United States Court of Appeals
For the First Circuit
No. 99-2150
ANGELA FIGUEROA-TORRES, ET AL.,
Plaintiffs, Appellees,
v.
PEDRO TOLEDO-DÁVILA, ET AL.,
Defendants.
JULIO PERÉZ-TIRADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Ricardo L. Rodríguez-Padilla, with whom Ricardo Rodríguez-
Padilla Law Offices, and Orlando Duran-Medero were on brief for
appellant Julio Perez-Tirado.
Mauricio Hernández-Arroyo, with whom Law Offices of Mauricio
Hernández-Arroyo, Geraldo Rivera-Figueroa, in representation of
Linoska Rivera-Nieves, and Maria E. Irizarry, in representation
of Nestor Rivera Irizarry, were on brief for appellees.
November 21, 2000
BOWNES, Senior Circuit Judge. This is an appeal from
a jury verdict in a civil rights action brought under 42 U.S.C.
§§ 1983, 1986, and 1988, against six police officers of the
Puerto Rico Police Department for the death of Néstor Rivera-
Figueroa. The appeal is brought by the only police officer
found liable, Sergeant Julio Pérez-Tirado (hereinafter sometimes
"defendant"). Suit was brought by the mother, and siblings of
Néstor Rivera- Figueroa on their own behalf and on behalf of the
son and daughters of the decedent. The jury awarded the son
$15,000, and the youngest of three daughters (two years old)
$20,000. The son, although twenty-one at the time of the suit,
was mentally retarded. The other daughters of the decedent were
nineteen and twenty-one years old at the time of suit and were
not awarded any damages. The court granted plaintiffs' request
for attorney's fees in the amount of $96,852.
Four of the police officers named in the complaint were
directly involved in the arrest of decedent: Héctor Rivera-
Torres; Elvin Fernández; Leslie Germain-Rodríguez; and the
officer found liable, Julio Pérez-Tirado. The complaint alleged
that those four officers treated the decedent in such a way
during his arrest as to cause his death.
-2-
The complaint alleged that the remaining two
defendants, Octavio Cruz-Candelario and Pedro Toledo-Dávila,
supervisory officers who were not present at the actual arrest,
were liable for the death of Néstor Rivera because of “the
inappropriate selection and/or inadequate training and
supervision and discipline” of the four officers directly
involved in the arrest of the decedent. At the close of the
evidence, the complaint was dismissed by the district court as
to defendants Leslie Germain-Rodríguez, Octavio Cruz-Candelario
and Pedro Toledo-Dávila. No appeals have been taken from these
rulings.
Defendant’s motions for judgment as a matter of law
were denied. The district court denied defendant’s motion for
a new trial.
Defendant makes the following contentions on appeal:
(1) the evidence was insufficient because it did not prove that
defendant caused or contributed to cause the death of the
decedent; (2) the district court erred by misapplying the
"eggshell skull" rule in determining liability for the death of
the decedent; (3) the verdict was the result of passion and
prejudice; and (4) the district court erred in the award of
attorney’s fees and costs.
-3-
We affirm the verdict in all respects but remand for
a new determination of attorney’s fees.
Before discussing the defendant's assignments of error
we deem it useful to discuss the peculiar posture in which this
appeal arises. In this case, the plaintiffs alleged five causes
of action in their complaint. These boiled down to three sets
of claims. First, they asserted that the defendants violated
the decedent's rights under the Fourth and Fourteenth Amendments
and sought to recover damages under 42 U.S.C. § 1983. Second,
they asserted pendent claims arising under Puerto Rico law,
charging wrongful death and loss to the decedent's estate.
Third, they asserted survivors' claims, also arising under local
law, for their own emotional distress, loss of society, and the
like.
In preparing the verdict form, the district court did
not differentiate among these claims. Instead, the verdict form
simply asked the jurors to report whether they found any
defendant liable (presumably on any theory), and if so, to
indicate which defendant(s) were liable to which plaintiff(s).
The verdict form then provided a space for the jury to insert
the amount of damages awarded to each prevailing plaintiff. The
district court's jury instructions were in the same vein.
-4-
Ultimately, as we have said, the jury found Pérez-
Tirado liable to two of the plaintiffs. The verdict form did
not require the jurors to state the theory under which liability
was found and damages awarded, and they did not do so. Pérez-
Tirado did not object to the judge's charge, the verdict form,
or the returned verdict for lack of particularization.1 This
constituted a waiver as to these items. We have held that a
failure to object “forfeit[s] any right to gripe about a lack of
procedural orthodoxy” in such respects. Putnam Resources v.
