Opinion
17-CV-1765 (RA) (OTW)
04-29-2021
JANE DOE, Plaintiff, v. JEFFREY GREEN, Defendant.
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
To the Honorable RONNIE ABRAMS, United States District Judge:
I. Introduction
The above-captioned civil rights action is before me for a Report and Recommendation (“R&R”) on damages after a default entered against Defendant Jeffrey Green on Plaintiff's claim of sexual abuse under color of law in violation of her Eighth Amendment right to be free from cruel and unusual punishment. (ECF 125). Plaintiff filed her proposed findings of fact and conclusions of law, as well as declarations and a memorandum of law in support of the requested damages and fees. (ECF 129-131, 134-135). Defendant did not respond. Plaintiff requests $350,000 in compensatory damages, $350,000 in punitive damages, and $40,370.76 in attorney's fees, for a total award of $740,370.76. (ECF 129 at 3, 6). For the reasons set forth below, I recommend that the Court award compensatory damages to Plaintiff in the amount of $350,000, punitive damages in the amount of $200,000, and attorney's fees and costs in the amount of $39,042.51, for a total award of $589,042.51.
Plaintiff also brought claims against several other defendants. (ECF 93). These claims were dismissed with prejudice pursuant to a settlement agreement that was so ordered by the Court on September 28, 2018. (ECF 116).
II. Background
A. Facts
The following facts, which are drawn from Plaintiff's complaint, are deemed established for the purposes of determining damages to which she is entitled. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in [her] favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). Additionally, since Green previously pleaded guilty to a violation of 18 U.S.C. § 242 for sexually assaulting Plaintiff, (ECF 93 ¶ 99; see also ECF 130 at 9-45), “[l]iability is also established, at least in part, by virtue of defendant's plea to a charge of sexual assault, ” Offei v. Omar, No. 11-CV-4283 (SAS) (MHD), 2012 WL 2086294, at *5 (S.D.N.Y. May 18, 2012), report and recommendation adopted, 2012 WL 2086356 (June 8, 2012).
On September 1, 2011, Plaintiff was arrested for participating in a robbery, during the course of which the victim died of a heart attack. (ECF 93 ¶ 17). She subsequently pleaded guilty to first-degree attempted robbery and was sentenced to 13 years' imprisonment on February 27, 2012. (Id. ¶ 18). While incarcerated at the Bedford Hills Correctional Facility in Bedford Hills, New York (“BHCF”), Plaintiff enrolled in several educational and work programs, began working towards a degree in sociology, and excelled in her Alcohol and Substance Abuse Treatment program. (Id. ¶¶ 21-24). Before the assault, “Plaintiff had a good relationship with the correction officers at BHCF [and] was not receiving any mental health counseling nor . . . taking any medications or illegal drugs.” (Id. ¶ 25).
On March 10, 2016, Green, a former corrections officers then-employed by DOCCS and working in the Unit where Plaintiff was housed, was on duty with another corrections officer, Hurt. (Id. ¶¶ 26-28, 32). DOCCS regulations require two officers to be on duty at all times in the unit, with one staying in the Bubble while the other leaves occasionally to conduct rounds. (Id. ¶ 33).
The unit where Plaintiff was housed-Unit 112-“is comprised of two hallways, C and D, which are joined in the middle by a glass security box, called the ‘Bubble.'” (ECF 93 ¶ 29). Plaintiff's cell was located approximately five to ten feet away from the Bubble. (Id. ¶ 48).
At approximately 7:00 p.m., Green approached Plaintiff, who was eating with another inmate in the unit's kitchen, and began questioning her about her relationship with another inmate. (Id. ¶¶ 34-35). Green then stated, “I'm coming into your room tonight.” (Id. ¶ 38). Plaintiff washed her dishes, showered in the shower facility, returned to her room, and participated in the evening count whereby inmates return to their cells to ensure each is present. (Id. ¶¶ 39-44). At 10:00 p.m., the inmates were locked in their cells. (Id. ¶ 45). At around 10:11 p.m., Hurt left the unit, leaving Green alone. (Id. ¶ 46). Green then remotely opened Plaintiff's cell door from the Bubble and told her to “approach him at or around the Bubble.” (Id. ¶ 47-48). She approached the Bubble, where the two spoke for several minutes before Plaintiff returned to her cell. (ECF 93 ¶¶ 51-53).
As audibly recorded on surveillance video footage, Green also stated: “You ready [unintelligible] me my blow job?” (ECF 93 ¶¶ 49-50; 130 at 12). Plaintiff did not hear this statement. (ECF 93 ¶ 51).
Shortly thereafter, Green entered Plaintiff's cell alone-the door had remained open- and assaulted her by grabbing, pushing, and restraining her against her cell wall; kissing, biting, and licking Plaintiff's upper body, including her exposed breasts; and putting his hand down Plaintiff's shorts and fondling her genitalia and groin. (Id. ¶¶ 54-64). During the assault, Defendant pulled up Plaintiff's shirt and bra and also tried to remove her shorts, “but was unable to remove the shorts while trapping Plaintiff against the wall with his body.” (Id. ¶ 63).
