#### Yvette LOCKHART-BEMBERY, Plaintiff, v. TOWN OF WAYLAND POLICE DEPARTMENT et al., Defendants.

Civil Action No. 04-10581-NMG.

United States District Court, D. Massachusetts.

July 11, 2006.

*13Andrew M. Fischer, Jason *&*Fischer, Boston, MA, for Plaintiff.

Leonard H. Kesten, Jeremy I. Silver-fine, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, District Judge.

The plaintiff, Yvette Lockhart-Bembery (“LockhartABembery”), brought suit alleging that defendant Daniel Sauro (“Sauro”), was negligent and violated her federal and state civil rights when she allegedly suffered injuries during an incident involving her motor vehicle that occurred on February 6, 2002. After a trial by jury, a verdict was returned on February 2, 2006, finding that Sauro 1) was not negligent, 2) did not violate plaintiffs state civil rights and 3) violated plaintiffs federal civil rights pursuant to 42 U.S.C. § 1983. With respect to the § 1983 violation, the jury awarded Lockhart-Bembery nominal damages of $1. Defendant now moves for judgment notwithstanding the verdict on the § 1983 claim or, in the alternative, for a new trial on that claim. Plaintiff moves to set aside the verdict or, in the alternative, for a new trial on the issue of damages. Plaintiff also moves for attorney’s fees and expenses.

*14I. *Background*

A. Facts

On the morning of February 6, 2002, Loekhart-Bembery’s car had broken down on Route 30 in Wayland near the Natick line. The plaintiff pulled her car to the side of the road and called AAA from the cellphone of a passerby. The passerby then called 911.

Defendant, Sergeant Daniel Sauro of the Wayland Police Department, responded to the call. Sergeant Sauro decided the plaintiffs car was obstructing traffic and allegedly ordered the plaintiff to move her ear off the road or it would be towed. He refused to help her physically remove the vehicle because, as he testified at his deposition, it was not safe to push a motor vehicle by hand and it is the policy of the Wayland Police Department that police officers “do not push motor vehicles by hand”.

Attempting to comply with Sergeant Sauro’s order and under what she allegedly thought was a threat to have her car towed, the plaintiff began pushing her car manually. She attempted to steer the car while pushing but lost control and her car rolled down a steep embankment dragging the plaintiff along and thereby causing her personal injury.

Sergeant Sauro then came to Lockhart-Bembery’s aid. She complained of chest pain which prompted Sergeant Sauro to call for an ambulance. The plaintiff was transported by medical helicopter to Boston Medical Center. She discharged herself from the hospital the next morning.

B. Procedural History

The plaintiff originally filed suit in Mid-dlesex Superior Court against the Town of Wayland Police Department, Robert Irving in his capacity as Chief of the Wayland Police Department, and Daniel Sauro. Ms. Lockhart-Bembery alleged: 1) negligence, 2) intentional infliction of emotional distress, 3) violation of 42 U.S.C. § 1983, 4) violation of the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11H or I (“MCRA”) and 5) negligent supervision on the part of the municipal defendants. Defendants removed the case to this Court on March 24, 2004, and filed an answer which offered eight affirmative defenses including qualified immunity and failure to state a claim upon which relief can be granted.

The case was originally assigned to Judge Saris but was reassigned to this session on July 12, 2004. Defendants moved for summary judgment on July 8, 2005, which plaintiff opposed. On December 7, 2005, this Court allowed defendants’ motion with respect to plaintiffs claims of intentional infliction of emotional distress and negligent supervision but denied the motion in all other respects. Thus, the case proceeded to a trial by jury only on those claims against defendant Sauro.1

Trial commenced on Monday, January 30, 2006, and continued for four days. At the close of evidence, plaintiff moved for a directed verdict and defendant moved for judgment as a matter of law, both of which motions were denied. Following closing arguments, the Court charged the jury and, after brief deliberations, the jury returned with a verdict in which they found that Sauro had “intentionally or recklessly violate[d] the rights” of the plaintiff on February 6, 2002, but found him not liable on any other count. With respect to the § 1983 violation, the jury awarded Lock-harWBembery damages of “$0”. After *15plaintiffs counsel raised an objection to the verdict, the Court further instructed the jury on damages and directed it to continue deliberations. A very short while later the jury returned with a verdict of damages of $1.

