IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALLEN E. ROBINSON : CIVIL ACTION

:

v. :

:

PATRICK V. FETTERMAN, et al. : NO. 04-3592

MEMORANDUM

Bartle, J. September 23, 2005

The issue presented is whether a successful plaintiff

in a civil rights action under 42 U.S.C. § 1983 is entitled to

prejudgment interest.

On July 19, 2005, after a non-jury trial, this court

entered judgment in favor of plaintiff and against the three

defendants, who were Pennsylvania State Troopers. We found that

defendants had violated plaintiff's constitutional right to free

speech under the First Amendment to the Constitution and his

constitutional right under the Fourth Amendment to be secure

against an unreasonable search and seizure when they arrested him

without probable cause. The court awarded non-economic

compensatory damages in the amount of $35,000, plus $2,000 in

punitive damages against each defendant. Subsequently, we

granted plaintiff's motion for reasonable counsel fees and costs

since he was the prevailing party. 42 U.S.C. § 1988(b). 

Plaintiff has now filed a motion for an award of prejudgment

interest.

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The statutory provision which is now codified at 42

U.S.C. § 1983 was originally enacted as part of the Civil Rights

Act of 1871. Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13

(1871). It now reads in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof 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, suit in

equity, or other proper proceeding for

redress ....

The Supreme Court has held that § 1983 must be interpreted "in

the light of common law principles that were well settled at the

time of its enactment." Kalina v. Fletcher, 522 U.S. 118, 123

(1997). Because it is silent on the question of prejudgment

interest, we must look to common law principles as they existed

in 1871. It is clear that in a personal injury action

prejudgment interest for non-liquidated damages was not available

at that time. See Mowry v. Whitney, 81 U.S. (14 Wall.) 620, 653

(1871). This, however, does not end our inquiry.

In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme

Court held that damages under § 1983 must be governed by "the

principle that a person should be compensated fairly for injuries

caused by the violation of his legal rights." Id. at 257. The

Court cautioned that common law tort rules may not "provide a

complete solution to the damages issue in every § 1983 case." 

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1. Title 24 of the Revised Statutes includes what is now § 1983. 

See Historical and Statutory Notes to 42 U.S.C. § 1988.

2. The Supreme Court in Robertson v. Wegmann, 436 U.S. 584

(1978), had occasion to discuss § 1988. In that case, the issue

was whether a Louisiana statute providing for the abatement of an

action on the death of the plaintiff applied in a § 1983 action

since § 1983 was silent or "deficient" on the subject. While

characterizing its holding as narrow, the Court determined that

the state abatement statute barred the action under the

particular facts presented and disallowed the fashioning of a

federal common law rule permitting the action to proceed.

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Id. at 258. It noted without elaboration in a footnote that 42

U.S.C. § 1988 "authorizes courts to look to the common law of the

States where this is 'necessary to furnish suitable remedies'

under § 1983." Id. at 258, n.13. Section 1988(a) provides in

relevant part:

The jurisdiction in civil and criminal

matters conferred on the district courts by

the provisions of titles 13, 24,1 and 70 of

the Revised Statutes for the protection of

all persons in the United States in their

civil rights, and for their vindication,

shall be exercised and enforced in conformity

with the laws of the United States, so far as

such laws are suitable to carry the same into

effect; but in all cases where they are not

adapted to the object, or are deficient in

the provisions necessary to furnish suitable

remedies and punish offenses against law, the

common law, as modified and changed by the

constitution and statutes of the State

wherein the court having jurisdiction of such

civil or criminal cause is held, so far as

the same is not inconsistent with the

Constitution and laws of the United States,

shall be extended to and govern the said

courts in the trial and disposition of the

cause ....2

The defendants rely on Monessen Southwestern Railway

Co. v. Morgan, 486 U.S. 330 (1988), to defeat plaintiff's motion. 

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There the Supreme Court was faced with the issue whether

prejudgment interest may be awarded under the Federal Employers'

Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq., which allows

railroad workers injured on the job to sue their employers. The

FELA, of course, is "a broad remedial statute," Atchison, T. &

S.F. Ry. v. Buell, 480 U.S. 557, 562 (1987), not unlike § 1983

which should be "'liberally and beneficently construed.'" Dennis

v. Higgins, 498 U.S. 439, 443 (1991) (citation omitted). The

FELA, like § 1983, makes no mention of prejudgment interest. 

Relying on "Congress' silence on this matter in the appropriate

historical context," the Supreme Court held that the award of

prejudgment interest was barred on both the wage and non-economic

loss claims. It explained that in 1908, when the FELA was

enacted, "the common law did not allow prejudgment interest in

suits for personal injury or wrongful death." Monessen, 486 U.S.

at 337. Congressional silence, together with § 1983's historical

context, would lead us to the same result here as in Monessen. 

However, as noted above, the Supreme Court in Carey left the door

ajar to additional relief in § 1983 actions under the authority

provided in § 1988(a) if necessary for appropriate compensation.

Our Court of Appeals in Savarese v. Agriss, 883 F.2d

1194 (3d Cir. 1989), held that it is error for the district court

to add delay damages in a § 1983 action under Rule 238 of the

Pennsylvania Rules of Civil Procedure. Nonetheless, without

citation to § 1988, the court stated that in federal question

cases "an award of prejudgment interest 'would generally be

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committed to the discretion of the district court.'" Id. at

1207. It remanded the § 1983 action before it for

"redetermination" with respect to that issue and noted that the

district court may consider delay as a factor. Id. at 1207 n.23.

The Court of Appeals in Savarese cited Poleto v.

Consolidated Rail Corp., 826 F.2d 1270 (3d Cir. 1987), abrogated

on other grounds by Kaiser Aluminum & Chemical Corp. v. Bonjorno,

494 U.S. 827 (1990), in support of the proposition that courts

generally have discretion in federal question cases to add

prejudgment interest. Poleto, however, rejected awarding

prejudgment interest for non-economic harm:

Not all portions of a verdict are economic in

character, and only the sum that represents

past economic loss is properly adjusted to

present value through an interest

calculation. Non-economic awards, such as

pain and suffering on [sic] punitive damages,

do not compensate for market-induced harms,

so they do not require the adjustment for the

time the successful plaintiff's money was out

of the market which prejudgment interest

provides.

Id. at 1278 n.14. Thus, we read the precedents in this circuit

to give a district court discretion to add prejudgment interest

in a § 1983 action on the economic portion of any verdict or

finding but to prohibit it from doing so with respect to that

portion of the verdict or finding which compensates for pain and

suffering or other non-economic loss.

The purpose of prejudgment interest is to make a party

whole. Monessen, 486 U.S. at 335. The plaintiff's damages here

were unliquidated. There was no economic loss. Even if the

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3. There is, of course, no basis for awarding prejudgment

interest on the punitive damages awards.

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court had discretion under such circumstances to allow

prejudgment interest under § 1983 or § 1988, the judgment of

$35,000 awarded plaintiff for compensatory damages, in the

court's view, has made him whole. See Poleto, 826 F.2d at 1278

n.14.3

Accordingly, the motion of plaintiff for an award of

prejudgment interest will be denied.

Case 2:04-cv-03592-HB Document 71 Filed 09/23/05 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALLEN E. ROBINSON : CIVIL ACTION

:

v. :

:

PATRICK V. FETTERMAN, et al. : NO. 04-3592

ORDER

AND NOW, this 23rd day of September, 2005, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that the motion of plaintiff Allen E. Robinson for an

award of prejudgment interest is DENIED.

BY THE COURT:

/s/ Harvey Bartle III 

J.

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