Burke v. McDonald , 572 F.3d 51 ( 2009 )

United States Court of Appeals
For the First Circuit
Nos. 07-2691, 07-2692
EDMUND F. BURKE,
Plaintiff, Appellee/Cross-Appellant,
v.
STEVEN MCDONALD,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Howard, Selya, and Hansen,*
Circuit Judges.
Joseph P. Kitteredge, with whom Rafanelli & Kitteredge,
P.C., Brian Rogal, and Rogal & Donnellan, P.C., were on brief,
for appellant/cross-appellee.
Robert S. Sinsheimer, with whom Lauren Thomas and Denner
Pellegrino, LLP, were on brief, for appellee/cross-appellant.
July 17, 2009
*
Of the Eighth Circuit, sitting by designation.
HOWARD, Circuit Judge. In 1998, despite the fact that
police had obtained DNA evidence excluding him as the perpetrator,
Edmund Burke was arrested for murder and forced to spend a total of
forty-two days in jail. Burke subsequently filed a civil rights
lawsuit under 42 U.S.C. § 1983 against a panoply of those involved
in the investigation of the crime, and after years of litigation,
a federal jury found Massachusetts State Police Trooper (Tpr.)
Steven McDonald liable for violating Burke’s Fourth Amendment
rights and awarded $400,000 in damages. After trial, the district
court denied Tpr. McDonald’s motions for judgment as a matter of
law, a new trial, and remittitur. The court also awarded
attorneys' fees to Burke, although it reduced the amount of the
fees award from the requested $292,463.50 (plus expenses of
$34,358.55) to $118,882.50 (plus expenses of $12,632.89) on the
ground that Burke’s success was “decidedly partial.”1
Both parties now appeal decisions of the district court:
Tpr. McDonald appeals the decision not to limit damages (and
evidence thereof) to the period between arrest and arraignment;
Burke, as cross-appellant, appeals the attorneys' fees reduction.
1
These figures are drawn from the district court's Order
Awarding Attorneys' Fees, which notes that Burke's underlying fee
application asked for $294,024.50, but that the application
"mistakenly includes hours that the plaintiff subsequently
voluntarily withdrew." The parties on appeal do not dispute the
district court's correction.
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Discerning no errors in the district court's handling of
the case on either matter, we affirm.
I. Background
A. The Factual Milieu
Because we had the opportunity to develop the factual
context of this case in some depth when considering an appeal from
the district court's prior entry of summary judgment for the
defendants, see Burke v. Town of Walpole (Burke I), 405 F.3d 66(1st Cir. 2005) (vacating the district court's grant of summary
judgment as to Burke's Fourth Amendment § 1983 claim against Tpr.
McDonald, and affirming in all other respects), we will limit our
factual exposition to a summary of the necessary details. Except
where indicated, these facts are not in serious dispute for
purposes of these appeals.
On December 1, 1998, Irene Kennedy, a 75-year-old woman,
was the victim of a particularly grisly murder involving a severe
beating, strangulation, and multiple stab wounds. The victim's
breasts, which were exposed when her body was found in a wooded
Walpole, Massachusetts park, each bore a human bite mark. The
ensuing investigation into the crime included the collection of DNA
samples in the form of saliva from the bite marks on the victim's
body, and of saliva and other forensic samples from Burke, a
suspect in the crime. Because Massachusetts did not at that time
operate a facility capable of expedited DNA analysis of multiple-
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source samples, the samples were sent to the Maine Crime Laboratory
for immediate analysis by Theresa Calicchio, a forensic DNA
chemist.
Calicchio testified at the trial in this case that, on
the morning of December 10, 1998, she called Tpr. McDonald and told
him that the DNA analysis had excluded Burke as the source of DNA
collected from the victim's body.2 Tpr. McDonald, however, failed
to convey this information to his colleagues, this despite the fact
that he successfully conveyed the findings of other non-DNA bite
mark analyses that implicated Burke in the crime. As a result, a
warrant application was filed that afternoon which omitted any
mention of the DNA results, and an arrest warrant issued shortly
thereafter.
Burke was arrested at his home that afternoon and
detained overnight, prior to being arraigned in state court the
next day. Shortly after the arraignment began, Tpr. Kevin Shea,
Tpr. McDonald's colleague and co-investigator into the murder of
2
Whether Calicchio actually told Tpr. McDonald that Burke was
excluded on the day of the arrest was hotly contested at trial, and
Tpr. McDonald maintains on appeal that the evidence supporting
Calicchio's version of events is insufficient to support a finding
of liability, thereby entitling him to judgment as a matter of law.
We disagree. Calicchio testified that she "told [Tpr. McDonald]
that Ed Burke was excluded," and when asked if she had any doubt
about that fact, she stated, "No, no doubt." Suffice it to say
that "it was the jury's role to assess the credibility of witnesses
and to resolve inconsistencies in the evidence." Wagenmann v.
Adams, 829 F.2d 196, 206 (1st Cir. 1987); see also Ayala-Rodriguez
v. Rullan, 511 F.3d 232, 237 (1st Cir. 2007) ("Credibility issues
are for the jury . . . .").