During Green's sexual assault of Plaintiff, Plaintiff and Green heard a loud knock on the unit door, which was about ten feet from Plaintiff's cell. (Id. ¶ 65). Green left Plaintiff's cell and rushed back to the Bubble, where an unidentified corrections officer-having seen the Bubble was empty-knocked to gain admittance. (Id. ¶¶ 66-67). Upon returning to the Bubble, Green opened the access door for the officer and simultaneously closed the door to Plaintiff's cell.(Id. ¶¶ 68-69).
Speights then directed Plaintiff to get dressed and accompany her to her office to provide her with “details of the incident before she would alert the PREA [compliance monitor].” (Id. ¶¶ 85-87). Plaintiff refused and after approximately 30 minutes, Speights requested that the PREA Compliance Manager (“PREA CM”) meet with Plaintiff. (Id. ¶¶ 89-90). When the PREA CM arrived, Plaintiff was not allowed to speak with her privately, and the conversation took place in the presence of Speights and another officer, Captain Murphy. (Id. ¶¶ 91-92). Murphy asked, “what Plaintiff did or said to make CO Green feel like [he] was permitted to enter Plaintiff's cell and be sexually intimate with Plaintiff, ” but was subsequently informed by the PREA CM that the question was inappropriate. (Id. ¶¶ 93, 95). Plaintiff believes Speights and Murphy would not allow her to speak with the CM privately “and attempted to shift blame of the assault onto Plaintiff in an effort to intimidate and dissuade Plaintiff from reporting the incident.” (Id. ¶ 94). The next morning, “Plaintiff told the Unit Officer, CO Williams, that she wanted to speak to the ‘[Prison Rape Elimination Act (“PREA”)] Representative'.” (Id. ¶ 70). Williams would not allow her to do so until Plaintiff told him what she wanted to report, but Plaintiff refused and dialed the PREA hotline. (Id. ¶¶ 73-77). After her phone call, another officer, Sergeant Speights, asked what she was doing on the phone. (Id. ¶ 78). Speights told her she had to tell her about the incident before reporting it to the PREA despite Plaintiff's right to report the incident on the hotline. (Id. ¶¶ 80-81). Plaintiff initially refused, but as Speights continued to insist, Plaintiff “looked up at the microphones dangling above them and loudly stated, ‘Last night, one of your officers sexually assaulted me.'” (Id. ¶¶ 82-84).
After Plaintiff reported the assault, she was transferred to Westchester County Medical Center where saliva samples taken from her neck and breasts were found to indicate “a single male profile.” (ECF 134 at 4; see also ECF 93 ¶¶ 96-98). On February 8, 2017, “a criminal complaint was filed against Green in the Southern District of New York.” (ECF 134 at 4). On May 3, 2017, Green pleaded guilty to a violation of 18 U.S.C. § 242 and “admitted to violating Plaintiff's Eighth Amendment rights by way of abusive sexual contact on or about March 10, 2016.” (ECF 93 ¶ 99; see also ECF 130 at 9-45). On August 15, 2017, “Green was sentenced to nine months' imprisonment to be followed by one year of supervised release, with the special condition that [he] would have no contact with Plaintiff.” (ECF 93 ¶ 100).
B. Inquest Submissions
In her Memorandum Opinion and Order, Judge Abrams referred the case to me to conduct an inquest into damages. (ECF 125 at 3; see also ECF 126 (order of reference)). Following the referral, I directed Plaintiff to file proposed findings of facts and conclusions of law and a memorandum of law concerning her damages as to Green, and to serve those submissions on Green. (ECF 127 at 1). Green did not submit a response.
Plaintiff submitted a sworn declaration outlining the details contained in her complaint. (See ECF 135). In addition to describing her assault, Plaintiff detailed the effects the assault had on her. She stated that the assault was a “devastating . . ., disgusting, painful, [and] humiliating experience.” (Id. ¶ 6). She described how she “had to sleep the night with his body fluids on [her] because [she] needed proof of the assault, ” as well as the pain she felt when he grabbed her arms, pushed her against the wall, and bit her neck and breasts. (Id.)
Additionally, Plaintiff stated that the “psychological aftermath was even worse” than the assault itself. (Id. ¶ 7) Before the assault, she was doing well in prison, but afterwards she was unable to sleep normally for more than two years. (Id.). She remained incarcerated at BHCF, and “everything reminded [her] of Green's sexual assault and that he or another officer could attack [her] again whenever they wanted, even when [she] was locked up in [her] cell.” (Id.). When alone in her cell, she felt “vulnerable” and felt that “nobody could protect or help” her. (Id.). In light of her severe trauma, she began to engage in self-harm and, on two occasions, cut her wrists. (Id. ¶ 8). She still has scars from cutting herself. (Id.). She did not report her injuries because she was afraid of “get[ing] in more trouble at the prison.” (Id.). She also felt ashamed and did not want her children or family to know, though she did eventually tell her foster father. (Id.).