Both sides have filed post-judgment motions. Defendant moves for judgment notwithstanding the verdict or, in the alternative, for a new trial and plaintiff moves to set aside the verdict or, in the alternative, for a new trial on the issue of damages. Plaintiff also seeks attorney fees.

II. *Renewed Motion for Judgment as a Matter of Law*

A. Legal Standard

Pursuant to Fed.R.Civ.P. 50(b), a court may direct entry of judgment as a matter of law only “when after examining the evidence of record and drawing all reasonable inferences in favor of the nonmoving party, the record reveals no sufficient evi-dentiary basis for the verdict.” *Zimmerman v. Direct Fed. Credit Union,*262 F.3d 70, 75 (1st Cir.2001). In making such an evaluation, the court “may not weigh the evidence, undertake credibility determinations, or engage in differential factfinding.” *Id.*The jury verdict must be allowed to stand “unless the evidence, taken in the light most favorable to the prevailing party, points unerringly to an opposite conclusion.” *Id.*

B. Discussion

In support of his motion made pursuant to Rule 50(b), defendant Sauro submits' that 1) plaintiff failed to introduce sufficient evidence that his actions violated or interfered with any constitutionally protected right and 2) he was entitled to qualified immunity.

1. Evidence of a Constitutionally Protected Right

Section 1983 of Title 42 of the United States Code provides:

> Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

Thus, in order to prevail on a § 1983 claim, a plaintiff must prove, by a preponderance of the evidence, that 1) the defendant acted under color of state law, 2) the defendant deprived the plaintiff of her rights secured by the Constitution and 3) such actions were the proximate cause of the plaintiffs injuries and damages. Sauro contends that Lockhart-Bembery did not prove the second element and, therefore, the jury could not, as a matter of law, have found him liable on the § 1983 claim.

In plaintiffs complaint, she alleged that Sauro’s action

> constituted an unconstitutional seizure and detainment of the plaintiff, constituted a violation of the plaintiffs due process rights, constituted a state created danger, which caused harm to the plaintiff and otherwise constituted violations of the plaintiffs civil rights....

When this Court denied defendant’s motion for summary judgment as to the § 1983 claim, it stated clearly that, of the constitutional rights plaintiff cited as having been violated by Sauro, a fact dispute existed with respect to each of them.

With respect to seizure, the Court cited the Supreme Court’s holding in *United States v. Mendenhall,*446 U.S. 544, 100 S.Ct. 1870, 64 L.Edüd 497 (1980), when it stated that

> *16a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in some view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

*Id.*at 554, 100 S.Ct. 1870. The Supreme Court went on to cite examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, including the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen or “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” *Id.*Given the plaintiffs contention that Sergeant Sauro arrived at the location of her immobilized vehicle and ordered her to move her vehicle off the roadway or have it towed, this Court concluded that a jury could, if it believed the plaintiff, reasonably find that Lockhart-Bembery had been seized in violation of her Fourth Amendment right to be secure in her person.

Furthermore, the evidence at trial continued to preserve such a possible claim. Specifically, plaintiff testified that, due to Sergeant Sauro’s position as a law enforcement officer and his comments to her, she did not believe she had any option but to follow his “order” to do something she did not want to do and had never done before. Sufficient evidence was presented whereby the jury could have found that a reasonable person in plaintiffs position would not have believed she was free to leave or to disobey Sauro’s order.

Defendant makes an elaborate argument about the “community caretaking” functions of the police, citing the decision of the First Circuit Court of Appeals in *United States v. Rodriguez-Morales,*929 F.2d 780 (1st Cir.1991), in which that court stated:

> The imperatives of the fourth amendment are satisfied in connection with the performance of such noninvestigatory duties, including community caretaker tasks, so long as the procedure employed (and its implementation) is reasonable.

*Id.*at 785. “Whether police activity is reasonable in any particular set of circumstances is almost invariably a factbound inquiry.” *Id.*at 783. Thus, even if Sergeant Sauro arrived at the scene as a “community caretaker”, a critical fact question remained as to whether the procedures he employed pursuant to that function on February 6, 2002, were reasonable under the Fourth Amendment. As a matter of law, the question of whether plaintiffs Fourth Amendment rights had been violated by Sauro’s actions remained in dispute even after all the evidence had been presented. Thus, it was appropriate to present that issue to the jury.