Pateman, 958 F.2d 448, 457 (1st Cir. 1992). After all, a party
“may not sit by without objection to rulings or instructions,
and then after verdict and judgment, and when it is too late for
the court to change its rulings or charge, come forward with
objections on appeal and seek to put the court in error.” Id.
at 457 n.6 (citation omitted). This principle controls here.
Thus, notwithstanding our serious doubts about the way in which
the district court apparently merged different causes of action
and theories of recovery, we proceed to analyze the case as the
parties have briefed and argued it.
1Perez-Tirado not only acquiesced to these proceedings
below, but also has not made any coherent argument on appeal
addressing these points. For that reason, too, waiver exists.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that arguments that are undeveloped on appeal are
deemed waived).
-5-
I.
Sufficiency of the Evidence
Our standard of review is clear.
Petitions for judgments as a matter of
law under Rule 50(a)(1) Fed. R. Civ. P. will
be granted only in those instances where,
after having examined the evidence as well
as all permissible inferences drawn
therefrom in the light most favorable to
non-movant, the court finds that a
reasonable jury could not render a verdict
to the party’s favor. In carrying out this
analysis the court may not take into account
the credibility of witnesses, resolve
evidentiary conflicts, nor ponder the weight
of the evidence introduced at trial. . . .
. . . .
The nisi prius court’s denial of a
petition for new trial will be overturned
only for abuse of discretion. A new trial
is warranted only in those situations where
the verdict is contrary to the clear weight
of the evidence introduced at trial and its
ratification would result in a miscarriage
of justice. . . .
Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17
(1st Cir. 1999) (internal citations omitted).
Our determination of the sufficiency of the evidence
requires that we present the facts as a jury might have found
them, consistent with the record but in the light most favorable
to the verdict. See Grajales-Romero v. American Airlines, Inc.,
194 F.3d 288 (1st Cir. 1999).
The Evidence as Viewed Favorable to the Verdict
-6-
On the day of decedent’s arrest and death, the
defendant and three other police officers had been assigned to
a special drug unit. Their mission was to cruise the streets of
San Juan in search of drug transactions and arrest the
participants. Defendant was in charge of the unit.
As the police cruiser drove through a government-
subsidized housing development, defendant saw a drug transaction
in progress. The police got out of the cruiser and attempted to
arrest three drug buyers. Defendant testified that he went
after one buyer who was attempting to swallow small plastic
envelopes (about one to one and one half inches long) presumably
containing heroin. He was unsuccessful and as he held the
suspect, he noticed that one of the other officers was having
difficulty subduing the decedent, who was vigorously resisting
arrest. Defendant left the person he had restrained and went to
help in the arrest of decedent. Once the suspect was freed from
restraint by defendant he fled the scene. The other drug buyer
was arrested without incident.
Defendant and two of the other officers continued to
struggle with the decedent. There was eye-witness testimony
about what happened during the struggle between the police
officers and decedent.
-7-
Efrain Barbosa, who was the drug seller, testified by
deposition to the following effect. The police jumped on the
decedent when he tried to swallow the drugs he had bought; the
police officers hit and kicked decedent everywhere on his body.
Defendant was identified as one of the officers who hit and
kicked decedent.
Rosa Maria Gonzalez was walking by the scene on her way
to the store. She testified that she saw police officers
leaning over the decedent who was lying on the sidewalk. The
police “were hitting him on the back and they were telling him
to throw out the drugs he had swallowed . . . .” The witness
identified defendant as one of the police officers who was
hitting the decedent. The witness also testified that the
police kicked the decedent in the side and hit him on the face
with their fists.
Marisela Cotero, a tenant in the housing development,
testified that she saw two police officers punch the decedent in
the stomach, kick him, put their hands in his mouth, slap his
face, and throw him on the ground. The witness identified
defendant as one of the participating officers.
Police officer José Miguel Requena Mercado, one of the
defendants, testified as follows: He and another officer, Elvin
Fernandez, fell to the ground struggling to arrest the decedent.
-8-
After the decedent was subdued he walked to the police vehicle.
When they got to the prison, the decedent started feeling ill
and Officer Requena took him to the hospital. When they arrived
at the hospital, decedent told Requena he wanted to defecate and
throw up, which he did in the toilet facilities. Neither the
feces nor the vomit was examined for drugs. As he and decedent
and the other officers came out of the bathroom, the decedent
collapsed. A doctor arrived and the decedent was taken to the
intensive care unit, where he subsequently died.
