Poulos v. City of N.Y.

Full title: TYSON POULOS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 13, 2018

14-CV-03023 (LTS) (BCM) (S.D.N.Y. Jul. 13, 2018)

Opinion

14-CV-03023 (LTS) (BCM)

07-13-2018

TYSON POULOS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

BARBARA MOSES, United States Magistrate Judge.

REPORT AND RECOMMENDATION TO THE HON. LAURA TAYLOR SWAIN

BARBARA MOSES, United States Magistrate Judge.

This action, brought pursuant to 42 U.S.C. § 1983 and state law, arises out of the arrest of plaintiff Tyson Poulos on May 4, 2013, and his pretrial detention at Rikers Island. Two of the defendants failed to appear: former New York Police Department (NYPD) Officer Jamel Brown, who allegedly assaulted plaintiff on May 5, 2013, while he was being held at Kings County Central Booking, and Christopher McFadden, a fellow detainee at Rikers Island, who allegedly attacked Brown three times on July 5 and 6, 2013.

On June 17, 2015, and January 19, 2016, respectively, the Hon. Laura Taylor Swain, United States District Judge, granted plaintiff's motions for default judgments against Brown and McFadden. See Mem. Op. & Order dated June 17, 2015 (Brown Order) (Dkt No. 51); Mem. Op. & Order dated Jan. 19, 2016 (McFadden Order) (Dkt. No. 70). On January 29, 2016, the District Judge referred the case to the assigned magistrate judge to conduct an inquest into damages. (Dkt No. 93.) On June 17, 2016, I directed plaintiff to file his proposed findings of fact and conclusions of law no later than August 1, 2016. (Dkt. No. 94.) On December 8, 2016 (after obtaining three extensions), plaintiff filed his proposed findings of fact and conclusions of law (Prop. Findings) (Dkt. No. 103), accompanied by two declarations, one from his counsel Philip Hines (Hines Decl.) (Dkt No. 104) and one from plaintiff himself (Poulos Decl.) (Dkt. No. 105). Brown and McFadden were served with copies of plaintiff's papers (Dkt. No. 106), but did not file any opposition.

After careful review of plaintiff's submissions, I respectfully recommend that plaintiff be awarded $100,000 in compensatory damages, $75,000 in punitive damages, $21,418.75 in attorney's fees, and $724.09 in costs, all against Brown, as well as $325,003 in compensatory damages against McFadden.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Officer Brown's Conduct

Poulos was arrested by the NYPD on May 4, 2013, and taken to Kings County Central Booking. Second Amended Verified Complaint (Compl.) (Dkt. No. 76) ¶ 58.¹ While there, plaintiff "repeatedly requested medical attention" from Officer Brown, as well as from other NYPD personnel, "as he was experiencing anxiety resulting in a panic attack due to agoraphobia, as well as withdrawal symptoms." Id. ¶ 59. His requests were refused. Brown laughed at plaintiff, referred to him as a "junkie," and mocked him for repeatedly requesting medical attention. Id. ¶¶ 60, 61. Plaintiff also requested the use of a restroom outside the holding cell because his agoraphobia prevented him from urinating in an open cell containing "approximately sixty detainees." Id. ¶ 62. Brown further ridiculed plaintiff for this request. Id.

1 The facts are taken from plaintiff's pleading because "a party's default is deemed to constitute a concession of all well pleaded allegations of liability" Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The District Judge relied on the same factual allegations when granting plaintiff's motions for default judgments. See Brown Order at 2 n.2; McFadden Order at 2 n.1.

On or about the evening of May 5, 2013, while still at Central Booking, plaintiff repeated his requests for medical attention and the use of a more private restroom. Compl. ¶ 63. In response, Brown opened the cell door and, without provocation, struck plaintiff in the head with his fist. Id. The attack caused plaintiff to lose consciousness and left him with injuries including a laceration three inches long and two centimeters deep above his right eyebrow. Id. ¶ 80. After the incident, Brown and others denied plaintiff medical treatment for approximately three hours. Id. ¶ 78. Even after the arrival of paramedics, Brown attempted to prevent them from transporting plaintiff to a hospital. Id. ¶¶ 77, 78, 79. Plaintiff was eventually treated for his injuries at SUNY Downstate Medical Center (SUNY Downstate). Poulos Decl. ¶ 3.

B. Officer Brown's Default

Brown was served with process but failed to appear in this action. The District Judge found that his failure to appear was willful. Brown Order at 6. The District Judge further found that plaintiff alleged sufficient facts to entitle him to a default judgment with respect to his claims that Brown used excessive force when he attacked plaintiff in the holding cell and demonstrated deliberate indifference to his medical needs following the attack, both in violation of the Fourteenth Amendment and § 1983. Id. at 8, 11.

C. Inmate McFadden's Conduct

On July 5 and 6, 2013, while awaiting trial, plaintiff was attacked by McFadden, who was a fellow detainee at the Anna M. Kross Center (AMKC) on Rikers Island. Compl. ¶ 105. In the first of three incidents, McFadden punched plaintiff several times in the face while plaintiff was making a phone call on July 5. Id. Both men were then taken to a central booking area and placed in separate cells. Id. ¶ 106. While there, McFadden threw food at plaintiff through the bars between the cells and threatened him verbally. Id. Prison officials determined to house McFadden in a separate area from plaintiff to prevent further fights, but the following day, July 6, McFadden was once again assigned to the same area as plaintiff. Id. ¶¶ 107-08. Upon arrival, McFadden found plaintiff asleep in his bed, and punched him in the head and face multiple times, causing severe physical injuries, including fractures to his jaw requiring surgery, and related emotional distress. Id. ¶ 109. Plaintiff was treated for these injuries at Bellevue Medical Center (Bellevue). Poulos Decl. ¶ 5.

D. Inmate McFadden's Default

Although served with process, McFadden failed to answer. McFadden Order at 1-2. Ruling on plaintiff's motion for default judgment against McFadden, the District Judge found that McFadden's default was also willful, id. at 4, and that plaintiff alleged sufficient facts to state claims for "at least one act of assault and three acts of battery" under New York law. Id. at 5.² The District Judge further found that plaintiff's allegations made out a claim for harassment and intimidation, which could be analyzed either as a private cause of action under New York's criminal harassment statute (as to the existence of which there is a split of authority) or as "a species of intentional infliction of emotional distress." Id. at 8.

2 McFadden committed assault when he threatened plaintiff and threw food at him while the two were held in separate cells. He committed battery by striking plaintiff when he was on the phone, hitting him with the thrown food when they were in the cells, and punching him the next day when plaintiff was sleeping. See McFadden Order at 5-6.