Plaintiff also described the actions of prison officers after the assault. She stated that her cell was “repeatedly and aggressively searched by officers who were angry” about her reporting the assault, and that during one “search, ” shampoo or hand cream was poured onto her bed. (Id. ¶ 9). She explained that officers also repeatedly made comments when she passed them, saying, for example, “there goes the girl who is getting a million dollars for having her tits licked;” that she had “rich boobs;” and that she was a “whore, ” “liar, ” and “faker.” (Id.). She interpreted these comments as suggesting that the assault was her fault or that she enjoyed what Green had done to her. (Id.). Additionally, during Green's prosecution and the associated civil case, Plaintiff “had to re-live the experience several times” and was seen as a “snitch” by officers and inmates. (Id. ¶ 12).
She went to the Office of Mental Health to discuss the psychological effects of Green's assault but found the practitioners mostly unsympathetic. (Id. ¶ 10). In May 2016, 26 months after the assault, she was transferred to Albion Correctional Facility, where she was able to sleep better and was able to participate in the offered programming. (Id. ¶ 11).
III. Discussion
A. Standard of Review
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)), report and recommendation adopted, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [her] entitlement to recovery.” Id. at *3 (alterations omitted). “There must be an evidentiary basis for the damages sought by [a] plaintiff, and a district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citing Fed.R.Civ.P. 55(b)(2)).
“‘[T]he basic purpose' of § 1983 damages award is ‘to compensate persons for injuries that are caused by the deprivation of constitutional rights.'” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)) (alterations omitted). “[C]ompensatory damages 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. (quoting Gertz v. Robert Welch Inc. 418 U.S. 323 (1974)) (quotation marks and alterations omitted). “[M]ental and emotional distress . . . is compensable under § 1983.” Carey, 435 U.S. at 264. Additionally, “[p]unitive damages are available in a [§] 1983 case ‘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.'” Mathie v. Fries, 121 F.3d 808, 815 (2d Cir. 1997) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
B. Analysis
1. Compensatory Damages
In light of Plaintiff's declaration and the record before the Court, Plaintiff should be awarded $350,000 for her non-economic injuries: the physical harm inflicted on her and her emotional distress. While no amount of money can justly compensate a plaintiff who experienced what Plaintiff endured, this damages award is consistent with awards in similar cases and thus is fair and reasonable compensation for the harm she experienced as a result of Green's assault.
“As the Supreme Court has noted, the crime of sexual assault is inherently violent in nature and, even if not accompanied by violence, may inflict serious psychological damage on the victim.” Offei, 2012 WL 2086294, at *5 (citing Coker v. Georgia., 433 U.S. 584, 597-98 (1977)). The Coker court stated that
Short of homicide, [sexual assault] is the ultimate violation of self. It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. [Although sexual assault] is very often accompanied by physical injury to the [victim, it] can also inflict mental and psychological damage.Coker, 433 U.S. at 597-98 (internal quotations omitted).
Although “the law does not provide a precise formula by which pain and suffering and emotional distress may be properly measured and reduced to monetary value[, ] . . . [the] Court is assisted in this endeavor by reviewing the precedents.” Mathie v. Fries, 935 F.Supp. 1284, 1305 (E.D.N.Y. 1996), aff'd in part and remanded in part, 121 F.3d 808 (2d Cir. 1997). As Judge Sweet has observed, “[c]ourts in this Circuit and State have upheld large compensatory damage awards for sexual assault and rape victims, yet interestingly, such awards vary drastically - even where cases share similar facts.” Doe v. HRH Prince Abdulaziz Bin Fahd Alsaud, Saudi Oger Ltd., No. 13-CV-571 (RWS), 2017 WL 4541426, at *4 (S.D.N.Y. Oct. 10, 2017) (canvassing cases). Ultimately, although “damage awards in analogous cases provide an objective frame of reference, . . . they do not control the Court's assessment of individual circumstances.” Id. (quoting Moore v. M/V Angela, 353 F.3d 376, 384 (5th Cir. 2003)) (alterations omitted).
As detailed more fully above, Plaintiff submitted a sworn declaration describing the sexual assault by Green and the pain, humiliation, and disgust she felt during and after the assault. (ECF 135). She described the horrible feeling of sleeping with Green's saliva still on her body to preserve it as evidence. (Id. ¶ 6). She described the psychological effects of the assault, including stress and an inability to sleep normally for two years, as well as feelings of vulnerability and fear that she could be assaulted again for the 26 months she remained at BHCF. (Id. ¶ 7). She stated that she began to harm herself by cutting her wrists and felt so ashamed that she did not want to tell her family about what happened. (Id. ¶ 8).