Moreover, in arguing that plaintiff failed to introduce sufficient evidence that his actions violated or interfered with any constitutionally protected right, defendant ignores plaintiffs principal legal theory with respect to her § 1983 claim, namely that Sauro violated her due process rights and imposed upon her a state-created danger. The First Circuit has stated that a substantive due process interest in bodily integrity can support a personal injury claim under § 1983 against the provider of a governmental service where a

> government employee, in the rare and exceptional case, affirmatively acts to increase the threat of harm to the claimant. ...

*Frances-Colon v. Ramirez,*107 F.3d 62, 64 (1st Cir.1997). *See also Kennedy v. Ridgefield,*439 F.3d 1055, 1061 and n. 1 (9th Cir.2006).

*17Here, there was adequate evidence offered at trial which, if believed, would support the jury’s finding of a due process violation and a state-created danger. Certainly, Sauro’s alleged order to Lockharts Bembery to move her car along the embankment of a busy, narrow state road on a cold winter morning could have been found to create or increase the danger to plaintiff.

Thus, defendant’s principal argument that plaintiff failed to introduce sufficient evidence that his actions violated or interfered with any constitutionally protected right is not supported by the trial record. Plaintiff offered sufficient evidence for a jury to find (if they believed her) that her Fourth and Fourteenth Amendment rights had been violated or interfered with by defendant Sauro’s actions.

2. Qualified Immunity

Defendant also contends that, as a matter of law, he was entitled to qualified immunity. Under the doctrine of qualified immunity:

> government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

*Harlow v. Fitzgerald,*457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A defendant has the burden of establishing his entitlement to such immunity. *DiMarco-Zappa v. Cabanillas,*238 F.3d 25, 35 (1st Cir.2001). A defendant is entitled to qualified immunity unless: 1) the plaintiffs allegations, if true, establish a constitutional violation, 2) the right was clearly established at the time of the alleged violation and 3) a similarly situated reasonable officer would have understood that the challenged action violated the constitutional right at issue. *Rodriguez-Marin v. Rivera-Gonzalez,*438 F.3d 72, 83 (1st Cir.2006). For a plaintiff to defeat qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. *Anderson v. Creighton,*483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

This Court was required to make a ruling on defendant Sauro’s request for qualified immunity 1) when it considered his motion for summary judgment and 2) again at the close of the evidence at trial. At both junctures, the Court denied defendant’s request because it concluded that all three disqualifiers could be established.

Now, Sauro submits that the first two prongs were not established because plaintiffs allegations do not implicate any violation of a constitutional right, let alone a clearly established right. Defendant’s argument has two fallacies. First, he proceeds to address only plaintiffs Fourth Amendment allegation to the exclusion of plaintiffs other viable constitutional theories. Second, he ignores the evidence presented to the jury which, if believed, was sufficient to establish that Sauro had violated plaintiffs constitutional rights.

Sauro also contends that a similarly situated reasonable officer would not have understood that the challenged action violated the constitutional right at issue. When it considered defendant’s motion for summary judgment, this Court could not conclusively rule that a reasonable officer in Sauro’s position would have believed his actions were lawful in light of clearly established law and the information he possessed at the time of the incident. The Court’s opinion has not changed since the close of evidence. Taking plaintiffs allegations in the most favorable light, she claimed that she had been ordered by Sau-*18ro to push her car in a manner that defendant was himself prohibited from doing under department rules. Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law, *Wilson v. City of Boston,*421 F.3d 45, 58 (1st Cir.2005), but this Court concluded that it was not clear that Sauro’s action on February 6, 2002, afforded him any immunity. Moreover, the jury’s verdict finding him in violation of § 1983 supports the Court’s conclusion.

III. *Motions for a New Trial*

Both parties move for a new trial, although their motions are supported by entirely different legal theories.