II. DAMAGES

Although "a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages." Greyhound Exhibitgroup, 973 F.2d at 158 ; see also Gucci Am., Inc. v. Tyrrell-Miller, 678 F. Supp. 2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must establish his entitlement to damages through admissible evidence. Braccia v. D'Blass Corp., 2011 WL 2848146, at *3 (S.D.N.Y. June 13, 2011), report and recommendation adopted, 2011 WL 2848202 (S.D.N.Y. July 18, 2011); see also McLaughlin v. Barron, 2018 WL 1872535, at *2 (S.D.N.Y. Jan. 24, 2018) (plaintiff must "substantiate a claim with evidence to prove the extent of damages"), report and recommendation adopted, 2018 WL 993627 (S.D.N.Y. Feb. 20, 2018). "[W]here a defendant has opted to default, rather than actively defend, a plaintiff nonetheless bears the burden of establishing a basis for an award of damages 'with reasonable certainty.'" Byrnes v. Angevine, 2015 WL 3795807, at *6 (N.D.N.Y. June 17, 2015) (quoting House v. Kent Worldwide Mach. Works, Inc., 359 F. App'x 206, 207 (2d Cir. 2010)).

"[W]hen § 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, 306 (1986). As with tort actions, damages in § 1983 actions are primarily compensatory. "[T]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S. 247, 254, (1978); see also Bermudez v. City of New York, 2014 WL 11274759, at *6 (S.D.N.Y. Mar. 25, 2014) ("Section 1983 civil actions rely on the same analysis as state common law tort actions and serve the same primary goal of compensation."). In addition to compensatory damages, punitive damages are available to plaintiffs in suits under § 1983 if "'the defendant's conduct is shown to be motivated by evil motive or intent,' or if the defendant's conduct 'involves reckless or callous indifference to the federally protected rights of others.'" Amid v. Chase, 720 F. App'x 6, 13 (2d Cir. 2017) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). To show the required recklessness or callousness, a plaintiff must demonstrate a "subjective consciousness of a risk of injury or illegality[,] and a criminal indifference to civil obligations." Id. (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)).

In his Proposed Findings, plaintiff requests compensatory damages against Brown in the amount of $300,000 ("$250,000 in past pain and suffering and $50,000 in future pain and suffering"); punitive damages against Brown in the amount of $150,000; attorneys' fees, payable by Brown, in the amount of $46,555; and costs, also payable by Brown, in the amount of $1,010.11. Prop. Findings at 25. As against McFadden, plaintiff requests $450,000 in compensatory damages ("$350,000 in past pain and suffering and $100,000 in future pain and suffering"). Id. Plaintiff does not request an award of punitive damages, costs, or fees as against McFadden.

A. Admissibility of Plaintiff's Evidence

In addition to his own declaration - which describes his injuries, summarizes the medical treatment he received for them, and attests to the permanent disfigurement, loss of sensation, and diminished function resulting from those injuries - plaintiff has submitted his treatment records from SUNY Downstate and NYC Health + Hospitals, which operates the AMKC clinic as well as Bellevue. See Hines Decl. Exs. F, G. Each record is accompanied by a certification. The SUNY Downstate record is certified by Reynelde Gay-Dauphin, Interim Director of Health Information Management, who states that the attached pages constitute a "true copy of the record of hospital treatment performed at SUNY Downstate" for Poulos, "in compliance with Section 2306A of the C.P.L.R., which states that copies of transcripts of hospital records are acceptable for legal purposes." Hines Decl. Ex. F, at ECF page 1. The NYC Health + Hospitals record is certified by Marella Lowe, an Assistant Director of Medical Records, who states that it "was made in the regular course of business of this institution and it is the regular course of business of this institution to make such a record, and such record is made at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter." Id. Ex. G, at ECF page 1.

An inquest into damages may be conducted "on the papers," without an evidentiary hearing. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993); Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989)); Maldonado v. La Nueva Rampa, Inc., 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012) ("a hearing is not required where a sufficient basis on which to make a calculation exists"). In this case, no hearing was requested or held. However, damage awards must be "based only on admissible evidence." Norcia v. Dieber's Castle Tavern, Ltd., 980 F. Supp. 2d 492, 500 (S.D.N.Y. 2013); accord House v. Kent Worldwide Mach. Works, 359 F. App'x at 207; Braccia, 2011 WL 2848146 at *3.

Plaintiff's own declaration is admissible to demonstrate his damages. See Maldonado, 2012 WL 1669341, at *2 ("I will rely on Plaintiffs' declarations in determining the reasonableness of the damages requested.").

Plaintiff's NYC Health + Hospitals records are also admissible. Although medical records are hearsay, they "can be admissible under Federal Rule of Evidence 803(6)," governing business records, "provided they are prepared in the regular course of business, near the time of occurrence, by a person with knowledge and are properly authenticated." Djangmah v. Falcione, 2013 WL 6388364, at *6 (S.D.N.Y. Dec. 5, 2013) (quoting Shea v. Royal Enterprises, Inc., 2011 WL 2436709 at *6 (S.D.N.Y. June 16, 2011)); see also Perpall v. Pavetek Corp., 2017 WL 1155764, at *8 ("Courts in this Circuit have generally held that medical records are admissible under the business record exception to the hearsay rule, provided that they satisfy the requirements of FRE 803(6)."). To satisfy those requirements, the party offering the medical records must lay a proper foundation, normally by having the necessary facts "attested to by the records custodian or other qualified witness through testimony or 'by certifying the records as self-authenticating in compliance with Federal Rule of Evidence 902(11).'" Perpall, 2017 WL 1155764, at *8 (quoting Parks v. Blanchette, 144 F. Supp. 3d 282, 293 (D. Conn. 2015)); see also Jordonne v. Ole Bar & Grill, Inc., 2016 WL 3409088, at *6 (S.D.N.Y. Apr. 26, 2016) (admitting medical records accompanied by appropriate certification), report and recommendation adopted sub nom. Jordan v. Ole Bar & Grill, Inc., 2016 WL 3360524 (S.D.N.Y. June 16, 2016). As noted above, plaintiff's NYC Health + Hospitals records are accompanied by a certification that authenticates the documents and attests to the facts required by Fed. R. Evid. 803(6). Hines Decl. Ex. G at ECF page 1. Those records are therefore admissible in evidence and - to the extent relevant to the calculation of plaintiff's damages - will be considered here.

The same is not true of plaintiff's SUNY Downstate records, as to which the accompanying certification states only that the documents were provided "in compliance with Section 2306A of the C.P.L.R." Hines Decl. Ex. F, at ECF page 1. N.Y.C.P.L.R. § 2306(a) states that when a hospital is served with a subpoena duces tecum for medical records, "a transcript or a full-sized legible reproduction, certified as correct by the superintendent or head of the hospital, department or bureau or his assistant, or the officer, may be produced unless otherwise ordered by a court." At best, therefore, the SUNY Downstate certification establishes the authenticity of the attached documents. It does not establish that they qualify as business records pursuant to Fed. R. Evid. 803(6). See Jordonne, 2016 WL 3409088, at *6 (admitting properly-certified medical records at damages inquest but excluding uncertified records from a different hospital as "inadmissible hearsay"). I must therefore disregard the SUNY Downstate records when determining the damages attributable to plaintiff's claims against Officer Brown.³

3 Medical records (or portions thereof) may also be admitted pursuant to Fed. R. Evid. 803(4), which "permits introduction of a statement, otherwise hearsay, that '(A) is made for - and is reasonably pertinent to - medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.'" Djangmah, 2013 WL 6388364, at *5 (quoting Fed. R. Evid. 803(4)). "However, introducing apparent hearsay evidence under the medical records exception requires the party seeking introduction to 'lay a foundation' - that is, to demonstrate that the records at issue are what they seem to be and that they satisfy the requirements of the hearsay exception." Id. (emphasis added). Plaintiff has not laid an adequate (or indeed any) foundation for the admission of the SUNY Downstate records under Rule 803(4).

