Smith v. Dunmore ( 2011 )

AMENDED PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4534
_____________
EDWARD G. SMITH,
Appellant
v.
BOROUGH OF DUNMORE; BOROUGH OF DUNMORE
COUNCIL; JOSEPH LOFTUS; THOMAS HENNIGAN;
JOSEPH TALUTTO; FRANK PADULA; LEONARD
VERRASTRO; MICHAEL CUMMINGS,
individually and as a Councilman
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cv-1343)
District Judge: Hon. A. Richard Caputo
_______________
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2010
Before: JORDAN, HARDIMAN and VAN ANTWERPEN,
Circuit Judges.
(Filed: January 25, 2011)
_______________
Cynthia L. Pollick
363 Laurel Street
Pittston, PA 18640
Counsel for Appellant
Karoline Mehalchick
Oliver, Price & Rhodes
P.O. Box 240
1212 S. Abington Rd.
Clarks Summit, PA 18411
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Edward Smith appeals the order of the United States
District Court for the Middle District of Pennsylvania
granting summary judgment against him on his due process
claims under 42 U.S.C. § 1983 and on his state law
defamation and right of privacy claims. Smith also appeals
the District Court’s judgment as a matter of law on his claim
for punitive damages arising from a § 1983 retaliation claim
that Smith prevailed on at trial. Finally, Smith appeals the
District Court’s partial denial of his motion for attorney’s fees
and costs. For the following reasons, we will vacate and
remand in part and affirm in part.
2
I. Background
A. Factual History 1
On May 20, 2005, Joseph Loftus, borough manager for
the Borough of Dunmore in Pennsylvania (“Dunmore” or the
“Borough”), asked Chief Vince Arnone of the Dunmore Fire
Department to provide a list of required qualifications for
full-time firefighters and to verify whether each Dunmore
firefighter met those qualifications. Upon review of the
information provided by Chief Arnone, Loftus concluded that
Smith, who was a fire captain at the time, had not completed
a required two-week Fire Academy training course. Loftus
reported that conclusion to Dunmore’s Borough Council,
which made the decision to suspend Smith with pay until it
could hold a hearing to address the apparent deficiency. 2
1
Because we are reviewing the District Court’s grants
of summary judgment and judgment as a matter of law, we
set forth the facts in the light most favorable to Smith.
2
The Council also made the decision to suspend
Robert Dee, another Dunmore firefighter who, like Smith,
had not completed the Fire Academy training course.
Councilman Joseph Talutto explained the decision to suspend
the firefighters immediately (rather than waiting until after
the hearing), stating that they “ha[d] a duty to protect the
town” and “didn’t want it to go out there that we had firemen
that weren’t qualified” and “d[id]n’t want to get blasted in the
paper.” (App. at 608, 612.)
3
On June 28, 2005, Loftus sent Chief Arnone a letter
notifying him that Smith was suspended with pay pending a
July 6, 2005 hearing. Two days later, a local newspaper
published an article stating that Smith had been suspended for
failing to complete the Fire Academy training. As the source
of its information, the article cited Loftus’s letter to Chief
Arnone, which had been provided to the paper by a
confidential source whose identity remains unknown. 3
On July 6, 2005, a hearing was held before the
Borough Council in which it was determined that, pursuant to
the firefighter union’s collective bargaining agreement
(“CBA”), Smith, who had been a full-time firefighter since
1988, was not required to complete the Fire Academy training
because his training and experience were treated as sufficient.
Smith was reinstated after having been suspended for eight
days but without having suffered any loss of pay or seniority.
As a result of his suspension and the publicizing of
that suspension in the local paper, Smith filed suit against
Dunmore on July 5, 2005, claiming defamation, due process
violations, right of privacy violations, and retaliation. After
filing suit, Smith had a conversation with Leonard Verrastro,
a member of the Borough Council, in which Verrastro stated
that, because of Smith’s suit, he would vote against
3
While the precise identity of the source remains in
question, the District Court’s opinion appears to assume that
the pool of possible sources is limited to the members of the
Borough Council. Neither party contests that view and, in
fact, both seem to share it. We will likewise accept that
conclusion for purposes of our analysis.
