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21-2985-cv

Tranchina v. McGrath

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

8th day of December, two thousand twenty-two.

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

GUIDO CALABRESI,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

JOSEPH TRANCHINA,

Plaintiff-Appellee,

v. 21-2985-cv

C.O. JUSTIN MCGRATH, BARE HILL CORRECTIONAL 

FACILITY, FKA JEREMY MCGRATH,

Defendant-Appellant,

SGT. MATTHEW BARNABY, BARE HILL CORRECTIONAL 

FACILITY, AKA JOHN BARNABY,

Defendant.

_____________________________________

For Plaintiff-Appellee: EDWARD SIVIN, Sivin & Miller, LLP, New York, NY.

For Defendant-Appellant: JAMES P. BLENK, Lippes Mathias LLP, Buffalo, NY.
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Appeal from a judgment of the U.S. District Court for the Northern District of New York 

(D’Agostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Justin McGrath (“McGrath”) appeals from the October 1, 2020 

judgment of the district court, following a jury trial, entered in favor of Plaintiff-Appellee Joseph 

Tranchina (“Tranchina”) on his Eighth Amendment excessive force claim and awarding him

$190,000 in compensatory damages, and from the November 4, 2021 decision and order of the 

district court awarding attorney’s fees to Tranchina pursuant to 42 U.S.C. § 1988. We assume 

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues 

on appeal, which we reference here only as necessary to explain our conclusion to AFFIRM.

I. Motion for Judgment as a Matter of Law

McGrath first argues that the district court erred in denying his motion for judgment as a 

matter of law because the evidence at trial failed to establish the required element of causation 

between Tranchina’s injury and McGrath’s use of excessive force. We review this determination 

de novo. Wolf v. Yamin, 295 F.3d 303, 308 (2d Cir. 2002). For the following reasons, we 

disagree with McGrath. 

A motion for judgment as a matter of law “may only be granted if there exists such a 

complete absence of evidence supporting the verdict that the jury’s findings could only have been 

the result of sheer surmise and conjecture, or the evidence in favor of the movant is so 

overwhelming that reasonable and fair minded persons could not arrive at a verdict against [the 

movant].” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008) (internal quotation 

marks, alterations, and citations omitted). In reviewing the denial of such a motion, we “give 
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deference to all credibility determinations and reasonable inferences of the jury, and may not weigh 

the credibility of witnesses or otherwise consider the weight of the evidence.” Id. (internal 

quotation marks and citations omitted).

Here, the motion for judgment as a matter of law was properly denied. Tranchina testified 

that McGrath “repeatedly punched [him] in the side of [the] head and [the] ribs” on his right side 

during an assault that lasted between one-and-a-half and three minutes. A266–67, A270. 

Tranchina also testified that McGrath alone struck the right side of Tranchina’s head and body. 

A270. Another defendant “kicked [him] on the left cheekbone,” and Tranchina sustained further 

injuries when thrown into the back of a van. A270, A273. At no point, however, did Tranchina

attribute the serious bruising on the right side of his body or his broken rib to this conduct. And

at trial, McGrath acknowledged, as did his counsel during summation, that Tranchina’s rib injury 

resulted from the incident between Tranchina and McGrath. See A183; D. Ct. Dkt. No. 167 at 

459:1–8. Additionally, Tranchina provided photographic evidence of his injuries, including 

photos depicting the right side of his face and his “right ear, . . . pretty badly cut, swollen and 

bruised,” as well as photographic evidence of McGrath’s bruised and bloodied knuckles. A115, 

A277–81. Medical records documented Tranchina’s broken right distal rib. A116. This 

evidence was more than enough for a jury to conclude—without speculation or conjecture—that 

McGrath’s use of excessive force was the proximate cause of injury to Tranchina. We therefore

affirm the district court’s denial of McGrath’s motion for judgment as a matter of law.