B. Legal Standards - Excessive Force and Deliberate Indifference

"[A] finding of excessive force does not, as a matter of law, entitle the victim to an award of compensatory damages." Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir. 1996) (citing Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994)). To recover compensatory damages for excessive force in a § 1983 action, the plaintiff "must 'prove that his injuries were proximately caused by the constitutional violation.'" Dixon v. Agbai, 2016 WL 3702749, at *3 (S.D.N.Y. July 8, 2016), (quoting Atkins v. N.Y.C., 143 F.3d 100, 103 (2d Cir. 1998)), report and recommendation adopted, 2016 WL 5660246 (S.D.N.Y. Sept. 28, 2016). Plaintiff may recover compensatory damages "only for those injuries" that he has proven "to have been the result of conduct by the defendant in violation of the law." Ali v. Kipp, 891 F.3d 59, 63 (2d Cir. 2018) (emphasis in the original).

In this case, the District Judge found that Officer Brown's use of force against plaintiff was inherently excessive, because "at the time he was attacked by Brown, Plaintiff was not a threat" to Brown." Brown Order at 7. Since all of the force used was excessive force, plaintiff may recover for all cognizable injuries proximately caused by the May 5, 2013 assault.

Plaintiff apparently seeks damages not only for the physical pain and suffering associated with that assault but also for emotional distress. See Poulos Decl. ¶ 4 ("the incident has caused me to suffer stress and anxiety and have a fear for my life and safety at the hands of police officers"). Generally speaking, "[a] plaintiff's subjective testimony, standing alone," is "insufficient to sustain an award of emotional distress damages." Patrolmen's Benevolent Ass'n. of City of New York v. City of New York, 310 F.3d 43, 55 (2d Cir. 2002). The subjective testimony must be "substantiated by other evidence that such an [emotional] injury occurred, such as the testimony of witnesses to the plaintiff's distress, or the objective circumstances of the violation itself." Id. (citation omitted); see also Tatum v. Jackson, 668 F. Supp. 2d 584, 600 (S.D.N.Y. 2009) (accepting the "egregiousness of the assault" as corroborating evidence of plaintiff's emotional distress).

To recover compensatory damages for deliberate indifference to his medical needs, plaintiff must present admissible evidence of pain and suffering incurred during the period of deliberate indifference. See Virgil v. Keith, 2016 WL 1298515, at *5 (W.D.N.Y. Mar. 30, 2016) (awarding damages for pain and suffering incurred during the period of deliberate indifference). There is no claim, in this case, that the three-hour delay before the paramedics arrived to transport plaintiff to the hospital worsened his condition or caused later complications.

Punitive damages in § 1983 actions require proof that the defendant's conduct was "'motivated by evil motive or intent,'" or involved "'reckless or callous indifference to the federally protected rights of others.'" Amid, 720 F. App'x at 13 (quoting Smith, 461 U.S. at 56). In order to show that a defendant's actions involved "reckless or callous indifference," a plaintiff must, "at a minimum," demonstrate "recklessness in its subjective form" - that is, a "subjective consciousness of a risk of injury or illegality[,] and a criminal indifference to civil obligations." Id. (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999)).

Determining an appropriate award of punitive damages is a difficult task. Punitive damages "serve a broader function" than compensatory damages: "they are aimed at deterrence and retribution" State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991) ("punitive damages are imposed for purposes of retribution and deterrence"). There is no fixed formula for calculating what dollar amount will appropriately punish the tortfeasor (especially an absent tortfeasor, about whom very little is known) and deter similar misconduct in the future. Thus, "[a]wards of punitive damages are by nature speculative, arbitrary approximations." Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013).

Nonetheless, the legal system "has an obligation to ensure that such awards for intangibles be fair, reasonable, predictable, and proportionate." Payne v. Jones, 711 F.3d at 93. Consequently, the appellate courts have developed standards for determining whether a punitive damage award is so "grossly excessive" as to violate the Due Process Clause. In BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996), the Supreme Court identified three "guideposts" to be considered in this context: the degree of reprehensibility of the conduct, the relationship of the punitive damages to the compensatory damages, and the civil and criminal penalties available under the relevant state's law for the type of misconduct at issue. See also Payne, 711 F.3d at 101 (applying Gore factors in review of district court's denial of remittitur in §1983 action); Cabral v. City of New York, 2015 WL 4750675, at *6 (S.D.N.Y. Aug. 11, 2015) (analyzing motion for remittitur in § 1983 action under Gore and Payne).

Whether these same guideposts should be applied to assess punitive damages in the context of a post-default inquest remains unsettled in this District. Compare Noonan v. Becker, 2018 WL 1738746, at *9 n.7 (S.D.N.Y. Apr. 10, 2018) (Cott, M.J.) (finding that the Gore factors are "to be used to review jury awards and/or lower court awards on appeal - not to determine the award itself"), report and recommendation adopted, 2018 WL 2088279 (S.D.N.Y. May 3, 2018) (Swain, J.) with Dixon, 2016 WL 3702749 at *8 (Peck, M.J.) (applying Gore factors for purposes of damages inquest in § 1983 excessive force action); see also Knox v. Cty. of Putnam, 2014 WL 7330851, at *9 (S.D.N.Y. Dec. 23, 2014) (Davison, M.J.) (applying Gore factors to assess punitive damages in inquest after default in malicious prosecution action), report and recommendation adopted, id. at *1 (Ramos, J.). In my view, the assessment of punitive damages at inquest should begin with an understanding of the range of damages awarded in comparable cases after trial (and after any remittiturs), as well as an analysis of any features that distinguish the case at bar. The Gore factors can then be utilized, if necessary, to ensure that the proposed award is not grossly excessive.

C. Damages Against Officer Brown

1. Compensatory Damages

Plaintiff seeks a total of $300,000 in compensatory damages from Brown, most of which ($250,000) is for past pain and suffering. See Prop. Findings at 10, 25. I recommend the smaller - but still substantial - figure of $100,000 in compensatory damages against this defendant.

