Doe v. Whitebread
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 2/14/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:15-1165
Currently before the court are the plaintiff’s, Jane Doe’s, motion for
default judgment, (Doc. 12), and motion for damages, (Doc. 17), which
includes a request for compensatory damages, punitive damages, and
attorneys’ fees and costs. The plaintiff’s motion for default judgment and her
motion for damages are GRANTED IN PART. The court will enter judgment
against the defendant, Shawn Whitebread (“Officer Whitebread”), with respect
to most of the plaintiff’s claims in her complaint, (Doc. 1). The court will award
the plaintiff $100,000.00 in compensatory damages and $150,000.00 in
punitive damages based on the emotional harm she has and will continue to
suffer due to Officer Whitebread’s actions. The court will also award the
plaintiff a total of $19,678.00 in attorneys’ fees and costs.
On June 24, 2013, Officer Whitebread allegedly sexually assaulted the
plaintiff. At the time of this incident the defendant was employed as a police
officer with the Wilkes-Barre Township police department. On July 15, 2015,
the plaintiff filed a complaint in this court alleging violations of the Fourth and
Fourteenth Amendments of the United States Constitution and, as such,
violations to Title 42, Section 1983 of the United States Code. In addition, the
plaintiff included claims of assault, battery, and intentional infliction of
emotional distress (“IIED”) under Pennsylvania state law. All claims were
brought against the defendant in his individual capacity.
The defendant failed to enter an appearance or respond to the plaintiff’s
complaint as required by Federal Rule of Civil Procedure 12. On December
4, 2015, the plaintiff obtained an entry of default from the Clerk of Court. On
March 8, 2016, the plaintiff filed a motion to enter default judgment pursuant
to Federal Rule of Civil Procedure 55. No brief in support was filed. Therefore,
on October 14, 2016, the plaintiff requested that this court deem her motion
an “application” in order to obviate the need to file a supporting brief. (Doc.
On October 31, 2016, the court granted the plaintiff’s request to deem
her motion an “application.” (See Docs. 14–15). The court also determined
that a hearing would be required to assess damages prior to entering
judgment. As a result, the court also ordered the plaintiff to submit a request
for damages, costs, and fees in advance of the hearing. The plaintiff
submitted her motion for damages on December 12, 2016. (Doc. 17). A
hearing was held on January 26, 2017 where the plaintiff briefly affirmed the
facts stated in her affidavit, which was previously submitted with her motion
for damages. On February 2, 2017, at the court’s direction, the plaintiff's
counsel submitted a more detailed request for attorneys’ fees. (Doc. 19).
THE MOTION FOR DEFAULT JUDGMENT
Federal Rule of Civil Procedure 55 provides a two-step process to be
used by a party seeking a default judgment against a defendant. At step one,
Rule 55(a) provides that the Clerk “must” enter a default against a party who
fails “to plead or otherwise defend an action, and that action is shown by
affidavit or otherwise.” A default judgment is then obtained pursuant to Rule
55(b). If the claim is not for a sum certain the party seeking default judgment
must apply to the court for the judgment. FED. R. CIV. P. 55(b)(2). The court’s
decision to render a default judgment is discretionary. Emcasco Ins. Co. v.
Sambrick, 834 F.2d 71, 74 (3d Cir. 1987). However, when a defendant fails
to appear, default judgment is authorized “solely on the fact that the default
has occurred.” Anchorage Assocs. v. Virgin Island Bd. of Tax Review, 922
F.2d 168, 177 n. 9 (3d Cir. 1990).
Although all well-pleaded facts in the plaintiff’s complaint are accepted
as true after entry of default, the default itself does not establish liability or
conclusions of law. Martin v. Nat’l Check Recovery Servs., LLC, Civil No.
1:12-CV-1230, 2016 WL 3670849, at *1 (M.D. Pa. July 11, 2016); 10A
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §2688.1
(4th ed. 2016). “[T[he court, in its discretion, may require some proof of the
facts that must be established in order to determine liability.” 10A CHARLES
ALAN WRIGHT ET AL., supra, at §2688.1. A default also does not establish the
amount of damages that are appropriate. Comdyne I, Inc. v. Corbin, 908 F.2d
1142, 1149 (3d Cir. 1990); Martin, 2016 WL 3670849, at *1. The
determination of damages must be made by the court. 10A CHARLES ALAN
WRIGHT ET AL., supra, at §2688. Under Rule 55(b)(2), a hearing may be used
to determine any facts needed to establish liability and facts needed to
determine damages. FED. R. CIV. P. 55(b)(2). Having held a hearing, pursuant
to Rule 52(a), the court makes the following findings of facts and conclusions
of law, established from both the plaintiff’s affidavit and her testimony.
