* Circuit Judge of the Ninth Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-31216

_____________________

EDWIN BEDFORD,

Plaintiff/Appellant,

VERSUS

THE CITY OF MANDEVILLE, JAMES TURNER, ET AL.,

Defendants/Appellees,

_____________________

No. 99-30419

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EDWIN BEDFORD,

Plaintiff/Appellant,

VERSUS

THE CITY OF MANDEVILLE, ET AL.,

Defendants

JAMES TURNER,

Defendant/Appellee

.

_______________________________________________________

Appeal from the United States District Court of the

Eastern District of Louisiana

96-CV-737-B

_______________________________________________________ July 11, 2000

Before DAVIS, CYNTHIA HOLCOMB HALL * and SMITH, Circuit Judges.** Pursuant to 5 th Cir. R. 47.5, the Cour t has det ermined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 th Cir. R. 47.5.4.

2 DAVIS, Circuit Judge: **

Edwin Bedford (“Bedford”) filed this action following his arrest by Mandeville, Louisiana

Police Officer James Turner (“Turner”) and the State’s subsequent prosecution of Bedford on charges

relating to the arrest. Bedford asserted multiple claims for damages under § 1983 and Louisiana law.

The district court dismissed Bedford’s malicious prosecution claim on summary judgmen t (“SJ”).

Following a jury verdict in favor of Bedford on the balance of his claims, the district court entered

judgment on a porti on of the verdict and granted a Ju dgment as a Matter of Law (“JML”) on the

balance. We affirm in part and reverse in part.

I

This suit arose out of a traffic stop, an ensuring al t ercation, and the arrest of Bedford by

Mandeville, Louisiana Police Officer James Turner (“Turner”). Alleging that Turner knowingly used

excessive force in effectuating his arrest, Bedford brought suit against him in his individual and official

capacity. Bedford’s suit included a § 1983 civil rights claim and state law battery, intentional

infliction of emotional distress, and malicious prosecution claims. Bedford sought compensat o ry

damages for physical pain and suffering, disabilit y, mental anguish, lost income, and medical expenses.

He also sought punitive damages. Before trial, Turner filed a SJ motion seeking dismissal of a

number of Bedford’s claims. The court partially granted Turner’s motion and dismissed Bedford’s

malicious prosecution claim, on the ground that Bedford had failed to establish that Turner acted with

malice. Following a two day jury trial, the jury found in favor of Bedford on both the § 1983 claim

and the related state law claims. The jury awarded Bedford $32,000 in compensatory damages and3

$50,000 in puniti ve damages. The jury itemized Bedford’s compensatory damages as follows:

$12,500 for lost income, $7,500 for past and future medical expenses, and $12,500 for physical pain

and suffering/mental anguish. After t his verdict, Turner filed a JML motion addressing all of

Bedford’s causes of action and damage theories, and the district court partially granted this motion

and vacated the jury awards for Bedford’s punitive damages, lost income, and intentional infliction

of emotional distress claims because they were unsupported by the evidenc e. The tri al court then

entered judgment for $7,500, the amount the jury awarded Bedford for medical expenses. In a later

ord er, t he district court granted Bedford’s post-trial motion for attorney’s fees, but reduced the

requested amount by 50%.

In this appeal, Bedford challenges the district court’s: (1) SJ order dismissing his malicious

prosecution claim; (2) JML o rder striking his awards for punitive damage, lost income, and

intentional inflict

ion of emotional distress; and (3) order reducing his attorneys’ fees. We now turn

to these arguments.

II

Bedford argues first that the district court erred in granting Turner’s SJ motion dismissing his

malicious prosecution claim. Summary judgment is proper if the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine

issue as to any material fact and that the moving par t y is entitled to judgment as a matter of law,"

Fed. R. Civ. P. 56(c), and this court reviews such grants de novo, see Morin v. Carin

, 77 F.3d 116,

123 (5th Cir. 1996).