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Mrs. Kennedy, entered the courtroom and interrupted Assistant
District Attorney (ADA) Gerald Pudolsky mid-argument. The facts
surrounding this event are disputed. In essence, it is McDonald's
and Shea's contention that McDonald called Shea and told him about
the DNA exclusion of Burke, thereby leading Tpr. Shea to interrupt
ADA Pudolsky. At trial, however, Burke marshaled evidence,
discussed in detail below, suggesting that the results of the DNA
test were never communicated from Tpr. McDonald to those
responsible for prosecuting the arraignment hearing, or to the
presiding magistrate.
In any event, it is undisputed that after Tpr. Shea
interrupted the arraignment and spoke to ADA Pudolsky, ADA Pudolsky
was left with the impression that "some evidence" had "come to
light." He requested a recess, called his supervisors, and was
told (he does not remember by whom) that "more testing" of the DNA
was required before any definitive result could be obtained. ADA
Pudolsky then sought and secured Burke's detention without bail.
Burke spent the next forty-one days in custody until, after palm
prints provided by Burke pursuant to court order revealed that
Burke was not the source of a palm print on the victim's body, the
district attorney filed a nolle prosequi in the case on the ground
that Burke's prosecution was premature.
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B. The Instant Litigation
Burke subsequently filed a civil rights action in state
court against the Town of Walpole, the dentist who provided the
non-DNA bite mark analysis, and various officers and supervisors of
the Walpole Police Department in their individual and official
capacities. In addition to a § 1983 claim, he claimed defamation
based on having been publicly identified as Mrs. Kennedy's
murderer. Shortly thereafter, Burke filed a similar lawsuit in
federal court against various Massachusetts State Police troopers,
employees of the Massachusetts Chief Medical Examiner's Office, and
the Commonwealth of Massachusetts. After the state case was
removed to federal court, Burke amended his complaint to combine
the two cases, and then amended his complaint two more times to add
claims of negligence against the Commonwealth and to join a second
dentist as a defendant. His attempt to amend the complaint a
fourth time was denied.
In time, the district court granted summary judgment to
all defendants on all claims, and Burke appealed. As noted above,
we affirmed the district court in every respect except for one: we
vacated the grant of summary judgment to Tpr. McDonald on Burke's
§ 1983 claim alleging a Fourth Amendment violation, concluding that
"the record contains evidence, sufficient to create a jury
question, that he intentionally or recklessly withheld exculpatory
DNA evidence from the magistrate who issued the warrant to arrest
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Burke, and a reasonable officer would know that such conduct
violated a clearly established Fourth Amendment right." Burke I,
405 F.3d at 70.
Before, during, and after the ensuing trial, Tpr.
McDonald maintained in the district court his position that he
should not be found liable for damages incurred after the
arraignment. In support of this position, Tpr. McDonald cited
evidence, which he characterized as uncontroverted, suggesting that
he had made a full disclosure of the exculpatory DNA evidence to
the prosecution before ADA Pudolsky requested Burke's continued
detention without bail. In McDonald's view, the district attorney,
who after Tpr. McDonald's disclosure had all available information
about the evidence inculpating and exculpating Burke, made a fully-
informed and independent decision to ask for continued detention,
and a fully-informed magistrate agreed. Tpr. McDonald argued to
the district court, and maintains on appeal, that the arraignment
therefore cut off the damages for which he can be liable, either as
a matter of law or as a matter of fact.
The district court disagreed, and instead submitted the
question to the jury as a matter of proximate cause and
consequential damages. The court instructed the jury that "the
plaintiff must establish the defendant's acts were the proximate
cause of injuries to him and consequent damages sustained by him."
Additionally, after defining and explaining the term "proximate
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cause" and emphasizing that an intervening cause cuts off
liability,3 the court instructed:
In this case it is the defendant's contention
that even if he had withheld material
information from other investigators on
December 10th, he disclosed that the DNA
testing had excluded Mr. Burke at the time of
the arraignment on December 11th, so that any
continued detention of Mr. Burke after that
time could not have been caused by his
withholding of information. That is also a
factual issue for you to determine -- for you
to resolve, if, of course, you find that
Trooper McDonald had withheld information
prior to the application for a warrant.
Before the jury retired, the district court held a
sidebar discussion and invited objections and corrections to its
instructions. Tpr. McDonald's attorney objected, to no avail, as
follows: "Your Honor, just for the record, I wanted to state that
I believe I'm entitled to as a matter of law instruction that the
probable cause determination by the Court on the 11th terminates
any exposure my client has to damages." This objection was in
addition to an instruction that Tpr. McDonald had proposed, also to
no avail, which would have instructed:
[Y]ou may award [the Plaintiff] only such
damages as will reasonably compensate him for
such injury and damages as you find, from a
preponderance of the evidence in the case,
that he sustained from the time of his arrest
until when the DNA results were disclosed.
You are not permitted to award any damages you
find the Plaintiff may have suffered following
3
Tpr. McDonald has not challenged the district court's
instructions as to the meaning of "proximate cause."
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when the DNA results were disclosed by the
Defendant.
The jury found in favor of Burke using a general verdict
form, and a flurry of post-trial motions followed. Among them was
Burke's request for attorneys' fees, originally in the amount of
$324,859.75, but voluntarily reduced to $292,463.50 after a filing
from Tpr. McDonald challenged the amount. The district court
further reduced the fee award to $118,882.50, declaring the
plaintiff's success "decidedly partial." In arriving at this
amount, the district court depended heavily on the fact that the
plaintiff obtained a jury verdict against "only one of twenty-one
defendants on only one of sixteen causes of action."4
As for the amount of the reduction, the district court
described the time and billing records as providing "little, if any
basis for determining what work reflected in them was done to
develop what claims," and therefore made a "proportional estimate"
that, prior to Burke I, "it is fair to estimate that 15% of the .
. . work was of direct or indirect benefit to the plaintiff's
4
The court also awarded $12,632.89 in total expenses, an
amount arrived at by way of the same global eighty-five percent
reduction that was applied to the claimed attorneys' fees. It is
unclear whether Burke intends his cross-appeal to encompass the
district court's decision to reduce the expenses: except for a few
passing references to costs, the brief complains only of the "fees"
reduction and refers only to "time" records and "time spent"; not
surprisingly, Tpr. McDonald takes the position that Burke has made
"no argument challenging . . . the reduction of costs." But the
matter is immaterial to our decision, for to the extent it has been
appealed, we affirm the district court's reduction of expenses for
substantially the same reasons we affirm its fee award.
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ability to prevail on his [successful] claim against McDonald."
The district court recognized only 15% of the claimed pre-Burke I
hours, added them to the hours spent on the case after Burke I
(100% of which were recognized), and proceeded to calculate the
final award using the "lodestar method."5 Both parties appealed.
II. TPR. MCDONALD'S APPEAL
The gravamen of Tpr. McDonald's appeal is simply put: he
believes that his liability is limited to the damages Burke
incurred between the arrest and the arraignment. He advances this
position with three related arguments. First, he argues that the
district court should have cut off the damages as a matter of law
with a legal ruling before trial, an instruction to the jury not to
consider damages incurred after the arraignment, a post-trial
judgment as a matter of law, or a remittitur.6 Second, Tpr.
McDonald argues that even if the district court was theoretically
correct in framing McDonald's potential liability for post-
arraignment damages as a question of proximate cause, in this case
the prosecutors' informed and independent decision to proceed with
5
The "lodestar method" of calculating attorneys' fees awards
requires the district judge to multiply the number of hours
productively expended by counsel by a reasonable hourly rate. See
De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 207 (1st Cir.
2009). The resulting amount is presumptively reasonable, Lipsett
v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992), although the district
court enjoys some discretion to adjust the lodestar amount upwards
or downwards, see De Jesus Nazario, 554 F.3d at 207.
6
McDonald's challenge to the size of the verdict stands or
falls on his intervening cause argument.
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the arraignment should have cut off his damages as a matter of law.
Third, Tpr. McDonald argues that the evidence of his liability for
post-arraignment damages was insufficient on any theory to support
the jury's verdict.
A. Standards of Review
"We review the district court's denial of a motion for
judgment as a matter of law, including legal decisions made
therein, de novo." Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir. 2009) (citing
Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 22 (1st Cir. 2006)).
We review the denial of a motion for a new trial or remittitur for
abuse of discretion, and "[w]e will order a new trial only if the
verdict is against the demonstrable weight of the credible evidence
or results in a blatant miscarriage of justice." Marcoux v. Shell
Oil Prods. Co., 524 F.3d 33, 40 (1st Cir. 2008) (internal quotation
marks omitted); see also Mendez-Matos v. Municipality of Guaynabo,
557 F.3d 36, 46 (1st Cir. 2009) ("Where . . . defendants have
timely moved for a new trial or remittitur under Federal Rule of
Civil Procedure 59, our inquiry is limited to determining whether
the trial court abused its discretion in refusing to set aside the
verdict as excessive." (internal quotation marks omitted)).
"As to matters of fact, we view the evidence in the light
most favorable to the verdict, asking only whether a rational jury
could on the basis of that evidence find as the jury has." Id. In
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other words, "a jury's verdict and factual findings must be upheld
unless the facts and inferences viewed in the light most favorable
to the verdict point so strongly and overwhelmingly in favor of the
movant that a reasonable jury could not have returned the verdict."
Mass. Eye & Ear Infirmary, 552 F.3d at 57 (internal quotation marks
omitted); see also Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393
(1st Cir. 2002).
Where, as here, a claim of instructional error challenges
the very basis for instructing or refusing to instruct on a
particular subject, we review that claim of error de novo.
Davignon v. Hodgson, 524 F.3d 91, 108 (1st Cir. 2008) (citing
Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 76
(1st Cir. 2002)); United States v. Nascimento, 491 F.3d 25, 33 (1st
Cir. 2007). "Where a district court refuses to give a party's
requested instruction, however, we will reverse only if the
requested instruction was '(1) correct as a matter of substantive
law, (2) not substantially incorporated into the charge as
rendered, and (3) integral to an important point of the case.'" Id.(quoting White v. N.H. Dep't of Corr., 221 F.3d 254, 263 (1st Cir.
2000)).
"We will uphold a jury award if it is a result of 'any
rational appraisal or estimate of the damages that could be based
on the evidence before the jury.'" Marcoux, 524 F.3d at 40
-12-
(quoting Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d
1147, 1172 (1st Cir. 1994)).
B. Discussion
For his argument that the district court should have
limited his liability for damages to the period preceding the
arraignment, Tpr. McDonald relies primarily on the Supreme Court's
statement in Heck v. Humphrey that "'If there is a false arrest
claim, damages for that claim cover the time of detention up until
issuance of process or arraignment, but no more.'" 512 U.S. 477,
484 (1994) (quoting W. Page Keeton et al., Prosser and Keeton on
Law of Torts 888 (5th ed., 1984)). The appellant correctly
acknowledges, however, that an exception to that rule exists where
facts are withheld from the prosecutor or judge such that the
affected official(s) cannot be understood to have exercised an
informed, independent judgment. See Wagenmann, 829 F.2d 196, 211
(1st Cir. 1987) (observing, in action against police officer for
violating, inter alia, right to be free from excessive bail, "if a
person wrongfully brings about an end by manipulating another," in
this case the court clerk responsible for setting the bail, "the
naked fact that he lacked . . . authority to accomplish the end by
himself does not provide an impenetrable shield" against damages);
see also, Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th
Cir. 2008) (citing Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.
1981)) (prosecutor's decision to proceed does not cut off
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investigating officers' liability where plaintiff can show that the
prosecutor was pressured or caused by the investigating officers to
act contrary to his independent judgment); Townes v. City of New
York, 176 F.3d 138, 147 (2d Cir. 1999); Jones v. City of Chicago,
586 F.2d 985, 994 (7th Cir. 1988). Thus, bearing in mind the
applicable standard of review, Tpr. McDonald's appeal of the
district court's refusal to enter judgment as a matter of law must
fail if, when viewing the facts and drawing inferences in the light
most favorable to the verdict, a rational jury could have found
that Tpr. McDonald withheld the exclusionary DNA test results from
the prosecutors and the magistrate in a manner that prevented those
officials from making informed and independent decisions.7
On the record before us, no stretch of imagination is
required to fathom how a rational jury could have so found. For
instance, the jury could have credited the testimony of Walpole
7
In their briefs, the parties debate whether an independent
Fourth Amendment malicious-prosecution claim is cognizable under §
1983, an open question in this circuit. See Nieves v. McSweeney,
241 F.3d 46, 54 (1st Cir. 2003) ("It is an open question whether
the Constitution permits the assertion of a section 1983 claim for
malicious prosecution on the basis of an alleged Fourth Amendment
violation."). We need not reach that question here; it suffices to
repeat that "the essential elements of actionable section 1983
claims derive first and foremost from the Constitution itself, not
necessarily from the analogous common law tort." Calero-Colon v.
Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995); id. at 5 (Lynch,
J., concurring) (same); cf. Albright v. Oliver, 510 U.S. 266, 270
n.4 (1994) ("[T]he extent to which a claim of malicious prosecution
is actionable under § 1983 is one on which there is an embarrassing
diversity of judicial opinion." (internal quotation marks
omitted)).
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Police Officer James Dolan, called by Burke as a hostile witness,
that the information presented to the magistrate at the arraignment
did not include the exculpatory DNA test results that, according to
Calicchio, had already been tendered to Tpr. McDonald. The jury
could also have disbelieved Tpr. McDonald's testimony that he fully
informed the prosecutors involved in the bail decision about the
DNA test results. Tpr. McDonald claimed to have unburdened himself
to First Assistant District Attorney John Kivlan directly on the
day of the arraignment, but ADA Kivlan was never called to testify,
nor was any other evidence offered to support McDonald's assertion.
The jury might well have determined that Tpr. McDonald's
testimony was nakedly self-serving and not credible. Tpr. McDonald
also claimed to have informed ADA Pudolsky of Burke's exclusion by
way of Tpr. Shea, who testified that he told ADA Pudolsky that
Burke was excluded when he interrupted the arraignment. But the
rest of the evidence does not fully corroborate that account.
Among the infirmities in Tpr. McDonald's version of events is the
fact that, while both Tprs. McDonald and Shea testified that Tpr.
McDonald told Tpr. Shea that "Burke is excluded" based on the DNA
test results, and while Tpr. Shea testified that he passed this
message on to ADA Pudolsky, ADA Pudolsky testified that Tpr. Shea
only told him to "go downstairs and call" his supervisors, leaving
ADA Pudolsky with the impression that there was "some evidence"
that had "come to light." ADA Pudolsky did not testify that Tpr.
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Shea told him that Burke was excluded, nor did he testify that Tpr.
Shea so much as mentioned DNA or test results to him. The gap
between these two versions of this chain of events -- Tprs.
McDonald and Shea's version on the one hand, and ADA Pudolsky's on
the other -- was wide enough to accommodate the inference that Tpr.
McDonald did not, in fact, unburden himself to the prosecution by
way of Tpr. Shea.
Other evidence before the jury bolstered this inference,
such as the fact that ADA Pudolsky, after phoning his supervisors,
argued to the magistrate that the DNA test results were ambiguous
as to Burke's culpability, a position he would have been unlikely
to adopt had he heard Calicchio's opinion, which she said she
rendered to Tpr. McDonald the previous day, that the DNA test
results unquestionably excluded Burke. The jury also heard that
Tprs. Shea and McDonald were colleagues and that both participated
in the investigation and arrest of Burke, thus providing at least
some basis for the jury to infer that the two troopers might have
had untoward incentives or inclinations to corroborate each other's
testimony. When taken together, these additional facts could
reasonably have led the jury to discount Tprs. McDonald's and
Shea's testimony about what disclosures Tpr. McDonald made to whom,
and when.8
8
As a postscript to our discussion of this evidence, we
briefly note that Calicchio testified at trial that, the day before
the arraignment, she spoke to Robert Martin, a chemist for the
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None of the evidence just described leads inexorably to
the conclusion that Tpr. McDonald failed to disclose the DNA test
results to the prosecution, but we need no such certainty to reject
McDonald's argument that his liability for damages must end, as a
matter of law, when the prosecutors weighed in at the bail hearing.
All that is required is a finding that, when these facts are viewed
in the light most favorable to the verdict, a rational jury could
have found that Tpr. McDonald failed to disclose what he knew, and
that this failure prevented the magistrate and prosecutors from
making informed, independent judgments. The evidence discussed
above supports that finding.9
Massachusetts State Police Crime Laboratory, and that during this
conversation she may have advised him that Burke was excluded. She
also testified that, on the day of the arraignment, she spoke to
Richard Iwanicki, then a forensic chemist with the Massachusetts
State Police, and that in the context of discussing the specific
procedures used in the DNA tests, she did in fact advise him of
Burke's exclusion. What was said between Calicchio, Martin, and
Iwanicki, and whether those discussions sufficiently broke the
chain of causation between Tpr. McDonald's failure to disclose what
he knew of the DNA test results and Burke's eventual damages, were,
for the reasons provided herein, questions appropriately left to
the jury.
9
This is so even assuming -- without deciding -- that Tpr.
McDonald is correct to assert that the "presumption of regularity"
that often attaches to a prosecutor's charging decision in the
context of retaliatory-prosecution actions, see Hartman v. Moore,
547 U.S. 250, 263 (2006), could also attach to the prosecutors'
decision at the arraignment to seek Burke's continued detention in
this case. In light of the exclusionary DNA test results already
in Tpr. McDonald's hands, probable cause to detain Burke was
lacking, see id. at 265 (describing "the significance of probable
cause or the lack of it" as one fact having "obvious evidentiary
value" when determining liability in the context of prosecutorial
decisions urged by investigating officers); moreover, probable
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None of Tpr. McDonald's other arguments in support of his
appeal fare better. We find no cognizable error in the district
court's jury instructions, which framed the question of damages as
a matter of proximate cause. This approach to the issue is
consistent with Supreme Court precedent emphasizing that liability
under § 1983 flows against the defendant for all damages that are
the "natural consequences of his actions." Malley v. Briggs, 475
U.S. 335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187
(1961)) (internal quotation marks omitted).
Indeed, in Wagenmann we upheld a jury verdict against a
police officer who manipulated the independent and informed
decisions of judicial officers after the jury instructions had put
the question of damages in terms of causation. 829 F.2d at 211-13.
In so doing, we noted that "[t]he law looks to causation in fact"
when assessing damages, id. at 211, and that the evidence supported
"the finding that [the defendant officer] proximately caused bail
to be set," id. at 212 (emphasis added). We also emphasized that
§ 1983 "should be read against the background of tort liability
that makes a man responsible for the natural consequences of his
actions," id. (quoting Monroe, 365 U.S. at 187), and endorsed "the
use of traditional tort principles for making intervening cause
cause aside, the jury could easily have inferred from the evidence
described above that the prosecutors' decision was in fact
influenced by Tpr. McDonald's failure to disclose the DNA test
results.
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determinations in the § 1983 milieu," id. (citing Springer v.
Seaman, 821 F.2d 871, 877 (1st Cir. 1987)).
The district court's instructions were correct as a
matter of substantive law. They properly and clearly explained the
concept of proximate causation, and plainly and concretely
committed the question of whether Tpr. McDonald disclosed the DNA
test results to the prosecution at the time of the arraignment to
the judgment of the jury. The instructions also substantially
incorporated Tpr. McDonald's position that, so long as he timely
disclosed the DNA test results to the prosecution, he should not
bear liability for damages after the arraignment. The instructions
therefore were not erroneous.
For similar reasons, we are unpersuaded by Tpr.
McDonald's argument that the district court's decision to allow
evidence on the conditions of Burke's post-arraignment confinement
so confused the jury as to taint the damages award. The jury was
instructed not to consider this evidence if it found that Tpr.
McDonald disclosed the DNA test results to the prosecutors at the
time of the arraignment, and we presume that the jury understood
and followed those instructions. See Mass. Eye & Ear Infirmary,
552 F.3d at 58 n.12 (citing United States v. Griffin, 524 F.3d 71,
78 (1st Cir. 2008)); see also id. at 73 ("Where, as here, the jury
heard a legally adequate instruction, which was supported by
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competent evidence, we will not assume jury confusion or verdict
taint.").
Moreover, while we think it most plausible to infer that,
as explained above, the jury disbelieved Tprs. McDonald's and
Shea's assertions that Tpr. McDonald informed the prosecutors about
the DNA test results, we also recognize an alternative possible
basis for the jury's award: that the jury awarded damages to cover
only the natural consequences of the false arrest which, as Burke
argues in his brief on appeal, did not "come to a screeching halt
in [the] twenty four . . . hours" between the arrest and the
arraignment.
In light of our precedent, discussed below, the evidence
at trial may be viewed as providing an adequate basis for the jury
to award significant damages against Tpr. McDonald for his role in
Burke's arrest. Given the heinousness and visibility of the crime
at issue, Burke's arrest attracted a significant amount of public
attention. Burke testified at trial to having seen the scene
develop outside his house on the day of his arrest. He described
looking out the window in the morning and seeing police
"everywhere," including what he believed to be unmarked observation
vans in the parking lot. He also described hearing a helicopter
"circling the house." By lunchtime, Burke said that he saw people
other than police "gathering on the sidewalk and across the
street," perhaps as many as one hundred or more, some with cameras.
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Thereafter, the police, including Tprs. Shea and McDonald and
Officer Dolan, entered Burke's house by breaking in through the
back door, arrested him, and led him handcuffed into the street
wearing a "torn, crummy tee-shirt that was on inside out."
At trial, after a videotape of Burke's walk into the
street was published to the jury, Burke described the reaction of
the bystanders as sounding "sort of like the 4th of July with
floats going by, people clapping, you know, when you're in a
parade." He described a television reporter who "stuck a
microphone in [his] face and asked [him] if [he] murdered Mrs.
Kennedy." He also testified to his knowledge -- acquired later --
of newspaper and television news stories that publicized his arrest
for the murder, saying, "Every video media, every TV station in
Boston and Cable News New England was there. Every newspaper was
reporting: the Herald, the Transcript, the Walpole Times, the
Globe."
Burke also described his experience being held that night
in a "very small" cell at the police station that was equipped with
little more than "a short wooden thing that you could sit on." He
testified to hearing another inmate say from an adjacent holding
cell at the courthouse the next day that the suspect in Mrs.
Kennedy's murder (at that point, Burke) is "not going to last long"
in prison, and that the suspect should be executed. He also
testified to his humiliation at the prospect of being led into a
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public arraignment hearing in handcuffs, chains, and ankle
bracelets, an event that eventually occurred.
Burke's qualitative assessments of the impact of these
events on his life emphasized the extent of his mental and
emotional anguish. He described feeling like his house was a
"pressure cooker" as the police and bystanders gathered outside on
the day of his arrest, making him "very tense." Of his anxiety
leading up to the arraignment hearing, he stated, "I thought it was
the end of my life. It was something that I didn't think there was
any way that I'd be able to deal with. . . . I didn't think I could
get through what I was about to face. . . . It was too
humiliating." Of the publicity surrounding his arrest, Burke said
simply, "It destroyed my life. It destroyed my life," and
elaborated by pointing out that the articles had portrayed him not
just as a murderer but also an "abuser," "weirdo," and "loner,"
labels which clearly and understandably upset him. On multiple
occasions during his testimony, Burke hesitated to describe the
full extent of his ordeal, stating that he was being asked to
describe events that were uncomfortable for him to think about.
The jury was also presented with evidence that Burke's
emotional and mental anguish had potentially long-lasting effects.
Burke testified that he lost friends at the time of the arrest
"because they didn't want to be associated with what was about to
come down." Burke's brother also testified that Burke's reputation
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in the Walpole community prior to the arrest was as a "gentle,
kind, animal lover, non-violent," and juxtaposed it with a more
recent event he had witnessed in Burke's new home town in another
state, during which a stranger yelled the word "murderer" at Burke
from a passing car. Burke's brother also contrasted Burke's pre-
arrest personality, which he described as including "a great sense
of humor," with his post-arrest personality, which he described as
"tearful, hopeless, despondent, enraged," and observed that, post-
arrest, Burke "focused all his mental . . . activity to try and
understand how and why this happened to him. . . . [I]t engulfed
his life." If the jury awarded damages to compensate Burke for his
trauma, there is a basis for concluding that it was entitled to do
so: the jury was presented with adequate evidence upon which to
base the award, it was properly instructed as to the circumstances
under which such damages are compensable, and it was entitled to
make the award as a matter of law. See, e.g., Wagenmann, 829 F.2d
at 215-16 (upholding a jury award based on "the stress, fear,
humiliation, embarrassment, anguish, and stigmatization" that a
defendant "suffered (and continues to suffer)" after his arrest
without probable cause).