4
permitting Smith to retire early, despite a pension board
recommendation that early retirement should be allowed. As
a result, Smith amended his complaint to include a second
claim for retaliation. 4
B. Procedural History
As amended, Smith’s complaint named Dunmore, the
Borough Council, Loftus, and five individual council
members as defendants. It contained six claims: (1) a due
process claim based on his pre-hearing suspension; (2) a
defamation claim based on the false statement, published in
the local paper, that he had not completed required training;
(3) a right of privacy claim alleging that Defendants’ acts
placed him in a false light; (4) a right of privacy claim
alleging that Defendants’ acts brought publicity to his private
life; (5) a retaliation claim based on the refusal to vote for his
early retirement; and (6) another retaliation claim alleging
that his suspension was in response to comments he had made
regarding pension distributions. The Defendants moved for
summary judgment on all claims.
On March 7, 2007, the District Court issued an order
denying in part and granting in part the motion for summary
4
The amended complaint initially stated that it was
councilman Talutto, rather than Verrastro, who stated he
would not vote to permit Smith’s early retirement. In
depositions, however, Smith testified that it was in fact
Verrastro who made the statement, and the District Court
allowed Smith to further amend the complaint to name
Verrastro instead of Talutto.
5
judgment. The Court denied summary judgment for
Defendants on Smith’s claim that he was deprived of early
retirement as retaliation for his filing suit, holding that there
was a genuine issue of material fact as to whether the denial
was in retaliation for Smith’s lawsuit. The Court granted
summary judgment in favor of Defendants on all other
claims, holding that Smith’s retaliation claim based on his
pension comments failed because the record was devoid of
any support for the claim; that the due process claim failed
because Smith’s eight-day paid suspension did not give rise to
deprivation of either a property or liberty interest; that the
defamation claim failed because Pennsylvania provides high
public officials with an absolute immunity from defamation
suits; and that both privacy claims failed because the
information which was made public – that Smith had been
suspended for lacking required training – concerned a public
safety matter and was, therefore, a matter of public concern.
The remaining retaliation claim was allowed to proceed to
trial with only Verrastro and Dunmore as defendants.
On October 24, 2007, before trial commenced,
Defendants made Smith a settlement offer of $1000 and early
retirement. Smith declined the offer and trial began on
October 29, 2007. At the close of Smith’s case, the Court
granted judgment as a matter of law to Defendants on the
claim against Verrastro and on the claim for punitive
damages. While the Court acknowledged evidence that the
Dunmore Borough Council’s refusal to vote on the pension
board’s recommendation for Smith’s retirement could be
retaliation for Smith’s lawsuit, 5 the Court explained that the
5
In addition to Verrastro’s threat, deposition testimony
disclosed alleged statements by Loftus and Councilmen Hart
6
Council was the decision maker and that Verrastro could not
be individually liable for the Council’s decision not to bring
the recommendation to a vote. Likewise, Verrastro’s
individual threat to vote against Smith’s early retirement
could not constitute adverse employment action when no vote
was ever taken. The Court also held that there was no
evidence of evil, malicious, or reckless conduct that would
justify punitive damages. On October 31, 2007, the
retaliation claim against the lone remaining Defendant,
Dunmore, was submitted to the jury, which returned a verdict
in favor of Smith and awarded nominal damages of $1. After
trial, pursuant to Smith’s motion for equitable relief, the
District Court ordered Dunmore to grant Smith early
retirement.
On November 8, 2007, pursuant to 42 U.S.C.
§1988(b), Smith filed a motion for attorney’s fees and costs.
Smith sought payment for attorney time of 404.8 hours at
$300 per hour. The District Court found both numbers to be
unreasonable, and reduced the hours to 268.9 and the hourly
rate to $215.00, arriving at a total amount of $57,831.50 for
attorney’s fees. To that, the Court added additional amounts
for legal assistant fees and fees associated with the fee action
itself and arrived at a total lodestar amount of $72,261.
Relying on Hensley v. Eckerhart, 461 U.S. 424, 434-36
(1983), which instructs that district courts may need “to
adjust the fee upward or downward” based on considerations
and Cummings stating that Smith would be denied early
retirement because of his lawsuit. There was also evidence
that the Borough would have saved money by allowing Smith
to retire early.
7
such as “the degree of success obtained,” the District Court
further reduced Smith’s requested fees because Smith
succeeded on only one of his six initial claims and ultimately
obtained only $1 and early retirement – less than the $1000
and early retirement offered in settlement. Consequently, the
Court reduced the award from the lodestar amount of $72,261
to $20,000. The Court also awarded $2,728.16 in total costs.