In order to establish a claim of malicious prosecution under Louisiana law, a plaint iff must

establish: (1) the commencement or continuance of an o riginal criminal proceeding, (2) its legal1 S ee e.g.

, Jack v. Johnson

, 618 So.2d 448 (La. App. 1993) (involving a malici ous

prosecution claim against a bank and bank employee who allegedly improperly had the pla int iff

arrested); Keller v. Schwegmann Giant Supermarkets, Inc. , 604 So.2d 1058 (La. App. 1992)

(involving a claim against a supermarket for detaining and having a plaintiff arrested); Winn v. City

of Alexandria , 685 So.2d 281 (La. App. 1996) (involving a claim against police officers).

2 See e.g.

, Touchtone v. Kroger Co.

, 512 So.2d 520 (La. App. 19 87) (holding that the

causation prong was not met where the officer had not initiated complaints against the plaint iff or

supported the issuance of an arrest warrant through false affidavits); Hughes v. Standidge

, 219 So.2d

6 (La. App. 1969) (up ho lding judgment against a police officer who testified to signing a false

affidavit supporting the plaint iff’s prosecution and affirming a judgment in favor of another officer

who had not signed such an affidavit).

4 cau sat ion by the present defendant against the plaintiff who was a defendant in the original

proceeding, (3) its bona fide termination in favor of the present plaint iff, (4) the absence of probable

cause for such a proceeding, (5) the presence of malice therein, and (6) damage conforming to legal

standards resulting to plaint iff. S ee Miller v. East Baton Rouge Parish Sheriff's Dept

., 511 So.2d 446

(La. 1987).

The district court co ncluded that because the District Attorney holds all prosecutorial

responsibility, no malicious prosecution claims can lie against a police officer such as Turner. This

conclusion is not supported by the Louisiana case law. Louisiana courts have permitted recovery by

a number of plaint iffs for malicious prosecution against non-prosecutors, including law enforcement

officers. 1 In these cases, the courts have held that plaintiffs can satisfy the tort’s legal causation

element by a showing that a police officer submitted a materially false affidavit or report in support

of the plaint iff’s arrest or prosecution. 2 To this end, Bedford’s summary judgment evidence included

numerous allegedly false police reports prepared and signed by Turne r. These reports contai n a

version of events portraying Bedford as the init ial physical aggressor, a theory of the evidence the jury

found at least partially false in reaching its verdict on the plaintiff’s § 1983 and state tort claims.3 See generally

, Creamer v. Porter , 754 F.2d 1311, 1319 (5th Cir. 1985) (involving a police

officer’s extensive three-ho ur search o f the plaintiff’s residence, including files and small personal

spaces, when the search warrant pertained to a large television set that had been seized prior to the

search); Stokes v. Delcambre

, 710 F.2d 1120, 1126 (5th Cir. 1983) (involving an officer’s failure to

appropriately control and supervise a parish jail, leading to assaults on the plaint iff by fellow

detainees).

5 Because material issues of fact were presented on Bedford’s malicious prosecution claim, the

district court erred in granting Turner’s motion for SJ.

III

Bedford argues next that the district court erred i n st riking his $50,000 punitive damage

award. A jury may assess punitive damages in an action under § 1983 if the defendant's conduct is

shown to be motivated by evil motive or intent or involved reckless or callous in difference to the

federally protected rights of others, see Smith v. Wade , 461 U.S. 30, 56, 103 S. Ct. 1625, 1640

(1983). The court held that Bedford had failed to present sufficient evidence that Turner’s conduct

was motivated by evil intent or motive or involved reckless or callous indiff erence to federally

protected rights.