A. Legal Standard

A new trial will be granted only where the verdict is “against the clear weight of the evidence.” *Newell P.R. Ltd. v. Rubbermaid Inc.,*20 F.3d 15, 22 (1st Cir.1994). “A trial court should set aside a jury verdict only to prevent a miscarriage of justice.” *Id.*“Mere disagreement with the verdict will not justify the granting of a new trial.” *Id.*

B. Discussion

1. Defendant’s Motion

In Sauro’s motion, he criticizes the Court’s jury instructions and the jury’s verdict, which he contends is inconsistent. First, he objects to the Court’s instructions as to what constituted a constitutional violation under § 1983. He argues that the instructions did not explain what would establish a constitutional violation and were incomplete, for example, in defining a state-created danger or what it means to be secure in one’s person.

With respect to Sauro’s latter point, the Court’s instruction on state-created danger enunciated:

> Finally, the plaintiff, Ms. Lockhart-Bembery, claims that Mr. Sauro’s action constituted a state-created danger which caused harm to her. A state-created danger exists where the government’s actions rendered a citizen more vulnerable to harm. A citizen has a constitutional right to be protected from such harm. A state-created danger occurs when an officer, through an affirmative action, increases the threat of harm to an individual. If you find that the Defendant Mr. Sauro, while acting in his capacity as a Wayland police officer, took an affirmative action that placed the plaintiff in a worse position of danger than if he had not acted at all, then you may find that Mr. Sauro’s actions constituted a state-created danger.

Defendant complains that the instruction does not describe what a constitutional violation is nor does it define what it means to be secure in one’s person. With respect to the first point, the Court’s instruction is taken directly from the First Circuit’s statement in *Frances-Colon*which more than amply describes the state-created danger theory of § 1983 liability. Defendant’s second point is irrelevant because the Court never discussed personal security in relation to its instruction on state-created danger.

Regarding defendant’s criticism of the Court’s instruction as to the Fourth and Fourteenth Amendments, this Court recognizes that its instructions were succinct. Nevertheless, it does not agree with defendant’s contention that its instructions were incomplete or failed to explicate what would constitute a violation of the rights provided by those amendments. Moreover, defendant has offered nothing concrete that the Court should have added to those particular instructions. As a matter of law, Lockharfi-Bembery presented evidence sufficient to allow the jury to consid*19er her theories of liability with respect to the Fourth and Fourteenth Amendments. This Court’s instructions concisely summarized plaintiffs claim and posed the appropriate factual question for the jury’s reasoned consideration.

Next, Sauro turns to plaintiffs MCRA claim and argues that 1) the Court’s instruction was faulty and 2) the jury’s verdict is inconsistent. Sauro’s first contention is ill-advised because the Court’s instruction with respect to the MCRA claim was derived from black-letter Massachusetts law, as stated by the Supreme Judicial Court. *See Planned Parenthood League of Mass., Inc. v. Blake,*417 Mass. 467, 474, 631 N.E.2d 985 (1994).

Defendant’s argument with respect to the inconsistency of the jury’s verdict on the § 1983 and MCRA claims is more problematic. Sauro contends that the only way the jurors could have found that he intentionally or recklessly violated Lock-hart-Bembery’s rights under § 1983 was if they also found that he told plaintiff to move or push her car off the road by use of threats, intimidation or coercion. Thus, according to Sauro, the jury could not have found that he committed a § 1983 violation but had no MCRA liability.

The jury’s verdict, while somewhat unorthodox, was not inconsistent. It could have found that Sauro’s order to Lock-harh-Bembery to move or push her car did not constitute a threat, intimidation or coercion but was, nevertheless, recklessly indifferent to her safety. For example, that would have been the result had the jury’s verdict with respect to § 1983 liability been based on the theory of a state-created danger.

Defendant also reiterates his post-charge objection at sidebar that the Court should have given his requested instruction on qualified immunity. His position is incorrect as a matter of law. The First Circuit has held that “[t]he ultimate question of qualified immunity should ordinarily be decided by the court.” *St. Hilaire v. City of Laconia,*71 F.3d 20, 24 (1st Cir.1995). *See also Wilson v. City of Boston,*421 F.3d 45, 53 (1st Cir.2005). Although genuine disputes concerning material facts must be resolved by the jury, the question of whether the officer’s conduct was objectively reasonable under a given set of facts is'a question of law for the court. *Id.*at 53 n. 10. Here, defendant wanted the Court to read, and the jury to consider, his proposed instructions concerning objective reasonableness. Such a position is not in accord with this Court’s understanding of First Circuit law.

