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Harris v. Ricci

United States District Court, D. New Jersey

March 28, 2014

GARY HARRIS, Plaintiff,
MICHELLE R. RICCI et al., Defendants

GARY HARRIS, Bridgeport, New Jersey, Petitioner Pro se.

GARY S. KULL, Esq., Carroll, Mcnulty & Kull L.L.C., Basking Ridge, New Jersey, Petitioner's former pro bono counsel.

JUSTIN L. CONFORTI, Esq., Deputy Attorney General, Office of the Attorney General, Department of Law and Public Safety, Division of Law, Trenton, New Jersey, Counsel for Defendant Maniscalo.


Page 584

Dickinson R. Debevoise, United States District Judge.

Two motions bring this matter before the Court. One was filed by Plaintiff who has re-assumed his pro se status. See Docket Entries Nos. 148-151. The other is a counseled motion filed on behalf of the remaining Defendant. See Docket Entry No. 146. For the reasons detailed below, both motions are denied. However, in light of Defendant's motion, this Court's prior order is amended to the extent that Plaintiff is granted injunctive relief in the form of a curative administrative hearing.

Page 585


On December 12, 2008, Plaintiff, a prisoner, commenced this matter while proceeding pro se. At the heart of his claims was a disciplinary hearing that came about after he: (a) sent money to a certain woman who was a member of another inmate's family; and (b) wrote and submitted for mailing two letters that used " code words," such as " Almighty Latin Kings" and " Tomato Heads," which are references to street gangs.[1] When the prison authorities learned of the letters and the money wire, Plaintiff was transferred to another prison facility and housed at a special housing unit (" SHU" ) where inmates suspected of having connections to gang members are housed for additional surveillance.

Plaintiff was charged with two infractions. The first is " *.010," i.e., " participation in a security threat group-related activity." See N.J. Admin. Code § 10A:4-4.1(a); accord Romero v. Hayman, (D.N.J. Apr. 8, 2011) (possession of literature related to the Latin Kings gang qualifies as a *.010 infraction), remanded in part another ground, 486 F.Appx. 981 (3d Cir. 2012). The other infraction was " an attempt to give money to the family of another inmate." After a disciplinary hearing, Plaintiff was found guilty of these violations, and his punishment included a period of solitary confinement, a period of SHU housing and loss of commutation credits.[2]

In his complaint, Plaintiff asserted that he was illegally transferred out of his original facility and wrongly housed at the SHU since he is a Muslim and therefore cannot be a gang member. He also speculated that the disciplinary measures might have been applied to him in retaliation because he had refused to take a polygraph test with regard to a certain gun found at the facility where he had resided prior to the transfer.[3]

The named Defendants are the Commissioner of the Department of Corrections, the past and present administrators of the facility to which he was transferred, the administrator of the facility where he was housed prior to transfer, the officer at the pre-transfer facility who offered him a polygraph test, the officer at the post-transfer facility who held the disciplinary hearing as to the " code words" letters, and

Page 586

a certain " Director of Custody Operations" who, allegedly, declined Plaintiff's request for " Islamic documents" the nature of which was never clarified.

The Court screened the complaint and dismissed Plaintiff's claim based on his transfer and his retaliation claim. The Court explained that the transfer-based claim was not cognizable legally, while the retaliation claim failed to assert facts meeting the elements of that constitutional tort. Thus, the allegations attacking the propriety of Plaintiff's disciplinary hearing became the sole surviving claim. As to that claim, the Court directed service after reflecting on the tests set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), and also upon noting that, under Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1977), inmates could recover certain damages for being subjected to procedurally deficient hearings.

Four and a half years of litigation followed. During that period: (a) the Magistrate Judge directed filing of all " motion[s] to add new parties" ; (b) Plaintiff, instead of naming such parties, inquired whether Defendants would pay him $1.9 million in settlement; (c) the Magistrate Judge appointed Plaintiff pro bono counsel; (e) extensive discovery took place; and (f) each side moved for summary judgment. At that point, the record established that Plaintiff was not provided with an opportunity to examine his " code words" letters prior to or even at his disciplinary hearing and, thus, he could not meaningfully ascertain the charge based on these " code words" letters. The record also established that the officer who conducted Plaintiff" s disciplinary hearing at the post-transfer facility: (a) suggested that he might have based his findings, at least in part, on the investigatory conclusions reached by a prison officer employed at the pre-transfer facility; and (b) may have erroneously perceived Plaintiff's statement written post-charge as one of Plaintiff's " code words" letters on which the charge was based.[4]

This Court held oral arguments and ruled on both summary judgment motions, granting and denying each one in part. See Docket Entry No. 143 (the Court's opinion); see also Harris v. Ricci, (D.N.J. June 11, 2013) (same). This Court dismissed the claims barred by the Eleventh Amendment and those based on the theory of respondeat superior. " On the other hand," the Court observed, the hearing officer, i.e., " Officer Maniscaldo, . . . was obligated to: (a) rely [solely] on his own review of Plaintiff's [" code words" ] letters . . . ; and (b) allow Plaintiff an opportunity to review these letters in preparation for [his] disciplinary hearing." at *16. Since there was no dispute that Officer Maniscaldo. . . fail[ed] to comply with either or both of these . . . obligations or, at the very least, with the latter one," the Court granted Plaintiff summary judgment with regard to the procedural errors and awarded him damages. at *17.

The Court's damages analysis was as follows:

The due process protections implicated by a disciplinary hearing consist of two interrelated aspects: one is of a quasi-procedural nature, . . . the other is quasi-substantive.

Page 587

While the procedural aspect ensues from the holding of Wolff, the substantive one provides that the findings made by a disciplinary official could be deemed valid only if they are supported by some evidence in the record. The dual rationale of Wolff-Hill analysis corresponds to the holding of Carey [where] the Supreme Court observed that . . ., if the flaw at issue is of a quasi-procedural nature, but the prisoner could have been subjected to the same disciplinary sanction under a procedurally proper hearing, the prisoner is entitled to recover only nominal damages not to exceed one dollar. . . . The case at bar presents this very scenario. Here, Plaintiff concedes that he wrote the letters utilizing the words at issue [and] he admits sending monies to a female member of another's inmate family . . . . Thus, he could have been sanctioned to the very same sanction that was imposed upon him. Correspondingly, while he is entitled to summary judgment under Wolff . . ., under Carey, he can recover only one dollar. . . . [T]he analysis here does not turn on whether the disciplinary officer could have sanctioned Plaintiff differently; rather, it turns on a diametrically opposite inquiry, i.e., whether the disciplinary officer could have imposed the very same sanction upon conducting a procedurally proper hearing.

(citations, quotation marks and brackets omitted).

Upon finding that Plaintiff was entitled to $1, the Court also conducted a sua sponte inquiry into the amount of attorney's fee due to Plaintiff's counsel appointed by the Magistrate Judge. For the purposes of that analysis, the Court relied on a decision arising from the Third Circuit Court of Appeals, Velius v. Twp. of Hamilton, 466 F.Appx. 133 (3d Cir. 2012).[5] In Velius, the Third Circuit Court of Appeals ruled that a district court's resort to the lodestar method of fee calculation was inappropriate in those cases that yielded only nominal damages. Judge Thomas M. Hardiman (" Judge Hardiman" ), writing on behalf of the Panel, noted that the issue of " whether attorneys' fees should be awarded to civil rights plaintiffs who receive only nominal damages [was a] source of confusion" and " review[ed] the controlling precedents in . . . detail," stating:

In Farrar v. Hobby, the majority . . . noted that the " technical nature" of a nominal damages award nevertheless " bears on the propriety of fees awarded under § 1988." 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Given the general principle that courts must " give primary consideration to the amount of damages awarded as compared to the amount sought" in awarding fees, id., in nominal damages cases, the calculation of fees under the traditional lodestar standard " may be an excessive amount," id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Although Farrar preserved the trial judge's right to award fees equal to the lodestar, the Court also opined that " when a plaintiff recovers only nominal damages . . . the only reasonable fee is usually no fee at all." Id. at 115. At the same time, it emphasized the broad discretion of district courts to award attorneys'

Page 588

fees in nominal damages cases. See id. at 114-15. Thus, the Court concluded that district courts " may lawfully award low fees or no fees without reciting the 12 factors bearing on reasonableness or multiplying 'the number of hours reasonably expended . . . by a reasonable hourly rate.'" Id. at 115 (alteration in original) (internal citation omitted) (quoting Hensley, 461 U.S. at 430 n.3). Although she joined the majority in Farrar, Justice O'Connor authored a separate concurrence " only to explain more fully why . . . it was appropriate to deny fees in that case." Id. at 116 (O'Connor, J., concurring). Justice O'Connor . . . sought to clarify where attorneys' fees would be proper and noted that " a substantial difference between the judgment recovered and the recovery sought suggests that the victory is in fact purely technical." Id. at 121. In addition, " the significance of the legal issue" on which the plaintiff prevailed should inform the fee award. Id. Finally, 'success might be considered material if it also accomplished some public goal." Id. at 121-22. . . . We read Farrar to grant district courts substantial discretion to decide whether no fee or some fee would be reasonable, as long as they acknowledge that a nominal damages award is presumptively a technical victory that does not merit an award of attorneys' fees. Whenever the . . . court determines that no fee or a low fee is proper, Farrar eliminates the need to apply multi-factor tests or calculate the lodestar and permits a district court to determine the amount of any low fee award it deems is warranted by whatever means it chooses in its broad discretion. See Farrar, 506 U.S. at 115. . . . Farrar does not establish any rule . . . dictating how fees must be calculated if a court determines that a low fee is appropriate.

