

(1994), as augmented

by Edwards v . Balisok,

(1997). In support of that

position, Pendleton says:

First, Edwards makes clear that an inmate cannot make a successful claim of unconstitutional bias of a disciplinary officer without demonstrating that the results of the disciplinary proceeding were wrong. Second, Edwards also shows that a constitutional claim relating to a faulty disciplinary proceeding in a correctional setting is not cognizable under

.

Defendants’ memorandum of law (document n o . 62-2) at 8 . The

court disagrees.

Pendleton’s reliance on Humphrey and Edwards is misplaced.

In Humphrey, the Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court’s issuance of a writ of habeas corpus.

20 Humphrey,

(footnote omitted)(emphasis supplied). 4

More recently, in Edwards, the Court reversed a decision in

which the Court of Appeals for the Ninth Circuit concluded that

“a claim challenging only the procedures employed in a

disciplinary hearing is always cognizable under § 1983.”

Edwards,

(emphasis supplied). The Court

disagreed and recognized that because some § 1983 claims, if

successful, might call into question the validity of the inmate’s

criminal conviction or the duration of his criminal sentence,

such claims were more properly pursued in the context of a

petition for habeas corpus relief.

The Edwards Court recognized that because the plaintiff

claimed that he was unconstitutionally deprived of good-time

credits as a result of a tainted disciplinary process, if he were

4 Parenthetically, the court notes that the opinion in Humphrey is plainly directed at plaintiffs who were, when the events at issue occurred, convicted and sentenced to a term of imprisonment. In this case, of course, plaintiffs were neither convicted nor sentenced when the events at issue occurred. They were pre-trial detainees. Consequently, there is no underlying court “judgment” or “sentence” that would be called into question by a determination that, in conducting their administrative disciplinary hearings, Pendleton deprived plaintiffs of due process.

21 to prevail on his claim it would necessarily imply that the

denial of those credits was improper. And, because the

restoration of those credits would affect the duration of the

plaintiff’s incarceration, the Court concluded that, rather than

pursue a claim under § 1983, the plaintiff was required to file a

petition seeking habeas corpus relief. S o , like Humphrey,

Edwards stands for the proposition that, if an inmate’s

successful claim would call into question the validity of his

conviction or the duration of his sentence, he must pursue that

claim in the context of a habeas petition.

Humphrey and Edwards simply make clear that, in those

somewhat rare instances in which an inmate might seek either

monetary damages under § 1983 or obtain habeas relief, he must

first obtain habeas relief. As the Court of Appeals for the

Third Circuit has observed:

There is only a narrow subset of actions that arguably might properly be brought as either [a habeas petition or claim under § 1983], that i s , where the deprivation of rights is such that it necessarily impacts the fact or length of detention. In a series of decisions, the Supreme Court has made it clear that for those cases, the narrower remedy, the habeas petition, is the only available avenue of relief. [Edwards] was one of these decisions. In i t , the Court clarified that a plaintiff cannot circumvent the overlap between habeas and § 1983 by raising an issue as an attack upon procedure rather than substance, when resolution of the issue in his

22 favor would necessarily imply the invalidity of the sentence - the fact or duration of detention.

Leamer v . Fauver,

3 2 , 540 (3d Cir. 2002)(footnote

omitted).

In any event, while there was disagreement among the

circuits on this issue, the Supreme Court resolved it in 2004.

In Muhammad v . Close,

(2004) the Court held that the

Heck v . Humphrey requirement did not apply to prisoner suits

brought under § 1983 which did not seek a judgment at odds with a

prisoner’s conviction or with the state’s calculation of time to

be served in accordance with the underlying sentence. In a

footnote, the Court also made it clear that the requirement

applies to sentences imposed pursuant to a criminal conviction,

not disciplinary sanctions:

The assumption is that the incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules. This Court has never followed the speculation in Preiser v . Rodriguez,

,

,

(1973), that such a prisoner subject to “additional and unconstitutional restraint” might have a habeas claim independent of § 1983, and the contention is not raised by the State here.

