Poy v. Boutselis

United States Court of Appeals
For the First Circuit
No. 03-1201

PHALY POY,

Plaintiff, Appellant,

v.

JOHN BOUTSELIS, ET AL.,

Defendants, Appellees.

No. 03-1243
JOHN BOUTSELIS, ET AL.,

Defendants, Appellants,

v.

PHALY POY,

Plaintiff, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]

Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Thomas J. Freda with whom Joseph W. Monahan, III and Monahan
& Padellaro were on brief for John Boutselis.
Mark W. Miller with whom Howard B. Wernick was on brief for
Phaly Poy.

December 19, 2003
 COFFIN, Senior Circuit Judge. These appeals arise out of an

incident on February 16, 1997 involving plaintiff Phaly Poy1 in an

arrest, a scuffle with a Lowell, Massachusetts, police officer,

defendant Boutselis, a booking at the police station, and emergency

hospital treatment for a laceration. Plaintiff was charged with

several offenses, including disturbing the peace and assault and

battery. After being acquitted by a jury, he brought suit on

February 16, 2000 against Boutselis and another officer present at

the scene, Conroy, and the Lowell Chief of Police, Davis, as well

as the city of Lowell, citing 42 U.S.C. § 1983, and a variety of

state claims. Also included as a defendant was one Neov, owner of

the premises where the incident occurred and the temporary employer

of Boutselis.

After denial of a motion to dismiss on statute of limitations

grounds, a seven day jury trial in 2002 resulted in a verdict for

plaintiff against defendant Boutselis in his personal capacity,

granting him $5,000 to compensate for the use of excessive force,

$5,000 to compensate for severe emotional distress, and $25,000 in

punitive damages. In addition, the court allowed prejudgment

interest in the amount of $31,013.33. All other claims against all

parties were dismissed. Post trial, the district court denied

1
At its inception, there was an additional plaintiff, Toeur
Em, whose failure to appear for scheduled depositions resulted in
dismissal of his claims. We shall refer only to a singular
plaintiff, Poy.

-2-
Boutselis' motion for new trial and declined to award any counsel

fees to any party.

Both plaintiff and Boutselis have appealed. Boutselis has

challenged the rejection of his statute of limitations defense, the

denial of his motion for a new trial, and denial of defendant

Conroy's motion for attorney's fees. Poy appeals from the court's

refusal to award him attorney's fees and costs. We affirm the

court's rulings as to Boutselis and Conroy; we vacate the court's

orders denying Poy's motions for attorney's fees and costs and

remand for reconsideration in light of this opinion.

We first describe the incident giving rise to these cases,

giving the version of facts and inferences favorable to plaintiff-

appellant Poy. We then discuss defendant-appellant Boutselis'

appeal, following with our deliberations as to Poy's appeal.

I. The Incident

At about 11:30 p.m. on February 16, 1997, Poy, a 24-year-old

man of Cambodian origin, and three friends went to a club, The

Golden Swan, and proceeded along a hallway to a dance or function

room. Barred from entering by a doorman, Poy looked inside to see

if he knew anyone there. Soon officer Boutselis, specially

employed by the club owner Neov, approached Poy, telling him in

abusive language to leave before "I fucking pound your fucking

head." As Poy was peacefully leaving, Boutselis pushed him from

behind. Poy fell on the floor. Boutselis, six feet tall and

-3-
weighing 240 pounds, sat on him, struck him above his right eye,

and handcuffed his hands behind him, the right hand being brought

over his shoulder and the left hand being drawn across his back and

up. Two of Poy's friends testified that Boutselis, using the

handcuffs as brass knuckles, repeatedly hit Poy on the head.

Poy was dragged to a police van and taken to the police

station, helped by a policewoman to sign his name, and was charged

with four counts: disorderly conduct; assault and battery on a

police officer; assault and battery with a dangerous weapon; and

resisting arrest. He was then taken to a hospital where he

received five stitches to close a laceration over his right eye,

leaving a scar observed by the jury. He returned to the police

station where he remained for a number of hours until he was

bailed. Poy testified that he felt pain lasting some two months in

his shoulder, back, wrist, and head, and had difficulty sleeping

and eating.

The above account is diametrically contradicted by the

testimony of Officer Boutselis at every critical point —

provocation, resistance, efforts to subdue, and extent of injury.

But the jury was not required to accept his version.

II. Appeal of Boutselis

A. Statute of Limitations

Boutselis argues that Poy's suit, filed on the third

anniversary of the key events, was one day late. Boutselis urges

-4-
us to reject both Mass. R. Civ. P. 6(a) and Fed. R. Civ. P. 6(a) by

counting the limitations period of three years inclusive of the

date of accrual,2 so that the final day for bringing suit would

fall one day before the third anniversary. It is an argument which

upon analysis reveals less than meets the eye.

The argument begins with the recitation of propositions

accepted by both parties: a § 1983 claim, according to 42 U.S.C. §

1988, borrows the appropriate state law governing limitations

unless contrary to federal law, Wilson v. Garcia, 471 U.S. 261, 267

(1984); since the claims against Boutselis were for the use of

excessive force, assault, battery, etc., the limitations period for

personal injury is the appropriate analogue, id. at 273; the

Massachusetts statute governing personal injury claims is Mass.

Gen. Laws ch. 260, § 2A, providing that actions shall be commenced

"within three years next after the cause of action accrues."

Federal law controls the determination of when the cause of action

accrues, Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir.

1994). Both federal and Massachusetts law agree that a § 1983

claim accrues when a plaintiff knows or has reason to know of his

injury. See Nieves v. McSweeney, 241 F.3d 46, 52 (1st Cir. 2001);

Riley v. Presnell, 565 N.E.2d 780, 784, 409 Mass. 239, 243 (1991).

2
Fed. R. Civ. P. 6(a) provides: "In computing any period of
time prescribed or allowed by . . . any applicable statute, the
day of the act, event or default from which the designated period
of time begins to run shall not be included." Mass. R. Civ. P.
6(a) mirrors this language.

-5-
Massachusetts begins counting on the day following the day of the

incident, with the last day for filing suit being the anniversary

date of the event, in accordance with Mass. R. Civ. P. 6(a). See

Ciampa v. January, 1992 Mass. App. Div. 204 (1992). We refer to

Rule 6(a) as the Massachusetts application rule.

At this point, appellant advances two parallel arguments –

both strained - in support of his contention that the claim is time

barred.

First, Boutselis argues that while we may borrow the

limitations period in Mass. Gen. Laws ch. 260 § 2A, we are

prohibited from borrowing the application rule in Mass. R. Civ. P.

6(a). Under Boutselis' reading of precedent, borrowing the

Massachusetts application rule contradicts the Supreme Court's

directive in West v. Conrail, 481 U.S. 35, 39 (1987), which advised

federal courts that if a state statute of limitations must be

borrowed for a federal cause of action, the court is to borrow "no

more than necessary." Second, even if we were permitted to borrow

the state rule of application, Boutselis maintains that

Massachusetts utilizes a different application rule for § 1983

claims than for those arising under state law.

With respect to his first argument - that we may not borrow

the Massachusetts application rule - Boutselis attempts to derail

as precedent our opinion in Carreras-Rosa v. Alves-Cruz, 127 F.3d

172 (1st Cir. 1997), but in doing so contradicts the Supreme

-6-
Court's decision in Wilson, 471 U.S. at 269, which holds that "the

length of the limitations period, and closely related questions of

tolling and application, are to be governed by state law." In

Carreras, we recognized Wilson's teaching and looked to a Puerto

Rico statute and a ruling of the Puerto Rico Supreme Court to

determine the timeliness of a § 1983 action. See Carreras, 127

F.3d at 174. Boutselis suggests, however, that this holding

encompasses only those instances in which a state statute, rather

than a rule of procedure, sets forth the application rule.3 In

advancing this pained distinction, he also ignores our disagreement

in Carreras with dicta equating "the date of accrual with the first

day of the limitations period," id. at 175.

