Petition — Sanchez v. McFadden

IN THE F L ED

SUPREME COURT OF THE UNITED STAT

PS SEP 12 1983

October Term, 1983

ALEXANDER L STEVAS,

CLERK

No.

DETECTIVE JUAN SANCHEZ, SERGEANT ROBERT

PEZZANO, and POLICK OFFICERS MICHAEL

CIRAVOLO and PATRICIA HEAR,

Petitioners,

V.—-

IVY McFADDEN, as Administratrix of the Estate of

GREGORY ISIAH McFADDEN a/k/a GREGORY

McFADDEN and ABDUL HADI, Deceased,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

FREDERICK A. O. SCHWARZ, JR.

Corporation Counsel of the City of New York,

Attorney for Petitioners,

100 Church Street,

New York, New York 10007.

(212) 566-4338 or 4375

LEONARD KOERNER,

EDWARD F. X. HART,

of CounseL

QUESTION PRESENTED

Whether the New York State survival statute,

which prohibits the award of punitive damages, must

be applied strictly and in accordance with its terms

pursuant to 42 U.S.C. §1988 and this Court's

decision in Robertson v. Wegmann, 436 U.S. 584

(1978), in an action commenced pursuant to 42

U.S.C. $1983 against police officers of the City of

New York?

TABLE OF CONTENTS

QUESTION PRESENTED....ccssscssseseseeeee

TABLE OF AUTHORITIES,....cssssssessseeees

OUI, BUR accccensccecacebacessncicnces

SN a I ed er

ARGUMENT -

THE NEW YORK STATE SURVIVAL

STATUTE, ESTATES, POWERS AND

TRUSTS LAW, §11-3.2, APPLICABLE

AT THE TIME THIS ACTION ACCRUED

PUNITIVE DAMAGES, SINCE 42 U.S.C.

$1988 REQUIRES THAT STATE LAW BE

ADOPTED WHERE FEDERAL LAW IS

DEFICIENT, THE NEW YORK

SURVIVAL STATUTE SHOULD HAVE

BEEN ADOPTED AND THE PUNITIVE

DAMAGES CLAIM DISMISSED. THE

SECOND CIRCUITS HOLDING THAT

THE NEW YORK SURVIVAL STATUTE

WAS INCONSISTENT WITH FEDERAL

LAW INSOFAR AS IT BARRED

PUNITIVE DAMAGES IS CONTRARY TO

THIS COURT'S DECISION IN

ROBERTSON V. WEGMANN, 436 U.S.

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CONCLUSION......00000 seeeeeee seeeeeeere seeeeee

ii

ll

TABLE OF AUTHORITIES

Cases:

Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971)...

Brazier v. Cherry, 293 F. 2d

401 5th Cir. 196 | Eee ane seeeeeeeersee

Carey v. Piphus, 433 US.S, 247 (1978)...

Carlson v. Green, 446 U.S. 14 (1980)......

Pritchard v. Smith

2 9 7 2d 15 8th Cir. |} |

Robertson v. Reet

436 . . 584 l 8 SSCS eeeeeSEeSEF ESSE Ee SEE EEe

Tomanio v. Board of Regent

446 U.S. 478 1980 Seeeeeeeeeeeeeeeeeeeeeeeeeeeee

Statutes:

42 U.S.C. § De peccecnisansescdestedsennsestabannds

42 U.S.C. § BOD Gcctsrercccedapesncsteoceusesscunsia

iii

Page

TABLE OF AUTHORITIES

New York Estates, Powers and

Trusts Law, $11-3.2....ccccccccscscscscccescsese

iv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

DETECTIVE JUAN SANCHEZ, SERGEANT ROBERT

PEZZANO, and POLICE OFFICERS MICHAEL

CIRAVOLO and PATRICIA HEAR,

Petitioners,

~v.-

IVY McFADDEN, as Administratrix of the Estate of

GREGORY ISIAH McFADDEN a/k/a GREGORY

McFADDEN and ABDUL HADI, Deceased,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners, four police officers of the Police

Department of the City of New York, seek a writ of

certiorari to review a judgment of the United States

Court of Appeals for the Second Circuit, reversing a

judgment of the District Court for the Southern

District of New York for $200,000 in punitive

damages and remanding for further proceedings.

The Secong Circuit, by refusing to dismiss the

punitive damage claim on the ground that the New

York State survival statute (Estates, Powers and

1

Trusts Law ["EPTL"], §11-3.2) did not allow an

award for punitive damages, disregarded both the

clear direction of 42 U.S.C. §1988 to apply the state

law where federal law is deficient and the decision

of this Court in Robertson v. Wegmann, 436 U.S. 584

(1978).

Additionally, the Second Circuit erred by

refusing to dismiss the complaint insofar as it

sought punitive damages since the amendment of

the pre-trial order near the conclusion of the trial

to include such damages was severely prejudicial to

defendants, requiring dismissal pursuant to the

Federal Rules of Civil Procedure, Rule 16. Rather,

the Second Circuit refused to reach the issue on the

ground that, since the jury instructions on punitive

damages were erroneous, it would remand for a new

trial on the issue.