The jury, viewing the evidence in the light most favorable to Bedford, could have accepted

his theory of the case and concluded that Turner’s actions were accompanied by at least a reckless

or callous indiffer ence t o Bedford’s rights. Evidence supporting this conclusion includes the

testimony of Orville Jack Jones (“Jones”), an independent witness to the incident. Jones’s testimony

corroborated much of Bedford’s testimony and supports the jury’s im plicit findings that Turner

initiated the violence and used grossly excessive force during the arrest. 3 Thus, this evidence supports

the punitive damage award, and the JML order striking such damages must be reversed.6 IV

Bedford next challenges the district court’s order granting Turner’s JML motion with respect

to Bedford’s intentional inflict ion of emotional distress claim. Because we agree that Bedford failed

t o establish at least one of the elements of this cause of action, we affirm the district court ’s JML

order on this claim.

A district court's application of state law is reviewed de novo, see Salve Regina College v.

Russell

, 499 U.S. 225, 23 1, 111 S. Ct. 1217, 1221 (1991); S cotti sh Heritable Trust, PLC v. Peat

Marwick Main & Co.

, 81 F.3d 606, 610 (5th Cir. 1996). The Louisiana’s Supreme Court delineated

the elements of an action for intentional inflict ion of emotional distress in White v. Monsanto Co..

585 So.2d 1205, 1209 (La. 1991):

“In order to recover for intentional inflict ion of emotional distress, a plaint iff

must establish (1) that the conduct of the defendant was extreme and outrageous; (2)

that the emotional distress suffered by the p laint iff was severe; and (3) that the

defendant desired to inflict severe emotional distress or knew that severe emotional

distress would be certain or substantially certain to result from his conduct.” Id. at

1209 (emphasis added).

The district court held, inter a lia, t hat Bedford failed to prove the second element, severe

emotional distress. We agree. While Bedford testified to making an attempt to receive counseling

after the incident, he admitted to abandoning this effort after finding it too costly and produced no

medical testimony at trial of emotiona l injury. Mo reover, even Bedford’s Brief in this appeal

characterizes his psychological injuries as “humiliation and fear,” effects traditionally not rising to the

level of severe emotional distress or anguish that no reasonable person could be expected to endure.

See Id ; Smith v. Ouachita Par ish School Bd. , 702 So.2d 727, 736 (La. App. 1997) (holding that

general embarrassment and humiliation do not satisfy this standard); Glass v. First United Pentecostal

Church of DeRidder

, 676 So.2d 724, 738 (La. App. 1996); cf. Millo n v. Johnston

, 1999 WL 104413,4 These records show that he lost $577 in 1992, earned $2,209 in 1993, earned 4,977 in 1994,

and earned $5,709 in 1996.

7 *5 (E.D. La. 1999) (holding that slurred speech, dizziness, and a stroke resulting from the defendant’s

conduct may satisfy the standard). Consequently, we affirm the trial court’s grant o f t he JML on

Bedford’s intentional infliction of emotional distress claim.

V

Bedford next challenges the district court’s order striking his award for lost income as

inadequately supported by the record evidence. In general, a plaintiff can only recover damages that

were proven at trial, see Prunty v. Arkansas Freightways, Inc.

, 16 F.3d 649, 652 (5th Cir. 1994), with

reasonable certainty, see Silor v. Romero

, 868 F.2d 1419, 1422 (5th Cir. 1989) (NO. 88-4147). Our

review of the record leads us to agree that Bedford failed to introduce adequate evidence to support

an award of lost income. S ee Silor v. Romero

, 868 F.2d 1419, 1422 (5th Cir. 1989). S ee generally

Schmuester v. Burkburnett Bank , 937 F.2d 1025, 1030 (5th Cir. 1991).

Bedford’s evidence on this issue was limit ed to his own testimony, that of his f iancee, and

scant financial records. While Bedford did produce tax returns for the years of 1992, 1993, 1994,

and 1996, he failed to produce any such records for 1995, the year of his arrest. Moreover, these

returns show inconsistent earnings for these pe riods 4 and even indicate he earned more the year

following his alleged injuries than those prior to the arrest.

In light of the paucity of specific evidence on this damage theory, t he t rial court’s JML is

app ro priate. A plaintiff’s own uncollaborated testimony is ordinarily considered inadequate to

support an award of lost wages, see also F orsyth v. City of Dallas, Tex.