In sum, we discern no error of law by the district court
when it refused to cut off damages at the moment of arraignment or
when it instructed the jury as to Tpr. McDonald's liability for
damages. We further find that the jury's award can fairly be
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understood to be supported by at least one and probably two
rational appraisals of the damages. We therefore have no cause to
conclude that the district court abused its discretion in denying
the motions for a new trial and remittitur, nor reason to upset the
verdict ourselves.
III. BURKE'S CROSS-APPEAL
Burke's cross-appeal mounts two challenges to the
district court's attorneys' fees award. First, Burke argues that
the district court erred in declaring Burke's victory "decidedly
partial," given that he ultimately secured a jury verdict in the
amount of $400,000 on his § 1983 claim. Burke acknowledges, of
course, that many of his claims were unsuccessful, but he argues
those claims were so inseparable from the successful claim that
"each and every minute spent was necessary to the actual verdict."
Second, Burke characterizes the district judge's decision as an
adjustment to the lodestar amount based on the "results obtained,"
and argues that the district court erred in so doing by considering
Burke's claim-by-claim success without also considering "the relief
actually achieved" and the "societal importance of the right which
has been vindicated."10
10
Burke's challenge relates only to the district court's
calculation of recognizable hours; he does not challenge the
district court's findings regarding appropriate hourly billing
rates.
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A. Standard of Review
District courts are provided broad discretion to make fee
determinations, and we consequently review the denial in whole or
in part of a motion for attorneys' fees for manifest abuse of
discretion. Boston's Children First v. City of Boston, 395 F.3d
10, 13 (1st Cir. 2005). "Apart from mistakes of law -- which
always constitute abuses of a court's discretion -- 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." Gay
Officers Action League v. Puerto Rico, 247 F.3d 288, 292-93 (1st
Cir. 2001) (citations omitted).
The party claiming attorneys' fees bears the burden of
proving the reasonableness of the hours it claims. Torres-Rivera
v. O'Neill-Cancel, 524 F.3d 331, 340 (1st Cir. 2008). "If the
fee-seeker properly documents her claim and plausibly asserts that
the time cannot be allocated between successful and unsuccessful
claims, it becomes the fee-target's burden to show a basis for
segregability," although "[i]n reviewing determinations that claims
are or are not interrelated for purposes of an award of attorneys'
fees, we have exhibited great deference to the trial court's
discretion." Lipsett, 975 F.2d at 941. For purposes of this case,
we note also that we repeatedly have warned that time entries that
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amount to no more than "gauzy generalities" will be "substantially
discounted," id. at 938, and that the failure of a fee-seeker to
submit reasonably explicit time records may have "dire
consequences" on the amount of fees awarded. Gay Officers, 207
F.3d at 297.
B. Discussion
In light of the limits of our review, we conclude that
the district court's fee reduction should be affirmed. It is well-
established that "fees are appropriately excluded from the lodestar
. . . 'when different claims for relief are not interconnected,
that is, when the claims rest on different facts and legal
theories.'" Bogan v. City of Boston, 489 F.3d 417, 428-29 (1st
Cir. 2007) (quoting Figueroa-Torres v. Toledo-Davila, 232 F.3d 270,
278 (1st Cir. 2000)). Excluding fees for unsuccessful claims not
interconnected with the successful claim is precisely what the
district court did in this case: in calculating the number of
hours to recognize for purposes of its lodestar calculation, it
distinguished Burke's successful § 1983 claim against Tpr. McDonald
from his other, unsuccessful claims, each of which was made against
other defendants, premised on significantly different legal
theories, or both. For instance, the district court noted that
whereas "the jury verdict against Trooper McDonald was supported by
evidence that he, being the only investigating officer aware of
exculpatory DNA evidence prior to the plaintiff's arrest, knowingly
-26-
withheld that information from others who were applying for the
arrest warrant" (emphasis added), Burke's lawsuit included
unsuccessful claims that other officers executed his arrest without
a validly issued warrant, that other defendants mishandled DNA
evidence, and that other defendants had withheld or misstated non-
DNA evidence bearing on probable cause (such as the bite mark
evidence). The district court further noted that Burke brought
"completely distinct claims . . . against forensic odontologists,"
and a separate defamation claim against the Walpole police chief
for statements he made to the news media about the arrest. While
acknowledging that "the multiple and varied claims asserted were
all related in a very broad sense – they all pertained to the
events that culminated in Burke's arrest," the district court
nonetheless concluded "that preparation of the successful case
against McDonald did not benefit from legal efforts expended in
pursuit of theories based on different facts against different
defendants," and it thus decided to exclude the hours Burke's
attorneys spent on unsuccessful claims from the lodestar
calculation.