OPINION BELOW

The opinion of the Court of Appeals (as yet

unreported) is annexed as Appendix A. On the issue

of the applicability of the New York survival statute

to a $1983 action, the Second Circuit stated in

"In v. W 436

Cs * me

Court, applying 42 U.S.C. 31988,

permitted a state survival statute

to limit the class of relatives

entitled to bring an action under

section 1983 on behalf of a

decedent. However, the Court

carefully noted that it was not

deciding whether state survival

Statutes could totally preclude

section 1983 claims on behalf of a

decedent and pointedly

distinguished a section 1983 claim

for a deprivation of federally

protected rights that caused the

decedent's death. Id. at 594.

Subsequently the Court declined to

apply a state statute that would

have barred survival of a Bivens

claim for a death allegedly caused

by federal officials. Carlson v.

Green, supra, 446 U.S. at 23-25,

again noting that Robertson v.

Wegmann had not involved a denial

of rights resulting in death, id. at

24.

Prior to Robertson and Green we

had a given effect to New York

law to bar a claim for punitive

damages in a section 1983 suit

brought on behalf of a decedent in

circumstances where the alleged

denial of constitutional rights was

unrelated to the death. Duchesne

v. Sugarman, 566 F. 2d 817, 821 n.

2 (2d Cir. 1977). Whether or not

our ruling in Duchesne has been

impaired by Robertson and Green,

we have no doubt that limitations

in a state survival statute have no

application to a section 1983 suit

brought to redress a denial of

rights that caused the decedent's

death, See Heath v. City of

Hialeah, 560 F. Supp. 840 (S.D. Fla.

1983); O'Connor v. Several

Unknown Correctional Officers

523 F. Supp. 1345 (E.D. Va. 1981).

To whatever extent section 1988

makes state law applicable to

section 1983 actions, it does not

require deference to a _ survival

statute that would bar or limit the

remedies available under section

1983 for unconstitutional conduct

that causes death. State law that

would preclude a claim for punitive

damages in a case like the present

one is manifestly ‘inconsistent'

with federal law within the

meaning of section 1988."

JURISDICTION

The judgment of the Court of Appeals was

entered on June 14, 1983. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. §1254(1) and $1331.

STATEMENT OF THE CASE

Plaintiff is the administratrix of the estate of

her son, Gregory McFadden, who died on February

18, 1980, as a result of a gunshot wound received

that day while struggling with two New York City

police officers for possession of the gun of one of

the officers which McFadden had seized during an

attempt to arrest him. She commenced this action

against the City of New York and four New York

City police officers pursuant to 42 U.S.C. §1983 for

deprivation of McFadden's civil rights by reason of

the officers’ use of excessive force in attempting to

arrest him. The City of New York was dismissed as

a defendant by consent of plaintiff during trial. On

April 27, 1982, a pre-trial order was entered which

Stated that compensatory damages were being

sought in the action. Punitive damages, initially

claimed in the complaint, were not sought pursuant

to this pre-trial order.

The trial was commenced on May 24, 1982. At

the close of testimony on the second day of this

three day trial, after two of defendants had

testified and in the midst of a third defendant's

testimony, plaintiff requested that a claim for

punitive damages be submitted to the jury, although

his claim had been abandoned in the pre-trial order.

The trial court, while stating that punitive damages

had been dropped from the case, agreed to charge

the jury on the issue. Defendants timely objected to

the submission of the issue of punitive damages to

the jury.

Defendants, in their post-trial motion for

judgment notwithstanding the verdict and, in the

alternative, for a new trial, argued that a new trial

should be granted because of the substantial

prejudice which they suffered as a result of the

modification of the pre-trial order. The Court

denied the motion, perceiving no prejudice to

defendants in connection with the defense of the

case. *

*While we do not raise this issue as a ground for

granting a writ of certiorari, we note that the

Second Circuit erroneously refused to decide

defendant's appeal on this issue. The Second Circuit

recognized that "it would normally not be

appropriate to remedy a_é truly _ prejudicial

amendment by affording a plaintiff a retrial on an

omitted claim." Although admitting that "it would

be a close question whether the late amendment of

the pre-trial order created undue prejudice," the

Second Circuit attempted to avoid deciding

defendants' appeal of this issue on the ground that,

since there was error in the jury charge on punitive

damages, it would order a new trial on that issue

without deciding whether punitive damages should

have been presented to the jury in the first place.

We submit that this decision denied defendants their

day in court and was, therefore, clearly erroneous.

If the amendment of the pre-trial order was

prejudicial to defendants, the claim must be

dismissed. The fact that the District Court

erroneously instructed the jury on a claim that

should not have been presented to it does not alter

this fact. It is ironic that the defendants should have

fared better had a correct instruction been given

the jury, thereby requiring the Second Circuit to

decide their appeal, than they in fact did because

the jury received erroneous instructions favorable to

the plaintiffs.

ARGUMENT

THE NEW YORK STATE SURVIVAL STATUTE,

ESTATES, POWERS AND TRUSTS LAW, §11-3.2,

APPLICABLE AT THE TIME THIS ACTION

ACCRUED AND AT THE TIME OF TRIAL,

PROHIBITED THE AWARD OF _ PUNITIVE

DAMAGES, SINCE 42 U.S.C. $1988 REQUIRES

THAT STATE LAW BE ADOPTED WHERE

FEDERAL LAW IS DEFICIENT, THE NEW YORK

SURVIVAL STATUTE SHOULD HAVE BEEN

ADOPTED AND THE PUNITIVE DAMAGES CLAIM

DISMISSED. THE SECOND CIRCUITS HOLDING

THAT THE NEW YORK SURVIVAL STATUTE WAS

INCONSISTENT WITH FEDERAL LAW INSOFAR AS

IT BARRED PUNITIVE DAMAGES IS CONTRARY

TO THIS COURT'S DECISION IN ROBERTSON V.

