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Ivan Velius v. Township of Hamilton

January 10, 2011

IVAN VELIUS, PLAINTIFF,
v.
TOWNSHIP OF HAMILTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

At the trial of this § 1983 excessive force case, the jury found that two of the three Defendants, police officer Francis Smyth, and police officer Kevin Zippilli, violated Plaintiff Ivan Velius's Fourth Amendment right not to be subjected to excessive force, and failed to intervene to stop the use of excessive force. The jury found no liability as to Defendant police officer James Jacobi. The jury also found that the use of excessive force and the failure to intervene did not cause injury to Velius and awarded him one dollar in nominal damages. Plaintiff presently moves for an award of $82,360.00 in attorney's fees*fn1 and $2,865.33 in costs pursuant to 42 U.S.C. § 1988. For the reasons stated herein, the Court will award Plaintiff minimal attorney's fees.*fn2

I.

At trial Plaintiff asserted that during his admittedly legal arrest, Defendants Smyth and Zippilli used excessive force in violation of the Fourth Amendment when they placed handcuffs too tightly around his wrist / forearm area.*fn3 Plaintiff also asserted that Defendants Smyth, Zippilli, and Jacobi failed to stop the use of excessive force by failing to loosen the handcuffs in response to Plaintiff's repeated complaints.*fn4

Plaintiff sought compensatory damages for pain and suffering but not for any pecuniary loss resulting from his asserted injuries. He also sought punitive damages.

Plaintiff's success was limited. Using a special verdict form, the jury found no liability as to Defendant Jacobi. The jury did find that Defendants Smyth and Zippilli used excessive force and failed to intervene to stop the use of force, but also found that their actions did not cause injury to Plaintiff.*fn5

Accordingly, Plaintiff was awarded one dollar in nominal damages. The jury awarded no punitive damages.

II.

"In any action . . . to enforce a provision of section[]. . . 1983 . . . of [Title 42]. . . the court in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988.

III.

A.

The Supreme Court held in Farrar v. Hobby, "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief" "the court may lawfully award low fees or no fees," depending on the circumstances of the case. 506 U.S. 103, 115 (1992).*fn6

Unfortunately, Farrar's majority opinion provides very little practical guidance on how to discern between cases where "low" fees are appropriate and ...


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