Plaintiff has provided the Court with several cases in support of the requested award of $350,000 in compensatory damages. (See ECF 129 at 4-6) (citing Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) ($250,000 award); Noonan v. Becker, No. 14-CV-4084 (LTS) (JLC), 2018 WL 1738746 (S.D.N.Y. Apr. 10, 2018), report and recommendation adopted, 2018 WL 2088279 (S.D.N.Y. May 3, 2018) ($1 million award); Doe v. HRH Prince Abdulaziz bin Fahd Alsaud, Saudi Oger Ltd., and Mustapha Ouanes, No. 13-CV-571 (RWS), 2017 WL 4541426 (S.D.N.Y. Oct. 10, 2017) ($1.25 million award); Kovalchik v. City of New York, No. 09-CV-4546 (RA) (FM), 2016 WL 11270091 (S.D.N.Y. Mar. 21, 2016) ($300,000 award); Offei v. Omar, No. 11-CV-4283 (SAS) (MHD), 2012 WL 2086294 (S.D.N.Y. May 18, 2012), report and recommendation adopted, 2012 WL 2086356 (June 8, 2012) ($250,000 award); Ortiz v. Lasker, Jr., No. 08-CV-6001L, 2010 WL 3476017 (W.D.N.Y. Aug. 30, 2010) ($250,000 award); Cash v. County of Erie, No. 04-CV-0182 (JTC) (JJM), 2009 WL 3199558 (W.D.N.Y. Sept. 30, 2009) ($500,000 award); Doe v. United States, No. CV-17-01991-PHX-GMS (JZB), 2018 WL 2431774 (D.Ariz. May 30, 2018) ($2.5 million award)); see also Riascos-Hurtado v. Raines, 422 F.Supp.3d 595 (E.D.N.Y. 2019), appeal dismissed (July 17, 2020) ($1.5 million award per plaintiff).
“In Mathie, . . . the Second Circuit affirmed a district judge's award of $250,000 in compensatory damages for physical pain and psychological distress where plaintiff ‘suffered and continue[d] to suffer from episodes of panic attacks, sleeplessness, insecurity, and anxiety' as a result of sexual abuse and sodomy perpetrated by a prison official.” Noonan, 2018 WL 1738746, at *6 (citing Mathie, 121 F.3d at 814). Importantly, the Circuit emphasized that “the emotional distress of the sexual abuse inflicted [was] inevitably aggravated by the fact that the acts were committed by a jailor upon an inmate in his custody.” Mathie, 121 F.3d at 814.
Recently, in Riascos-Hurtado, the district court awarded two plaintiffs $1.5 million each in compensatory damages where each was subjected to multiple incidents of sexual assault by a corrections officer that included inappropriate touching, digital penetration, and (in the case of one of the plaintiffs) forcible intercourse, causing both to experience severe PTSD symptoms. 422 F.Supp.3d at 607-08. The court explained that while the acts committed by the officer with respect to each plaintiff were “different in character . . . the impact and resulting damage of the conduct was equally severe.” Id. at 606. Additionally, the court emphasized that the defendant's “position as a corrections officer was an exacerbating factor with respect to compensatory damages” because it “resulted in Plaintiffs' loss of trust in an institution that was supposed to protect them” and worsened “the resulting PTSD by creating feelings of extreme helplessness due to [defendant's] unfettered and unpredictable access to Plaintiffs.” Id. at 608. In Noonan, the district court awarded the plaintiff $1 million in compensatory damages for both emotional distress and physical harm in a case where an officer arrested the plaintiff, inappropriately touched her breast during the arrest, “commented inappropriately on her appearance, made a video recording of her body while she changed clothing, and required her to keep the restroom door open while she used the facilities.” 2018 WL 1738746, at *1. Moreover, the officer continually pressured plaintiff to meet with him while her case was pending, implicitly threatening to harm her if she did not. Id. When she eventually agreed to meet him at a restaurant and consumed a drink he ordered that made her feel “groggy, ” the officer took plaintiff to his home and sexually assaulted her, leaving bruises and lacerations on her body and causing her severe emotional harm. Id. at *1-2. The plaintiff reported being prescribed three separate medications to manage her psychological trauma, one of which she was still taking. Id. at 3. Notably, after conducting a thorough canvass of damages awarded in sexual assault cases in this Circuit, the court observed that compensatory damages awards to victims of sexual assault by law enforcement commonly range from $250,000 to $500,000 while those to victims of sexual assault by private individuals are often significantly higher, but ultimately held that “a plaintiff should not be entitled to any lesser amount of compensation for harm perpetrated by a law enforcement officer than for harm perpetrated by a private individual.” Id. at *7 (finding “that some of the recent awards in sexual assault cases involving law enforcement defendants may be unduly low”).
In Abdulaziz, the plaintiff was awarded $1.25 million in compensatory damages in a case where she was drugged and repeatedly raped by the defendant (a private individual) over a period of several hours, and sustained several severe injuries. 2017 WL 4541426, at *1. Additionally, the plaintiff was diagnosed with complex PTSD, anxiety disorder, and massive depression and was no longer able to maintain full-time work even years after the attack due to the psychological trauma. Id. at *1-3.
