9.1 Damages
Given the reluctance of the private bar to represent poor clients, it may be surprising that public interest lawyers who are not barred from doing so do not bring more litigation seeking compensatory and punitive damages. Legal services attorneys often fail to appreciate the importance of seeking and proving monetary damages because we are focused on the critical importance of obtaining broad injunctive relief. It is also easy to underestimate the monetary damages to which our clients may be entitled because they are often computed based on lost income and out-of-pocket expenses, which, by necessity, are low for poor people. However, we have a duty to seek for our clients all the relief to which they are entitled. Indeed, from a systemic perspective, the payment of monetary damages is often a significant deterrent of future bad acts and may prompt others to seek similar relief in future cases. At the very least we need to ensure that we are not perpetuating the generalized belief that our clients’ lives are insignificant and should be “discounted” as compared to other litigants.
Chapters 5 and 8 of this Manual address the circumstances in which a claim for damages may lie under 42 U.S.C. § 1983 and the defenses to such a claim. This section reviews the law governing the recovery of compensatory and punitive damages. Although the focus here is on Section 1983 claims for damages, the rules applicable to those claims are typical of most compensatory and punitive damage litigation. There are, however, specific federal statutes such as the Truth in Lending Act/1/, the Fair Labor Standards Act/2/, and the Migrant and Seasonal Agricultural Worker Protection Act/3/ that authorize more limited damage claims for violation of their substantive provisions. Those statutes often limit the injuries for which compensatory damages/4/ are available or provide for the recovery of liquidated damages in lieu of, or in addition to, statutorily authorized compensatory damages. The key point to remember is to check the specific act under which you are suing to see if it contains any special damage provisions.
I.A. Compensatory Damages
The U.S. Supreme Court established the law governing the recovery of compensatory damages under 42 U.S.C. § 1983 in Carey v. Piphus/5/ and Memphis Community School District v. Stachura/6/.
In Carey, a principal who observed students passing marijuana cigarettes back and forth suspended the students for twenty days without a hearing, in violation of their right to procedural due process. The students sued for damages but offered no evidence of emotional distress or other injury resulting from the suspension that would have been avoided had a hearing been granted before the suspension. Rather, drawing an analogy to defamation law, they argued that they were entitled to substantial presumed general damages for the denial of their right to due process independent of any proved injury.
The Court rejected this argument and allowed the plaintiffs to recover actual damages only if they produced evidence of injury. Reasoning that the students would have been suspended even after a Goss v. Lopez hearing, the Court held that proof that the suspension was justified would defeat recovery of damages for loss of educational services/7/. However, because the right to due process is independent of the merits of the suspension, the Court allowed the students to recover nominal damages even where the suspension was justified/8/.
Although the Court rejected presumed general damages in Carey, it held that mental and emotional distress were compensable injuries under Section 1983. Carey simply established that a plaintiff seeking recovery for mental and emotional distress must offer proof of those injuries. The Court noted that: “Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others. Juries must be guided by appropriate instructions, and an award of damages must be supported by competent evidence concerning the injury.”/9/
In Memphis Community School District v. Stachura, a teacher who was suspended with pay for showing seventh-grade students pictures of his pregnant wife and two films concerning human growth and sexuality sued for damages under Section 1983. He claimed that his suspension denied him both liberty and property without due process of law and violated his First Amendment right to academic freedom. The district court instructed that, if the jury found for the teacher, the jury should consider any lost earnings, loss of earning capacity, out-of-pocket expenses, and any mental anguish or emotional distress that the plaintiff might have suffered as a result of the conduct by the defendants depriving him of his civil rights./10/
The district court also instructed the jury to award damages based on the value or importance of the constitutional rights that were violated and to consider that the “precise value you place upon any constitutional right which you find was denied to plaintiff is within your discretion” and the “importance of the right in our system of Government, the role which this right has played in the history of our Republic and the significance of the right in the context of the activities which the plaintiff was engaged in.”/11/ The jury found for the teacher and awarded a total of $275,000 in compensatory damages and $46,000 in punitive damages.
