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Livers v. Kofoed

United States District Court, D. Nebraska

March 31, 2014

DAVID KOFOED, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division, Defendant.


JOSEPH F. BATAILLON, District Judge.

This matter is before the court on plaintiff's motions for entry of a final judgment against defendant David Kofoed, Filing No. 717, and for an award of legal fees and litigation expenses against defendant Kofoed, Filing No. 720. Livers seeks a judgment for compensatory damages against defendant Kofoed in the amount of $1.65 million dollars and for punitive damages in an equal amount. He also seeks a judgment for attorney fees and costs in the amount of $1, 204, 664.07 against Kofoed under 42 U.S.C. § 1988. Defendant Kofoed has not responded to the motion.


On October 22, 2013, the court entered a default judgment against defendant Kofoed based upon his failure to answer the Second Amended Complaint, his failure to participate in the preparation of the Final Pretrial Order, and his failure to appear for the scheduled jury trial at 9:00 a.m. on October 22, 2014. See Filing No. 716, Order; Filing No. 669, Pretrial Order; Filing No. 714, text minute entry.

In this action, the plaintiff alleged Kofoed violated his right to due process by manufacturing and fabricating the evidence that was used to prolong his wrongful pretrial confinement after he was falsely accused of the murders of Wayne and Sharmon Stock. See Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012). Further, he alleges that Kofoed conspired with the Cass County defendants and the Nebraska State Patrol ("NSP") defendants to cause the plaintiff to be charged with, and prosecuted for, the murders without regard to the facts and the evidence, after the co-conspirators had coerced a false confession.

The plaintiff settled his claims against the Cass County and NSP defendants on the eve of trial for a combined total of $1.65 million dollars.[1] Filing No. 719, Index of Evid., Ex. 10. Uncontroverted evidence submitted in this case supports a finding against Kofoed on the due process violation and the conspiracy claim. See Filing No. 719, Index of Evid. Exs. 1-9. The court has also considered the evidence submitted or referenced at the hearing on October 22, 2013. See Filing No. 725, Transcript at 11-15; Ex. 346, Judgment of Conviction; Ex. 358, Cass County District Court findings; Ex. 1-321, Opinion of the Supreme Court of Nebraska; Exs. 283-300, photographs; Exs. 338-339, newspaper articles; Ex. 207, transcript of the interrogation; Ex. 310, videotape of interrogation; Ex. 345, letter from plaintiff to his mother; and Exs. 363 & 364, psychiatric evaluations (sealed).

In his motion for attorney fees and costs, the plaintiff seeks a total award of fees in the amount of $1, 204, 664.07. He seeks compensation from Kofoed for work performed by attorneys Locke E. Bowman, Robert Mullin, David Shapiro, and Brittany Parling, as follows:[2] Locke E. Bowman-1, 739.75 hours at rates of $440-$510 per hour for a total of $847, 926.25; Robert Mullin-460.2 hours at rates of $250 to $275 per hour for a total of $123, 696.00; David M. Shapiro-253.5 hours at rates of $290-$360 per hour for a total of $128, 873.00; Brittany Parling-207.5 hours at $225 for a total of $51, 187.50. See Filing No. 722, Index of Evid., Exs. 2, 3, 4, and 5.

Attorneys Bowman, Shapiro, and Parling seek rates based on the Laffey Matrix, which is used by the United States Attorney for the District of Columbia in determining appropriate rates for plaintiffs in fee-shifting civil cases. Filing No. 721, Plaintiff's Brief at 14-15; see Laffey Matrix-2003-2014, available at usao/dc/divisions/Laffey_Matrix%202014.pdf. Pursuant to the Laffey Matrix, the rates for an attorney with more than 20 years of experience range from $440 in 2008 to $510 in 2013. Id. Plaintiff acknowledges that the rates reflected in the Laffey Matrix may not reflect prevailing rates in this locality, but argues that the complexity of the litigation justified the plaintiff's retention of out-of-town counsel in this case. The plaintiff submits a declaration stating that "if Mr. Bowman had not taken the case, [he] would not have known where to turn for adequate representation in this case." Filing No. 722, Index of Evid., Ex 6, Declaration of Matthew Livers at 1. Plaintiff has also shown that other courts have approved fees at these rates for plaintiff's counsel. Filing No. 721, Plaintiff's Brief at 18-19; American Civil Liberties Union v. United States Dep't of Homeland Security, 810 F.Supp.2d 267, 277 (D.D.C. 2011). Henderson v. Thomas, No. 2:11cv224, 2013 WL 5493197, at *9 (M.D. Ala. Sept. 30, 2013).

The plaintiff also seeks an award of costs and reasonable litigation expenses in the amount of $52, 981.32. He asserts that this amount does not include compensation for numerous expenses (including travel expenses for several trips to Nebraska) which the plaintiff's counsel has omitted in the exercise of billing judgment, but includes expenses and costs associated with depositions. Filing No. 721, Plaintiff's Brief at 19; see Filing No. 722, Index of Evid., Ex. 7.


A. Compensatory Damages

1. Law

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 tailored to the interests protected by the particular right in question, just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. Id. at 259. The content of the federal common law a court is to apply must be determined through the process outlined in 42 U.S.C. § 1988, including, where appropriate, through reference to principles of state law. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, (1969) ("[B]oth federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes). Under § 1988, courts utilize a three-step process for the selection of the appropriate substantive law in civil rights actions. See Robertson v. Wegmann, 436 U.S. 584, 587-90 (1980). First, the court determines whether federal civil rights law is deficient in that it fails to furnish a particular rule; second, if it is deficient, the most closely analogous state law may fill the vacuum; and third, state law may be applied only if it is consistent with the meaning and purpose of constitutional and federal statutory law. Id. If state law is inconsistent, it must be disregarded in favor of the federal common law. Id. at 589.

Section 1983 is silent on the question of when a setoff for a prior settlement against a joint and several tortfeasor is appropriate. Johnson v. Rogers, 621 F.2d 300 (8th Cir.1980) (finding Federal law is deficient on the effect of a settlement with a joint tortfeasor on the liability of a nonsettling tortfeasors). Under Nebraska law, a defendant's eligibility for a settlement credit hinges upon a determination that the plaintiff has received satisfaction for the injuries alleged in his action: "to the extent that [the plaintiff] has received satisfaction from the settlement with [one defendant] for injury and damage alleged in this action, any damages for which [the second defendant] would be potentially liable must be reduced pro tanto. " Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (quoting Vowers & Sons, Inc. v. Strasheim, 576 N.W.2d 817, 825 (Neb. 1998). Nebraska law on settlement ...

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