Plaintiff attests that after he was punched by Brown he fell, hit his head on the ground, and "lost consciousness." Poulos Decl. ¶ 3. When he awoke he "was laying in a pool of [his] own blood, with a large gash above [his] right eye approximately 3 (3") inches long and 2 centimeters deep." Id.. It is not clear from plaintiff's declaration whether the gash was caused by Officer Brown's initial punch or by the impact of plaintiff's head on the floor after he fell.⁴

4 Plaintiff alleges, and I therefore accept as true, that prior to the attack by Officer Brown he was experiencing "withdrawal symptoms" related to his narcotics addiction. Compl. ¶ 59. However, plaintiff does not mention this issue in his declaration, making it difficult to determine whether and to what extent his withdrawal symptoms contributed to his fall or to his pain and suffering when he awoke.

At SUNY Downstate, plaintiff's wound was sutured. Poulos Decl. ¶ 3. There is no evidence that plaintiff required any further medical treatment or pain medication. Id. For the next two weeks, however, plaintiff experienced swelling around his right eye and was unable to open it fully. Id. ¶ 4. He now has a visible scar approximately one inch long through his right eyebrow, which prevents hair from re-growing there. Id. In addition, plaintiff attests that he continues to experience pain in his right eye "5-6 days per week," that his vision has decreased in his right eye (compared to the left), and that his right eye "frequently twitches." Id. Plaintiff does not further describe the pain. Nor does he quantify the vision loss in his right eye. Plaintiff also attests, without further elaboration, that he now suffers "stress and anxiety," and has a "fear for my life and safety at the hands of police officers." Id.

Compensatory damage awards for single incidents involving strikes by police officers that result in loss of consciousness and associated lacerations - but do not cause further injuries requiring surgery, or broken bones - frequently run between $50,000 and $100,000. See Dancy v. McGinley, 843 F.3d 93, 113 (2d Cir. 2016) (affirming award of $81,500 where 17 year old plaintiff suffered abrasions on face, head and torso following excessive force use by police officer); Lewis v. City of Albany Police Dep't, 547 F. Supp. 2d 191, 206 (N.D.N.Y. 2008) (sustaining award of $65,000 where police officer stood on head of plaintiff and pushed his face into asphalt, causing pain and suffering for weeks thereafter), aff'd, 332 F. App'x 641 (2d Cir. 2009); Poznyakovskiy v. City of New York, 2008 WL 842438 (E.D.N.Y. Mar. 11, 2008) ($50,000 awarded for strike on head with baseball bat, resulting in loss of consciousness, five-centimeter laceration, humiliation, and headaches); Denman v. Sanders, 2006 WL 452018, at *8 (S.D.N.Y. Feb. 24, 2006) (reducing damages award to $50,000 where non-police officer defendant punched plaintiff in the head, resulting in bleeding, without long-term injuries); Hightower v. Nassau Cty. Sheriff's Dep't, 325 F. Supp. 2d 199, 207-09 (E.D.N.Y. 2004) (reducing $150,000 award to $65,000 where two altercations with prison guards left pretrial detainee with bruises and contusions, swollen upper lip, and pain in the lumbar spine, without rendering permanent damage), vacated in part on other grounds, 343 F. Supp. 2d 191 (E.D.N.Y. 2004); Morales v. City of New York, 2001 WL 8594, at *7, 10 (S.D.N.Y. Jan. 2, 2001) (reducing jury award of $2.75 million to $50,000 for "deep bruises" and months of counseling caused by altercation with police during which officer held plaintiff tightly by upper arms and forced her into police car).

Here, the assault caused some long-term symptoms, including a permanent scar, reduced vision, intermittent twitching in one eye, and pain. However, plaintiff's testimony concerning the vision loss, twitching, and pain is fairly cursory, lacking the factual detail that might support a more robust compensatory damages award.⁵ Similarly, plaintiff sketches his emotional distress in perfunctory terms, devoting a grand total of one sentence to this topic. Poulos Decl. ¶ 3. Beyond that sentence, he presents no corroborating evidence regarding his psychological symptoms, much less evidence that his stress and anxiety are a proximate result of the assault by Officer Brown as opposed to other traumatic incidents that plaintiff has experienced (including the repeated assaults by McFadden, which occurred just a few months later and caused more serious physical injuries). I therefore recommend a compensatory award of $100,000, which is at the high end of the range discussed above and which, in my view, adequately accounts for the pain and suffering caused by Officer Brown's punch, including some degree of ongoing symptoms.

5 For example, plaintiff does not state how much the vision in his right eye has decreased compared to his left, or even whether the difference is beyond the range that might be expected as a normal variance in the absence of any eye injury.

Officer Brown is also liable for any damages proximately caused by his deliberate indifference to plaintiff's medical needs, which delayed his treatment. See Brown Order at 11. However, plaintiff submits no evidence concerning the additional damages, if any, attributable to his deliberate-indifference claim. In his declaration, plaintiff does not even discuss the three-hour delay between the assault and the arrival of the paramedics. See Poulos Decl. ¶¶ 1-3. Since it is plaintiff's responsibility - even after default - to "demonstrate [his] damages to a reasonable certainty," Kernes v. Glob. Structures, LLC, 2016 WL 880199, at *3 (S.D.N.Y. Mar. 1, 2016), the Court cannot award any damages where no evidence has been submitted from which they can be measured. Id. I therefore do not recommend an award of additional compensatory damages with respect to the deliberate-indifference claim.

2. Punitive Damages

Plaintiff seeks $150,000 in punitive damages from Officer Brown, arguing that his conduct during the assault showed an "outrageous and reckless disregard for Plaintiff's safety and civil rights." Prop. Findings at 13. Plaintiff also contends that Brown could have been criminally charged with assault in the second degree, which is a Class D felony. Id. at 13-14.⁶

6 A person is guilty of assault in the second degree when, "[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person." N.Y. Penal Law § 120.05(1). "Serious physical injury" means an injury "which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." N.Y. Penal Law § 10.00(1).

I agree that plaintiff is entitled to an award of punitive damages. He alleges - and the District Judge accepted - that he was "not a threat" when Officer Brown entered the holding cell. See Brown Order at 3, 7. Rather, Brown entered the cell "with the intent to harm" plaintiff in retaliation for his requests for medication and to use a more private bathroom. Id. at 7. Moreover, Brown's use of force was without "reasonable justification . . . making it unnecessary and wanton." Id. at 8. These allegations, taken as true after default, demonstrate that Officer Brown was acting with an "evil motive or intent," Amid, 720 F. App'x at 13 (quoting Smith, 461 U.S. at 56), and is therefore liable for punitive damages. Moreover, Officer Brown struck plaintiff "while grasping an object in his clenched fist," Brown Order at 7, and hit him hard enough to cause him to fall to the floor. Id. at 3. From these facts the Court can infer that Officer Brown acted with a "subjective consciousness of a risk of injury or illegality[,] and a criminal indifference to civil obligations." Amid, 720 F. App'x at 13 (quoting Kolstad, 527 U.S. at 536).