WEGMANN, 436 U.S. 584 (1978).

The New York State ESTATES, POWERS and

TRUSTS LAW, McKinney's EPTL, section 11-3.2(b),

provides for the survival of a cause of action after

the death of the party in whose favor it existed. The

statute is in derogation of the common law which

requires that a cause of action abate upon the death

of the injured party.

Since federal law does not provide for survival

or wrongful death actions and since 42 U.S.C. $1988

directs federal courts to adopt state law in civil

rights actions where federal law is deficient,

survival actions could not be maintained pursuant to

42 U.S.C. $1983 absent state survival statutes. See,

Moor v. County of Alameda, 411 U.S. 693, 702-703

n. 14 (1973); Brazier v. Cherry, 293 F. 2d 401 (5th

Cir. 1961); Pritchard v. Smith, 289 F. 2d 153 (8th

Cir. 1961). Since the instant action could not be

maintained except pursuant to EPTL, section 11-3.2,

and since that section prohibits claims for punitive

damages, it was fundamental error to allow the jury

to consider the punitive damage claim.

In concluding that the New York survival

statute's prohibition against punitive damage awards

is inconsistent with federal law, the Second Circuit

cited this Court's decisions in Robertson v.

Wegmann, 425 U.S. 584 (1978) and Carlson v. Green,

446 U.S. 14 (1980). We submit that the Second

Circuit's decision is, in fact, in conflict with both

cases. In Robertson v. Wegmann, this Court held

that the District Court was required to adopt as

federal law a state survival statute, although the

adoption resulted in the total abatement of a §1983

action since the state survival statute was not

inconsistent with the Constitution and laws of the

United States. As this Court stated therein (436 U.S.

at 563):

"That a federal remedy should be

available, however, does not mean

that a §1983 plaintiff (or his

representative) must be allowed to

continue an action in disregard of

the state law to which $1988 refers

us. A state statute cannot be

considered ‘inconsistent’ with

federal law merel, because the

statute causes the plaintiff to lose

the litigation."

The result in Robertson, a total abatement, was

more severely prejudicial to the plaintiff's interests

than the result sought herein, a prohibition solely

against punitive damages.

Moreover, while punitive damages may

normally be awarded in a section 1983 action, the

basic purpose of a section 1983 damage award is to

compensate an injured plaintiff and, by reason of

the defendant's liability for such compensatory

damages, to deter the defendants from such action

in the future. Carey v. Piphus, 433 U.S. 247, 254-255

(1978). In view of the fact that adoption of the New

York survival statute by the District Court in this

section 1983 action does not interfere with the basic

purpose to be achieved by the civil rights suit since

the action survives and full compensatory damages

are permitted pursuant to the statute, it cannot be

considered inconsistent with the Constitution,

federal law, or Congressional intent.

Carlson v. Green, supra, 446 U.S. 14, is not to

the contrary. First, the Indiana survival statute

adopted by the District Court iii Carlson provides

that a personal injury claim does not survive where

the acts complained of caused the victim's death. In

addition, the Indiana wrongful death statute

severely limits compensatory recovery. However,

the New York survival statute provides for full

compensation with no limitations. Only punitive

damages are prohibited.

Second, unlike the instant case which was

commenced pursuant to 42 U.S.C. $1983 against

City police officers acting under color of state law,

Carlson involves an action in the nature of Bivens v.

Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), a cause of action against federal officials

arising directly under the Constitution. In statutory

civil rights actions such as the instant section $1983

suit, Congress has specifically directed adoption of

state statutes where federal law is deficient

pursuant to 42 U.S.C. §1988. However, "Bivens

actions are a creation of federal law and, therefore,

the question whether respondent's action survives

[decedent's] death is a question of federal law."

Carlson v. Green, supra, 446 U.S. 23. Since Carlson

concerned in "Bivens" cases federal action by

federal officials, this Court stated that the courts

are free to fashion a federal rule of survivorship

which it deems appropriate, "[wlhatever difficulty

we might have resolving the question were the

federal involvement less clear..." 446 U.S. 23. In

the instant case, there is absolutely no federal

involvement.

Third, the Court in Carlson adopted a uniform

federal rule of survivorship in Bivens-type actions

because of a need to treat federal officials in a

uniform manner regardless of where the alleged

violation of constitutional rights occurred. 446 U.S.

at 23-24. In actions brought pursuant to section

10

1983, this Court has indicated a contrary philosophy.

This Court has specifically held that uniformity of

treatment for liability for deprivation of civil rights

in the various states should not be a consideration in

section 1983 actions. Tomanio v. Board of Regents,

446 U.S. 478, 486 (1980). See also, Johnson v.

Railway Express Agency, 421 U.S, 454, 464 (1975).

Since there exists no inconsistency between

the New York survival statutes prohibition of

punitive damage awards and the Constitution or

federal laws, the statute should have been adopted

in the instant case, pursuant to 42 U.S.C. $1988.

CONCLUSION

FOR THESE REASONS, A WRIT

OF CERTIORARI SHOULD BE

GRANTED,

September 12, 1983

Respectfully submitted,

FREDERICK A, O. SCHWARZ, JR.

Corporation Counsel of the City of New York,

Attorney for Petitioners.