II. Compensatory Damages Award

McGrath next argues that the $190,000 compensatory damages award should be reduced

to $1.00 in nominal damages on the theory that Tranchina established no more than de minimis

injury. In the alternative, McGrath requests that this Court issue a conditional order of remittitur
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because the original $190,000 compensatory damages award was “excessive.” We conclude 

otherwise, determining that Tranchina’s injuries were not de minimis and that the compensatory 

damages are appropriate and not excessive. Accordingly, we affirm the damages award as 

entered by the district court.

“To recover compensatory damages under Section 1983, a plaintiff must prove that his 

injuries were proximately caused by the constitutional violation.” Gibeau v. Nellis, 18 F.3d 107, 

110 (2d Cir. 1994). In the absence of injuries, or where the injuries are de minimis, nominal 

damages are generally awarded instead. See, e.g., Kerman v. City of New York, 374 F.3d 93, 

123–24 (2d Cir. 2004). Here, compensatory damages are appropriate because, as discussed supra, 

the evidence at trial was sufficient for the jury to conclude that McGrath’s use of excessive force 

proximately caused Tranchina’s injuries. Moreover, Tranchina’s injuries, including serious 

bruising and lacerations to his head, side, and back, as well as a fractured rib, were not de minimis. 

A139, A276; cf. Blissett v. Coughlin, 66 F.3d 531, 536 (2d Cir. 1995) (affirming a compensatory 

damages award to the plaintiff whom prison guards struck with a baton, punched, and slapped, 

causing him to fall unconscious). 

Turning to McGrath’s alternative claim, we also decline to issue a conditional order of 

remittitur. If a compensatory damages award “is intrinsically excessive in the sense of being 

greater than the amount a reasonable jury could have awarded,” such an order requires the plaintiff 

to choose between a new trial or a reduced verdict. Lore v. City of Syracuse, 670 F.3d 127, 177 

(2d Cir. 2012) (citations omitted). But in the absence of a “particular discernable error,” we have 

generally concluded “that a jury’s damage award may not be set aside as excessive unless the 

award is so high as to shock the judicial conscience and constitute a denial of justice.” Id. (internal

quotation marks and citations omitted). Such is not the case here. Indeed, in previous cases 
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where plaintiffs suffered comparable injuries, we have upheld damages awards that are of a similar 

value, once adjusted for inflation. See, e.g., Blissett, 66 F.3d at 536; see also DiSorbo v. Hoy, 

343 F.3d 172, 183 (2d Cir. 2003) (noting that amounts awarded in comparable cases is relevant to 

the consideration of whether a compensatory damages award is excessive). Accordingly, we 

conclude that the $190,000 compensatory damages award is not so high as to “shock the judicial 

conscience,” and therefore affirm the damages award as entered by the district court.

III. Exclusion of Evidence

McGrath next argues that the judgment must be vacated and the matter remanded for a new 

trial because the district court improperly excluded the deposition testimony of Lieutenant Jerome 

Laramay (“Laramay”) pursuant to Rule 403 of the Federal Rules of Evidence as cumulative. See 

A390–91; see also Fed. R. Evid. 403 (providing that a court “may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence”). Again, we disagree. 

We review a district court’s evidentiary rulings for abuse of discretion. United States v. 

Litvak, 889 F.3d 56, 67 (2d Cir. 2018). We “will disturb an evidentiary ruling only where the 

decision to admit or exclude evidence was manifestly erroneous. Even if a decision was 

manifestly erroneous, we will affirm if the error was harmless.” Id. (internal quotation marks 

and citations omitted). An evidentiary error is harmless if we “can conclude with fair assurance 

that the jury’s judgment was not substantially swayed by the error.” United States v. Paulino, 