In Kovalchik, the minor plaintiff who was a resident at a NYC youth detention facility was raped by a “duly sworn officer and official of the [Department of Juvenile Justice], ” while handcuffed and shackled. 2016 WL 11270091, at *3. Afterwards, the plaintiff engaged in self-destructive behavior, such as cutting herself, and reported unexpected bouts of crying and difficulty sleeping, but did not report suffering from ongoing physical problems. Id. The court, comparing the situation to other cases, awarded her $300,000 in compensatory damages. Id. at *4-5.
In Offei, the plaintiff-a room attendant in a hotel-was sexually assaulted by the defendant who was a guest at the hotel. 2012 WL 2086294, at *1. The defendant blocked the room's exit, “seiz[ed] [the plaintiff] in a bear hug, kiss[ed] her on the lips and neck, squeez[ed]
her breasts and rub[bed] his clothed penis against her” while she pleaded with him to stop. Id. Afterward, she suffered sleeplessness, frequent bouts of crying, panic attacks, and fear; had weekly treatment and was prescribed anti-anxiety medication; indicated relations with her husband were negatively impacted; and was forced to relive her assault repeatedly as the media hounded her family for information. Id. at *1-2. Considering the psychological harm to the plaintiff and other awards, the court awarded her $250,000 in compensatory damages. Id. at *7-8.
In Ortiz, the plaintiff was twice assaulted and raped by a corrections officer while incarcerated at the Albion Correctional Facility. 2010 WL 3476017, at *1. The plaintiff had minor bruising but no other observable physical injuries and required psychological treatment- reporting a continued need for such treatment, anxiety and fear that she may be raped again, and difficulty having normal sexual relations with her husband. Id. at *1-2. Comparing various cases, the court granted the plaintiff $250,000 in compensatory damages. Id. at *2.
In Cash, the plaintiff was raped and assaulted by a guard at the Erie County Holding Center, where she was being held as a pretrial detainee. 2009 WL 3199558, at * 1. There, the court upheld a jury award of $500,000 in compensatory damages, stating, “a lesser verdict might have been possible, [but the court did] not consider this amount to be so high as to shock the conscience of the court.” Id. at *3. Like many of the above-listed cases, the court reiterated the Second Circuit's finding in Mathie that “[t]he emotional distress of the sexual abuse inflicted in this case is inevitably aggravated by the fact that the acts were committed by a jailor upon an inmate in his custody.” Id. (citing Mathie v. Fries, 121 F.3d 808).
In Doe v. United States, the incarcerated plaintiff was repeatedly assaulted by a corrections officer. 2018 WL 2431774, at *9. During the attacks, the defendant “inappropriately intimidated, coerced, victimized, and assaulted the Plaintiff by, among other things, forcibly kissing her, touching her buttocks, putting his hands underneath Plaintiff's clothes and panties, ” digitally penetrating Plaintiff, and “forc[ing] Plaintiff's hand to touch his erect penis.” Id. at *8. The plaintiff reported experiencing “sleep loss, anxiety, fear, depression, humiliation, and fright.” Id. at *9. She received counseling after her release and would require therapy for an indefinite amount of time. Id. Having found that the plaintiff “established extreme suffering, anxiety, and physical and emotional pain that are reasonably probable to be experienced in the future as a result of the injuries [d]efendant caused her[, ]” the Arizona district court awarded the plaintiff $2.5 million in compensatory damages. Id.
Plaintiff's case here is both plainly distinguishable from many of the cases detailed above, while also sharing a number of similarities with others. Like the plaintiffs in Mathie, Riascos-Hurtado, Noonan, Kovalchick, Ortiz, Cash, and Doe v. United States, Plaintiff was assaulted by a law enforcement officer, and thus “[t]he emotional distress of the sexual abuse inflicted in this case is inevitably aggravated by the fact that the acts were committed by a jailor upon an inmate in his custody.” Mathie, 121 F.3d at 814; see, e.g., ECF 135 ¶ 7 (“[E]verything reminded me of Green's sexual assault and that he or another officer could attack me again whenever they wanted, even when I was locked up in my cell . . . I would think about how vulnerable I was, how nobody could protect or help me.”). However, unlike those cases, this case does not involve either a completed rape or repeated assaults.
Plaintiff's case is in some ways analogous to Offei. While that case did not involve a law enforcement defendant, it did concern “a onetime event, and did not involve a rape[.]” Offei, 2012 WL 2086294, at *6. The court in Offei did note that intense media scrutiny in that case likely exacerbated the plaintiff's psychological condition-a factor that is not present here. Id. Plaintiff's condition was exacerbated, however, by the fact that she was assaulted by a corrections officer who had authority over her and was supposed to protect her, as well as by Plaintiff's continued incarceration in the place of her assault and the ongoing harassment and verbal abuse by other officers. Moreover, the Offei defendant did not make “any overt effort to disrobe the plaintiff, ” id., whereas Plaintiff's injuries were likely amplified by the fact that Green forcibly lifted Plaintiff's top, tried to remove her bottoms, and put his hand down her shorts. (ECF 93 ¶¶ 54-64).
The court in Offei observed:
a review of other cases involving sexual assaults reflects that they frequently trigger substantial compensatory awards, typically in the low-to-mid hundreds of thousands of dollars, although these cases usually involve more egregious conduct on the part of the defendant or specific evidence of resulting harm, including some or all of the following: (1) rape or the equivalent, (2) repeated episodes of abuse, sometimes occurring over a period of years, (3) the victimization of children, often by family members, or (4) proof of psychiatric treatment and/or concrete evidence of extended psychological dysfunction.2012 WL 2086294, at *5 (collecting cases). It must be noted here that Plaintiff did not provide proof of psychiatric treatment or concrete evidence of extended psychological dysfunction. She did, however, describe the psychological effects of the assault in her declaration and stated that she sought treatment at BHCF and was offered medication but found the prison mental health practitioners unsympathetic. (ECF 93 ¶¶ 7, 10).
Despite the variance in awards, and in consideration of the record before the Court-as well as Judge Cott's observation in Noonan that awards in past cases involving sexual assaults by law enforcement defendants may be “unduly low”-I find that an award of $350,000 is “fair and reasonable compensation in light of the evidence.” Noonan, 2018 WL 1738746, at *7; Abdulaziz, 2017 WL 4541426, at *6 (quotation marked omitted).
2. Punitive Damages
Plaintiff also seeks $350,000 in punitive damages. As previously stated, “[p]unitive damages are available in a § 1983 case ‘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.'” Mathie, 121 F.3d at 815 (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). The purpose of punitive damages awards is to both “punish the wrongdoer and to deter others.” Id. at 817. Here, the facts surrounding Green's heinous sexual assault of Plaintiff plainly warrant the award of punitive damages.
The Court must ensure that the punitive damages it awards are “fair, reasonable, predictable, and proportionate.” Payne v. Jones, 711 F.3d 85, 93 (2d Cir. 2013). The Supreme Court has established three guideposts to consider in evaluating a punitive damages award: (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between the award and the penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996); see Mathie, 121 F.3d at 816.
It remains unsettled whether a district court must apply the Gore factors to assess punitive damages in the context of a post-default damages inquest. Compare, e.g., Noonan, 2018 WL 1738746, at *9 n.7 (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”) with Greenburger v. Roundtree, No. 17-CV-03295 (PGG) (SLC), 2020 WL 6561598, at *9 (S.D.N.Y. Jan. 16, 2020), report and recommendation adopted, 2020 WL 4746460 (S.D.N.Y. Aug. 16, 2020) (applying Gore factors for purposes of damages inquest in § 1983 suit) and Dixon v. Agbai, No. 15-CV-850 (AT) (AJP), 2016 WL 3702749, at *8 (S.D.N.Y. July 8, 2016), report and recommendation adopted, 2016 WL 5660246 (S.D.N.Y. Sept. 28, 2016) (same). However, recent cases recognizing this uncertainty have still reviewed the range of punitive damages awarded in comparable cases, a process that “corresponds with the third Gore factor, ” and used the Gore factors to ensure the award is not “grossly excessive” and thus comports with due process. See Francis v. City of New York, No. 15-CV-7997 (VSB) (KHP), 2019 WL 8918743, at *10 (S.D.N.Y. Nov. 12, 2019), report and recommendation adopted, 2020 WL 2792995 (S.D.N.Y. May 29, 2020); Poulos v. City of New York, No. 14-CV-03023 (LTS) (BCM), 2018 WL 3750508 (S.D.N.Y. July 13, 2018), report and recommendation adopted, 2018 WL 3745661 (S.D.N.Y. Aug. 6, 2018).
Green's conduct is particularly reprehensible, both with respect to his disregard of Plaintiff's rights and his breach of the public trust. First, is inarguable that Defendant demonstrated a complete disregard for Plaintiff's rights, particularly in light of his guilty plea in his criminal case. Green's conduct had, and will continue to have, long-term consequences for Plaintiff and “was directed at someone whom he undoubtedly perceived as vulnerable and hence perhaps compliant to his wishes or at least fearful of complaining.” Offei, 2012 WL 2086294, at *7. Further, as recognized by courts in this Circuit, there is something particularly reprehensible about a law enforcement officer assaulting an inmate under his care. See Mathie, 121 F.3d at 816-17 (finding that the prison official's “sexual abuse of an inmate in his custody was reprehensible in the extreme” and “an outrageous abuse of power and authority”); Noonan, 2018 WL 1738746, at *8 (finding police officer's sexual assault of someone he arrested to be “egregious misconduct, in breach of the public trust”); see also Lewis v. City of Albany Police Dep't, 547 F.Supp.2d 191, 209 (N.D.N.Y. 2008), aff'd, 332 Fed.Appx. 641 (2d Cir. 2009)(sustaining jury's punitive damages award in suit against officer for using excessive force in arresting plaintiff, noting “it is particularly important to further the goal of deterring defendants such as [police officer-defendant] from participating in violations of constitutional rights given their positions of public trust, as defendant points out, with the socially beneficial goal of preventing criminal activity”). Accordingly, the need for deterrence is especially pertinent here given the duty to keep incarcerated individuals safe and free from sexual abuse at the hands of staff.
A survey of the cases detailed in Section III.B.1 shows that the plaintiffs have been awarded punitive damages ranging from $100,000 - $1,250,000, with the ratio between punitive to compensatory damages ranging from 0.2:1 to 1:1. See Mathie, 121 F.3d at 817 (finding that the “punitive damages award in this case may not exceed $200,000, ” leading to a 0.8:1 ratio between punitive and compensatory damages); Riascos-Hurtado, 422 F.Supp.3d at 610 (awarding $30,000 in punitive damages to each plaintiff due to evidence of defendant's financial condition, creating a 0.2:1 ratio); Noonan, 2018 WL 1738746, at *8-9 (awarding $1 million in punitive damages, creating a 1:1 ratio); Abdulaziz, 2017 WL 4541426, at *7 (awarding $1 million in punitive damages, creating a 0.8:1 ratio); Kovalchik, 2016 WL 11270091, at *4-5 (awarding $300,000 in punitive damages, creating a 1:1 ratio); Offei, 2012 WL 2086294, at *7-8 (awarding $100,000 in punitive damages, creating a 0.4:1 ratio); Ortiz, 2010 WL 3476017, at *2 (awarding $250,000 in punitive damages, creating a 1:1 ratio); Cash, 2009 WL 3199558, at *3-4 (awarding $150,000 in punitive damages, creating a 0.3:1 ratio); Doe v. United States, 2018 WL 2431774, at *9 (awarding $1.25 million in punitive damages, creating a 0.5:1 ratio); see also Noonan, 2018 WL 1738746, at *8 (collecting cases and noting that “a number of courts in this Circuit have awarded punitive damages that are equal to or less than compensatory damages in cases of sexual assault).
By defaulting, Green surrendered his opportunity to demonstrate that his financial circumstances should constrain the amount of the award. See Mathie, 121 F.3d at 816 (“Under well[-]established precedent in this Circuit, ‘it is the defendant's burden to show that his financial circumstances warrant a limitation of the award.'”) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 373 (2d Cir.1988)); Offei, 2012 WL 2086294, at *8.
Given the record before the Court, demonstrating Green's egregious misconduct in breach of the public trust, and my review of comparable cases, the Court finds that an award of $200,000 in punitive damages is appropriate here. This substantial figure recognizes the highly reprehensible nature of defendant's conduct while, at the same time, comports with the above- cited cases granting higher awards in cases featuring repeated attacks, rapes, an incarcerated plaintiff that was a minor, and/or other additional aggravating factors.
II. Attorneys' Fees & Costs
Plaintiff requests fees and costs of $40,370.76. (ECF 129 at 8). Section 1988 provides that in any action under section 1983, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b).
a. Plaintiff's Requested Fees and Costs are Reasonable
First, a district court must determine the “presumptively reasonable fee” for services, often referred to as the “lodestar.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. Of Albany, 522 F.3d 182 (2d Cir. 2008). “The presumptively reasonable fees boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations omitted). A fee applicant bears the burden of “produc[ing] satisfactory evidence” that its requested rates are “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Pearson Educ., Inc. v. Vergara, No. 09-CV-6832 (JGK) (KNF), 2010 WL 3744033, at *6 (S.D.N.Y. Sept. 27, 2010) (quotation and citation omitted).
The total fee award is calculated by multiplying this presumptively reasonable fee by the “reasonable number of hours expended” to determine the appropriate award. Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 141 (2d Cir. 2007). “To enable a court to determine the reasonableness of the hours expended, a party seeking an award of attorney's fees must submit contemporaneous time records indicating both the number of hours billed and the nature of the work done.” Kovalchik, 2016 WL 11270091, at *7 (citations omitted). The reasonable number of hours expended should not include “excessive, redundant, or otherwise unnecessary hours, as well as hours dedicated to severable unsuccessful claims.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).