The only wrinkle in this case is the manner in which the
district court calculated the number of hours that were so
unrelated to the successful claim as to be excludable from the
lodestar calculation, to wit, a global reduction of eighty-five
percent to the pre-Burke I hours based on the district court's
-27-
"proportionate estimate." To be sure, a more exacting approach to
the lodestar method is preferred, but this case did not allow for
more precision: as the district court noted after providing
examples of the ambiguous time entries contained in the time and
billing records ("strategy meeting" and "telephone conference"),
those records provided "little, if any, basis for determining what
work reflected in them was done to develop what claims," and,
despite the fact that he bore the burden to prove the
reasonableness of the hours he claimed, Burke did not provide an
affidavit explaining with sufficient detail how the line item
entries -- or even categories of line item entries -- were related
to the meritorious claim. Therefore, under the circumstances, we
cannot conclude that a global reduction based on a proportionate
estimate of the time spent on the meritorious claim constituted
error.
On the contrary, it was the best approach available to
the district court, and it was consistent with Burke's burden to
prove his hours. See Hensley v. Eckerhart, 461 U.S. 424, 436-37
(1983) (noting that the district court, in reducing amount of fees
calculated by the lodestar method, "may attempt to identify
specific hours that should be eliminated, or it may simply reduce
the award to account for . . . limited success"); see also Torres-
Rivera, 524 F.3d at 336 (permitting district courts, when computing
the lodestar amount, to "discount or disallow" hours when time
-28-
records are "too generic and, thus, insufficient as a practical
matter to permit a court to answer questions about excessiveness,
redundancy, and the like"); cf. Lipsett, 975 F.2d at 941 ("If the
fee-seeker properly documents her claim and plausibly asserts that
the time cannot be allocated between successful and unsuccessful
claims, it becomes the fee-target's burden to show a basis for
segregability." (emphasis added)).
Burke's arguments to the contrary are all unpersuasive.
His argument that the district court failed to consider the "the
relief actually achieved" and the "societal importance of the right
which has been vindicated" is based on an incorrect premise: the
district court's use of phrases suggesting an "adjustment of the
whole-case lodestar" notwithstanding, it is apparent from the
district court's order that it considered Burke's claim-by-claim
success in an attempt to estimate the reduction in hours when
calculating the lodestar amount, not as part of a reduction to that
amount. Our prior statements encouraging district courts to
consider the relief achieved and the societal importance of the
right, see e.g. De Jesus Nazario, 554 F.3d at 206 n.13, 207; Coutin
v. Young & Rubicam P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997),
were made in the latter context, not the former.
More importantly, under the circumstances of this case,
the district court was faced with the task of estimating which
hours were necessary and sufficiently related to the successful
-29-
claim and which hours were not for purposes of the lodestar
calculation. A claim-by-claim analysis of the case was necessary
to reach that end; considerations of the relief obtained and
societal importance were not. If those considerations had a place
in the district court's analysis, it would have been when
considering whether to adjust the lodestar amount upward or
downward, not when calculating it in the first instance.11
Finally, we note that the size of the district court's
global reduction under these circumstances -- eighty-five percent
of the pre-Burke I fees, which amounts to a nearly sixty-percent
reduction to the overall fee request -- is unquestionably
substantial. Reasonable minds could differ about whether some of
the claims against other defendants, or some of the mishandling or
11
After computing the lodestar, the district court would have
been within its discretion to consider an adjustment -- upward or
downward -- based on the results obtained by taking into account
Burke's claim-by-claim success, the relief obtained, and the
societal importance of the right vindicated. That the district
court appears not to have done so, however, is of no moment under
the circumstances, for two reasons. First, Burke has not argued on
appeal that the district court's decision not to consider such an
adjustment constituted error, and therefore the argument is waived.
Second, the burden of proving that an upward adjustment is
necessary to the determination of a reasonable fee is on the fee
applicant. Blum v. Stenson, 465 U.S. 886, 898 (1984). Although
Burke made mention of an upward adjustment in his affidavit
accompanying his motion for attorneys' fees, that affidavit also
included what could be understood as an abandonment of the request
when it acknowledged that "enhancements are rarely allowed" and
advocated for the district court to award "the actual
contemporaneously recorded time-slips." In any event, nothing in
the record compels us to find that Burke proved the necessity of an
upward enhancement, or that the district court erred by not
considering one. See, e.g., id. at 898-902.
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withholding of evidence claims, were sufficiently interrelated with
the ultimately successful claim against Tpr. McDonald. Reasonable
minds might also doubt that the pre-Burke I fee award, which
amounts to just $28,050 for the period of 1999 through 2005,
adequately recognizes the undoubtedly significant attorney time
required to develop the facts underlying the successful claim
against Tpr. McDonald. But our limited review for manifest abuse
of discretion in the attorneys' fees context is designed to defer
to the district court in the face of such disagreements, and this
is particularly the case when, as here, the fee application is
insufficiently documented and insufficiently explained.
IV. CONCLUSION
For the reasons provided above, we AFFIRM the decisions
of the district court.
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