LEONARD KOERNER,

EDWARD F., X. HART,

of CounseL

ll

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

we

Nos. 993, 1150—August Term, 1982

(Argued March 14, 1983 Decided June 14, 1983)

Docket Nos. 82-7714, 82-7744

>

Ivy MCFADDEN, as Administratrix of the Estate of Grea-

ORY ISIAH MCFADDEN a/k/a GREGORY MCFADDEN and

ABDUL Hani, Deceased,

Plaintiff-A ppellee-Cross-Appeillant,

_Vo—

DETECTIVE JUAN SANCHEZ, ETAL.,

Defendants-A ppellants-Cross-A ppellees,

—and—

THE City OF NEW YorK,

Defendant.

Before:

MANSFIELD, MESKILL, and NEWMAN,

Circuit Judges.

—————— ee ee

.

———

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Appeal from a judgment of the District Court for the

Southern District of New York (Robert J. Ward, Judge)

in an action brought under 42 U.S.C. § 1983 (Supp. V

1981) awarding plaintiff compensatory and punitive dam-

ages for the shooting death of plaintiff's son, and cross-

appeal by the plaintiff challenging the adequacy of the

District Court’s award of attorney’s fees.

The judgment is vacated in part, the order awarding

attorney’s fees is affirmed, and the case is remanded for

retrial of the claim for punitive damages.

-_

EpwarbD F.X. Hart, New York, N.Y. (Fred-

erick A.O. Schwarz, Jr., Corporation

Counsel of the City of New York,

Leonard Koerner, New York, N.Y., on

the brief), for defendants-appe!lants-

cross-appellees.

HAROLD F. GOLDWASSER, New York, N.Y.,_/or

plaintiff-appellee-cross-appellant.

>

NEWMAN, Circuit Judge:

In this appeal four New York City police officers

challenge a. $200,000 punitive damage award assessed

against them-jointly in the June 1, 1982, judgment of the

District Court for the Southern District of New York

(Robert J. Ward, Judge). The $200,000 punitive damages

award was levied by a jury after it found that the four

officers had violated the constitutional rights of Gregory

dep Fess ‘a

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McFadden in an attempted arrest that resulted in McFad-

den’s death. This suit was filed by Ivy McFadden, Greg-

ory McFadden’s mother and administratrix, pursuant to

42 U.S.C. § 1983 (Supp. IV 1980). Because we conclude

that in section 1983 actions liability for punitive damages

and their amount must be determined on an individual

basis, we vacate the award of punitive damages and

remand for a new trial limited to punitive damages.

On February 18, 1980, several New York City police

officers conducted a “decoy operation” at a busy inter-

section in the Bronx. Officer Patricia Hear, while making

a telephone call in an open booth, wore a shoulder bag

that was left open revealing a wallet containing several

dollar bills. Gregory McFadden approached Officer Hear,

pretended to make a phone call in the next booth, and

then snatched the wallet from her bag. As McFadden

walked away from the telephone booths, Officer Michael

Ciravolo and Detective Juan Sanchez, two plainclothes-

men who were stationed in nearby stores, intercepted

him. Ciravolo grabbed McFadden’s right arm, Sanchez

his left. They identified themselves as police officers and

asked McFadden to accompany them away from the

intersection to be arrested.

At this point, the witnesses’ versions of the episode

differ. According to the police officers, McFadden began

to struggle as Sanchez was handcuffing him. Despite the

two Officers’ efforts to restrain their suspect, McFadden

continued to fight. Officer Hear, seeing the struggle

develop, ran over to the three men and attempted to hit

McFadder with her shoulder bag and handcuffs, but was

knocked away by the group, which was spinning in a

-

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a

circle. Sergeant Robert Pezzano, the senior police officer

supervising the operation, then entered the fray and

grabbed McFadden’s head. By bending down, McFadden

broke Pezzano’s grip. As he bent over, McFadden caught

sight of Officer Ciravolo’s gun. McFadden grabbed the

gun and pointed it at Ciravolo’s groin. Ciravolo yelled,

“He has my gun,” and jammed his hand between the

gun’s hammer and cylinder to prevent it from firing.

After a few moments, Ciravolo’s grip on the gun

loosened, as McFadden raised the weapon to Ciravolo’s

chest. Ciravolo screamed, “I can’t hold on any more,”

and Sergeant Pezzano fired his gun into McFadden’s

back. McFadden was taken to Union Hospital, where he

died.

The plaintiff's main witness gave a markedly different

version of the shooting. The witness testified that he first

saw McFadden accompanied by three men who the wit-

ness did not realize were police officers since they were in

plain clothes. Ten to twelve feet away from where the

witness was standing, the officers stopped McFadden and

grabbed his arms. About a half a minute later one of the

officers said, “You tore my jacket,” and a brief tussle

ensued. The officers forced McFadden up against a wall,

with one officer on either side of McFadden holding his

arms and another officer in front of McFadden. The

officer in front of McFadden, whom the witness identi-

fied as Officer Ciravolo, hit McFadden in the face for

three or four minutes. According to the witness, up to

this point, McFadden did not try to resist or escape the

punches, but when he was about to be kneed in the groin,

he said, “The hell with this” and “Kill me.” The struggle

between McFadden and the officers then resumed, and

the next thing the witness heard was one of the officers

saying either “He had my pistol” or “He has a gun.” At

pee _ <r

ne -

- —— oes

this point, a woman (whom the witness could not identify

as Officer Hear) jumped into the fight and tried to hit

McFadden with what the witness thought was “something

. . that looked like a billy.” Moments later, while turned

away from the struggle, the witness heard a shot. When

he looked back, he saw McFadden lying face down on the

ground with a handcuff on one hand. At no time did the

witness see a gun in McFadden’s hand.