Boutselis' second argument urges us to hold that Massachusetts

uses a different rule of application for § 1983 claims than for

claims arising under state law. Boutselis concedes that

Massachusetts generally excludes the accrual date in calculating

the limitations period of tort claims, see Ciampa, 1992 Mass. App.

Div. at 204, but he maintains that under Pagliuca v. City of

3
Boutselis cites no relevant precedent for this distinction,
other than our decision in McIntosh v. Antonino, 71 F.3d 29 (1st
Cir. 1995), which deals with the inapposite question of adopting
state rules of filing. In McIntosh, we declined to borrow a
Massachusetts rule permitting filing by mail when there was no
legitimate reason to depart from the established principle that
federal rules of procedure prevail in federal courts. See Hanna v.
Plummer, 380 U.S. 460 (1965). Boutselis' reliance on McIntosh
disregards the Supreme Court's explicit authorization to look to
state law regarding questions of application. See Wilson, 471 U.S.
at 269.

-7-
Boston, 626 N.E.2d 625, 35 Mass. App. Ct. 820 (1993), the statute

of limitations for § 1983 claims begins running on (and therefore

is inclusive of) the date of the wrongful acts. In Pagliuca, the

court was dealing with the question of whether a § 1983 action

accrues on the date of the wrongful acts or a later date when the

effects of the acts were felt. Its decision about the beginning

and ending dates of the limitations period cited no Massachusetts

authority and relied solely on our decision in Altair v. Pesquera

de Busquets, 769 F.2d 30, 32 (1st Cir. 1985). We specifically

abrogated Altair in Carreras, 127 F.3d at 174, borrowing instead

the Puerto Rico law which calculated the limitations period

exclusive of the date of accrual.

Most importantly, Boutselis ignores the strong indication of

a beginning date in the "next after" language of Mass. Gen. Laws

ch. 260 § 2A as well as longstanding Massachusetts precedent

excluding the date of accrual from the calculation of the

limitations period. See Pierce v. Tiernan, 280 Mass. 180, 182, 182

N.E. 292, 293 (1932) (interpreting prior Mass. Gen. Laws. ch. 260

§ 4, which contained the same "next after" language as the current

Mass. Gen. Laws. ch. 260 § 2A, to mean that in "computing [the]

limit of time, the day upon which the cause of action accrued is to

be excluded"); see also Bemis v. Leonard, 118 Mass. 502, 506 (1875)

("In this Commonwealth, the general rule, as applied in a variety

-8-
of circumstances, and now well established, is, that in computing

time from the date . . . the day of the date is to be excluded.").

We thus hold that in determining the accrual and limitations

period of a § 1983 claim, we borrow Mass. Gen. Laws ch. 260, § 2A

as well as Mass. R. Civ. P. 6(a). We note also that there cannot

be any inconsistency with federal law since the rules of the two

jurisdictions are identical. See Wilson, 471 U.S. at 269;

Carreras, 127 F.3d at 174 n.1. The district court therefore did

not err in finding that Poy's anniversary date filing was timely.

B. Motion for New Trial

In his motion for a new trial, Boutselis made one allegation,

namely, that the amount of damages for the intentional or reckless

infliction of emotional distress ($5,000) and for punitive damages

($25,000) was excessive and the result of prejudice or sympathy.

In the memorandum submitted to the district court, the argument

widened to an assertion of a complete absence of evidence

supporting two jury findings. With reference to the state law

claim involving emotional distress, appellant argued that there was

no medical or psychiatric evidence, and no testimony from the

plaintiff specifically mentioning emotional distress. With

reference to the § 1983 claim for punitive damages, appellant

argued that the jury had made a special finding that he, Boutselis,

had not acted maliciously and sadistically for the purpose of

causing harm, that there was no evidence of evil intent, and that

-9-
the incident was an isolated one. The district court denied the

motion, ruling that there was "a genuine dispute of fact for

decision by the jury."