Plaintiff seeks fees for counsel from two firms representing her, the Law Offices of Daniel A. McGuinness, P.C., and the Law Office of Zachary Margulis-Ohnuma. (ECF 129). Plaintiff has submitted time records and declarations from her attorneys in support of the fee application. (ECF 130; ECF 131). The requested fees are outlined as follows:
Name
Hourly Rate
Hours
Total
Daniel A. McGuinness
$222
40.7
$9,035.40
$222
55
$12,210.00
Hannah Pinto (paralegal)
$97.50
7.2
$702.00
Brianna Parks (paralegal)
$97.50
13.1
Zachary Margulis-Ohnuma
$222
33.3
$7,392.60
$222
25.1
$5,572.20
Adam Elewa
$222
$3,174.60
Jeff Hetzel (paralegal)
$97.50
0.8
$78.00
Annie Flom (paralegal)
$97.50
3
$292.50
Ashlee Kuan (paralegal)
$97.50
3
$292.50
Total Fees Requested
$39,997.80
Total Costs Requested
$372.96
Total
$40,370.76
Ms. Medley worked at the firm of Mr. McGuinness from March 2016 to March 2018. (ECF 130 at 5).
The hours reflected on the submitted billing records indicate that a fee total of 1, 979.25 for McGuinness's paralegals; however, he requests $1,950 for this time in his declaration. The Court deducted the difference from Ms. Parks' total. (See ECF 130 at 6, 53, 56).
Ms. Medley worked at the office of Zachary Margulis-Ohnuma beginning in March 2018. (ECF 131 at 4).
Mr. Margulis-Ohnuma's declaration states that his firm is seeking fees for 15.6 hours of work by Mr. Elewa; however, only 14.3 hours are reflected on the billing records submitted on Mr. Elewa's behalf. (Compare ECF 131 at 5, with ECF 131 at 43). The Court will use the number of hours reflected in the billing records.
Given the declarations and exhibits submitted by Plaintiff's counsel and “its own knowledge of comparable rates charged by lawyers in the district[, ]” the Court finds the hourly rates listed above to be reasonable. See Morris v. Eversley, 343 F.Supp.2d 234, 245 (S.D.N.Y. 2004) (citing Ramirez v. N.Y. City Off-Track Betting Corp., No. 93-CV-682 (LAP), 1997 WL 160369, at *2 (S.D.N.Y. Apr. 3, 1997)).
Regarding the number of hours claimed, the Court has reviewed the time and billing entries submitted by Plaintiff and finds them generally reasonable, with one exception. The Court will make deductions for travel time and for certain clerical or administrative work billed at attorney rates. “While courts have in the past approved fee applications in civil rights litigation that include travel time-generally at half the attorney's reasonable rate, see, e.g., Hutchinson v. McCabee, No. 95-CV-5449 (JFK), 2001 WL 930842, *4 (S.D.N.Y. Aug. 15, 2001); Gonzalez v. Bratton, 147 F.Supp.2d 180, 213 n. 6 (S.D.N.Y. 2001); Funk v. F & K Supply, Inc., 43 F.Supp.2d 205, 230 (N.D.N.Y. 1999)-in this Court's experience, clients resist paying for travel time.” Tatum v. City of N.Y., No. 06-CV-4290 (PGG) (GWG), 2010 WL 334975, at *8 (S.D.N.Y. Jan. 28, 2010) (reducing the award by the total number of hours claimed for travel). Accordingly, the Court will deduct 2.2 hours from Mr. McGuinness, 3.3 hours from Ms. Medley, and 1.1 hours from Ms. Pinto. (ECF 130 at 47-53).
Lastly, a prevailing party is entitled to compensation for “those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d. Cir. 1998) (internal quotation marks omitted). Here, Plaintiff seeks $372.96 in costs, which is supported by documentation attached to Plaintiff's counsels' declarations. (See ECF 130 at 58-59; ECF 131 at 51). These costs are reasonable. The revised fees and costs award is:
Name
Hourly Rate
Hours
Total
Daniel A. McGuinness
$222
38.5
$8,547.00
$222
51.7
$11,477.40
Hannah Pinto (paralegal)
$97.50
6.1
$594.75
Brianna Parks (paralegal)
$97.50
13.1
Zachary Margulis-Ohnuma
$222
33.3
$7,392.60
$222
25.1
$5,572.20
Adam Elewa
$222
14.3
$3,174.60
Jeff Hetzel (paralegal)
$97.50
0.8
$78.00
Annie Flom (paralegal)
$97.50
3
$292.50
Ashlee Kuan (paralegal)
$97.50
3
$292.50
Total Fees
$38,669.55
Total Costs
$372.96
Total
$39,042.51
Ms. Medley worked with Mr. McGuinness's firm from March 2016 to March 2018. (ECF 130 at 5).
See supra note 7.
Ms. Medley worked at the office of Zachary Margulis-Ohnuma beginning in March 2018. (ECF 131 at 4).
III. Conclusion
For the reasons stated above, I recommend that Plaintiff be granted compensatory damages in the amount of $350,000, punitive damages in the amount of $200,000, and attorney's fees and costs in the amount of $39,042.51, for a total award of $589,042.51.
The Clerk of Court is respectfully directed to mail this Order to Defendant Green.
IV. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Ronnie Abrams, United States District Judge. Any request for an extension of time for filing objections must be directed to Judge Abrams. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).