Dr. María Conde, who did the autopsy on decedent,
testified, in effect, as follows: “The deceased died of a
laceration of the spleen and a coagulation in the abdominal
cavity of approximately 20,000 cc’s [of blood].” The laceration
of the spleen was the result of a trauma, which "could be
because someone hit him or because he fell and hit that area."
The presence of opiates in the blood was a contributing factor
in his death because the opiates interfere with the respiratory
function. Independently of any contributing factor a ruptured
spleen would have caused the death. The cause of death "was
corporal trauma, not a drug overdose." On cross-examination,
Dr. Conde testified that the spleen probably had some kind of
disease and that "it’s easier to lacerate an enlarged spleen
than a normal one."
-9-
Defendant argues strenuously that the “undisputed
medical evidence . . . negated the possibility of the violation
of any constitutional rights . . . .” Def’s Br. at 16 (emphasis
added). Presumably this statement is made on the basis of the
testimony of Dr. David Questell Alvarado who treated decedent
before the decedent was sent to the intensive care unit where he
died. Dr. Questell testified that the decedent died of
“narcotic intoxication.” As the district court properly pointed
out in rejecting the motion for a new trial, it was up to the
jury to choose which of the two doctors' testimony should be
accepted.
Defendant makes other assertions in his brief that are
directly controverted by the record evidence. Experienced
counsel should recognize that the jury decides disputed
questions of fact and that statements in the brief and at oral
argument cannot erase record evidence that counsel does not
like.
II.
Liability
We next discuss defendant’s claim that he was not
responsible for the decedent's death because his spleen was
diseased and enlarged. We are not sure just what defendant's
precise claim of error is as to the court's application of the
-10-
"eggshell skull" doctrine. He argues in his brief at page 32:
"In applying this doctrine to this particular case, the district
court erred in the law. It assumed that liability existed, when
the evidence established the contrary, to find that Pérez-Tirado
was liable for the pre-existing damages under the 'egg-shell
rule.'" This appears to be an argument that the district court
substituted the "eggshell skull" doctrine for a finding of
causation. The court's charge to the jury negates that
contention.
In order to find in favor of the plaintiffs
under principles of negligence, you must
find that there was an act or omission by
fault, negligence, or intention that was
proximate – that proximately caused
plaintiffs' injuries.
. . . .
An injury or damage is proximately caused by
an act or by a failure to act whenever it
appears from the evidence in the case that
the act or omission played a substantial
part in bringing about or actually causing
the injury or damage, and that the injury or
damage was either a direct result or a
reasonable probable consequence of the act
or of the omission.
(Emphasis added.)
There was a plethora of evidence in the record from
which the jury could have found that defendant kicked and
punched the decedent in the body and helped push him to the
-11-
ground. Any or a combination of these acts could have caused
the decedent's spleen to rupture, as Dr. Conde testified.
In its written opinion denying the motion for a new
trial the district court held that:
[W]e found that Decedent’s cause of death
was corporal trauma . . . . It is the
source of the corporal trauma that was an
issue of fact left for the jury to
determine. . . .
Defendant argues that, if rupture of the
spleen did cause Decedent’s death, he was
not responsible because Decedent’s
preexisting sickness made him prone to that
injury. However, we find that Decedent’s
preexisting injury or weakness in the
spleen, does not absolve Defendant of his
liability. It is well settled that in
action for damages, the tortfeasor “takes
his victim as he finds him.”
If, rather than questioning the district court's
finding of causation, defendant's contention is meant to imply
that the "eggshell skull" doctrine should have been excluded as
a matter of law, we must determine whether the doctrine was
correctly applied to the facts of this case. We agree with the
district court that it was. An illuminating explication of the
“eggshell skull” doctrine is set forth in W. Page Keeton et al.,
Prosser and Keeton on The Law of Torts § 43 at 291 (5th ed.
1984).
There are some areas in which even the
courts which have been most vocal in favor
of the "foreseeable risk" limitation upon
-12-
liability have been forced to discard it.
There is almost universal agreement upon
liability beyond the risk, for quite
unforeseeable consequences, when they follow
an impact upon the person of the plaintiff.
It is as if a magic circle were drawn about
the person, and one who breaks it, even by
so much as a cut on the finger, becomes
liable for all resulting harm to the person,
although it may be death. . . . The
defendant of course is liable only for the
extent to which the defendant's conduct has
resulted in an aggravation of the pre-
existing condition, and not for the
condition as it was; but as to the
aggravation, foreseeability is not a factor.