The Supreme Court, however, held that the instruction authorizing the jury to award damages based upon the value of the right at issue was erroneous. The Court reiterated that Section 1983 created a “species of tort liability.”/12/ Section 1983 authorizes compensatory damages not only for “out-of-pocket loss and other monetary harms, but also such injuries as impairment of reputation . . . personal humiliation, and mental anguish and suffering.”/13/ Nevertheless, the “value of rights” instruction was flawed because it caused the jury to focus “not on compensation for provable injury, but on the jury’s subjective perception of the importance of constitutional rights as an abstract matter.”/14/
Therefore, proof of damages in Section 1983 litigation is analogous to proof of damages in a common-law tort action. To be compensated plaintiffs must prove out-of-pocket expenses, such as loss of wages or future earning capacity, medical expenses, and property damages. Compensable damages may also include distress, humiliation, personal indignity as well as loss of reputation or status, provided that evidence is offered to establish the extent and duration of these injuries.
Neither Carey nor Stachura flatly ruled out presumed general damages in Section 1983 litigation. In both cases, however, the Supreme Court stated that presumed damages would be proper only when the nature of the right was such that proof of injury resulting from its deprivation would be unusually difficult to provide. The only right that the Court identified as falling within that category is the right to vote./15/
Stachura teaches that the Section 1983 plaintiff’s attorney must think like a tort lawyer when proving damages. The attorney must allow the jury to see a case through the client’s eyes and present detailed testimony from the client, the client’s family, coworkers and friends, and any professionals whom the client may have consulted to document emotional distress, humiliation, or pain and suffering. Rather than focus on the abstract value or the historical importance of a right, the plaintiff’s attorney must show the importance of the right within the client’s life by showing the injuries caused by its loss. This can be done by demonstrating the impact of the injury on family associations, on the ability to live in dignified surroundings, and on the prospect of holding a job or pursuing an education. Injury is a personal experience and must be shown through the specific effect that the violation has on the specific client.
The common-law doctrine of avoidable consequences, or the duty to mitigate, applies in all damages litigation. A party may not recover for damages reasonably avoidable under the circumstances through mitigation. Thus, a fired plaintiff must look with reasonable diligence for other substantially comparable work and must accept such employment pending the outcome of litigation./16/ The defendant bears the burden of establishing a breach of the duty to mitigate./17/
Whether the collateral source rule, which precludes reduction of the plaintiff’s recovery due to receipt of payments from a third party, applies in Section 1983 damage actions is not yet clearly established. Some courts hold that it does./18/ Others hold that its application is discretionary./19/ Examples of common collateral source payments are insurance proceeds, unemployment benefits, workers’ compensation awards, social security benefits, and other public assistance benefits. Defendants routinely argue that receiving such benefits without a corresponding offset in the damages awarded would result in a windfall to the plaintiff. However, the rationale for the rule is that the wrongdoer should not profit from benefits that the plaintiff receives from a third party. In any case where collateral source payments are in issue, you should argue strenuously that the rule applies if the law in your circuit permits it, and that the defendant’s liability may not be reduced because of them.
Because many low-income clients receive need-based public assistance benefits, you must check the specific program rules governing the receipt of damage awards and their treatment. Many cash assistance programs continue to include a lump-sum rule patterned after the rule in the now-repealed Aid to Families with Dependent Children program./20/ Others have transfer-of-assets or other rules that must be considered when a client receives a damage award./21/ You must be aware of the rules that may apply to receipt of a damage award well before it is received. Only by doing so can you structure your client’s recovery, including the timing and manner in which the award is paid, to maximize the ultimate benefit. Failing to engage in such planning has been held to constitute malpractice./22/
I.B. Punitive Damages
In Smith v. Wade the Supreme Court held that Section 1983 authorizes the award of punitive damages against state or local officials in their individual capacity./23/ The Court suggested that punitive damages way be awarded when an official’s conduct is malicious, intentional, or recklessly or callously indifferent to protected rights./24/ This test focuses on the state of mind of the defendant./25/ While outrageous or egregious conduct may provide evidence of the requisite state of mind, the conduct need not be egregious or outrageous to justify an award of punitive damages./26/ The determination of whether to award punitive damages once a showing of malicious or recklessly indifferent conduct is made rests within the discretion of the jury or judge (in a jury-waived case)./27/ When jury instructions properly require the plaintiff to prove reckless or callously indifferent conduct, they need not require a finding of “outrageous” or “extraordinary” conduct at the same time./28/
Courts repeatedly have upheld punitive damage awards against public officials for racially discriminatory employment practices,/29/ police brutality,/30/ and unlawful searches and seizures./31/ Courts have also upheld awards for prisoner mistreatment,/32/ including deliberate indifference to medical needs,/33/ violations of the right to procedural due process,/34/ and violations of First Amendment rights./35/ Punitive damages may be awarded even when the plaintiff suffers only nominal damages from a deprivation of federal rights./36/ However, if a punitive damage award is “grossly excessive” in relationship to the state’s legitimate interest in punishing and deterring unlawful conduct, it runs afoul of substantive due process and may be reduced or reversed on appeal./37/