As further grounds for a new trial, defendant contends that plaintiffs reference to race in her closing argument tainted the jury and was in violation of the Court’s prior allowance of defendant’s motion *in limine*to prevent plaintiff from suggesting that race or perceived religion played any role in the incidents from which this action arose. Defendant argues that there was no evidence produced at trial that race was a factor in this case yet plaintiff made reference to the fact that she was black in her closing argument to give credence to her claim that her constitutional rights were violated.

The Court understands that it has broad discretion to deal with supposed improprieties in the closing arguments. *Johnson v. Nat’l Sea Prods., Ltd.,*35 F.3d 626, 631 (1st Cir.1994)(citing *Gonzalez-Marin v. Equitable Life Assurance Soc.,*845 F.2d 1140, 1147-48 (1st Cir.1988). In assessing the effect of improper conduct by counsel, the First Circuit examines the “totality of the circumstances”, which includes the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the *20parties and the court treated the comments, the strength of the case and the verdict itself. *P.R. Aqueduct & Sewer Auth. v. Constructora Lluch, Inc.,*169 F.3d 68, 82 (1st Cir.1999).

Here, plaintiffs counsel made a single, oblique reference to his client’s race in the closing argument. Specifically, in referring to the possible motives for why defendant Sauro allegedly ordered plaintiff to move her car, he said:

> Now, Mr. Silverfine [defendant’s counsel] says, well, why would he [Sauro] do that? Well, maybe because she’s black. Maybe because she’s wearing a veil. Maybe a lot of things. Why she did it doesn’t matter. Why he did it doesn’t matter. The fact is he did it. That isn’t disputed.

The comment of plaintiffs counsel was inappropriate but his subsequent statement that defendant’s motivations were entirely irrelevant to the jury’s consideration was corrective. Moreover, counsel’s reference to race was so trifling that it did not taint or prejudice the jury with respect to the verdict and does not warrant the ordering of a new trial.

2. Plaintiffs Motion

Plaintiffs principal objection to the jury’s verdict, which, ironically, was also raised by defendant, is that the jury’s finding that Sauro was not negligent is inconsistent with its finding that he violated plaintiffs civil rights under § 1983. Specifically, both parties contend that, as a matter of law, the jury could not have consistently found that Sauro “intentionally or recklessly” violated LockharC-Bem-bery’s civil rights but, at the same time, was not negligent toward her.2

In order for the plaintiff to prevail on a claim of negligence, the Court instructed the jury that she

> must prove, by a preponderance of the evidence, that: first, Mr. Sauro owed her a duty of care; second, Mr. Sauro breached that duty of care by failing to exercise reasonable care or, in other words, was negligent; third, Ms. Lock-hart-Bembery suffered injuries; and fourth, the negligence of Mr. Sauro was a proximate cause of Ms. Lockharf-Bembery’s injuries.

One of the fundamental differences between the test for negligence and the test for liability under § 1983 is that the former requires the jury to find that the defendant owed a duty to the plaintiff while the latter does not.

In this case, it is entirely possible and consistent that, in considering the negligence claim, the jury considered the first prong of the negligence test and found that Sauro did not owe Lockhart-Bembery a duty of care. If so, he could not be found negligent but could, nonetheless, be found to have “intentionally or recklessly” violated her civil rights. The Supreme Court recognized that point when it held in *Baker v. McCollan,*443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979): “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” *Id.*at 146, 99 S.Ct. 2689. *See also Freeman v. City of Modesto,*1993 WL 147326, at *2 (9th Cir.1993)(finding consistent the district court’s decision to grant directed verdict for officer defendants on *21negligence claim while allowing § 1983 claim to go to the jury).

Plaintiff also objects to the jury’s finding of nominal damages on the § 1983 claim. According to Lockhart-Bembery, such an award was contrary to the evidence presented at trial.

As background to this issue, the jury initially returned a verdict in which they found that Sauro had “intentionally or recklessly violate[d] the rights” of the plaintiff on February 6, 2002, but found no Lability for Sauro on any other count and then awarded $0 in damages to plaintiff on the § 1983 claim. At sidebar, plaintiffs counsel objected to the verdict as inconsistent, specifically arguing that, as a matter of law, there can be no violation of one’s constitutional rights if there is no damage. The Court agreed on the basis of the decision in *Anderson ex rel. Dowd v. City of Boston,*375 F.3d 71, 95 (1st Cir.2004), and gave the following instruction to the jury before asking it to continue its deliberations:

> Our problem stems from your affirmative answer to Question No. 1 and then an award of zero damages with respect to Question No. 3. If the Defendant Sau-ro intentionally or recklessly violated plaintiff’s federal civil rights, then he must be found liable for some damage even if it was only nominal damages. If, on the other hand, he caused her absolutely no damage, then he didn’t violate her federal civil rights.