Appellant faces a formidable burden in trying to persuade us

to reverse a district judge's denial of a motion for new trial.

Our review of such an issue is "extremely circumscribed." Correa

v. Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995). In

assessing whether or not there is a reasonable basis for the jury's

decision, we take "both the facts and the reasonable inferences

therefrom in the light most hospitable to the jury's verdict." Id.

at 1188.

First of all, both the claims for intentional or reckless

infliction of emotional distress and for punitive damages require

proof of similarly extreme conduct. The former requires evidence

of conduct that is "extreme and outrageous." Nancy P. v. D'Amato,

517 N.E.2d 824, 827, 401 Mass. 516, 518 (1988). The latter

requires either evidence of evil intent or "reckless or callous

indifference to the federally protected rights of others." Smith

v. Wade, 461 U.S. 30, 56 (1983). In this case the jury answered a

carefully constructed series of questions. After it had found that

Boutselis had used excessive physical force, despite an absence of

resistance, threats, or attempt to flee on the part of Poy, it went

on to find that his conduct "violated contemporary standards of

decency and is repugnant to the conscience of the community," was

-10-
"unnecessarily wanton or excessive," extended "beyond the scope of

his capacity as a police officer," and took place "with reckless

disregard for the likelihood that it would cause Poy to suffer

severe emotional distress." We agree with the district court that

at the very least the evidence presented factual questions as to

Boutselis' conduct which could be and were resolved by the jury.

As for the evidence of resulting emotional distress, although

there was no medical or psychiatric evidence, there was

considerable testimony, not only from plaintiff but from two other

witnesses, of the following facts: Poy was struck repeatedly on his

face and back, being knocked to the floor and pinioned by

Boutselis; his hands were locked behind him and handcuffs were used

as brass knuckles, striking him repeatedly on the forehead; a

resulting wound required sutures at a hospital and left visible

evidence of a scar which the jury observed; the incident was

followed by two months of pain in his shoulder, back, wrist, and

head. A jury could reasonably infer from such humiliation, long

continued pain, and facial disfigurement a condition of severe

emotional distress. Cf. Wagenmann v. Adams, 829 F.2d 196,216 (1st

Cir. 1987)(upholding compensatory damages of $225,000 for a 36-hour

incident involving false arrest, bringing of charges, handcuffing,

thrusting into police vehicle, arraignment, and a night in a mental

hospital, but no physical injury).

-11-
 On this record, the district court's denial of the motion for

new trial is far from an abuse of discretion, not to mention "a

manifest abuse of discretion." Joia v. Jo-Ja Service Corp., 817 F2d

908, 918 (1st Cir. 1987).

C. Conroy's Motion for Attorney's Fees

In the district court, defendant Conroy sought attorney's fees

on the ground that he was kept in the case long after the claims of

plaintiff Toeur Em, whom he had arrested, had been dismissed. The

district court denied the motion. Whether or not this decision

might have been vulnerable - and we do not suggest that it was — it

is not before us. The notice of appeal filed by Boutselis makes no

mention of Conroy, and lists only the two issues we have just

discussed. Failure to include this third issue in the notice is

fatal to our jurisdiction. Lehman v. Revolution Portfolio L.L.C.,

166 F.3d 389, 395 (1st Cir. 1999).

III. Appeal of Poy

The question posed by this appeal is whether, on the facts of

this case, the district court was within its discretion in denying

any attorney's fee award at all to Poy, although he obtained a

verdict and not insignificant money damages against a city police

officer.

A. Proceedings Below

The proceedings leading to this appeal involve several

hearings. The first was held shortly after the conclusion of the

-12-
jury trial, on October 18, 2002, to consider motions for attorney's

fees. Poy's two attorneys each submitted a motion containing

statements totaling some $98,631 and covering over four and a half

years of representation by the senior counsel as well as work in

preparation for the recent trial by the junior counsel. The court

expressed its reactions that both motions were excessive, commented

on what it thought wasteful duplication of lawyer presence and

effort by Poy's team, questioned the apparent inappropriateness of

including fees for the pursuit of claims on behalf of the

disappearing Em and against officer Conroy, and heard an argument

that Poy's lawyers' records did not appear to be contemporaneous in

two specific entries in which conversations with Boutselis'

attorney Freda were noted at a time prior to his association with

his present firm. The court then set another date for further

presentations, giving an opportunity for counsel to amend their

affidavits.