1. Truth in Lending Act, 15 U.S.C. §§ 1601-1667f.
2. Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.
3. Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1802, 1813, 1816, 1851.
4. The Fair Labor Standards Act limits compensatory damages to unpaid minimum wages and overtime, excluding consequential damages; however, the Act authorizes liquidated damages equal to double the unpaid minimum wages and overtime unless an employer establishes that it acted in good faith and with a reasonable basis for believing that its conduct was lawful. See 29 U.S.C. §§ 216(b), 260. The Truth in Lending Act authorizes in finance charge cases damages equal to double the finance charge, with a minimum recovery of $100 and a maximum recovery of $1,000 and any actual damages. See 15 U.S.C. § 1640(a) (different standards and limits apply to other transactions or class actions). Neither statute authorizes an award of punitive damages.
5. Carey v. Piphus, 435 U.S. 247 (1978).
6. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986).
7. In Goss v. Lopez, 419 U.S. 565 (1977), the Supreme Court established the general rule that students who are subject to a short-term suspension are entitled to due process protection.
8. In Carey the Court also indicated that the plaintiffs would be entitled to fees under 42 U.S.C. § 1988. It pointed to the defendant’s liability for fees as a “by no means inconsequential” deterrent to unconstitutional conduct. Carey, 435 U.S. at 257, n.ll. However, in Farrar v. Hobby, 506 U.S. 103 (1992), the Court, while holding that a nominal damage award made the plaintiff a “prevailing party” for purposes of attorney fees, nonetheless allowed fees to be denied on the basis of limited success. See Section IV infra for a further discussion of the Farrar decision.
9. Carey, 435 U.S. at 264 n.20. There are limits on a jury’s discretion in awarding damages for emotional distress. A “compensatory damages award [for emotional distress] must bear a reasonable relationship to actual injury sustained; it may not be punitive in nature.” Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
10. Stachura, 477 U.S. at 302.
13. Id. at 307 (internal citations omitted).
14. Id. at 308. See also Makis v. Colorado Dep’t of Corr., 183 F.3d 1205, 1214-15 (10th Cir. 1999) (reversing First Amendment damage award which was “based … on the abstract value of the constitutional right); Silor v. Romero, 868 F.2d 1419 (5th Cir. 1989) (holding that the giving of a similar instruction was plain error, entitling the defendant to a new trial even if no objection was made below).
15. Stachura, 477 U.S. at 311 n.14; Carey, 435 U.S. at 265 n.22.
16. In a false arrest case, the plaintiff was not obligated to mitigate his damages by posting bail out of his own funds, Lawson v. Trowbridge, 153 F.3d 368, 376-78 (7th Cir. 1998), but refusing a friend’s offer to post bail violates the duty to mitigate. Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir. 1989). In the Title VII context, a victim breaches the duty to mitigate only by refusing a job substantially equal to the job from which the victim was fired or for which the victim was not hired. See Ford Motor Co. v. Equal Employment Opportunity Comm’n, 458 U.S. 219 (1982). A victim is required to seek work in another field only after the unavailability of work in the victim’s chosen field is apparent. See Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986). Attending trade school after diligently but unsuccessfully seeking work does not breach the duty to mitigate, Smith v. Am. Serv. Co. of Atlanta, 796 F.2d 1430 (11th Cir. 1986), but giving up the search for a job to enroll in law school does. Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985).
17. McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000); Tri County Indus. v. District of Columbia, 200 F.3d 836, 376-78 (D.C. Cir. 2000); Smith, 796 F.2d at 1431.