Smith’s timely appeal followed.
II. Discussion 6
On appeal Smith argues that the District Court erred by
granting judgment in favor of Defendants on his due process,
defamation, privacy, and punitive damages claims, and he
asks that each be remanded for trial. Smith also argues that
the District Court erred by reducing his attorney’s hourly rate
to $215 and reducing the lodestar amount by more than 70
percent, and he asks us to award attorney’s fees without those
reductions. We will address each of Smith’s arguments in
turn.
A. The District Court’s Grant of Summary
Judgment
We review a district court’s grant of summary
judgment under a plenary standard, applying “the same test
employed by the District Court.” Kautz v. Met-Pro Corp.,
412 F.3d 463, 466 (3d Cir. 2005). The non-moving party “is
6
The District Court had jurisdiction over Smith’s
claims pursuant to 28 U.S.C. §§ 1331 and 1367(a), and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
8
entitled to every favorable inference that can be drawn from
the record,” and we will affirm only if there is no genuine
issue for trial. Id. (citing Carrasca v. Pomeroy, 313 F.3d 828,
833 (3d Cir. 2002)).
(1) Smith’s Due Process Claims
The District Court granted summary judgment on
Smith’s due process claims because the Court found that an
eight-day paid suspension did not qualify either as
deprivation of a property interest or as the “plus” prong of the
“stigma-plus” test for establishing deprivation of a liberty
interest in reputation. See Hill v. Borough of Kutztown, 455
F.3d 225, 236 (3d Cir. 2006) (“[T]o make out a due process
claim for deprivation of a liberty interest in reputation, a
plaintiff must show a stigma to his reputation plus deprivation
of some additional right or interest.” (emphasis in original)).
Because Smith had not established the required “plus” prong
of the “stigma-plus” test, the Court declined to consider
whether the “stigma” prong had been satisfied.
Smith argues that the Court’s conclusions were in error
and that remand is mandated by our decision in Dee v.
Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008). In Dee,
we reviewed the due process claims of Robert Dee, another
Dunmore firefighter who had been suspended along with
Smith as a result of the same assertion that he had not
completed required Fire Academy training. Id. at 228. Dee’s
due process claims had been disposed of on summary
judgment for the same reasons Smith’s had. Id. On appeal,
we held that, because both 53 PA. STAT. ANN. § 46190 and
the CBA allowed firefighters to be suspended only “for
cause,” Dee had a property interest in not being suspended
9
without cause. Id. at 230-32. Dunmore had argued, however,
that its interest in ensuring that the Borough’s firefighters
were qualified was a public-safety interest that justified an
eight-day paid suspension prior to any hearing. Id. at 233.
We acknowledged that under Matthews v. Eldridge, 424 U.S.
319 (1976), a strong government interest can justify the pre-
hearing deprivation of a property right, but found that there
were “issues of disputed fact regarding the Borough’s
justification for suspending Dee without first affording him
notice and a hearing.” Dee, 549 F.3d at 233. Particularly, we
noted that Dee had been a fireman for eighteen years, during
which time he had been promoted numerous times by the
Borough Council, and that Councilman Talutto stated that the
Council acted so quickly because they “d[id]n’t want to get
blasted in the press.” Id. We viewed those facts as
undercutting Dunmore’s argument that the pre-hearing
suspension was based on concerns over public safety and,
consequently, we remanded for consideration of the
Borough’s motives for the pre-hearing suspension. Id. Then,
based on our holding that Dee had a property interest in not
being suspended, we also concluded that Dee had satisfied the
“plus” prong of the “stigma-plus” test, and remanded the
liberty interest claim for consideration of the “stigma” prong.
Id. at 233-235.
The facts here are indistinguishable from the facts in
Dee: Both Dee and Smith were suspended at the same time
under precisely the same circumstances; the same statute and
CBA apply, mandating that Smith can be suspended only “for
cause”; Talutto’s deposition testimony in both cases suggests
that press coverage, rather than public safety, may have
motivated the suspension; and, like Dee, Smith had been a
firefighter for almost eighteen years and had been promoted
10
numerous times by the Borough Council. Thus, we are
compelled to follow our precedent in Dee and hold that “there
exist issues of disputed fact regarding the Borough’s
justification for suspending [Smith] without first affording
him notice and a hearing.” Id. at 233.