Poy's counsel responded to the court's invitation with several

submissions. One was from junior counsel Miller, affirming that

all billing records had been reviewed and a good faith attempt made

to locate errors and exclude excessive items. He rehearsed the

work performed, principally in discovery, depositions, meeting with

plaintiffs, and trial. He asserted that plaintiff Em's claims and

claims against the city of Lowell involved the "common core of

facts" and "related legal theories" deemed legitimate in successful

-13-
claims by plaintiffs in Aubin v. Fudala, 782 F.2d 287, 291 (1st

Cir. 1986). Finally, he signified his willingness to take a ten

percent cut, reducing his request from $44,102 to $39,611.

Poy's senior attorney, Wernick, explained the allocation of

work between him, with 25 years experience, and Miller, with six,

in which discovery matters were handled largely by Miller, and

depositions largely by Wernick. Both were in attendance at trial

as were the two lawyer teams representing Boutselis and the city.

Attorney Wernick also voluntarily reduced his request from $63,562

to $47,206, saying this was a ten percent cut. In reality this

would be a cut in excess of 25 percent and is clearly an error.4

A third submission addressed the two entries recording a

conversation with Boutselis' attorney Freda at a time prior to his

association with his firm. Photocopies of the original time

records were submitted purporting to show that conversations with

an unnamed Boutselis attorney had indeed been made on the cited

dates.

A second hearing was soon held, on November 15, 2002. In

replying to counsel's query why the court was not inclined to award

any attorney's fees to either party, though plaintiff had prevailed

against Boutselis, the court said, "[B]ecause you prevailed in

4
If a ten percent reduction were made, Wernick's request
would be for $57,206, not $47,206. His figures represent a cut of
$16,356 or approximately 26 percent. If a 10 percent reduction
were made, his share would be $6,356, and Miller's $4,410, totaling
$10,766.

-14-
part, but only in part, and very substantially did not prevail.

Each of you overclaimed very, very substantially." Instead of

spending a great deal of time with more submissions and repetitive

arguments, the court concluded, "I should simply say that since

neither of you prevailed in the sense that justifies an award of

attorney's fees or costs, I will not give it to either side as

between the plaintiff and Boutselis."

A third hearing was held on January 10, 2003. In the course

of it the court said, "[T]here is not any prevailing party in the

sense required for an attorney's fees award in this case because

each party won in some significant respect and lost in some

significant respect." The court further affirmed that this was the

only basis of its decision. When its memorandum and order

memorializing the results of the hearing was issued, however, Poy's

request for attorney's fees was disposed of because the request was

"plainly excessive," and even considering the attorneys' voluntary

ten percent reduction, the fault had not been remedied. A second

basis for denying fees in toto was that "there are strong

indications the records given to this court were not

contemporaneous records." The court also denied plaintiff all his

costs except the $150 filing fee, partly because they were not

listed in 28 U.S.C. § 1920(1) and partly because deposition

transcripts were not shown to be necessary or paid for.

-15-
 B. Law of Prevailing Parties

We begin with the threshold principle enunciated by the

Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),

endorsing our formulation in Nadeau v. Helgemoe, 581 F.2d 275, 278-

279 (1st Cir. 1978), that "plaintiffs may be considered 'prevailing

parties' for attorney's fees purposes if they succeed on any

significant issue in litigation which achieves some of the benefit

the parties sought in bringing suit." We have noted the permissive

phrasing but have concluded that "awards in favor of prevailing

civil rights plaintiffs are virtually obligatory." Gay Officers

Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001).