Findings of Fact1
On the night of June 24, 2013, the defendant, then a Wilkes-Barre
police officer, drove his marked vehicle behind the plaintiff’s vehicle while she
was parked on a street in Wilkes-Barre, Pennsylvania. It appears from the
affidavit that this stop occurred around 12:00–1:00 a.m. in the morning. After
approaching the plaintiff, Officer Whitebread confiscated what he suspected
was marijuana. Thereafter, Officer Whitebread instructed the plaintiff to sit
inside his police vehicle. After getting another radio call, he asked the plaintiff
to get back into her own vehicle and wait for him. Once inside her own
vehicle, the plaintiff waited until Officer Whitebread returned to her car. Officer
Whitebread then drove behind the plaintiff and followed her to her apartment.
Although the court accepts the allegations in the plaintiff’s complaint
as true, her affidavit provides more detail than her complaint regarding what
occurred on June 24, 2013. At the hearing, the plaintiff chose not to testify
about the night in question and appears to rely mostly upon her affidavit.
(Doc. 17, Ex. A). Thus, the court relies on her affidavit with respect to certain
facts regarding that evening.
Upon entrance into her apartment, Officer Whitebread advised the
plaintiff that she could go to jail for the suspected marijuana and that she
could lose her job and car. The plaintiff began crying. Officer Whitebread then
asked, “What are we going to do about this?” Officer Whitebread thereafter
left the plaintiff’s apartment but instructed her that he would return at 3:00
a.m. to check on her, around two hours later.
Officer Whitebread returned at 3:00 a.m. After looking around the
plaintiff’s apartment, Officer Whitebread began touching the plaintiff, which
she interpreted as his desire to have sex with her. The plaintiff described
herself as being scared that Officer Whitebread would hurt or kill her. Officer
Whitebread then engaged in sex with the plaintiff. She described his belt and
pistol as being close by at all times, which increased her fear of harm. At no
time did the plaintiff give her consent to the sex that occurred. The plaintiff
described feeling trapped and powerless by the situation. Officer Whitebread
left the plaintiff’s apartment following this encounter without further incident.
It appears that he was fired from the department after this incident, although
there is no indication in the record why or if it was related in any way to this
In addition to confirming the statements made in her affidavit, during the
hearing the plaintiff testified that she suffered and continues to suffer from
symptoms of emotional distress due to the assault. In particular, the plaintiff
testified that after the event she began recalling memories of past physical
abuse from other relationships. She described being afraid in her own home
because Officer Whitebread knew where she lived and might come back. She
testified that she is now afraid of the police and has experienced anxiety
attacks when seeing police officers. As she described it, she does not know
if they are “good” or “bad” police officers. The plaintiff also testified concerning
an incident where she ran into Officer Whitebread in a local convenience
store. Upon seeing him, the plaintiff felt the need to hide out of fear. Although
the plaintiff has moved, she remains afraid that she will run into Officer
The court finds the plaintiff’s testimony credible. It was also clear, during
the hearing, that the plaintiff has a difficult time discussing the incident and it
has had a dramatic effect on her. The plaintiff testified that she sought
treatment from her medical doctor and was prescribed anxiety and depression
medication after the incident; however, she does not currently take this
medication. She did not provide any medical testimony, medical reports, or
other expert medical evidence. What is clear from the plaintiff’s testimony is
that she continues to experience emotional distress due to the sexual assault.
Conclusions of Law
The court will enter default judgment on the plaintiff’s assault, battery,
and Section 1983 claims. The court, however, cannot award default judgment
on the IIED claim. Pennsylvania law requires that there be proof of severe
emotional distress as shown by objective medical evidence. Kazatsky v. King
David Memorial Park, Inc., 527 A.2d 988, 995 (Pa. 1987). The plaintiff has
not offered any objective medical evidence and this is required.
Default judgment will be entered with respect to the assault and battery
claim. In Pennsylvania, a battery is defined as a “harmful or offensive contact”
with another’s person. C.C.H. v. Phila. Phillies, Inc., 940 A.2d 336, 340 n. 4
(Pa. 2008) (quoting Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997)). An
assault is defined as “an act intended to put another person in reasonable
apprehension of an immediate battery, and which succeeds in causing an
apprehension of such battery.” Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa.