We emphasize, however, that we are not suggesting
that concerns over public safety cannot justify a paid eight-
day pre-hearing suspension. To the contrary, we recognize
that the strong government interest in public safety would
almost certainly justify the comparatively minor deprivation
inherent in an eight-day paid suspension. Instead, we
conclude only that Dee requires us to say that there are
legitimate factual questions as to whether public safety
concerns were, in fact, what motivated the Borough Council.
Accordingly, because genuine issues of material fact remain,
we will remand Smith’s due process claims to the District
Court.
(2) Smith’s Defamation Claim
Although the District Court found that Smith had made
a prima facie case for defamation, it nonetheless granted
summary judgment on the claim because Pennsylvania grants
absolute immunity from defamation suits to high public
officials, including borough council members. Smith argues
that the grant of summary judgment to the Dunmore Borough
Council members was improper because the disclosure of
Loftus’s letter to the newspaper fell outside the scope of their
duties and, therefore, the immunity does not apply. We
disagree.
11
Pennsylvania “‘exempts a high public official from all
civil suits for damages arising out of false defamatory
statements and even from statements or actions motivated by
malice, provided the statements are made or the actions are
taken in the course of the official’s duties or powers.’” 7
Lindner v. Mollan, 677 A.2d 1194, 1995 (Pa. 1996) (quoting
Matson v. Margiotti, 88 A.2d 892, 895 (Pa. 1952)). Smith
argues that, while the letter itself might have been prepared
within the scope of the Council member’s official duties, “the
public disclosure of such a letter, which contains, in the
district court’s words, an ‘untrue communication’ resulting
from a ‘failure to exercise reasonable care and diligence,’” is
not within those duties. (Appellant’s Brief at 18-19.) That
argument takes too narrow a view of the immunity. The fact
that a statement is untrue cannot be a basis for exempting it
from an immunity for defamation, as such an exception
would swallow the immunity whole. Likewise, the fact that
the untruth may have resulted from a “failure to exercise
reasonable care and diligence,” – i.e., from negligence – is
immaterial to the invocation of an immunity that is intended
to encompass even maliciously motivated comments. Thus,
Smith’s argument that the high public official immunity
cannot apply under the circumstances of this case draws too
narrow a boundary and is mistaken.
7
Borough council members qualify as high public
officials for purposes of this immunity. See, e.g., Osiris
Enters. v. Borough of Whitehall, 877 A.2d 560, 567 (Pa.
Commw. Ct. 2005) (holding that borough council members
qualify as high public officials); Hall v. Kiger, 795 A.2d 497,
500 (Pa. Commw. Ct. 2002) (same).
12
The proper bounds of the immunity are illustrated by
the Pennsylvania Superior Court’s decision in McKibben v.
Schmotzer, 700 A.2d 484 (Pa. Super. 1997). There, a
borough mayor accused a borough police chief of assaulting
her and, as a result, she suspended the chief and filed a
private criminal complaint against him. Id. at 487. Following
the suspension, the mayor issued a news release explaining
the chief’s suspension and describing the “brutal and
unprovoked assault” on her. Id. Shortly thereafter, a
preliminary hearing was held on the assault charges and the
criminal complaint was dismissed. Id. Immediately after that
hearing, the mayor made a statement to reporters accusing the
chief of lying. Id. After the chief prevailed in a defamation
suit, the Superior Court on appeal held that high public
official immunity applied to the mayor with respect to the
news release because the mayor “was empowered to suspend
[the chief], and her comments in the ‘News Release,’
although harsh and, as the jury found, untrue, were ‘closely
related’ to her duties of supervising the borough police
force.” Id. at 491. By contrast, the Court held that the
immunity did not apply with respect to her statement that the
chief was lying because there, the mayor “was no more than a
private citizen seeking to enforce her private criminal
complaint.” Id. at 492 (emphasis in original). Although not
binding on us, the reasoning of McKibben persuasively
illustrates the boundary between those actions that are taken
in the course of an official’s duties and those that are not.
Here, the disclosure of Loftus’s letter to the newspaper
is akin to the news release in McKibben. The information
disclosed to the local paper regarding the basis for Smith’s
suspension was “‘closely related’ to [the] duties of
supervising the borough [fire department].” Id. at 491.