One of the illustrations which runs through
the English cases is that of the plaintiff
with the "eggshell skull," who suffers death
where a normal person would have had only a
bump on the head; . . . .
Id. (emphasis added).
Neither the Supreme Court nor the First Circuit has
spoken at length as to the validity of the "eggshell skull"
doctrine. The Supreme Court held in United States v. Feola that
an offender "takes his victim as he finds him." 420 U.S. 671,
685 (1975). In that case, the Court held that in determining
the defendant's liability for an assault of a federal officer,
it was irrelevant that the assailant did not know that the
victim was an officer. The First Circuit, in Doty v. Sewall,
cited Feola as support for the proposition that "[i]n personal
injury law, it is well settled that in an action for damages,
-13-
the tortfeasor 'takes his victim as he finds him.'" 908 F.2d
1053, 1059 (1st Cir. 1990).
Other circuits have spoken more definitively as to the
validity of the "eggshell skull" doctrine. The Second Circuit,
in Maurer v. United States, held that "[i]t is a settled
principle of tort law that when a defendant's wrongful act
causes injury, he is fully liable for the resulting damage even
though the injured plaintiff had a preexisting condition that
made the consequences of the wrongful act more severe than they
would have been for a normal victim." 668 F.2d 98, 99 (2d Cir.
1981).
The Fifth Circuit, in Dunn v. Denk, held that:
the "directly and only" language [taken from
applicable case law] was intended to
distinguish between injuries resulting from
excessive force and those resulting from the
justified use of force. It was not intended
to displace the venerable rule that a
tortfeasor takes his victim as he finds him
or to immunize the exacerbation of a
pre-existing condition, leaving the weakest
and most vulnerable members of society with
the least protection from police misconduct.
54 F.3d 248, 250-51 (5th Cir. 1995) (internal citations,
emphasis and footnotes omitted).
The Sixth Circuit, in Shannon v. Lester, held that a
plaintiff could recover damages under § 1983 for any aggravation
of his pre-existing injuries caused by the police's unreasonable
-14-
delay in taking him to the hospital. 519 F.2d 76, 79 (6th Cir.
1975).
The Seventh Circuit, in Rardin v. T & D Mach. Handling,
Inc., held that "the injurer takes his victim as he finds him
and is therefore liable for the full extent of the injury even
if unforeseeable . . . even if . . . [the victim], because of a
preexisting injury sustains a much greater loss than the average
victim would have . . . ." 890 F.2d 24, 28 (7th Cir. 1989)
(citations omitted).
The Ninth Circuit, in Lutz v. United States, held that
defendant was liable for psychological damage inflicted on a
victim who had been attacked by defendant's dog, even though
that damage was caused in part by a pre-existing condition. The
court held that the situation was "an example of the general
rule that the defendant must take the plaintiff as he finds her
and accept liability for all consequences flowing from the
injury." 685 F.2d 1178, 1186 (9th Cir. 1982) (citation
omitted).
We hold that the district court did not substitute the
"eggshell skull" doctrine for a finding of cause or liability,
and that the court was correct in its application of the
doctrine.
III.
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Prejudice or Passion
We have read the record carefully and do not find
sufficient evidence suggesting that prejudice or passion played
a part in the jury's verdict to warrant a reversal on that
ground. Defendant advances two bases for his prejudice and
passion argument. The first is a question asked by the jury
during deliberations as to the consequences of an adverse
verdict on the other defendant police officers. After
consulting with counsel, the district court properly instructed
the jury that the consequences of the verdict were not the
jury’s concern because its duty was to decide the case on the
basis of the facts and regardless of the verdict’s
repercussions. Neither the jury's question nor the court's
response established prejudice or passion.
The second basis for asserting the prejudice or passion
claim is that the verdicts were for decedent’s mentally retarded
son and decedent’s two-year-old daughter. If either or both of
the verdicts were inordinately excessive, defendant might have
a stronger argument. But in a wrongful death case, verdicts of
$15,000 and $20,000 do not connote much passion or any
prejudice. This is especially so in light of testimony by an
economist that the present value of the decedent's future loss
of earnings was $89,000. We think the jury’s verdict was
-16-
realistic. The evidence showed that decedent did not have much
of a future ahead. He was addicted to drugs and resisted arrest
because he was on probation for the murder of his brother and
was afraid he would go to jail. The verdict comports with a
realistic (if not inevitable) appraisal of the facts.