18. Starrett v. Wadley, 876 F.2d 808, 823 (10th Cir. 1989); Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986); Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 627-28 & n.13 (6th Cir. 1983) (Title VII). Although rendered in a different context, Nat’l Labor Relations Bd. v. Gullett Gin Co., 340 U.S. 361, 363-65 (1951), is strong authority in support of application of the collateral source rule to Section 1983 actions.
19. Dailey v. Societe Generale, 108 F.3d 451, 460-61 (2d Cir. 1997); Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir. 1988); Daniel v. Loveridge, 32 F.3d 1472, 1477 & n.4 (10th Cir. 1994) (Title VII claim).
20. See Lukhard v. Reed, 481 U.S. 368 (1987) for a description of the Aid to Families with Dependent Children (AFDC) lump-sum rule.
21. See, e.g, 42 U.S.C. § 1396p(c) (Medicaid); Mass. Regs. Code tit. 106, § 204.135 (Transitional Aid to Families with Dependent Children).
22. See In re X, No. CVCL 93000L866 (Cal. Mun. Ct., Shasta County, Sept. 2, 1993) (failure to structure personal injury award to minimize impact of AFDC lump-sum rule is malpractice).
23. Smith v. Wade, 461 U.S. 30 (1983).
24. Id. at 36 n.5; Newport v. Fact Concerts, 453 U.S. 247, 269-70 (1981) (holding that punitive damages under Section 1983 are not available against a governmental entity but only against the responsible officials sued in their individual capacity). See also Kolstad v. Am. Dental Ass’n., 527 U.S. 526, 535-36 (1999).
25. Kolstad, 527 U.S. at 535-39.
27. Fairley v. Jones, 824 F.2d 440 (5th Cir. 1987).
28. Kolstad, 527 U.S. at 535-39. Although Kolstad arose under Title VII, the standard for punitive damages under Title VII (and Title I of the Americans with Disabilities Act) is, pursuant to 42 U.S.C. § 1981a(b)(1), identical to the Section 1983 standard.
29. See, e.g., Zhang v. Am. Gem Seafoods, 339 F.3d 1020, 1041-44 (9th Cir. 2003); Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52 (1st Cir. 2005); Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir. 2000); Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004).
30. See, e.g., DiSorba v. Hoy, 343 F.3d 172 (2d Cir. 2003); Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) (collecting cases); McKinley v. Trattles, 732 F.2d 1320 (7th Cir. 1984); Garrick v. City & County of Denver, 652 F.2d 959 (10th Cir. 1981).
31. Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993) (unlawful service); Creamer v. Porter, 754 F.2d 1311 (5th Cir. 1985) (unlawful search); Clark v. Beville, 730 F.2d 739 (11th Cir. 1984) (arrest without probable cause); Smith v. Heath, 691 F.2d 220 (6th Cir. 1982) (unlawful arrest).
32. See, e.g., Wade, 461 U.S. 30; Stokes v. Delcambre, 710 F.2d 1120 (5th Cir. 1983); Furtado v. Bishop, 604 F.2d 80 (5th Cir. 1979).
33. Cooper v. Dyke, 814 F.2d 941 (4th Cir. 1987).
34. See, e.g., Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987); Busche v. Burkee, 649 F.2d 509 (7th Cir. 1981).
35. See cases compiled in Jones v. Key West, 679 F. Supp. 1547 (S.D. Fla. 1988).
36. Romanski v. Detroit Entm’t, 428 F.3d 629, 645-50 (6th Cir. 2005) (approving punitive damages of $600,000 where only $279.05 in compensatory damages were awarded); Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (approving $15,000 in punitive damages on a nominal damages award of $100); Cush Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001) (Title VII); Alexander v. Riga, 208 F.3d 419, 430-31 (3d Cir. 2000) (Fair Housing Act); Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir. 1986).
37. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1060, 1063 (2007) (punitive damages based in part on harm to non-parties are takings without due process); BMW of N. Am. v. Gore, 517 U.S. 559 (1986); Honda Motor Co. v. Oberg, 512 U.S. 415, 430-32 (1994). Recently, in State Farm Mutual v. Campbell, 538 U.S. 408, 425 (2003), the Court suggested that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” The Court did, however, recognize that where the compensatory damages were very small, a higher ratio might be necessary. See, e.g., Romanski, 426 F.3d at 645-50; Williams, 352 F.3d at 1016.
Updated 2006