> If you cannot determine damages with sufficient certainty but you find there was some damage, you may award nominal damages, which, for your purposes, would be one dollar.

> You are, therefore, instructed to return to the jury room with the verdict form and continue your deliberations and to reconsider your answers to all of the questions on the verdict form. And if you have any particular problem with any of those questions on the form, I will be here to try to answer them.

Following that instruction, the jury retired for further deliberations and returned with a verdict in which it awarded plaintiff damages of $1 on her § 1983 claim. After the jury was discharged, plaintiff moved for 1) a mis-trial, 2) a new trial and 3) a new trial as to damages, all of which motions the Court denied.

Plaintiffs objection to the jury’s award of nominal damages arises from the First Circuit’s holding in *Anderson.*In that case, the First Circuit stated that where a jury finds a deprivation of a constitutional right that does not result in an actual injury giving rise to compensatory damages, nominal damages are the appropriate remedy. 375 F.3d at 95. Here, however, Lockhart-Bembery contends that Sauro’s deprivation of her constitutional rights did result in actual injury, specifically some $6,000 of medical bills which were offered into evidence at trial.

Plaintiffs argument is myopic. The jury could have rationally concluded that most of her injuries would have occurred even if Sauro’s conduct had met constitutional standards. *See Butler v. Dowd,*979 F.2d 661, 669 (8th Cir.1992)(en banc). *See also Briggs v. Marshall,*93 F.3d 355, 361 (7th Cir.1996); *Ealy v. City of Dayton,*1996 WL 724368, at *6 (6th Cir.1996). In fact, it is quite possible that the jury found that Sauro’s unconstitutional actions were the proximate cause of only an indeterminate fraction of plaintiffs injuries while finding that she was responsible for most of them. For example, Sauro testified that Lockharfi-Bembery continued to push her car after he ordered her not to continue.

Moreover, aside from the hospital bills, the jury could have disbelieved plaintiffs testimony regarding the extent of her inju*22ries. *See, e.g., Butler,*979 F.2d at 669, 672. In fact, plaintiffs own daughter testified at trial that all her mother really wanted from defendant Sauro was an apology-

In summary, the jury’s award is not unreasonable. Plaintiff may have, in fact, suffered serious injuries but, based on the evidence she offered, the jury was entitled, as a matter of law, to award her nominal damages.

IV. *Plaintiff’s Motion for Attorney’s Fees*

Pursuant to Fed.R.Civ.P. 54, and 42 U.S.G. § 1988, plaintiff moves for attorney’s fees and costs in the amount of $48,546.50 and $2,466.27, respectively. Section 1988(b) provides that in federal civil rights actions, including those brought under 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs”. Section 1988 requires a two-part inquiry: 1) whether the plaintiff is a prevailing party and 2) if so, what constitutes a reasonable fee award. *Boston’s Children First v. City of Boston,*395 F.3d 10, 14 (1st Cir.2005). The first inquiry has substantial implications because “awards in favor of prevailing civil rights plaintiffs are virtually obligatory.” *Gay Officers Action League v. Puerto Rico,*247 F.3d 288, 293 (1st Cir.2001). Nevertheless, a court may properly deny a prevailing party’s motion for attorney’s fees if the circumstances of the case would make a fee award unjust. *Farrar v. Hobby,*506 U.S. 103, 118, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)(O’Connor, J., concurring).

The Supreme Court has stated unequivocally that “a plaintiff who wins nominal damages is a prevailing party under § 1988.” *Farrar,*506 U.S. at 112, 113 S.Ct. 566. This is due to the fact that nominal damages are a “material alteration of the legal relationship between the parties” because a judgment for damages in any amount modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he would not otherwise pay. *Id.*at 113, 113 S.Ct. 566. Thus, as a matter of law, Lockhart-Bembery is the prevailing party under § 1988.