Two other eyewitnesses gave slightly different versions

of the shooting. A woman who was watching from across

the street testified that she saw two men holding McFad-

den and a woman hitting him with her purse. Members of

the group were speaking loudly, but the woman could not

understand what they were saying. After a short struggle,

there was a shot. Another witness who testified for the

defendants said that he saw McFadden fight with two

policemen. According to this witness, while McFadden

was struggling, a woman hit him with a black object that

the witness identified as either an umbrella or a book.

Another officer came to help the other three. This witness

testified that he saw McFadden holding a gun, which the

officers were trying to take away from him. In the course

of the struggle, McFadden fell to the ground, still holding

the gun. According to this witness, McFadden was shot

while he was lying on the ground.

On February 26, 1981, Ivy McFadden, the deceased’s

mother and the administratrix of his estate, filed this suit

under 42 U.S.C. § 1983 (Supp. IV 1980) for injuries

suffered by the deceased in violation of his constitutional

rights. Named as defendants were the City of New York

and the four police officers involved in the incident. The

complaint sought compensatory and punitive damages.

On April 27, 1982, one month before trial, the parties

submitted and the District Court endorsed a pretrial order

6-A

pursuant to Fed. R. Civ. P. 16. This pretrial order did not

state that the plaintiff was seeking punitive damages. As

it turned out, the omission of punitive damages was a

mistake on the part of plaintiff’s counsel. Near the end of

the second day of trial, the mistake became evident, and

the following colloquy ensued:

([Plaintiff’s Counsel]: Your Honor, with regard to

what you just said before about compensatory dam-

ages, we are seeking, according to the complaint,

punitive damages.

The Court: You seem to have dropped that in the

pre-trial order. The complaint may have alleged it

Originally, but the complaint also alleged a lot of

other things. You want me to charge punitive dam-

ages as well? I'll charge it.

Ps [Plaintiff’s Counsel]: I would appreciate it.

[Defendants’ Counsel]: Your Honor, may we take :

exception? Bry

The Court: No, no. Nothing really has changed. :

He didn’t have it in the pre-trial order. What I’ll

have, I’ll have a separate question which I have

already prepared anyway, Question 6, to a special

verdict form: What amount, if any, is the plaintiff —

entitled to recover for punitive or exemplary award?

I will charge it separately. There will be a separate

finding by the jury on that subject, and if you feel

aggrieved by what has occurred you can argue the

matter after the verdict, if there is need to do so.

The following day the jury heard the remainder of the

testimony, which included the cross-examination of De-

tective Sanchez and the complete testimony of Sergeant

Pezzano.

NS ee ee

_*

When the case was submitted to the jury, Judge Ward

‘gave them a special verdict form, which included the

: following question on punitive damages: “What amount,

if any, is plaintiff entitled to recover as a punitive or

exemplary award?” The special verdict form gave the jury

no Opportunity to assess punitive damages individually as

to each of the four defendants. Judge Ward had in-

structed the jury that the defendants would be jointly

liable for any punitive damages awarded.

After six hours of deliberations, the jury returned a

verdict finding that all four officers had violated Gregory

McFadden’s constitutional rights and that none of the

officers had established by a preponderance of the evi-

dence a good faith defense. The jury awarded the plain-

tiff $25,000 compensatory damages and $200,000 punitive

damages.

Judgment on the jury’s verdict was entered on June 1,

1982. Two days later, plaintiff’s attorney made a motion

for attorney’s fees under 42 U.S.C. § 1988 (1976). The

application requested compensation for 179 hours at $150

per hour, yielding a lodestar amount of $26,850. The

application further proposed awarding nearly three times

the lodestar amount as a bonus. On September 2, 1982,

the District Court ruled that plaintiff was entitled to

compensation for 150 hours of legal work at $100 per

hour with no bonus and therefore awarded plaintiff an

attorney’s fee of $15,000.

Before us now are an appeal by the individual defen-

dants challenging the jury’s assessment of punitive dam-

ages and a cross-appeal by the plaintiff challenging the

24 Fee OP MO mee ere » Pe

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reasonableness of the District Court’s award of attorney’s

fees.

Il.

The issues on defendants’ appeal concern the availabil-

ity of punitive damages as a matter of law, the plaintiff's

entitlement to seek such damages in this case in light of

procedural developments before and during the trial, and

the propriety of determining a single amount of punitive

damages for which all four defendants are jointly liable.

A. The Supreme Court has recently reaffirmed the

general availability of punitive damages in section 1983

actions. Smith v. Wade, 103 S. Ct. 1625 (1983); see

Carlson v. Green, 446 U.S. 14, 22 (1980). Nevertheless

defendants contend that such damages are barred in this

case by a provision of New York law, since repealed, that

prevents the survival of claims for punitive damages after

the death of the plaintiff's decedent. See N.Y. Est.