, 91 F.3d 769, 776 (5th cir.

1996) (upholding JML where plaint iff’s lost income award rested merely on his own testimony). In8

addition, Bedford’s limit

ed tax returns do not provide obje ct ive support for his lost wages claim.

Therefore, the district court did not err in concluding that Bedford failed to establish his claim for lost

wages.

VI

Bedford next challenges the district court’s reduc t ion of his attorney fees. An award of

attorneys' fees rests in the sound discretion of the trial court, and its judgment will not be reversed

absent a clear showing that it abused its discretion. S ee U.S. for Varco Pruden Bldgs. v. Reid & Gary

Strickland Co.

, 161 F.3d 915, 919 (5th Cir. 1998). Furthermore, all factual findings supporting such

conclusions are reviewed for clear error. R iley v. City of Jackson, Miss

., 99 F.3d 757, 759 (5th Cir.

1996).

Bedford m ade a request for attorney’s fees in the amount of $69,338.50. This figure was

reached by mult iplying a $150 hourly rate by the 454.59 total hours Bedford’s two attorney s, G.

Fredrick Kelly (“Kelly”) and William Magee (“Magee”), claimed to have spent on the case. Relying

on recent fee awards for attorney’s with similar experience, the district court found the $150 hourly

rate was reasonable for Magee, but unreasonable for Kelly and reduced the latter’s rate to $130/hour.

Consistent with this rate reduction, the district court originally calculated the lodestar for Kelly and

Magee at $56,353.70 and $3,165 respectively. The court later reduced the fees paid to Kelly by 50%

to take into account his fees’s “egregiously disproportionate” relationship to the $7,500 awarded in

t he case after the JML rulings. While Kelly claimed only to have spent 50 hours on Bedford’s

unsuccessful claims, the district court found this estimate unreasonable and determined that a 50%9

downward adjustment “reflected more accurately time spent on the issues and defendants over which

plaint iff did not prevail.” Bedford now contends that the court abused its discretion in reducing both

Kelly’s hourly rate and the number of legitimately chargeable hours.

In Hensley v. Eckerhart, the Supreme Court announced that a district court should focus on

the significance of

t he o verall relief obtained by the plaintiff in relation to the hours reasonably

expended on the litigation. In particular, the Court offered the following guidance:

"Where the plaint iff has failed to prevail on a claim t hat is distinct in all

respects from his successful claims, the hours spent on the unsuccessful claim should

be excluded in considering the amount of a reasonable fee. Where a lawsuit consists

of related claims, a plaint iff who has won substantial relief should not have his

attorney's fee reduced simply because the district court did not adopt each contention

raised. But where the plaintiff achieved only limited success, the district court should

award only that amount of fees that is reasonable in relation to the results obtained."

Id. 103 S. Ct. at 1943.

While Bedford asserts that Kelly’s itemized billing sta t ement s support his contention that

Kelly spent only 60.8 hours on ultimately unsuccessful claims, the district court was certainly free to

make a contrary factual determination. The court’s unique position of presiding over all stages of this

litigation has afforded it an excellent perspective to independently determine how much preparation

was necessary for each claim, and it is not obliged to accept Kelly’s self-generated billing records in

reaching its reasonableness determination.

However, in light of our disposition of this appeal, in which we reverse the dismissal of

Bedford’s malicious prosecution claim and reinstate Bedford’s punitive damage award, we conclude

that this case should be remanded for reconsideration of the fee award in light of Bedford’s increased

level of ultimate success, see Perales v. Casillas , 950 F.2d 1066, 1073-74 (5th Cir. 1992).

VII10

For the above reasons, we reverse the lower court’s SJ order dismissing Bedford’s malicious

prosecution claim. We also reverse the court’s JML order striking Bedford’s punitive damage award

and remand the c ase to the district court for further consideration of an appropriate award for

at t o rney’s fees in light of our opinion. We affirm the judgment of the district court in all o t her

respects.