In my judgment, however, an award of $150,000 would be too high. In Payne v. Jones, 711 F.3d at 88, the defendant police officer taunted the handcuffed plaintiff concerning a military tattoo and then - after the plaintiff kicked him in the groin - "reacted by punching [the still handcuffed plaintiff] in the face and neck seven to ten times and kneeing him in the back several times." Id. Following the attack, that plaintiff - a military veteran - had a swollen and bloody face, an injured upper back, and aggravations of his existing back injuries and post-traumatic stress disorder. Id. The jury awarded the plaintiff $60,000 in compensatory damages and $300,000 in punitive damages. Id. at 90. On appeal, the Second Circuit termed the punitive damages award "impermissibly excessive," id. at 106, and directed a new trial unless the plaintiff agreed to accept a reduced award of $100,000 (roughly $108,000 in today's dollars), noting that "in police misconduct cases in which we sustained awards around $150,000, the wrongs at issue were more egregious." Id. at 105. In this case, although Officer Brown's assault was unprovoked and unjustifiable, it was limited to a single punch. These facts suggest that a punitive damages award of less than $100,000 would be appropriate here. See also DiSorbo v. Hoy, 343 F.3d 172, 187, 189 (2d Cir. 2003) (reducing punitive damages award for excessive force from $625,000 to $75,000 (roughly $103,000 in today's dollars) where, during the course of an arrest that was itself wrongful, the defendant police officer violently slammed plaintiff against the wall, "choked her to the point where she began to lose vision, pushed her to the ground, and struck her while she was on the ground").⁷

7 In Payne and DiSorbo - as in other cases resulting in appeals and remittiturs - the appellate court's task was not to determine the most appropriate punitive damages figure, but rather to set an upper limit beyond which the award would be unconstitutionally excessive. See Gore, 517 U.S. at 575; Tatum v. Jackson, 668 F. Supp. 2d 584, 602 (S.D.N.Y. 2009) (quoting Rangolan v. County of Nassau, 370 F.3d 239, 244 (2d Cir. 2004)) ("Where, as here, the argument for remittitur is that the award is "'intrinsically excessive,' " but the excess is "not attributable to a discernable error," the Court may "reduce the award 'only to the maximum amount that would be upheld . . . as not excessive.'"). I therefore view the remittitur cases as identifying the upper end, not the reasonable middle, of the appropriate punitive damages range for the conduct at issue.

It is possible, of course, for a jury to award $150,000 in punitive damages in a single-punch case, and for the district court to let that award stand. That is what happened in Alla v. Verkay, 979 F. Supp. 2d 349, 378-79 (E.D.N.Y. 2013), where the defendant officer "punched an unarmed, outnumbered and compliant suspect with enough force to break [his] cheekbone." Like this case, Alla involved an unprovoked punch to the face by a police officer. However, in Alla, the punch itself was sufficient to break plaintiff's cheekbone, causing permanent impairments including limited jaw movement and pressure headaches. Id. at 364. In addition, the plaintiff presented expert testimony from a neuro-rehabilitation psychologist who opined that he was punched hard enough to cause a traumatic brain injury, which is a "lifelong disablility," and which in turn led to a cognitive disorder - preventing the plaintiff from pursuing his previous profession - major depression, post-traumatic stress disorder, and chronic pain. Id. at 365. In upholding the jury verdict against a post-trial motion to vacate or reduce the award, the Alla court also noted that the jury had awarded $250,000 in non-economic compensatory damages on the excessive force claim, resulting in ratio of compensatory to punitive damages that was "less than 1:1," id. at 378, and therefore not excessive.⁸

8 The Alla jury also awarded the plaintiff $1.5 million in economic damages on the excessive force claim to compensate him for his medical expenses and his loss of past and future income. 979 F. Supp. at 375. However, the district court set that award aside, and ordered a new trial on economic damages, because of "the speculative nature of [plaintiff's] residual earnings capacity." Id. As the court noted, "The retrial on economic damages can only lower the ratio" of economic to punitive damages. Id. at 378.

In the case at bar, the defendant police officer did not hit the plaintiff with as much force, nor cause the same degree of long-term damage, as the defendant in Alla. As a result, both the compensatory damages and the punitive damages awarded here should be lower than those awarded in Alla. See Payne, 711 F.3d at 102-03 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)) ("when the harm to the plaintiff is substantial, and sufficient to result in a compensatory award large enough to finance a reasonable contingent attorneys' fee," a 1:1 ratio between punitive and compensatory damages "can reach the outermost limit"). Moreover, given the facts of the case at bar, the most analogous criminal charge, in my view, would be assault in the third degree, which is a Class A misdemeanor. See DiSorbo, 343 F.3d at 187.⁹ Thus, although Officer Brown's conduct was malicious and constituted an abuse of his power as a law enforcement officer, I conclude that a punitive damages award of $150,000 would be unwarranted and could potentially be deemed excessive under the Gore factors. I recommend that plaintiff be awarded $75,000 in punitive damages against defendant Brown, which is proportionate to the recommended compensatory damages award and, in my view, sufficient to punish the defendant for his misconduct and adequate to serve as a deterrent.

9 A person is guilty of assault in the third degree when, "[w]th intent to cause physical injury to another person, he causes such injury to such person or to a third person." N.Y. Penal Law § 120.00(1).

D. Legal Standards - Assault and Battery, Harassment

As against defendant McFadden, plaintiff is entitled to damages in connection with multiple state-law causes of action: one assault, three batteries, and one tort claim, which the District Judge characterized as "either a private cause of action [for harassment] derived from the New York Penal Law, or as an independent claim for intentional infliction of emotional distress." McFadden Order at 5, 7.

Under New York law, a plaintiff need not demonstrate that he was damaged by the defendant's conduct to establish liability for claims of assault and battery; however, he must show actual injuries to recover anything beyond nominal damages. "Evidence of injury was not necessary to establish [defendant's] liability for the respective torts of assault and battery, but such evidence is required if [plaintiff] is to sustain a claim for compensatory damages caused by the assault and battery." Brutus v. Silverseal Corp., 439 F. App'x 28, 29 (2d Cir. 2011) (citation omitted). "If a plaintiff establishes an assault [or] battery . . . but does not adduce any evidence of actual loss, the fact finder must award nominal damages." Wright v. Musanti, 2017 WL 253486, at *11 (S.D.N.Y. Jan. 20, 2017), aff'd, 887 F.3d 577 (2d Cir. 2018). Thus, as plaintiff has already established liability on his assault and battery claims, he must now present competent evidence of injuries proximately caused by each tortious incident in order to recover compensatory damages for that incident.

Compensatory damages are also recoverable on plaintiff's claim for harassment or intentional infliction of emotional distress: on such a claim, a defendant will be liable "for the damages that arise out of a defendant engaging in 'extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civil society.'" Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 656 (S.D.N.Y. 2015) (quoting Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 157 (2d Cir. 2014)). See also N.Y. Penal Law § 240.25 (a person is guilty of harassment when he engages in "a course of conduct" or "repeatedly" commits acts that place another person "in reasonable fear of physical injury"). As noted above, plaintiff does not seek punitive damages from defendant McFadden.