Powers & Trusts Law § 11-3.2 (McKinney 1967) (repealed

1982).* This provision was in effect at the time of McFad-

den’s death. Defendants contend that this provision of

state law should be given effect in this case because of the

requirements of 42 U.S.C. § 1988. That section, now

widely known for the attorney’s fee provision added to it

~ in 1976, see Civil Rights Attorney’s Fees Awards Act of

1976, Pub. L. No. 94-559, § 2, 90 Stat. 2641, contains as

its core provisions language derived from section 3 of the

Civil Rights Act of 1866, ch. 31, 14 Stat. 27. That

language specifies that in civil rights cases in which

federal laws “are deficient in the provisions necessary to

2 = See also Myers v. Civ of Roshan, 435 N.¥.S.24 188 (Sup. Ct.

1982) (rejecting punitive damage ciaim in state

against police officers acting within the scope of

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furnish suitable remedies,” courts shall apply “the com-

mon law, as modified and changed by the constitution

and statutes of the State wherein the court” sits unless

such state law is “inconsistent” with federal law.

In Robertson v. Wegmann, 436 U.S. 584 (1978), the

Supreme Court, applying 42 U.S.C. § 1988, permitted a

state survival statute to limit the class of relatives entitled

to bring an action under section 1983 on behalf of a

decedent. However, the Court carefully noted that it was

not deciding whether state survival statutes could totally

preclude section 1983 claims on behalf of a decedent and

pointedly distinguished a section 1983 claim for a depri-

vation of federally protected rights that caused the dece-

dent’s death. Jd. at $94. Subsequently the Court declined

to apply a state statute that would have barred survival of

a Bivens claim for a death allegedly caused by federal

officials, Carlson v. Green, supra, 446 U.S. at 23-25,

again noting that Robertson v. Wegmann had not in-

volved a denial of rights resulting in death, id. at 24.

Prior to Robertson and Green we had given effect to

New York law to bar a claim for punitive damages in a

section 1983 suit brought on behalf of a decedent in

circumstances where the alleged denial of constitutional

rights was unrelated to the death. Duchesne v. Sugarman,

$66 F.2d 817, 821 n.2 (2d Cir. 1977). Whether or not our

ruling in Duchesne has been impaired by Rodertson and

Green, we have no doubt that limitations in a state

survival statute have no application to a section 1983 suit

brought to redress a denial of rights that caused the

decedent's death. See Heath v. City of Hialeah, $60 F.

Supp. 840 (S.D. Fla. 1983); O’Conmnor v. Several Un-

known Correctional Officers, $23 F. Supp. 1345 (E.D. Va.

1981). To whatever extent section 1988 makes state law

applicable to section 1983 actions, it does not require

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deference to a survival statute that would bar or limit the

remedies available under section 1983 for unconstitu-

tional conduct that causes death. State law that would

preclude a claim for punitive damages in a case like the

present one is manifestly “inconsistent” with federal law

within the meaning of section 1988.

B. The defendants challenge the award of punitive

damages in this case on the procedural ground that the

plaintiff waived her claim for such damages by omitting it

from the pretrial order and that the District Court erred

in permitting amendment of the order during the trial. A

district court may permit modifications of a pretrial order

“to prevent manifest injustice,” see Fed. R. Civ. P. 16,

though modifications should not be allowed that would

seriously prejudice one of the parties. See Jiminez v. Tuna

Vessel Granada, 652 F.2d 415 (Sth Cir. 1981); Price v.

Inland Oil Co., 646 F.2d 90 (3d Cir. 1981). See generally 3

Moore’s Federal Practice § 16.20 (2d ed. 1983). In

Brooks v. Wootton, 355 F.2d 177 (2d Cir. 1966) (per -

curiam), we ruled that a defendant was not unduly

prejudiced by the addition of a punitive damage claim

that had been omitted from the pretrial order, since the

facts of the case made it clear to the defendant that

punitive damages were a likely consequence and the

defendant had time to adjust his defense to take into

consideration the change.

The officers’ claim of prejudice in this case stems from

their understanding of New York’s law of indemnifica-

tion. Under N.Y. Gen. Mun. Law § 50-k(3) (McKinney

Supp. 1982), New York City is obliged to indemnify

police officers for damages incurred while acting within

the scope of their employment unless the damages re-

sulted from “intentional wrongdoing or recklessness.”

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The officers have assumed that this exception to the

indemnity obligation applies to the punitive damages

awarded in this case.’

The defendant officers argue that because the pretrial

order did not contain a claim for punitive damages, they

reasonably concluded they would not be subject to any

unreimbursed personal liability at trial and consequently

did not take all the precautionary measures that they

might otherwise have taken. For instance, the officers did

not retain their own counsel, relying instead on the

Assistant Corporation Counsel supplied by the City of

New York. Moreover their defense strategies did not

anticipate that the jury would be instructed to consider

punitive damages. None of the officers testified about his

or her financial] status, even though such testimony would

have been relevant to the determination of an appropriate

punitive damage award. See Zarcone v. Perry, $72 F.2d

$2, $6 (2d Cir. 1978). In addition, the three officers who

testified before the pretrial order was amended were not

aware that it might be important to explain to the jury

their states of mind at the time of the shooting. In fact,

when Officer Hear was questioned on direct examination

about what she was thinking just before the shot was

fired, defense counsel objected, and the District Court

sustained the objection.

It would be an exaggeration, however, to maintain that

appellants were caught wholly unawares by the modifica-

3 For purposes of this appeal, it is not necessary to determine the

correctness of this assumption. In Hertford Accident & Indemnity Co.

v. Village of Hempstead, 48 N.Y.24 218, 225, 397 N.E.2d 737, 742, 422

N.¥.S.24 47, $2 (1979), the New York Court of Appeals assumed

without deciding that indemnity for punitive damages is available

under N.Y. Gen. Mun. Law § $0-j (McKinney 1977), applicable outside

New York City. Section $0-}, unlike section $0-&(3), does not explicitly

exclude intentional wrongdoing or recklessness.