We have read the record carefully and have no
difficulty affirming the verdicts. We also affirm the district
court’s denial of the Rule 50 motion and the motion for a new
trial.
IV.
Attorney's Fees
We preface our discussion of attorney's fees with a
reminder that Pérez-Tirado has waived the district court's
agglomeration of different causes of action. See supra at 3-4.
Because the damages awarded were payable to individual
survivors, not to the decedent's estate, it appears quite
probable that the jury found no liability on the § 1983 claim
simpliciter. The defendant, however, did not object to the
award of fees on this ground, nor does he assign error in this
respect on appeal. He has, therefore, forfeited the point. See
Zannino, 895 F.2d at 17. In all events, this court has held
that when state-law and § 1983 claims are inextricably
intertwined, a plaintiff who prevails only on the state-law
-17-
claim nonetheless may receive a fee award under 42 U.S.C. §
1983. See Williams v. Hanover Housing Auth., 113 F.3d 1294,
1298-99 (1st Cir. 1997) (holding that if a plaintiff in such
circumstances succeeds in the primary objective of his law suit,
he may receive attorney's fees even if he prevails only on a
state-law claim). It is against this backdrop that we turn to
the complaint made by the defendant vis-à-vis the fee award.
The attorney for the plaintiffs submitted a sworn
statement to the district court showing that he spent 441.8
hours out of court preparing the case and 58.5 hours in court.
He requested $225 per hour for his in-court time and $175 for
his out-of-court work. This amounted to a total of $90,477.50.
The plaintiffs' attorney also asked for $13,162.50 for the
services of his paralegal, billed at the rate of $75 per hour
for 85 hours.
The district court reduced the rate for the in-court
time to $150 per hour and $130 per hour for the out-of-court
time. The court also reduced the rate of the paralegal to $40
per hour. The court explicitly stated:
In making this determination, we were
mindful of the constellation of factors of
which the First Circuit cautions courts to
be aware. However, the sole basis on which
we reduce the rates is to reflect the
prevailing market rate of lawyers and
paralegals of comparable skill, experience,
and reputation in this jurisdiction.
-18-
Therefore, we note that we do not reduce the
rate because Plaintiffs only prevailed
against one of the Defendants, . . . because
Plaintiffs received a significantly lower
amount of damages and attorney's fees than
they requested.
The district court denied the motion of the defendants
sued in their supervisory capacity - Toledo-Dávila and Cruz
Calendario - for attorney's fees and costs. That ruling has not
been appealed.
We discussed the standard of review applied to district
court decisions concerning awards of attorney's fees in Coutin
v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 336 (1st
Cir. 1997):
We will disturb such an award only for
mistake of law or abuse of discretion. . . .
In this regard, an abuse of discretion
occurs when a material factor deserving
significant weight is ignored, when an
improper factor is relied upon, or when all
proper and no improper factors are assessed,
but the court makes a serious mistake in
weighing them.
(Internal citation and quotation marks omitted.) When a court
has relied on impermissible criteria in determining the
appropriate amount of fees awarded, the case can be remanded for
a clearer statement of the rationale upon which the award was
based. See, e.g., id. at 342 (holding that the district court
had offered no plausible reason for neglecting to apply the
-19-
lodestar method of calculating fees, and requiring that the fees
awarded be adjusted to reflect its proper application).
The district court was succinct in its treatment of the
severability issue, simply citing Hensley v. Eckerhart, 461 U.S.
424, 435 (1983), and Coutin, 124 F.3d at 338-39, and asserting
that "often claims are related factually and legally; thus a fee
award should not necessarily be reduced simply because the
plaintiff failed to prevail on every contention in the lawsuit."
The court then stated that "we note that we do not reduce the
rate because Plaintiffs only prevailed against one of the
Defendants, . . ." and cited Cobb v. Miller, 818 F.2d 1227, 1233
(5th Cir. 1987), a Fifth Circuit decision allowing for
attorney's fees to be based on an aggregation of claims where
the claims cannot easily be separated. But while the
juxtaposition of these brief statements with the cases cited is
apparently meant to imply that the claims in the present case
are similarly inseparable, the court fails to make any findings
or to point to any facts justifying such an analogy.