Prevailing party status, we have recognized, might be denied

if success on a claim was "purely technical or de minimis," id. at

294 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 792 (1989)). Another basis for denying fees

to a prevailing plaintiff is the presence of "special circumstances

[which] would render such an award unjust." Hensley, 461 U.S. at

429 (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402

(1968)). In such a case, we require "findings of fact and

conclusions of law identifying the special circumstances and

explaining why an award would be inappropriate." De Jesus v. Banco

Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir. 1990).

Appellee Boutselis invokes Lewis v. Kendrick, 944 F.2d 949

(1st Cir. 1991), where we reversed an award of attorney's fees to

-16-
a plaintiff who had been awarded $1,000 compensatory damages in

connection with a false arrest. The circumstances of that case

demonstrate a coalescence of extremes in terms of litigation

judgment, expenditure of time, and overclaiming: an incident

involving merely a 15-minute investigation by police, an hour and

three quarters detention awaiting bail, and the fastening of

handcuffs too tightly, resulting in a demand for $250,000 in actual

damages and $50,000 in punitive damages, and an initial request for

$132,788 in attorney's fees for a time record of 952 hours, or half

a billing year. Even so, total denial of fees caused then Judge

Breyer to dissent, recommending at least a token fee. See id. at

956.

In the light of these precedents, we now look at this case.

We are in sympathy with the plight of the district court, which is

faced with a tedious and unpleasant task. It must determine time

reasonably spent, the reasonable rates applicable, assess the

significance of any success, and finally ascertain if special

circumstances trump such calculations. There is no easy way. In

this process counsel have an obligation to "make a good faith

effort to exclude from a fee request hours that are excessive,

redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434.

But in the end, the biases, pressures, self interest, and

perspective of parties and their counsel make the task of the trial

court central and indispensable.

-17-
 Our task now is to review the district court's decision for

"manifest abuse of discretion." Gay Officers Action League, 247

F.3d at 292. "Apart from mistakes of law ... we will set aside a

fee award only if it clearly appears that the trial court ignored

a factor deserving significant weight, relied upon an improper

factor, or evaluated all the proper factors (and no improper ones),

but made a serious mistake in weighing them." Id. at 292-93.

C. The Record

The basic requirement that a plaintiff prevail on a

significant issue is clearly met. The district court recognized

this in commenting that "each party won in some significant respect

and lost in some significant respect." Poy's victory was for his

core claim of false arrest, the use of excessive force, and the

infliction of emotional distress against the one individual whose

acts were in issue. He obtained $10,000 in compensatory damages

and two and one half times that amount in punitive damages. This

was not only a personal victory but a recognition that

professional, civil standards must be vigilantly maintained in law

enforcement. To the extent that the district court may have deemed

plaintiff's success de minimis, we disagree, deeming this a defect

in weighing.

But before this could be considered serious, we must see

whether the observations of the district court rise to the level of

special circumstances sufficient to deny any attorney's fee as

-18-
unjust. We look at the record to ascertain the extent to which the

district court's views of overclaiming, unsuccessful claims, and

lack of contemporaneous records are supported.

We have looked at the fee applications submitted to us. In

form they appear quite meticulous and disclose fairly the object

and amount of the time spent. We think it likely, from our

somewhat removed vantage point, that the plaintiff's explanation

of the misnaming of the attorney representing Boutselis in two

entries reveals only an inadvertence in preparing the fee

application from original records. We have no indication of any

other instance suggesting lack of contemporaneity.

Although Poy's attorneys volunteered a ten percent reduction

in their fee to respond to the court's concerns, this was not tied

to any attempt to excise redundant or unnecessary work, unlike the

more responsive action of counsel in Gay Officers Action League,

247 F.3d at 292. It may have been viewed merely as a token

gesture. Nevertheless, the significance of the proffered reduction

is borne out by further scrutiny of the fee applications. Much has

been made of plaintiff Em's early abandonment of his case and of

the failure of plaintiff to prevail in his claims against the city

and its chief of police. In reviewing the fee applications, we

deleted all time attributed to either Em's claims or claims against

the city. This revealed a total fee attribution to these two sets

of claims in the amount of some $8,400. As for claims against

-19-
officer Conroy, a matter of some concern to the district court, our

review indicates almost no time charges addressed to them. The

proffered ten percent reduction in fee, according to our admittedly

preliminary calculation, amounts to approximately $10,750 or well

in excess of the unsuccessful claims by or against dismissed

parties. See supra n.3.