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tion of the pretrial order. The complaint had given notice

of the claim for punitive damages. Moreover, the pretrial

order noted that plaintiff expected to prove that “defen-

dant police officers used cxcessive force and subjected the

decedent to brutality,” allegations that would support an

award of punitive damages. The officers’ argument that

with proper notice of a punitive damages claim in the

pretrial order they might have obtained their own counsel

is cast in doubt by their failure to do so during the

fourteen months that the complaint, with its explicit

punitive damages claim, was pending prior to preparation

of the pretrial order. There is more force to the argument

that the late amendment of the order impaired defen-

dants’ opportunity to develop facts bearing on their

liability for punitive damages and on the appropriate

amount. Though they could have sought the opportunity

to present additional testimony bearing on their motiva-

tions and their finances after the pretrial order was

amended, they may understandably have been apprehen-

sive of adverse jury reaction to testimony given upon a

return to the witness stand.

If the punitive darmages award were otherwise valid, it

would be a close question whether the late amendment of

the pretrial order created undue prejudice; in the absence

of other error, the award would either stand or be pre-

cluded, since it would normally not be appropriate to

remedy a truly prejudicial amendment by affording a

plaintiff a retrial on the omitted claim. In this case,

however, as we explain below, an error independent of the

amendment precludes the punitive damages award as

made, thereby confronting us with a choice between

retrial or preclusion of the punitive damages claim. Under

these circumstances we do not believe the late amendment

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13-A

was so prejudicial that it should cause the plaintiff to lose

her opportunity to retry that claim.

C. We turn then to the issue whether punitive damages

in a section 1983 action may be assessed jointly agains: all

defendants or must be determined, both as to liability and

amount, individually against each defendant. This issue

poses an initial analytical problem of deciding whether

the answer is to be derived from a construction of section

1983 or from an application of state law made applicable

by section 1988. This threshold problem arises because of

the uncertain role of section 1988.

The Supreme Court has pursued various approaches in

determining when issues arising in civil rights cases are to

be governed by an interpretation of the governing civil

rights statutes or by state law via section 1988. See

Eisenberg, State Law in Federal Civil Rights Cases: The

Proper Scope of Section 1988, 128 U. Pa. L. Rev. 499,

$02-05 (1980). In deciding whether an action under sec-

tion 1983 survives the death of the plaintiff, the Court

used section 1988 to make state law dispositive. Robert-

son v, Wegmann, supra. The Court considered the ab-

sence of a survival provision in section 1983 to be a

“deficien(cy]” within the meaning of section 1988, noted

that relevant state law did not provide for survival of

actions at the suit of the particular relatives of the

plaintiff who were bringing the action, and concluded

that abatement of that particular action pursuant to state

law was not inconsistent with federal law. Earlier, in

deciding whether 42 U.S.C. § 1982 implies a damage

remedy, the Court viewed section 1988 as affording a

federal court a choice between “federal and state rules on

damages . . . whichever better serves the policies ex-

pressed in the federal statutes.” Sullivan v. Little Hunting

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Park, Inc., 396 U.S. 229, 240 (1969). Recently, in decid-

ing whether punitive damages were available in section

1983 actions and in defining the standard for such dam-

ages, the Court appears to have grounded its decision

directly upon a construction of section 1983, even though

that provision is silent on the subject of punitive dam-

ages. Smith v. Wade, supra. The Court consulted com-

mon law precedents, but did so as a source of guidance

for a proper construction of section 1983, not as opera-

tive law made applicable by section 1988. Of special

pertinence to the outcome allowing punitive damages and

applying a lenient standard to their award were the values

sought to be protected by section 1983.

Since Smith v. Wade concerned the availability of

punitive damages in section 1983 suits and the proper

standard for awarding them, its analytical approach

seems especially pertinent to our task of determining

whether such damages require individual assessment. We

will therefore follow the Supreme Court’s approach and

construe section 1983 in the light of both its policies and

pertinent common law precedents. As Smith v. Wade

makes clear, punitive damages are available under section

1983 to advance the statute’s purpose of securing the

protection of constitutional rights. An award of punitive

damages punishes a defendant who has acted inten-

tionally or recklessly to deny a plaintiff his protected

rights, Smith v. Wade, supra, 103 S. Ct. at 1640, and

helps secure rights for others by deterring future viola-

tions, id, at 1639. The degree of appropriate punishment

and the extent to which deterrence may be achieved at an

individual’s expense are obviously matters appropriate

for individualized determination. As the Court noted,

punitive damages turn on “the character of the tort-

feasor’s conduct.” /d. The function of punitive damages

—_—— ee eee —_——— + eo ee ee ee ee

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15-A

in section 1983 suits points forcefuily toward assessing

individually each defendant’s liability for such damages

and determining an appropriate amount.‘

The common law has given different answers to our

inquiry at different times. At one time common law

judges regularly instructed juries to award punitive dam-

ages jointly against all defendants or not to award them

at all. See J. Ghiardi & J. Kircher, Punitive Damages

§ 9.09, at 27 (1981). In some jurisdictions punitive dam-

ages were jointly assessed based on the behavior of the

most culpable defendant, and in others a joint assessment

was made based on the behavior of the least culpable

defendant. See Comment, Exemplary Damages and Joint

Tortfeasors, 18 Wash. & Lee L. Rev. 270, 271-72 (1961).