Both the Supreme Court and this circuit have spoken as
to when claims can appropriately be fused for the purpose of
determining attorney's fees. The Supreme Court held in Hensley:
Many civil rights cases will present only a
single claim. In other cases the
plaintiff's claim for relief will involve a
common core of facts or will be based on
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related legal theories. Much of counsel's
time will be devoted generally to the
litigation as a whole, making it difficult
to divide the hours expended on a claim-by-
claim basis. Such a lawsuit cannot be
viewed as a series of discrete claims.
Instead the district court should focus on
the significance of the overall relief
obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.
* * * *
Where the plaintiff has failed to prevail on
a claim that is distinct in all respects
from his successful claims, the hours spent
on the unsuccessful claim should be excluded
in considering the amount of a reasonable
fee.
Hensley, 461 U.S. at 435, 440 (emphasis added).
We recently held that "[w]hen different claims for
relief are not interconnected – that is, when the claims rest on
different facts and legal theories – they are by definition
severable and unrelated. Attorneys’ fees normally should not be
awarded for time spent litigating (or preparing to litigate)
unsuccessful, severable claims." Coutin, 124 F.3d at 339. The
Coutin opinion follows a long line of our cases reaffirming the
doctrine of interrelatedness. See, e.g., Nydam v. Lennerton,
948 F.2d 808, 812 (1st Cir. 1991); Culebras Enters. Corp. v.
Rivera-Rios, 846 F.2d 94, 102 (1st Cir. 1988); Wagenmann v.
Adams, 829 F.2d 196, 225 (1st Cir. 1987); Aubin v. Fudala, 782
F.2d 287, 291 (1st Cir. 1986).
-21-
The district court was justified in refusing to
differentiate between the claims brought against each of the
four officers alleged to have been involved in the beating of
the decedent, especially in light of City of Riverside v.
Rivera, 477 U.S. 561 (1986). In Rivera, the Court allowed for
high attorney's fees despite the acquittal of numerous
defendants, agreeing with the lower courts that "it was never
actually clear what officer did what until we had gotten through
with the whole trial." Id. at 570 (internal quotation marks
omitted).
But while the claims against the officers can clearly
be said to have arisen out of a "common core of facts" or to
have been "based on related legal theories," thus justifying
their aggregation in determining the appropriate amount of
attorney's fees awarded, the same is not so for those claims
alleging supervisory liability. While it is true that the
claims all stemmed from a common incident - the alleged
mistreatment of the deceased - it does not follow that the
claims cannot be severed. Whatever common elements there may be
between the claims, it is indisputable that the facts that would
have to be proved to prevail against the arresting officers, as
well as the legal theories that would serve as a foundation for
the claims alleging direct participation in the arrest and
-22-
mistreatment, are wholly different than those relating to
supervisory liability.
In order to establish supervisory liability under §
1983, a plaintiff must show an "affirmative link" between the
subordinate officer and the supervisor. See Carmona v. Toledo,
215 F.3d 124, 131 (1st Cir. 2000). A supervisor "may be liable
for the foreseeable consequences of [offending conduct by
subordinates] if he would have known of it but for his
deliberate indifference or willful blindness. . . ." Maldonado-
Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
"To demonstrate deliberate indifference a plaintiff must show
(1) a grave risk of harm, (2) the defendant's actual or
constructive knowledge of that risk, and (3) his failure to take
easily available measures to address the risk. . . .
[D]eliberate indifference alone does not equate with supervisory
liability; a suitor also must show causation." Camilo-Robles v.
Hoyos, 151 F.3d 1,7 (1st Cir. 1998), cert. denied, 525 U.S. 1105
(1999) (citations omitted). Discovery relating to supervisory
liability would almost certainly entail a much wider and more
diverse set of facts than discovery relating to the officers'
individual liability. That success on the former claims is
contingent upon success on the latter does not mean that the two
are based on common facts or legal theories.
-23-
The unsuccessful supervisory liability claims were
based on different facts and legal theories than the successful
excessive force claims, and were thus severable. Because such
unsuccessful claims do not fall within the ambit of § 1988(b),
the district court acted beyond the bounds of its discretion in
awarding attorney's fees stemming from them. The time sheets
submitted by plaintiffs' lawyer, upon which the district court's
calculation of attorney's fees was based, do not differentiate
between time spent on the different claims. The case must be
remanded for determination of what portion of plaintiffs'
lawyer's time was spent in furtherance of the unsuccessful
supervisory liability claims. Such time must be deducted from
the amount of the fee award at the applicable rates approved by
the district court.
Affirmed in part; reversed in part. Remanded for
further proceedings in accord with this opinion. Costs shall be
taxed against the defendant.
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