E. Compensatory Damages Against McFadden

Plaintiff seeks an award of $450,000 in compensatory damages against McFadden, comprised of $350,000 for his past pain and suffering and $100,000 for his future pain and suffering. Prop. Findings at 23. I find this amount to be somewhat higher than the reasonable range for the injuries that plaintiff sustained as a result of the July 6, 2013 battery, in which "McFadden approached Plaintiff as he slept and punched his head and face repeatedly," McFadden Order at 5, breaking his jaw in three places. I discuss that injury, and the resulting pain and disability, in more detail below. However, plaintiff has submitted no evidence concerning his injuries, if any, sustained during McFadden's first attack, which took place on July 5, 2013, when plaintiff was on the phone, or his second, which took place later the same day and involved verbal taunts and food-throwing by McFadden. Nor has plaintiff provided any basis on which this Court could award additional compensatory damages for McFadden's harassment during all three incidents. To the contrary: as to McFadden, plaintiff's declaration begins with the July 6 attack, see Poulos Decl. ¶ 5, and then narrates his medical treatment, the course of his recovery, and his continuing symptoms, both physical and emotional, resulting from the broken jaw. Id. ¶¶ 6-9. Similarly, the medical records from the AMKC clinic and Bellevue begin on July 6, 2013, when plaintiff presented at the clinic with what turned out to be a fractured jaw. See Hines Decl. Ex. G, at ECF pages 3, 5. I therefore recommend, respectfully, that plaintiff be awarded a total of $325,003 against McFadden: $325,000 for the July 6 incident and a nominal award of $1 each for the two July 5 attacks and the harassment.

As to the July 6 incident, plaintiff has provided ample evidence of significant injuries, pain, and continuing loss of function. Following the attack, plaintiff "was in an intense amount of pain" and lost "sensation between [his] lower lip and chin." Poulos Decl. ¶ 5. This testimony is corroborated by plaintiff's medical records from the prison clinic, which reflect that his "right mandibular area" was swollen and he could not open his mouth to permit an examination of his teeth. Hines Decl. Ex. G, at ECF page 5. Plaintiff was prescribed pain medication at the clinic and sent to Bellevue for further treatment. Id. at ECF page 3.

Upon arrival in the emergency room at Bellevue, plaintiff reported severe jaw pain (10 out of 10) and was given additional pain medication and a CT scan, which showed "a complete, open, and comminuted fracture involving the right mandibular body, as well as a comminuted nondisplaced fracture of the left mandibular ramus," with associated swelling, but no evidence of brain injury. Id. at ECF page 14. Plaintiff's right lower lip was numb, and he was unable to open his mouth sufficiently to permit an oral exam. Id. at 15-16.

These injuries required surgery to repair. On July 11, 2013, plaintiff underwent an "open reduction and internal fixation of right mandibular body fracture through transfacial incision," Hines Decl. Ex. G at ECF pages 18-20, which involved the insertion of a plate and six screws in plaintiff's face and jaw. Poulos Decl. ¶ 5. Plaintiff remained at Bellevue for the next six days. Id.

Plaintiff's recovery had complications: he "had bloody noses and coughed up blood" approximately 6 or 7 times in the two or three months following the surgery, which his doctors attributed to "being intubated during surgery." Poulos Decl. ¶ 6; see also Hines Decl. Ex. G, at ECF pages 25-32 (record of July 18, 2013 follow-up visit, noting that plaintiff reported "continued mandibular pain and 2 episodes large volume epistaxis [nosebleed] also with hemoptysis [coughing blood]"). Plaintiff was given "only Tylenol-3 for pain" at Rikers Island, once daily, prompting him to self-medicate with "large doses ibuprofen." Id.

The nosebleeds and cough eventually resolved, but plaintiff "had a persistent, throbbing, aching pain" in his jaw for a year after the surgery. Poulos Decl. ¶ 6. As of the date of his declaration - three and a half years after the surgery - plaintiff's face is "asymmetrical and disfigured" and he has a scar four inches long along his chin. Id. ¶ 7. Moreover, plaintiff still cannot open his mouth more than half-way, id., and never regained sensation between his lower lip and chin, causing him to "drool[ ] when drinking from a cup or straw" and when eating cereal. Id. ¶ 8. The same loss of sensation causes him to cut himself frequently when shaving, because he cannot tell how much pressure he is using. Id. Additionally, plaintiff can "feel one of the screws in [his] chin," which causes discomfort, and in cold weather he still experiences "a throbbing pain in [his] jaw area. Id. at ¶ 9.

Plaintiff also attests to ongoing psychological and emotional distress arising from the incident. He reports that he "became and remain[s] very self-conscious about [his] appearance," and he claims that his relationship with his "girlfriend at the time" ended because he was disfigured. Poulos Decl. ¶ 9.¹⁰ Plaintiff states that he continues to suffer "anxiety as a result of being assaulted in custody." Id.

10 Although I have no reason to doubt plaintiff's report of his physical symptoms, I am more skeptical of his conclusory statement attributing the end of his relationship with an unnamed girlfriend, at an unidentified time, to his "being left disfigured." Poulos Decl. ¶ 9. Plaintiff offers none of the supporting facts that might corroborate his conclusion that the relationship ended because of his facial scars - rather than because of any of the other stresses that make romantic relationships difficult to sustain even when one partner is not incarcerated.

These extensive injuries from McFadden's July 6, 2013 attack support a substantial award of compensatory damages. Although there is no single case presenting precisely comparable facts, I am persuaded that the sum of $325,000 falls comfortably within the range awarded in cases sharing similar features. At the high end of that range is Tatum v. Jackson, 668 F. Supp. 2d 584, 598 (S.D.N.Y. 2009), where the district court sustained an award of $1 million in non-economic damages to compensate a plaintiff who was attacked by two fellow inmates, sustaining multiple fractures to his jaw and nasal bones. Tatum's injuries required him to endure two surgeries, one year apart, each followed by an eight-week period during which his jaw was wired shut and he experienced significant pain. Id. Plaintiff was left with chronic pain, bone loss, and psychological symptoms. Id. at 589. A more modest award was affirmed in Wong v. Mangone, 450 F. App'x 27, 29 (2d Cir. 2011), where the jury awarded $183,000 in compensatory damages (approximately $205,000 today) to a plaintiff who suffered a "right mandible fracture" and was required to undergo "multiple hospital visits and surgeries to correct the damage." See also Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (sustaining award of $216,000 in non-economic damages, which would be roughly $385,000 in today's dollars, where the plaintiff was punched in the face by a police officer and "suffered serious and painful injuries that required surgery under general anesthesia, and the left side of his face is permanently numb"); Alla, 979 F. Supp. 2d at 377 (upholding jury award of $250,000 in noneconomic compensatory damages for "pain and suffering, emotional distress, and loss of enjoyment of life" following assault that fractured plaintiff's cheekbone and left him with limited jaw motion, pressure headaches, and traumatic brain injury).