445 F.3d 211, 219 (2d Cir. 2006) (internal quotation marks and citations omitted).

Here, the excerpts from Laramay’s deposition testimony attested that Laramay, the watch 

commander, was aware of an ongoing investigation into missing Plexiglass at the time of the 
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assault on Tranchina.1 As the district court explained, however, the defendants had already 

testified that Plexiglass was accessible in the prison and could be fashioned into weapons. See, 

e.g., A176–77, A209–10, A376–77. Laramay’s testimony would thus, in principal part, have 

simply corroborated this earlier testimony, which was largely undisputed. United States v. Jamil, 

707 F.2d 638, 643 (2d Cir. 1983) (noting that “the exclusion of relevant, but cumulative, evidence 

is within the discretion of the trial court”). During summation, Tranchina’s counsel 

acknowledged there was “testimony that . . . makeshift weapons are recovered all the time” at Bare 

Hill Correctional Facility; rather than disputing that testimony, counsel tried to turn it to his 

advantage, arguing that it therefore “would not [have been] too difficult” for McGrath “to plant 

one” on Tranchina. D. Ct. Dkt. No. 167 at 467:15–19. To be sure, Laramay’s testimony added 

the additional detail that some Plexiglass was missing at the time of the assault. But even 

assuming arguendo that to this degree the evidence was not cumulative, it was, at best, of limited 

probative value, thus rendering any error in its exclusion harmless. The excerpts from Laramay’s 

deposition in no way linked Tranchina to the missing Plexiglass or otherwise shed light on the 

question whether McGrath used excessive force against Tranchina in violation of the Eighth 

Amendment. A390. In such circumstances, the exclusion of this evidence provides no basis for 

upsetting the jury’s determination. 

IV. Attorney’s Fees

Finally, McGrath argues that the district court abused its discretion by awarding attorney’s 

fees for work performed by one of Tranchina’s attorneys, Glenn Miller (“Miller”), who prepared 

for the trial but was unable to be present due to family illness. McGrath argues that these fees

1 At trial, McGrath claimed to have recovered a Plexiglass weapon from Tranchina during their 

encounter, while Tranchina testified that the weapon had, instead, been planted by McGrath.
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were duplicative of those awarded for work performed by David Roche (“Roche”), who stepped 

in for Miller at trial. We disagree.

Under 42 U.S.C. § 1988, a district court may award the prevailing party in a § 1983 suit “a 

reasonable attorney’s fee.” 42 U.S.C. § 1988(b); see also Lilly v. City of New York, 934 F.3d 222, 

227–28 (2d Cir. 2019). In determining the fee, the district court must

examine the hours expended by counsel and the value of the work product of the 

particular expenditures to the client’s case. . . . In making this examination, the 

district court does not play the role of an uninformed arbiter but may look to its 

own familiarity with the case and its experience generally as well as to the 

evidentiary submissions and arguments of the parties.

Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (citation omitted). “If the court 

determines that certain claimed hours are ‘excessive, redundant, or otherwise unnecessary,’ the 

court should exclude those hours in its calculation . . . .” Id. (quoting Hensley v. Eckerhart, 461 

U.S. 424, 434 (1983)). We review a district court’s award of attorney’s fees for abuse of 

discretion. Lilly, 934 F.3d at 227.

We discern no such abuse of discretion here. The district court did not clearly err in 

finding that Roche’s work was largely cumulative—and not duplicative—of Miller’s. See Millea 

v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (noting that abuse of discretion includes 

basing a decision on “a clearly erroneous factual finding”). It reasoned based on “its own 

familiarity with the case and its experience generally” that Roche could only have managed to bill 

as few hours as he did by relying on Miller’s work. Gierlinger, 160 F.3d at 876 (citation omitted). 

Furthermore, the district court did consider potential redundancy between Roche’s and Miller’s 

trial preparation, and it accordingly reduced Miller’s hours by thirty-three percent. On these facts, 

it cannot be said that the district court abused its discretion in awarding attorney’s fees for some 

of Miller’s work, and we therefore affirm the district court’s award of attorney’s fees.
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* * *

We have considered McGrath’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk