United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before the court on plaintiff's motion for a determination of compensatory and punitive damages and an award of attorney fees and costs against defendant Kofoed, Filing No. 780. Defendant Kofoed has not responded to the motion.
This court earlier determined that defendant Kofoed is liable for the injuries sustained by Sampson in the incident at issue in this case. Filing No. 775, Memorandum and Order. The plaintiff seeks a judgment against Kofoed for compensatory damages in the amount of $1, 650, 000; punitive damages in the same amount; and an award of attorney fees and costs from defendant Kofoed in the amount of $328, 716.09 under 42 U.S.C. § 1988. The plaintiff also seeks costs in the amount of $129, 324.93. Defendant Kofoed has not responded to the motion.
The facts of the case can be found in Livers v. Schenck, 700 F.3d 340, 344-49 (8th Cir. 2012), State v. Kofoed, 283 Neb. 767 (2012) (affirming Kofoed's conviction); and Filing No. 679-27, Ex. 27, Verdict, State v. Kofoed, No. CR 09-40 (Cass County, Nebraska, District Court March 23, 2010) (reciting extensive factual findings).
The record shows that Sampson will receive $965, 000 in the settlement with the other defendants. Filing No. 781, Index of Evid., Ex. 5, Omaha World Herald article. The plaintiff herein also achieved non-monetary relief in the form of additional training of law enforcement officers. Filing No. 779, status report. The companion case of Livers v. Kofoed, No. 8:08CV107, settled on the eve of trial for a total payment by defendants other than Kofoed in the amount of $1, 650, 000. See Livers v. Kofoed, No.8:08CV107, Filing No. 718, Brief at 18 (D. Neb.). In Livers, the court entered judgment against Kofoed for $1, 650, 000 in compensatory damages and $1, 650, 000 in punitive damages. Livers v. Sampson, 8:08CV107, Filing No. 727, Judgment.
In support of his motion, the plaintiff submits his deposition which provides details of his incarceration, threatened exposure to the death penalty, and readjustment to life after his release. With respect to punitive damages, the plaintiff also submits the evidence submitted in opposition to the defendants' motions for summary judgment showing the conduct by Kofoed that ultimately led to his conviction for a felony charge of evidence-tampering for fabricating false evidence against the plaintiff in the Stock murder investigation. See Filing Nos. 781, 774, Indices of Evid. Further, he submits a psychological evaluation showing he suffers from a moderately severe emotional disturbance as a result of the false charges. Filing No. 781, Index of Evid., Ex. 3
With respect to attorney fees and costs and expenses, the plaintiff seeks a total award in the amount of $328, 716.09. See Filing No. 781, Index of Evid., Ex. 1, Affidavit of Maren Chaloupka, Ex. A, billing records of the Law Firm of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama; Exs. B & C, statements of expenses. The plaintiff seeks compensation for the work of attorney Maren Chaloupka and paralegals employed by her firm for 2, 251.4 hours of work at rates of $50-$75 per hour for paralegals and $125-$195 per hour for Ms. Chaloupka, for a total of $199, 675. Id., Ex. A. In her affidavit, Ms. Chaloupka states that her time was recorded conservatively. Filing No. 781, Ex. 1, Chaloupka Aff. at 5. Further, she states that her firm's compensation is on a contingency fee basis. Id. Plaintiff has shown that she has close to twenty years of experience and has prosecuted over 68 civil and criminal appeals in the state and the federal appellate courts. Id. Her hourly rate was $125.00 per hour at the inception of this case and has increased to $195 since then. Id. at 4.
The plaintiff seeks an award of costs and reasonable litigation expenses in the amount of $129, 324.93. Id., Exs. B & C. The statement of expenses reflect charges and advances for postage, photocopies, travel, court reporter fees, expert witness fees, computer research, office supplies, filing fees, and transcripts. Plaintiff has also shown that the fees and costs were necessary to the prosecution of the case. Id. at 5.
A. Compensatory Damages
Generally, "[a]wards for pain and suffering are highly subjective and the assessment of damages is within the sound discretion of the" factfinder. Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1097 (8th Cir.2007) (quoting Webner v. Titan Distribution, Inc., 267 F.3d 828, 836 (8th Cir. 2001)); see also Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1017 (8th Cir. 1988) (stating that the inadequacy or excessiveness of an award is basically a matter for the trial court and the appellate court will intervene only in the rare situations where the court concludes there is "plain injustice" or a "monstrous" or "shocking" result). "A plaintiff's own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary." Christensen, 481 F.3d at 1097.
The plaintiff is entitled to an award of compensatory damages to make him whole for the physical pain and suffering and the mental anguish that he endured as a result of defendant Kofoed's conduct. See Eighth Cir. Model Jury Instr. (Civil) § 17.70 (2013); Carey v. Piphus, 435 U.S. 247, 254 (1978) (stating that the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights). "The common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights." Carey, 435 U.S. at 254. In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be ...