After considering McFadden's attack on Poulos "within the context of comparable cases," Dixon, 2016 WL 3702749, at *7, I conclude that an award of $325,000 will adequately compensate plaintiff for his non-economic damages flowing from the July 6, 2013 attack, including his physical pain and suffering, some degree of permanent scarring, and the residual numbness that makes it difficult for plaintiff to drink and shave normally. I also credit plaintiff's assertion that he has become self-conscious about his appearance and continues to feel anxiety as a result of being assaulted while in custody.

III. ATTORNEYS' FEES

As the prevailing party in an action brought under 42 U.S.C. § 1983, plaintiff may be entitled to attorney's fees from Officer Brown pursuant to 42 U.S.C. § 1988(b), which provides that in "any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee." Id. A "'prevailing party' is 'one who has favorably effected a material alteration of the legal relationship of the parties' by court order.'" Garcia v. Hebert, 622 F. App'x 21, 22 (2d Cir. 2015) (quoting Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir. 2009)). "To qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim." Lilly v. City of New York, 2017 WL 3493249, at *2 (S.D.N.Y. Aug. 15, 2017). Obtaining a default judgment is sufficient under § 1988 to be considered a "prevailing party" eligible for an award of a reasonable fee. Dixon, 2016 WL 3702749 at *12 (collecting cases).

Plaintiff does not seek an award of attorneys' fees against McFadden. Moreover, he assures the Court that before he submitted his application for fees he "excluded, where feasible," hours spent by his counsel on matters pertaining to the various defendants who settled the claims against them - at least to the extent those claims "were not 'inextricably intertwined' with the claims against P.O. Brown." Prop. Findings at 22. However, an examination of the attorney time records submitted in support of plaintiff's fee application shows that they include time pertaining to work done on plaintiff's claims against both Brown and McFadden. See Hines Decl. ¶ 3 (counsel has excluded entries which do not relate to "claims against P.O. Brown and McFadden") (emphasis added); id. Ex. H, at ECF page 3 (entries reflecting the drafting and filing of plaintiff's default judgment motion against McFadden and counsel's review of the resulting court order).

To determine an appropriate fee award, "district courts must calculate the "presumptively reasonable fee.'" Alicea v. City of New York, 272 F. Supp. 3d 603, 608 (S.D.N.Y. 2017) (quoting Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009)). In calculating the presumptively reasonable fee, the district court must first determine the "lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—[which] creates a presumptively reasonable fee." Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)). "The lodestar method is intended to 'produce [ ] an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.' A reasonable fee is one that is sufficient to induce a capable attorney in the community to undertake the representation of a meritorious civil rights case." Dowdell v. Imhof, 676 F. App'x 46, 48 (2d Cir. 2017) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)). In addition, plaintiff's counsel is only entitled to those fees that are reasonably attributable to plaintiffs' claims against Brown. Dixon, 2016 WL 3702749 at *18 (declining to award entire sum requested where "a significant amount of time relates to the case against all defendants and not just to the litigation against [the defaulting defendant].").

A. Presumptively Reasonable Rates

The starting point is the calculation of a presumptively reasonable rate for plaintiff's counsel. Plaintiff is represented by Philip Hines and his firm of Held & Hines, LLP. Prop. Findings at 21. Mr. Hines "has over 12 years of litigation experience" and has litigated more than 40 civil rights actions in this Court and others in New York City. Id. He seeks compensation at the "reduced rate" of $425 per hour. Id.¹¹ "A reasonable hourly rate is the 'the rate a paying client would be willing to pay,' based on prevailing rates in the community where the court sits." D.J. ex rel. Roberts v. City of New York, 2012 WL 5431034, at *6 (S.D.N.Y. Oct. 16, 2012) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008)), report and recommendation adopted sub nom. Roberts v. City of New York, 2012 WL 5429521 (S.D.N.Y. Nov. 7, 2012). "Courts also 'consider the rates charged by attorneys of comparable skill, experience, and reputation in the community.'" Alicea, 272 F. Supp. 3d at 608 (quoting Nature's Enters., Inc. v. Pearson, 2010 WL 447377, at *9 (S.D.N.Y. Feb. 9, 2010)). "In this district, experienced civil rights attorneys have routinely been awarded rates approaching or exceeding $400." Weather v. City of Mount Vernon, 2011 WL 2119689, at *2 (S.D.N.Y. May 27, 2011) (awarding $400 per hour fee for experienced partner). "A review of precedent in the Southern District reveals that rates awarded to experienced civil rights attorneys over the past ten years have ranged from $250 to $600." Vilkhu v. City of New York, 2009 WL 1851019, at *4 (E.D.N.Y. June 26, 2009), vacated and remanded on other grounds, 372 F. App'x 222 (2d Cir. 2010). Mr. Hines's "reduced" rate of $425 per hour is reasonable because it is commensurate with his experience and similar fee awards in this district.

11 Mr. Hines has presented the Court with redacted retainer agreements (presumably with other clients, though the names are blacked out), stating that the hourly rate for partners in his firm is $450. Hines Decl. Ex. L. It thus appears that counsel has applied a 6% reduction for purposes of the fee application in this action.

Counsel's time records, unsurprisingly, indicate that Hines did not litigate this case alone: individuals identified as "JS," "GF," "ER," "AV," "MH," "JD," "FR," and "DS" have also billed time to this matter. Hines Decl. Ex. H. However, neither plaintiff nor Mr. Hines identifies these timekeepers, explains their positions or qualifications, or makes any other effort to justify their charges.

JS, GF, ER, AV, JD, and DS are all billed at the rate of $125 per hour or less, which suggests that they are paralegals, legal secretaries, administrative staff, or law school students.¹² The description of the work performed by these individuals also appears to indicate that they are paralegals or other support staff. See, e.g., Hines Decl. Ex. H, at ECF pages 1-2 (JF reviewed "records to request"; ER mailed a letter; GF faxed transcripts). A rate of $125 per hour is generally considered reasonable in this District for paralegals. See Restivo v. Hessemann, 846 F.3d 547, 591 (2d Cir. 2017), cert. denied, 138 S. Ct. 644 (2018) (approving paralegal fees of $125 per hour as a "Southern District rate"); Decastro v. City of New York, 2017 WL 4386372, at *6 (S.D.N.Y. Sept. 30, 2017) (approving $125 per hour rate for paralegals and collecting cases). To the extent that these individuals are performing the work of paralegals or law clerks, therefore, I find their rates to be reasonable.

12 In one of the two sample retainer agreements submitted by Mr. Hines, the client is informed that personnel in these categories will be billed at $150 per hour. See Hines Decl. Ex. L, at ECF page 1. In the second agreement, the client is advised that "paralegals or law school students will be billed at $100 per hour." Id. at ECF page 4.