A number of state causes of action and defendant parties were

dismissed. They include assault and battery on the part of

officers Boutselis and Conroy. It appears to us that whatever work

was relevant to these claims arguably may have had to be done in

connection with plaintiff's claims of false arrest, excessive force

and emotional distress against Boutselis. There were three claims

against Neov, the owner of the site of the incident, The Golden

Swan, for negligent hiring (of Boutselis) and supervision,

respondeat superior, and premises liability. We have found no

indication of time spent or charges allocated to supporting these

claims. And the claims of unconstitutional policy or custom and

negligence against the chief and the city, even if unrelated to

plaintiff's claims against Boutselis, may fall within the proffered

ten percent reduction. These are only our preliminary impressions;

definitive resolution of the issue of relatedness is better left to

the informed judgment of the district court.

Another area of concern to the district court was the

possibility of wasteful redundancy of effort by plaintiff's two

-20-
attorneys. Attorney Wernick explained that in pre-trial matters

such as discovery, most of the work was done by his junior, Miller.

He himself did most of the deposition work. While the district

court may eventually reject this explanation, it is at least

facially plausible. There remains the important and intense period

of trial when both were in attendance much of the time. The

requested fees for this period are indeed very substantial. We

note, however, that both the city (including Chief Davis) and

Boutselis were at the same time represented by teams of two

attorneys. We cannot improve on the advice we gave in Gay Officers

Action League, 247 F.3d at 297: "[A] court should not hesitate to

discount hours if it sees signs that a prevailing party has

overstaffed a case ....On the other hand ... [g]iven the complexity

of modern litigation, the deployment of multiple attorneys is

sometimes an eminently reasonable tactic." In short, the district

court must weigh and consider the claim of overstaffing, using its

intimate knowledge of the case, and make specific findings thereon.

As a result of this analysis and based on this record, we see

no "special circumstances" justifying the elevation of this case to

that rarified level of irresponsible litigation strategy, minimal

accomplishment, and intolerable overclaiming which merits denial of

any fees whatsoever to a prevailing party. In short, our

conclusion is that a serious mistake in weighing was made, aided by

the complete discounting of the relevant prevailing party factor.

-21-
 We therefore must remand this issue to the district court for

consideration in accordance with this opinion. It should examine

any claim of interrelatedness between work done on unsuccessful

claims and the claims on which plaintiff was successful. It should

examine the reasonableness of time spent and rates charged,

including the possibility of overstaffing. Counsel are urged to be

as forthcoming and cooperative as possible. In the final analysis,

the court must make its judgment and support it with sufficient

specificity. We add that it should also review plaintiff's request

for reimbursement of costs, not being restricted to the

specifications of 28 U.S.C. § 1920, see System Management, Inc. v.

Loiselle, 154 F. Supp.2d 195, 204 (D. Mass. 2001) (holding that

"reasonable out-of-pocket expenses incurred by the attorney and

normally charged to the client" could be awarded pursuant to

statutory authority of § 1988).

We therefore vacate the sections of the court's order of

January 10, 2003 relating to plaintiff's request for fees and

costs, as well as Boutselis' motion to reduce any attorney's fees

awarded to plaintiff. We remand the case to the district court for

determination of an appropriate attorney's fee for plaintiff. This

shall not alter the date of judgment concerning the awards of

damages, but we suggest that the amount of prejudgment interest be

revisited to insure accuracy.

-22-
 Appellant is entitled to his reasonable attorney's fees and

costs on appeal.

Affirmed in part, vacated in part, and remanded.

-23-