1960). The nonconsensual sexual encounter between the plaintiff and Officer
Whitebread was patently offensive and harmful to the plaintiff’s emotional
health. Cf. Kintzel v. Kleeman, 965 F. Supp.2d 601, 609 (M.D. Pa. 2013). In
addition, Officer Whitebread’s gestures to the plaintiff for sex while armed
appears intended to put her in apprehension of the sexual assault. As such,
default judgment should be entered with respect to these claims.
The court will also enter default judgment with respect to the plaintiff’s
Section 1983 claim. The plaintiff’s Section 1983 claim is premised on the
substantive due process right to bodily integrity. In order to be liable under
Section 1983 for this constitutional violation, Officer Whitebread must have
been acting “under color of law.” 42 U.S.C. §1983. The court finds that he
“The traditional definition of acting under color of state law requires that
the defendant in a [Section] 1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). “[A] police
officer’s purely private acts which are not furthered by any actual or purported
state authority are not acts under color of state law.” Barna v. City of Perth
Amboy, 42 F.3d 809, 816 (3d Cir. 1994). “Courts in the Third Circuit have
extended this line of reasoning and found that police officers, even when in
uniform and on duty, were not acting under color of state law for purposes of
[Section] 1983, so long as the officer’s actions were of a personal nature and
the officer did not arrest, or attempt to arrest, the victim.” Stroby v. Egg Harbor
Twp., 754 F. Supp.2d 716, 720 (D.N.J. 2010).
Here, Officer Whitebread’s actions were not simply personal in nature.
He was uniformed and armed when interacting with the plaintiff. In addition,
he used his authority as an officer to enter the plaintiff’s apartment twice
during the early morning hours while most citizens are asleep. He also made
threats of arrest based on his confiscation of suspected marijuana, attempting
to scare the plaintiff into submission. It is clear the plaintiff did not feel free to
leave, instead feeling trapped. Based on these facts, the court concludes that
Officer Whitebread was acting under color of law when he decided to sexually
assault the plaintiff. Accordingly, default judgment will be entered against him
on this claim.
THE MOTION FOR DAMAGES AND ATTORNEYS’ FEES
Based on a review of comparable cases, the plaintiff will be awarded
$100,000.00 in compensatory damages and $150,000.00 in punitive
damages. She will be awarded her attorneys’ fees and costs in full.
The law on emotional damages in Section 1983 cases is wellestablished. “[W]hen [Section] 1983 plaintiffs seek damages for violations of
constitutional rights, the level of damages is ordinarily determined according
to principles derived from the common law of torts.” Memphis Cmty. Sch. Dist.
v. Stachura, 477 U.S. 299, 305–06 (1986). Compensable injuries “may
include not only out-of-pocket loss and other monetary harms, but also such
injuries as impairment of reputation, personal humiliation, and mental anguish
and suffering.” Id. at 307 (internal quotation marks omitted). However, “[a]
plaintiff in a section 1983 case cannot recover for emotional distress unless
he or she presents evidence of ‘actual injury.’” Bolden v. Southeastern Pa.
Transp. Auth., 21 F.3d 29, 34–35 (3d Cir. 1994) (quoting Carey v. Piphus, 435
U.S. 247 (1978)). Medical evidence is not required to recover emotional
distress damages. Id. at 35. Instead, “[d]istress is a personal injury familiar to
the law, customarily proved by showing the nature and circumstances of the
wrong and its effect on the plaintiff.” Carey, 435 U.S. at 263–64. “Although
essentially subjective, genuine injury in this respect may be evidenced by
one's conduct and observed by others.” Id. at 264 n. 20. Based on the
plaintiff’s testimony, the court concludes that she has shown actual injury and
that she entitled to recover emotional damages.
The court is faced with a “difficult task” in attempting to place a value on
the plaintiff’s emotional damage, “both because the extent of emotional injury
does not readily translate into dollar amounts and because few truly
comparable cases can be found.” Mathie v. Fries, 121 F.3d 808, 814 (2d Cir.
1997). The Third Circuit has not discussed what factors might go into
assessing a damages award for pure emotional distress. Many courts
methodically collect and compare similar cases to establish the
appropriateness of the award.2 The court has attempted to do so here.
Based on a review of cases involving officers assaulting members of the
community or arrestees, which the court finds comparable to the plaintiff’s
case, the range of awards for emotional damages begins at $25,000.00 and
See Keith v. Koerner, No. 11-CV-2281-DDC-JPO, 2016 WL 4541447,
at *7 (D. Kan. Aug. 30, 2016); Doe v. Neal, No. SA-14-CA-102-XR, 2015 WL
3688259, at *4 (W.D. Tex. June 12, 2015); Nimmons v. Clark, No. 1:13-cv03786-WSD, 2015 WL 1191210, at *3–4 (N.D. Ga. Mar. 16, 2015); Trinidad
v. City of Boston, No. 17-111679-DPW, 2011 WL 915338, at *6 (D. Mass.
Mar. 15, 2011); Mize v. Tedford, No. 18-CV-10660-DT, 2009 WL 1508375, at
*2 (E.D. Mich. May 29, 2009); Doe v. Mann, No. 6:05-cv-259-Orl-31DAB,
2007 WL 2028833, at *5 (M.D. Fla. July 10, 2007).
in one case reached $750,000.00.3 For example, in Parrish v. Luckie, 963
F.2d 201 (8th Cir. 1992), a jury awarded a plaintiff a total of $200,000.00 in
emotional damages, with $150,000.00 awarded against the officer who
sexually assaulted the plaintiff and $50,000.00 awarded against the officer’s
supervisor. In that case, the plaintiff was falsely arrested, locked in the
officer’s police car, driven to an isolated area, and forced to perform oral sex
on the officer. Parrish, 963 F.2d at 203. The officer was known to have a
propensity to commit violence. Id. Similarly, in Trinidad v. City of Boston, No.
07-111679-DPW, 2011 WL 915338 (D. Mass. Mar. 15, 2011), the court
entered default judgment against a defendant officer in the amount of
$200,000.00. The plaintiff in that case was a 19 year old prostitute who the
See, Neal, 2015 WL 3688259 (awarding $750,000.00 in emotional
damages on default judgment in a case involving the rape of a pregnant
arrestee on the side of public road while the arrestee was handcuffed and
bound); Trinidad, 2011 WL 915338 (awarding $200,000.00 in emotional
damages on default judgment); Campbell v. Graham, No. 3:06-CV-444, 2010
WL 2901826 (E.D. Tenn. July 21, 2010) (awarding $25,000.00 in emotional
damages on default judgment); Mize, 2009 WL 1508375 (awarding
$350,000.00 in emotional damages on default judgment); Lewis v. Pugh, 289
F. App’x 767 (5th Cir. 2008) (upholding jury award of $50,000.00 in emotional
damages); Rogers v. City of Little Rock Ark., 152 F.3d 790 (8th Cir. 1998)
(upholding jury award of $100,000.00 in emotional damages); Hyde v.
Nicholas, 32 F. App’x 127 (5th Cir. 2002) (affirming $50,000.00 emotional
damages awarded granted on default judgment); Parrish v. Luckie, 963 F.2d
201 (8th Cir. 1992) (upholding jury award of $200,000.00 in emotional
damages against the assaulting officer and his supervisor).
officer had targeted, stalked, and sexually assaulted twice. Trinidad, 2011 WL
915338, at *1. The plaintiff in that case also had medical treatment records
to substantiate her emotional harm. Id. at *5.
While the court could not find a case that included all of the unique
circumstances in the plaintiff’s case, the court did find Campbell v. Graham,
No. 3:06-CV-444, 2010 WL 2901826 (E.D. Tenn. July 21, 2010) to be the
most comparable to the plaintiff’s case. In that case, default judgment was
entered in favor of the plaintiff in the amount of $25,000.00 for purely
emotional harm. Campbell, 2010 WL 2901826, at *3. In Campbell, the victim
was engaged in a domestic dispute with her boyfriend when the defendant
deputy officer was called to the scene. Id. at *1. Instead of making an arrest,
the officer separated the couple and agreed to transport the plaintiff to her
home. Id. During the transport, with the plaintiff’s consent, the officer drove
the plaintiff to a church parking lot instead of her home in order to talk. Id.
While there, the officer performed oral sex on the plaintiff victim and forced
her to perform oral sex on him without the plaintiff’s consent. Id. The plaintiff
in Campbell was afraid to resist the officer’s advances based on his position
as an officer. Id. The plaintiff did not have any medical expenses or records
because she could not afford treatment and the award was entirely premised
on her testimony to the court. Id. at *2.
The court does not agree that $25,000.00 is the appropriate measure
of damages here. The court finds that this amount is unusually low. In
addition, unlike the plaintiff in Campbell, the plaintiff here did seek some
treatment and was apparently prescribed medication. However, comparable
to Campbell, the plaintiff has not submitted medical records or other expert
reports to clarify the extent of her emotional damages. There is no indication
that the plaintiff is currently undergoing mental health treatment, such as
group or individual counseling. She has apparently suffered no wage loss or
other loss of income. The incident, while disgusting and egregious, was a
singular, isolated incident. While it is clear that the plaintiff did not consent to
the encounter, thankfully, there is no indication that Officer Whitebread used
extreme violence or caused physical harm. Based on the plaintiff’s affidavit
and testimony alone, the court finds $100,000.00 to be the appropriate
measure of compensatory damages for the plaintiff’s emotional harm.
The court will also award the plaintiff $150,000.00 in punitive damages.
“The purpose of punitive damages is to punish the defendant for his willful or
malicious conduct and to deter others from similar behavior.” Memphis Cmty.
Sch. Dist., 477 U.S. at 306 n.9. Punitive damages are appropriate when the
defendant's conduct is “shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected
rights of others.”4 Alexander v. Riga, 208 F.3d 419, 430–31(3d Cir. 2000)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). “[F]or a plaintiff in a section
1983 case to qualify for a punitive award, the defendant's conduct must be,
at a minimum, reckless or callous. Punitive damages might also be allowed
if the conduct is intentional or motivated by evil motive, but the defendant's
This standard is similar to the standard under Pennsylvania law
applicable to the plaintiff’s state law claims. Pennsylvania follows the
Restatement (Second) of Torts and allows punitive damages where the
defendant has engaged in “outrageous” conduct, defined as “acts done with
a bad motive or with a reckless indifference to the rights or interests of
others.” 1 SUMM PA. JUR. 2D TORTS §11:39 (2d ed.); see also Chambers v.
Montgomery, 192 A.2d 355, 358 (Pa. 1963). In an assault and battery case,
there must be malicious, wanton, reckless, willful, or oppressive conduct on
the part of the defendant. Chambers, 192 A.2d at 358. The defendant’s
conduct would meet this standard under Pennsylvania law.
action need not necessarily meet this higher standard.” Savarese v. Agriss,
883 F.2d 1194, 1204 (3d Cir. 1989).
In order to be deemed constitutional, a punitive award cannot be
“grossly excessive.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575
(1996). “The Supreme Court has established three guideposts to determine
whether a punitive damages award [is] grossly excessive: (1) the degree of
reprehensibility of the defendant's actions; (2) the disparity between the harm
or potential harm suffered by the plaintiff and its punitive damages award; and
(3) the difference between the punitive damages award and the civil penalties
authorized or imposed in comparable cases.” Brand Mktg. Grp. LLC v.
Intertek Testing Servs., N.A., Inc., 801 F.3d 347, 362–63 (3d Cir. 2015) (citing
Gore, 517 U.S. at 562). The need for deterrence may also be an important
consideration. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460
(1993) (Stevens, J., joined by Rehnquist, C.J., and Blackmun, J.) (“It is
appropriate to consider . . . the possible harm to other victims that might have
resulted if similar future behavior were not deterred.”). However, the degree
of reprehensibility is, normally, the “most important indicium” of the award’s
constitutionality. State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,
The court will award punitive damages as a 1:1.5 ratio with the plaintiff’s
request for emotional damages, resulting in a $150,000.00 punitive award.
While normally a 1:1 ratio serves as sufficient deterrence for malicious
conduct, the court finds that a higher ratio is warranted. Cf. Campbell, 2010
WL 2901826, at *3 (awarding punitive damages on a 1:1 ratio). Here, the
defendant’s conduct went beyond mere recklessness into the realm of
intentional and motivated by evil intent. Officer Whitebread’s actions were also
clearly reprehensible. He preyed upon a member of the community in the late
night hours. In addition, although Officer Whitebread was apparently fired
from his position, it appears that he remains free in the community. The
plaintiff is left with the fear or running into him at any moment. Under these
circumstances, the court finds that an award of $150,000.00 is warranted.
Attorneys’ Fees and Costs
The plaintiff may also recover attorneys’ fees and costs incurred in this
action. Reasonable attorney’s fees are clearly recoverable by a prevailing
party in a Section 1983 action. 42 U.S.C. §1988(b). The party seeking the
fees bears the initial burden of demonstrating the reasonableness of the fees.
See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 (3d Cir.
2005) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). To
meet this burden, the fee petitioner “must submit evidence supporting the
hours worked and the rates claimed.” Rode, 892 F.2d at 1183 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Once the fee petitioner has
met this initial burden, the party challenging the request bears the burden of
showing that the request is unreasonable. McKenna v. City of Phila., 582 F.3d
447, 459 (3d Cir. 2009). Assuming the plaintiff has met his or her initial
burden, the court is without discretion to reduce the requested amount
downward without objections from the defendant. Id.
“Parties prevailing in federal court may [also] recover taxable costs
referenced in [Federal Rule of Civil Procedure] 54(d)(1) and enumerated in 28
U.S.C. §1920.” Petrunich v. Sun Bldg. Sys., Inc., 625 F. Supp.2d 199, 211
(M.D. Pa. 2008); see also Reger v. Numours Found., 599 F.3d 285, 288 (3d
Cir. 2010). They may also seek “related nontaxable expenses.” FED. R. CIV.
P. 54(d)(2). This may include “costs for postage, telephone, expert fees,
travel, deposition transcripts, shipping, parking, lodging[,] and food.” Bowers
v. Foto-Wear, Inc., No. 3:CV-03-1137, 2007 WL 4086339, at *5 (M.D. Pa.
Nov. 15, 2007).
Here, the plaintiff seeks attorney’s fees in the amount of $19,025.00 and
costs in the amount of $653.00. The plaintiff seeks a total of $6,275.00 in fees
for attorney Kimberly D. Borland for his 25.1 hours of work billed at $250.00
per hour. She seeks a total of $12,750.00 in fees for attorney David P.
Tomaszewski for his 63.75 hours of work billed at $200.00 per hour. In
support of her request, the plaintiff submitted affidavits from her attorneys.
(Doc. 17, Exs. B–C). In addition, the plaintiff submitted billing statements with
detailed time entries for both of her attorneys. (See Doc. 19).
The court finds that the plaintiff has met her burden with respect to the
reasonableness of Attorney Borland’s and Attorney Tomaszewski’s hourly
fees. In his affidavit, Attorney Borland states that he has been practicing law
in this state since 1976. His practice is wide ranging but primarily involves civil
litigation, particularly employment litigation. In his separate affidavit, Attorney
Tomaszewski states that he has been practicing law in this state since 1990.
Like Attorney Borland, he has been engaged in the private practice of law,
particularly civil litigation in the employment context. This court recently found
an hourly fee of $250.00 per hour to be reasonable for a civil rights attorney
with twenty-five years of experience in this area, the Scranton/Wilkes-Barre
legal market. See Moffitt v. Tunkhannock Area Sch. Dist., No. 3:13-cv-01519-
MEM, Doc. 109 (M.D. Pa. Jan. 20, 2017). In addition, the plaintiff has
submitted the detailed time entries of both attorneys to meet her burden with
respect to the time spent on the case. Because the plaintiff has satisfied her
burden with respect to her attorneys’ fees, the court will award her the full
amount requested, $19,025.00.
The plaintiff’s request for costs will also be awarded in full. The plaintiff
seeks compensation for the filing of the complaint, compensation for service
of the complaint, and recovery for a small records fee incurred for research.
(See Doc. 17, at 14). These expenses total $653.00. All of the costs in the
plaintiff’s request for costs are recoverable. As such, the plaintiff is entitled to
an award of $653.00 in costs.
The plaintiff’s Rule 55 motion for default judgment based on Officer
Whitebread’s failure to plead, (Doc. 12), is GRANTED IN PART. Judgment
shall be entered against the defendant with respect to the plaintiff’s assault,
battery, and Section 1983 claims. The plaintiff’s motion for damages,
including attorneys’ fees and costs, (Doc. 17), is GRANTED IN PART. The
plaintiff will be awarded $100,000.00 in compensatory damages for emotional
harm and $150,000.00 in punitive damages against Officer Whitebread for a
total damage award of $250,000.00. She will also be awarded $19,678.00 in
attorneys’ fees and costs. A separate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 14, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-1165-02.wpd
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?