Despite the fact that the “technical” nature of a nominal damages award has no effect on the prevailing party status, it does affect the inquiry with respect to the reasonableness of the fee awarded. *Boston’s Children First,*395 F.3d at 15. In *Farrar,*the Supreme Court held that “the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” 506 U.S. at 114, 113 S.Ct. 566 (citation and internal quotation marks omitted). Other considerations include: 1) the significance of the legal issue on which the plaintiff claims to have prevailed and 2) whether the success furthered a public purpose. *Id.*at 121-22, 113 S.Ct. 566 (O’Connor, J., concurring).

In this action, plaintiffs victory was decidedly trivial. Although plaintiffs complaint did not specify an exact amount of damages that she was seeking, she most assuredly expected more than $1 in damages on her § 1983 claim. Despite that general under-achievement, it is nevertheless significant that the jury found that defendant Sauro acted “intentionally or recklessly” to violate plaintiffs federal civil rights, especially when it found him not liable on any other claim against him.

That significance is tempered by the fact that plaintiffs victory is not very noteworthy. This litigation arose from what can only be described as a bizarre and aberrant incident on a roadside in Wayland, Massachusetts on a cold winter morning. *23Unlike a § 1983 case involving excessive use of force or deliberate indifference to serious medical needs, it is highly unlikely that there will be many future lawsuits with facts similar to the one at bar or that the jury’s finding of liability against Sauro on the § 1983 claim will have a wide impact on the conduct *of police*officers.

Pursuant to the lodestar method, plaintiff contends that her particular request of $48,546.50 for fees and $2,466.27 for costs is reasonable. However, the First Circuit has held that when a plaintiff prevails on some but not all of multiple claims,

> the court must filter out the time spent on unsuccessful claims and award the prevailing party fees related solely to time spent litigating the winning claim(s).

*Gay Officers Action League,*247 F.3d at 298. Although attorney’s fees should not be awarded for time spent in litigating (or preparing to litigate) unsuccessful, severa-ble claims, they may be awarded for time spent on unsuccessful claims if such claims are interconnected to the successful claims, i.e., the claims rest on the same facts or related legal theories. *Hensley v. Eckerhart,*461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); *Coutin v. Young & Rubicam P.R., Inc.,*124 F.3d 331, 339 (1st Cir.1997). Here, with the exception of the claims for negligent supervision which involve different facts and unrelated legal theories, all of plaintiffs claims stem from a common incident and are interconnected in such a way that it is “difficult to divide the hours expended on a claim-by-claim basis.” *Hensley,*461 U.S. at 435, 103 S.Ct. 1933.

Plaintiffs counsel has not specified how much time he spent litigating the interconnected claims in relation to the two negligent supervision claims (neither of which survived defendant’s motion for summary judgment). In the interest of fairness, the Court will reduce the requested fee by one-fifth to reflect the time spent litigating those unsuccessful claims.

Of the claims that were tried to the jury, plaintiff prevailed only on the § 1983 claim but was awarded just $1 in damages. Thus, the Court will reduce the remaining fee by two-thirds given the limited success plaintiff achieved, leaving plaintiffs final fee award at $12,946.

ORDER

Defendant’s Motion for Judgment Notwithstanding the Verdict or, In the Alternative, For a New Trial (Docket No. 72) is DENIED. Plaintiffs Motion to Set Aside the Verdict or For a New Trial As To Damages(Docket No. 78) is DENIED. Plaintiffs Motion for Attorney’s Fees and Expenses (Docket No. 73) is ALLOWED, in part, and DENIED, in part. Plaintiff is awarded attorney’s fees of $12,946 and costs of $2,466.27.

So ordered.

1

. The Town of Wayland Police Department remained a named party in the suit because, under Massachusetts law, it would have been required to indemnify Sauro in the event he had been found liable on the negligence claim. *See*M.G.L. c. 258, § 13.

2

. In her opposition to defendant’s motion for judgment notwithstanding the verdict, plaintiff argued that the jury’s verdicts on § 1983 and negligence were perfectly consistent but now argues in her motion to set aside the verdict that such verdicts are inconsistent. The inconsistency seems to be in the argument rather than the verdict but, to be scrupulously fair, the Court will consider plaintiff’s latest assertion on the subject.