13
Consequently, the District Court correctly concluded that
Pennsylvania’s high public official immunity shields the
Council members from any claim for defamation, and we will
affirm the Court’s grant of summary judgment.
(3) Smith’s Right of Privacy Claims
The District Court granted summary judgment on
Smith’s false light claim and his claim for publicity given to
private life because the Court found that the information
which was made public – that Smith had allegedly failed to
complete required training – involves public safety and,
therefore, is a matter of public concern. Smith argues that
this was error because his confidential employment
information is not a matter of public concern. He also argues
that whether the information is of “public concern” is relevant
only to his publicity claim and is not an element of a false
light claim. He is wrong on both points.
First, we have little difficulty concluding, as the
District Court did, that the qualifications of firefighters are a
public safety matter and, therefore, a matter of public
concern. See Chappel v. Montgomery Cnty. Fire Protection
Dist., 131 F.3d 564, 578 (6th Cir. 1997) (holding that speech
regarding the need for firefighters to receive improved
training is a matter of public concern); Beckwith v. City of
Daytona Beach Shores, 58 F.3d 1554, 1564 (11th Cir. 1995)
(“Few subjects are of more public concern to the average
citizen than the provision of basic fire and rescue services.”).
The information’s existence in a personnel file does not affect
the public’s interest in it, and we do not accept the premise
that employment information is not of public concern when it
14
pertains to a firefighter’s qualifications to be employed in the
first place.
Second, Smith’s claim that the public’s interest in the
information is not relevant to his false light claim has no
grounding in Pennsylvania law, a fact demonstrated
elsewhere in his own brief by his citation of Strickland v.
Univ. of Scranton, 700 A.2d 979 (Pa. Super. 1997), for the
elements of a false light claim: “(1) publicity, (2) given to
private facts, (3) which could be highly offensive to a
reasonable person, and (4) which are not of legitimate
concern to the public.” (Appellant’s Brief at 20 (citing
Strickland, 700 A.2d at 987.)); see also Rush v. Philadelphia
Newspapers, Inc., 732 A.2d 648, 654 (Pa. Super. 1999)
(listing “not of legitimate concern to the public” as an
element of a false light claim). Because both of Smith’s
privacy claims require that the information not be of public
concern and because there is no genuine dispute as to the
public’s interest in firefighter qualifications, Smith’s privacy
claims must fail as a matter of law. We will thus affirm the
District Court’s summary judgment on those claims.
B. The District Court’s Judgment as a Matter of
Law on Smith’s Claim for Punitive Damages
“We exercise plenary review over a district court’s
decision to grant judgment as a matter of law” and affirm
“only if, viewing the evidence in the light most favorable to
the nonmovant and giving it the advantage of every fair and
reasonable inference, a verdict in favor of the nonmovant
cannot be supported by legally sufficient evidence.” Toledo
Mack Sales and Serv., Inc. v. Mack Trucks, Inc., 530 F.3d
15204, 209 (3d Cir. 2008) (internal quotation marks and
citations omitted).
Smith argues that the District Court erred by granting
judgment as a matter of law on Smith’s punitive damages
claim against Verrastro because the record established that
Verrastro intentionally disregarded Smith’s federally
protected rights. Smith has not appealed the judgment in
favor of Verrastro himself, however. Even if we read Smith’s
appeal on punitive damages as implicitly appealing the
judgment in favor of Verrastro, Smith has made no argument
on that point and we find no fault in the District Court’s
conclusion that Verrastro cannot be individually liable for the
Council’s decision not to vote on Smith’s retirement.
Consequently, because Dunmore remains the only defendant
for the retaliation claim, and because “a municipality is
immune from punitive damages under 42 U.S.C. § 1983,”
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271
(1981), there is no proper defendant from which Smith can
claim punitive damages. Accordingly, we need not consider
Smith’s argument that Verrastro intentionally disregarded
Smith’s rights, and we will affirm the District Court’s
judgment as a matter of law.
C. The District Court’s Denial in Part of Smith’s
Motion for Attorney’s Fees
“We review the reasonableness of an award of
attorney’s fees for an abuse of discretion.” Washington v.
Philadelphia Cnty. Court of Common Pleas, 89 F.3d 1031,
1034 (3d Cir. 1996).