Muhammad,

n.1. See also Peralta v . Vasquez,

8 , 104 (2d Cir. 2006) (noting that Heck’s “favorable

23 termination requirement is not intended to compel a prisoner to

demonstrate that a sanction he seeks to challenge, or the

procedure that led to i t , has been invalidated before he can

proceed under § 1983 when that sanction does not affect his term

of confinement”) (emphasis in original).

Because plaintiffs’ claims against Pendleton did not

question the fact of conviction (they were pretrial detainees) or

the duration of an underlying criminal sentence, those claims

were properly brought pursuant to § 1983, they were not barred by

Edwards, and plaintiffs were not required to pursue relief by way

of petitions for habeas corpus.

Remittitur and Inconsistent Verdicts

Compensatory Damages

Defendant O’Mara seeks an order of remittitur, reducing the

compensatory damage award to Paladin from $50,000 to “a nominal

amount of $1.00 o r , in the alternative, to an amount better

reflective of the limited evidence of actual injury.” The court

declines to do s o .

Defendant argues that Paladin offered “no evidence of

economic damage,” “no actual evidence of emotional distress,” and

24 “no testimony that he was in any way harmed by the conditions”

imposed in Unit 2 B . He also points to the fact that West, who

suffered the very same conditions, was only awarded nominal

damages, which defendant interprets as the jury’s having

concluded that no compensatory damages were warranted, but,

wishing to impose a punitive damages award, it acted

inconsistently with the court’s instructions (that punitive

damages do not lie against the governmental defendant) and

awarded $50,000 in punitive damages under the rubric of

“compensatory.” The court disagrees. Juries, by and large,

faithfully follow the instructions on the law provided by the

court, and are presumed to do s o . Nothing in the verdicts

suggests otherwise.

First, to the extent the compensatory damages awards might

appear to be inconsistent, it is the court’s duty to see if the

seeming inconsistency can be reconciled. See Cantellops v .

Alvaro-Chapel,

4 1 , 744 (1st Cir. 2000). (“A duty of a

trial court faced with an argument that a verdict is inconsistent

is to see if the seeming inconsistencies can be reconciled.”).

Awarding $50,000 in compensatory damages to Paladin but only

$1.00 to West, when each prevailed on his claim, and each

25 suffered virtually identical deprivations does seem curious on

the surface. But the claimed inconsistency can be reconciled.

First, Paladin was a sympathetic plaintiff who testified

persuasively about the suffering he endured, the toll it took on

him, both physically and psychologically, and the enduring

effects he suffered from the unconstitutional conditions to which

he was exposed. West, on the other hand, was far a less

sympathetic plaintiff on a personal level. West’s testimony,

demeanor, and attitude while testifying was somewhat

confrontational, even hostile at times. The jury could well have

found that his apparent tough-guy stoicism, and obvious anti-

social background and prior criminal experience, all added up to

his not having suffered to the same degree as Paladin, or at

least not to a degree warranting, in the jury’s view, a

compensatory award more generous than the $1.00 acknowledgment

that his rights were violated.

Under the circumstances, the $50,000 compensatory award to

Paladin was fully justified by the combination of conditions

imposed on him and the period of time he endured them. The jury

was quite capable of assessing that suffering and valuing it in

economic terms. The amount awarded was reasonable, appropriate,

26 fair, and just. It did not exceed “any rational appraisal or

estimate of the damages that could be based upon the evidence

before [it].” Kolb v . Goldring, Inc.,

(1st

Cir. 1982) (quoting Glazer v . Glazer,

9 0 , 413 (5th Cir.

1967). And, I do not find the award to be so “grossly excessive,

inordinate, shocking to the conscience of the court, or so high

that it would be a denial of justice to permit it to stand.”

Davignon v . Clemmey,

, 11-12 (1st Cir. 2003). The

award is generous, perhaps, given that juries tend not to be

indulgent in these types of cases, but it is certainly within the

realm of reasonable damages for the conditions suffered.

Accordingly, I decline to reduce i t .