FR and MH, however, command considerably higher rates of $250 and $425 per hour, respectively. See Hines Decl. Ex. H, at ECF page 2. Yet plaintiff provides no description of their roles, no discussion of their qualifications or backgrounds, and no other information that I could use to determine who they are or whether their rates are reasonable. Moreover, with the exception of a single entry - indicating that FR discussed releasing plaintiff's records with an assistant district attorney - every time entry for these two timekeepers states that they "review[ed]" the case (or the file) with other employees. Because plaintiff has provided no any basis from which I could conclude that these timekeepers' rates are reasonable, or that the hours were reasonably expended, I respectfully recommend that all hours attributed to FR and MH (6.2 hours in total) be excluded from any award of fees. See Brown v. Starrett City Assocs., 2011 WL 5118438, at *6 (E.D.N.Y. Oct. 27, 2011) (disallowing award of attorneys' fees where individual was identified only by initials).

B. Hours Reasonably Expended

At the second stage of the lodestar analysis, I multiply each timekeeper's reasonable hourly rate by the reasonable number of hours expended. Stanczyk, 752 F.3d at 284. Hours that are "excessive, redundant, or otherwise unnecessary" must be excluded from an attorneys' fee award. Payne v. Kirkland, 2017 WL 5952707, at *5 (S.D.N.Y. Nov. 30, 2017). "Case law also makes clear that the Court may reduce the fees requested for billing entries that are vague and do not sufficiently demonstrate what counsel did." Dixon, 2016 WL 3702749 at * 17. In its discretion, a court may also apply an "across-the-board" reduction where pervasive deficiencies are plain from the face of counsel's records, for example, where counsel are billing at attorney rates for work properly performed by support staff, or where entries are too vague to support an award of fees. Id. at *18; see also Houston v. Cotter, 234 F. Supp. 3d 392, 410 (E.D.N.Y. 2017) (applying 50% across-the-board reduction where matter was overstaffed, legal issues were not complex, and many time entries were "vague and block-billed").

In this case, as noted above, plaintiff has submitted time records that include tasks clearly designed to pursue his claims against McFadden, not Brown. By my count, 4.1 hours of attorney Hines's time relate exclusively to the claims against McFadden. I recommend excluding these hours altogether from the calculation of a reasonable fee to be assessed against Brown. That leaves 99.6 hours billed by Hines personally. However, many of these entries (particularly in the early stage of the engagement) appear to represent work designed to pursue plaintiff's case as a whole, rather than to pursue his claims against Officer Brown specifically. See, e.g., Hines Decl. Ex. H, at ECF page 2 (7.8 hours on April 28 and 29, 2014, for drafting and reviewing the initial complaint, which contained claims against the City, the NYPD and its Commissioner, the Department of Correction and its Commissioner, two NYPD police officers, three correction officers, and McFadden); id. at ECF page 3 (4.3 hours on May 21, 2015, for preparing initial disclosures and discovery requests). Although Hines has stated that he attempted where "feasible" to exclude entries that did not pertain to either Brown or McFadden, Hines Decl. ¶ 3, he acknowledges that some of the entries for which he seeks an award represent work that was "inextricably intertwined" with the claims against the now-settled defendants. Id. As to these entries, Officer Brown cannot be made wholly responsible.

Moreover, many of attorney Hines's entries are too vague for me to determine whether his time (at $425 per hour) was reasonably expended: entries such as "review order" or "review file," see Hines Decl. Ex. H, at ECF page 3 (entries for February 25 and October 3, 2015), are insufficiently descriptive to support an award of attorney's fees, particularly at a partner's rate. I therefore recommend, respectfully, that a 50% reduction be applied to the 99.6 hours of attorney Hines's time that is potentially compensable by Officer Brown. See Houston, 234 F.Supp.3d at 411; Dixon 2016 WL 3702749 at *18 (reducing Mr. Hines's fee award by 40% for similar issues). This would result in an award of $21,165 (49.8 hours at $425 per hour) for the work performed by plaintiff's lead counsel.

Plaintiff's request for an award of fees for the work of JS, GF, ER, AV, JD, and DS presents similar problems. Even assuming that these timekeepers are all paralegals or law clerks - for whom the rate of $125 per hour is not inherently unreasonable - many of their time entries are vague, and some reflect work that a reasonable client would expect a secretary or mail clerk to perform (rather than a legal professional or para-professional billing by the hour). For example, a reasonable client would not likely pay $125 per hour (or indeed any hourly fee) for a paralegal to "mail" a letter, see Hines Decl. Ex. H, at ECF page 1 (entries for August 16 and 22, 2013), or to perform similar clerical or administrative tasks. See Sigal v. Moses, 2010 WL 653493, at *3 (S.D.N.Y. Feb. 22, 2010) (excluding paralegal work that "was basically clerical" from fee award under § 1988). Additionally, some of these entries include undifferentiated time for both clerical tasks and what appears to be compensable paralegal work. See, e.g., Hines Decl. Ex. H, at ECF pages 1, 2 (JS "drafted and mailed" requests for medical records on August 6, 2013; JD drafted and mailed a FOIL appeal on January 24, 2014) (emphasis added). I therefore respectfully recommend that the same 50% reduction be applied to plaintiff's request for an award of what are likely paralegal or law clerk fees, resulting in an award of $253.75 for the work performed by these timekeepers (.55 hours at $125 per hour and 1.85 hours at $100 per hour).

C. Calculation of Reasonable Fee and Costs

After applying the exclusions and reductions discussed above, I find that the presumptively reasonable fee for the legal services performed on plaintiff's behalf against defendant Brown is $21,418.75 ($21,165 for work performed by attorney Hines plus $253.75 for work performed by JS, GF, ER, AV, JD, and DS). I respectfully recommend that the Court award plaintiff this amount in attorneys' fees against Officer Brown.

Plaintiff has also requested an award of costs in the amount of $1,010.11. Prop. Findings at 22. "[A] court will generally award 'those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Alicea, 272 F. Supp. 3d at 613 (quoting Pennacchio v. Powers, 2011 WL 2945825, at *2 (E.D.N.Y. July 21, 2011)). However, much of $1,010.11 sought here is attributable only to plaintiff's claims against McFadden or the settled defendants, and thus cannot be assessed against Brown See, e.g., Hines Decl. Ex H, at ECF page 5 (requesting costs related to "McFadden - default judgment," "NYC HHC - Bellevue Hospital Center," and "Southport Correctional Facility."). After reviewing the requested costs in detail, I have determined that $724.09 relates to the claims against Brown, and I respectfully recommend that this sum be awarded as costs.

IV. CONCLUSION

For the reasons stated above, I respectfully recommend that plaintiff be awarded $100,000 in compensatory damages and $75,000 in punitive damages against Brown, and $325,003 in compensatory damages against McFadden. I further recommend an award of $21,418.75 in attorney's fees and $724.09 in costs, to be paid by Brown. Dated: New York, New York

July 13, 2018

/s/ _________

BARBARA MOSES

United States Magistrate Judge

NOTICE OF PROCEDURE FOR FILING OBJECTIONS

TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Hon. Laura Taylor Swain at 500 Pearl Street, New York, New York 10007, and to the chambers of the Hon. Barbara Moses at the same address. Any request for an extension of time to file objections must be directed to Judge Swain. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).