16
(1) The Reduction of Smith’s Attorney’s
Hourly Rate
The District Court, finding that the requested rate of
$300 per hour for Smith’s attorney was excessive in light of
her skill, reputation, and experience, reduced Smith’s
attorney’s rate to $215 per hour. The Court supported that
reduction by adopting its reasoning from Lohman v. Duryea
Borough, No. 3:05-CV-1423, 2008 WL 2951070 (M.D. Pa.
July 30, 2008), where it had recently considered a fee petition
involving the same attorneys and substantially similar issues.
In Lohman (as well as here), Smith’s attorney supported her
claimed $300 per hour rate by submitting affidavits from two
local plaintiffs’ attorneys who charged $300 and $330. Id. at
*6-7. The Court determined, however, that her experience
and skill were not comparable to those attorneys. Id. Instead,
the Court found her experience to be comparable to one of the
defense attorneys in Lohman and here, who charged between
$125 and $170 per hour. Id. at *7-8. Based on that
comparison, the District Court concluded that $215 was a
reasonable hourly rate for Smith’s attorney. Id. at *8. The
Court adopted that same reasoning to settle on the $215 per
hour rate in this case.
Smith argues that the reduction was an abuse of
discretion because the Court inappropriately looked at the
rates of defense attorneys. In support of that argument, he
cites our decision in Washington, where we found a District
Court’s reduction of an hourly rate to be an abuse of
discretion because it “focused on the market rates for defense
attorneys.” 89 F.3d at 1036. Here, however, the District
Court did not focus on the market rates for only defense
attorneys, but looked at the rates for both defense attorneys
17
with similar skill and experience and plaintiffs’ attorneys with
more skill and experience. The $215 per hour rate the Court
then settled on fell between the $170 upper-end rate for a
similarly experienced defense attorney and the $300 lower-
end rate for the more experienced plaintiffs’ attorneys. We
cannot say that was an abuse of discretion. Consequently, we
will affirm. 8
(2) The Reduction of the Lodestar Amount
The District Court reduced Smith’s attorney’s fees
award from the lodestar amount of $72,261 to $20,000
because Smith had succeeded on only one of his six initial
claims and ultimately received only $1 and early retirement,
which was less than the $1000 and early retirement offered in
settlement. While Smith objects to the District Court’s
consideration of settlement negotiations, we held in Lohman
v. Duryea, 574 F.3d 163, 167-68 (3d Cir. 2009), that
settlement negotiations can be used to consider the degree of
success obtained by a party. Furthermore, the reduction is
independently justified by Smith’s failure to succeed on five
of his initial six claims. The Supreme Court has stated that a
8
Smith also seems to suggest that the reduction in his
female attorney’s rate may have had a discriminatory motive,
citing a case in which the same district court awarded a male
attorney an hourly rate in excess of the $215 awarded here
and stating that “there is no reason why Smith’s lawyer
should not get the rate that male plaintiff civil rights’ lawyers
receive.” (Appellant’s Brief at 35.) The bald suggestion of
discrimination is devoid of any support in the record and
unworthy of further comment.
18
court “should award only that amount of fees that is
reasonable in relation to the result obtained” and has
emphasized that there should be no recovery for unsuccessful
“claim[s] that [are] distinct in all respects from … successful
claims.” Hensley, 461 U.S. at 440. Here, Smith prevailed
only on the claim that he was denied early retirement because
of the filing of his lawsuit. His other unsuccessful retaliation
claim as well as his unsuccessful due process, defamation,
and privacy right claims were entirely distinct, requiring
proof only of facts that predated any fact relevant to his
successful retaliation claim. Consequently, under Hensley,
Smith was not entitled to recover fees for those claims, and
the District Court did not abuse its discretion when it reduced
the award to appropriately reflect that limited success. We
will therefore affirm. 9
III. Conclusion
For the foregoing reasons, we will vacate the District
Court’s order to the extent it grants summary judgment on
Smith’s due process claims and will remand for consideration
of whether the pre-hearing suspension was supported by an
interest in public safety and, in addition, for consideration of
whether Smith has satisfied the “stigma-plus” test,
establishing deprivation of a liberty interest. We will affirm
the order to the extent it grants summary judgment on Smith’s
defamation and privacy claims, the judgment as a matter of
9
Should Smith ultimately prevail on his remanded due
process claims, he is of course free to make a new motion
seeking attorney’s fees for that success.
19
law on Smith’s punitive damages claim, and the partial denial
of Smith’s motion for attorney’s fees and costs.
20