In modern times American jurisdictions have come to

the conclusion that punitive damages should be assessed

on an individual basis. A plaintiff who seeks to recover

punitive darnages from joint tortfeasors must “establish

that each defendant against whom punitive damages are

sought engaged in conduct which was sufficiently aggra-

vated to justify the imposition of those damages.” J.

Ghiardi & J. Kircher, supra, § 9.09, at 27. This rule

contemplates not only individual determination of each

defendant’s liability for punitive damages but also indi-

vidual determination of the amount for which each defen-

dant is liable. While this rule has not been adopted in

every jurisdiction, see, e.g., New York Times v. Sullivan,

376 U.S. 254, 262 (1964) (Alabama law); Gaston v.

‘ The punitive damages award approved by the Supreme Court in

Smith v. Wade was returned by a jury instructed as follows: “The

amount of punitive or exemplary damages assessed against any defen-

dant may be such sum as you believe will serve to punish that

defendant and to deter him and others from like conduct.” 103 S. Ct.

at 1628.

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Gibson, 328 F. Supp. 3 (E.D. Tenn. 1969), it is the

majority rule, see Annot., Apportionment of Punitive or

Exemplary Damages as Between Joint Tortfeasors, 20

A.L.R.3d 666, 668-71 (1968). Moreover, it is accepted by

commentators as the better view. See K. Redden, Punitive

Damages § 3.3(B) (1980); Comment, supra, at 276. Thus,

to the extent that common law authority aids interpreta-

tion of section 1983, a construction requiring individual

assessment of punitive damages is indicated.

Even if we analyzed the issue as one arising under

section 1988, on the theory that the absence of a specific

procedure for assessing punitive damages is a deficiency

in section 1983, we would reach the same conclusion.

Section 1988 would refer us to the common law of New

York, in which this trial was held, and New York favors

_ individual assessment of punitive damages. Rap/lee v. City

of Corning, 6 A.D.2d 230, 233, 176 N.Y.S.2d 162, 165

(4th Dep’t 1958); see 1 New York Pattern Jury Instruc-

tions § 2:278, at 626 (2d ed. 1974). Application of such a

state rule would manifestly not be inconsistent with any

federal policy.

The instant case well illustrates the importance of

assessing punitive damages individually in se..ion 1983

cases. Though the evidence of each defendant's participa-

tion in the episode sufficed to permit a finding of liability

for use of excessive force, the jury was entitled to view

their roles quite differently in determining the appropri-

ateness and amount of punitive damages. Sergeant Pez-

zano fired the fatal shot. Officer Ciravolo was observed

by one witness repeatedly punching McFadden without

provocation. Detective Sanchez was observed holding

McFadden’s arm. Officer Hear may have done little more

than strike McFadden with her pocketbook. A jury prop-

erly instructed might well have found varying degrees of

culpability and distinguished among the defendants as to

the liability of each for punitive damages and the appro-

priate amount of such damages.

We therefore conclude that punitive damages must be

individually assessed in suits under section 1983, David-

son v. Dixon, 386 F. Supp. 482, 489-90 (D. Del. 1974),

aff'd mem., $29 F.2d 511 (3d Cir. 1975); see Gagnon vy.

Ball, 696 F.2d 17, 19 n.2 (2d Cir. 1982), and that defen-

dants are entitled to have the issue of punitive damages

liability retried.’ Upon retrial the jury should be advised

that the defendants have been found liable for the use of

excessive force and that $25,000 compensatory damages

have been awarded; the jury is to determine with respect

to each defendant whether the defendant should be

obliged to pay punitive damages and, if so, in what

amount.’

On the cross-appeal, we decline to disturb the District

Court’s exercise of discretion with respect to the appro-

5 We recognize the possibility that the jury might have reduced their

award of compensatory damages in light of the large amount of

punitive damages awarded, thus arguably entitling the plaintiff to a

retrial of all damages since part of the computation was erroneously

made. In response to our inquiry at oral argument, plaintiffs counsel

preferred to retain the compensatory damages award and accept retrial

only of punitive damages in the event we ruled that portion of the

judgment defective.

6 An appropriate form of special verdict might ask:

What amount of punitive damages, if any, is plaintiff entitled to

receive from each of the following defendants?

Detective Juan Sanchez

Sergeant Robert Pezzano anu

Officer Michaei Ciravolo saiiaei

Officer Patricia Hear enmemene

This form is to be contrasted with the form normally appropriate for

determine what amount of compensatory damages, if any, the

plaintiff is entitled to receive. See Gagnon v. Bail, supra, 696 F.2d at 19

a.2.

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17-A

priate amount of an attorney’s fee. The decision not to

award a bonus beyond the lodestar amount was not an

abuse of discretion. Judge Ward was entitled to disallow

claimed hours that he thought were not reasonable. Even

though some of these hours were attributed to prepara-

tion of the fee application, for which compensation is

normally allowed, the District Court was entitled to

conclude that six hours for preparing an uncomplicated

application was not reasonable.

That portion of the judgment awarding punitive dam-

ages is reversed and the cause remanded for further

proceedings consistent with this opinion; on the cross-ap-

peal the award of attorney’s fees is affirmed. No costs.