Harris, at *27-29 (quoting Velius, 466 F.Appx. at 138 (brackets omitted, emphasis supplied)).

Applying that method, the Velius Court affirmed the plaintiff's $1 award but vacated the $2,259 lodestar-based fee and remanded the matter for reassessment. See Velius, 466 F.Appx. at 141. Nothing in Velius called the district court's attention to a statutory provision of any sort or to any other case law. See id. Nor does Velius suggest a fixed cap limiting the attorney's fee. See id. This Court, therefore, directed the parties' attention to Velius and, employing the guidance provided therein, concluded:

the Court is mindful that the " technical victory" achieved in this matter . . . serves the public goal which is rarely headlines grabbing but which is, nonetheless, quite important, i.e., the goal of ensuring that the rights of prisoners, while limited, are treated with respect and fully enforced. Noting that, unlike the verdict in Velius, the holding of this matter is neither " obtuse" nor incapable of deterring future misconduct, the Court finds that an award of very low attorney's fee, not tied to a lodestar analysis, would be more appropriate than no award at all. See Hawa Abdi Jama v. Esmor Corr. Servs., 577 F.3d 169 (3d Cir. 2009) (collecting cases and pointing out that a very low fee is not inappropriate even in a case that has a relatively small public goal value); see also Lefemine v. Wideman, 133 S.Ct. 9, 11, 184 L.Ed.2d 313 (2012) (" Because the plaintiff is a 'prevailing party,' he 'should ordinarily recover some attorney's fee unless special circumstances would render such an award unjust'" ) (quoting Hensley, 461 U.S. at 429);

Page 589

accord Lawrence v. Western Pipe Serv., 146 F.R.D. 195 (N.D. Ala. 1993) (where the plaintiff recovered $350, the court found it warranted to award the lump sum of $2,500 to cover, jointly, attorney's fee and costs of litigation), aff'd without opinion 19 F.3d 1446 (11th Cir. 1994). Reflecting on the Supreme Court and Court of Appeals' guidance and applying it [here], this Court finds $300 attorney's fee the most suitable.

Harris, at *31-32.

At that point, this case was closed, and the appointment of pro bono counsel expired.

The motions at bar followed. Plaintiff, who has re-assumed his pro se status, alleged that: (a) he lost commutation credits and a hypothetical possibility of becoming eligible for an earlier release; (b) his cumulative SHU time, ensuing from his many infractions, was excessive; (c) the fact that he was charged with *.010 caused him emotional distress because it implied that he was connected to gang members; and (d) while in the SHU, he experienced ailments such as " rash," " inflamation," " diarrhea" and unspecified " bad pains," and " received treatment from the prison medical providers . . . for a 'lump on his groin,' 'left arm,' 'left leg pain,' 'left anterior calf,' 'mild cellulites,' 'swollen lower extremity' and '3 lesions' the 'size of a quarter' from [his own] 'scratching.'" Docket Entry No. 151, at 4-9. He, therefore, asked to increase his monetary damages above $1 and to have his prison file expunged.

Meanwhile, a counseled motion was filed on behalf of Defendant Maniscaldo. It sought reduction of the $300 attorney's fee this Court awarded to Plaintiff's former pro bono counsel. The motion alleged that 42 U.S.C. § 1997e(d)(3) imposed a blanket rule capping all attorneys' fees in prisoners' § 1983 cases at 150% of the damages awarded. See Docket Entry No. 146-1. Defendant maintained that Parker v. Conway, 581 F.3d 198 (3d Cir. 2009), outright required reduction of the fee to $1.50 since Plaintiff succeeded at proving only $1 in damages. See id. at 3-4 (also citing Shepherd v. Goord, 662 F.3d 603 (2d Cir. 2011); Keup v. Hopkins, 596 F.3d 899 (8th Cir. 2010); Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006); Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003); Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003); Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001); Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); and Walker v. Bain, 257 F.3d 660 (6th Cir. 2001).[6]


A motion for reconsideration is a device of limited utility. There are only four grounds upon which a motion for reconsideration might be granted: (a) to correct manifest errors of law or fact upon which the judgment was based; (b) to present newly-discovered or previously unavailable evidence; (c) to prevent manifest injustice; and (d) to accord the decision to an intervening change in prevailing law. See 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995); see also Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 ...

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