The disparity in awards, o r , more precisely, the nominal

award to West, would ordinarily cause the court concern — concern

that the jury denied West compensatory damages to which he was

legally entitled. See e.g., King v . Rivas,

(September 8 , 2006) (granting King new trial on damages with

respect to this same incident when first jury awarded only

nominal damages in the face of proven compensable injury.). And,

upon appropriate motion by West, the court would seriously

consider granting West a new trial on damages. But West has

affirmatively waived his claim to a new trial on damages on that

27 ground. See Plaintiff’s O b j . to Mot. for Remittitur, (document

n o . 65) (“West arguably has cause to file a motion for new trial

on damages similar to that granted in King v . Rivas. For

tactical reasons, West opted not to do s o . ” ) .

The problem with the compensatory damages verdict is not

that Paladin was awarded too much, but that West was awarded too

little. That problem could be resolved by trying West’s damages

case again, but he chose not to invoke that option, which was

entirely his choice to make. West’s choice, however, does not

undermine Paladin’s entitlement to compensatory damages, or the

amount awarded Paladin.

Punitive Damages

Pendleton also seeks an order of remittitur with regard to

the $50,000 punitive damages awards entered against her in favor

of both Paladin and West, respectively. Defendant doesn’t make a

vigorous argument, but merely says in passing that even if the

evidence was sufficient to find that Pendleton deprived

plaintiffs of their due process right to a fair and impartial

decisionmaker, still, that evidence “does not rise to the level

of demonstrating any need to punish” her. The court disagrees.

28 The nominal damages award of $1.00 on each plaintiff’s due

process claim can be plausibly explained. The jury might well

have thought that, while Pendleton’s performance as a fair and

impartial hearings officer was dismal and offensive to the

fundamental guarantees of fairness mandated by the constitution,

still, it would be somewhat speculative to conclude that Paladin

and West (who conceded engaging Rivas) were in fact not guilty of

the charged conduct. A fair and impartial hearings officer might

have come to the same conclusion as Pendleton on the merits. The

jury may have thought that the truth with respect to the alleged

cornering of Rivas lay a long way from either the version

presented by Rivas or those given by West or Paladin. If the

jury was not persuaded that either plaintiffs’ or Rivas’s stories

were correct, but was persuaded that the adjudication process was

offensively flawed, the nominal compensatory and significant

punitive damages awards are understandable.

Given the evidence presented, the jury could sustainably

find that Pendleton’s prejudgment, her seeming categorical bias

against inmate witnesses, and her aversion to following up o n , or

considering, exculpatory information regarding those charged in

the Rivas matter, including plaintiffs, amounted to reckless

disregard o f , and a complete indifference toward, the plaintiffs’

29 important rights to due process. Under the circumstances, it is

not difficult to understand the jury’s desire in this case to

send a strong, clear, and effective message to defendant, and

particularly others similarly situated, that the right to a fair

and impartial adjudication, particularly in matters of

consequence, like this, is a serious right that cannot be lightly

tossed aside by jail officials.

The award is adequate to that purpose and is not excessive.

Reducing the award would undermine the jury’s purpose in making

i t , and would merely encourage like objectionable conduct in the

future by hearings officers in the Hillsborough County House of

Corrections, and other jails. The court is disinclined to do s o ,

given the plain need for serious self-assessment and reform of

institutional operations at the Hillsborough County House of

Corrections, a point on which the jury plainly agreed, as

evidenced by their award.

Attorney’s Fees

Invoking the provisions of

and their status

as prevailing parties as to two of the three counts that went to

the jury, plaintiffs seek an award of costs and reasonable

attorney’s fees.

30 In this circuit, the preferred method of calculating fee

awards is the “lodestar method,” by which “the number of hours

reasonably expended on the litigation [are] multiplied by a

reasonable hourly rate.” Coutin v . Young & Rubicam Puerto Rico,

Inc.,

3 1 , 337 (1st Cir. 1997)(quoting Hensley v .

Eckerhart,

2 4 , 433 (1983)). See also In re Thirteen

Appeals Arising out of the San Juan Dupont Plaza Hotel Fire

Litigation,

(1st Cir. 1995). Plaintiffs are

also entitled to an award of reasonable attorney’s fees incurred

in the preparation of the fee application, and any supplemental

applications. Brewster v . Dukakis,

8 8 , 494 (1st Cir.

1993). Of course, whether a request for attorney’s fees is

reasonable depends, in part, upon the degree of success obtained.

Urban v . Jefferson Cty. Sch. Dist.,

2 0 , 729 (10th Cir.

1996) (citing Hensley, 461 U.S. at 4 3 6 ) .

Plaintiffs bear the burden of providing sufficiently

detailed contemporaneous records of the time their attorney spent

and tasks he performed to allow the court to determine their

reasonableness. See Tennessee Gas Pipeline C o . v . 104 Acres of

Land,

3 2 , 634 (1st Cir. 1994). They have met that

burden by submitting records detailing the effort expended by

31 counsel, as well counsel’s affidavit in support of plaintiffs’

petition for costs and attorneys’ fees.

Having reviewed plaintiffs’ submissions and defendants’

objection, the court concludes that the hourly rates charged by

Attorney Sheehan are reasonable and entirely consistent with

those customarily charged by practitioners of comparable skill

and expertise in this area. See Andrade v . Jamestown Housing

Auth.,

, 1190 (1st Cir. 1996) (“In determining a

reasonable hourly rate, the Supreme Court has recommended that

courts use ‘the prevailing market rates in the relevant

community’ as the starting point.”). The court also concludes

that the fees charged, as well as the number of hours worked by

Attorney Sheehan, are reasonable and appropriate in light of the

complexity of this case, the qualifications of counsel, the

volume of work performed by counsel, the substantial economic

risk he assumed in taking this case, and the ultimate resolution

of this matter. See generally Hensley, 461 U.S. at 448-49.

Attorney Sheehan is notable in the bar of this district for

his expertise in handling prisoner Section 1983 litigation, and

for his willingness to take on such cases, which involve a

substantial economic risk to him. Prisoners as a rule cannot pay

32 legal fees, s o , absent success on the merits, Attorney Sheehan

risks expending a substantial amount of time, effort, and money

in cases like this, without compensation or recovery. And, the

time he devotes to cases like this one is time diverted from

other paying work. The fee shifting provision is designed to

encourage counsel like Attorney Sheehan to take such cases to

insure that protected rights are vindicated, even for the most

powerless in society. His success in this case, and the reform

it may engender, warrant the full fee requested.

Finally, the court concludes that because the legal work

associated with the two claims on which plaintiffs prevailed at

trial was sufficiently intertwined with work on their one

unsuccessful claim, there is no need to discount counsel’s fees

simply because plaintiffs were not successful on all claims.

See, e.g., Lipsett v . Blanco,

3 4 , 940 (1st Cir. 1992)

(holding that because “work done on these unsuccessful claims was

sufficiently interconnected with the causes of action upon which

appellee prevailed, we refuse to grant the requested

reductions.”). See also Hensley, 461 U.S. at 435 (observing that

counsel’s fees should not be reduced when claims as to which

plaintiffs prevailed overlapped substantially with those on which

33 they were not successful, nor should they be reduced when counsel

obtained “excellent results” for his or her client).

Here, there can be little doubt that Attorney Sheehan

obtained excellent results for his clients. Additionally,

evidence gathered and legal work performed in an effort to prove

that Officer Rivas lied overlapped substantially with that aimed

at proving Pendleton deprived plaintiffs of due process. For

example, evidence demonstrating that some of the nine accused

inmates actually had credible alibis not only supported

plaintiffs’ claims that Rivas lied about the incident, but also

supported the claim that Pendleton failed in her duty of

impartiality.

Conclusion

Defendants’ motion for judgment as a matter of law (or new

trial) (document n o . 62) and their motion for remittitur of

damages (document n o . 63) are denied. For the foregoing reasons,

as well as those set forth in plaintiffs’ memorandum and their

reply to defendants’ objection (document n o . 7 3 ) , their motion

for attorney’s fees and costs (document n o . 66) is granted.

Plaintiffs are awarded $33,952.50 in attorney’s fees

34 (representing 150.9 hours of compensable time at $225 per hour),

and an additional $1,247.32 in costs.

SO ORDERED.

Steven J./McAuliffe ^hief Judge

September 2 8 , 2007

cc: Michael J. Sheehan, Esq. John A . Curran, Esq. Elizabeth L . Hurley, Esq.

35