Perez-Tirado v. Figueroa-Torres

• Court: Court of Appeals for the First Circuit
• Decided: November 21, 2000
• Docket: 99-2150
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 99-2150

ANGELA FIGUEROA-TORRES, ET AL.,

Plaintiffs, Appellees,

v.

PEDRO TOLEDO-DÁVILA, ET AL.,

Defendants.

JULIO PERÉZ-TIRADO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

Ricardo L. Rodríguez-Padilla, with whom Ricardo Rodríguez- Padilla Law Offices, and Orlando Duran-Medero were on brief for appellant Julio Perez-Tirado.

Mauricio Hernández-Arroyo, with whom Law Offices of Mauricio Hernández-Arroyo, Geraldo Rivera-Figueroa, in representation of Linoska Rivera-Nieves, and Maria E. Irizarry, in representation of Nestor Rivera Irizarry, were on brief for appellees. November 21, 2000

BOWNES, Senior Circuit Judge. This is an appeal from

a jury verdict in a civil rights action brought under 42 U.S.C.

§§ 1983, 1986, and 1988, against six police officers of the

Puerto Rico Police Department for the death of Néstor Rivera-

Figueroa. The appeal is brought by the only police officer

found liable, Sergeant Julio Pérez-Tirado (hereinafter sometimes

"defendant"). Suit was brought by the mother, and siblings of

Néstor Rivera- Figueroa on their own behalf and on behalf of the

son and daughters of the decedent. The jury awarded the son

$15,000, and the youngest of three daughters (two years old)

$20,000. The son, although twenty-one at the time of the suit,

was mentally retarded. The other daughters of the decedent were

nineteen and twenty-one years old at the time of suit and were

not awarded any damages. The court granted plaintiffs' request

for attorney's fees in the amount of $96,852.

Four of the police officers named in the complaint were

directly involved in the arrest of decedent: Héctor Rivera-

Torres; Elvin Fernández; Leslie Germain-Rodríguez; and the

officer found liable, Julio Pérez-Tirado. The complaint alleged

that those four officers treated the decedent in such a way

during his arrest as to cause his death.

-2- The complaint alleged that the remaining two

defendants, Octavio Cruz-Candelario and Pedro Toledo-Dávila,

supervisory officers who were not present at the actual arrest,

were liable for the death of Néstor Rivera because of “the

inappropriate selection and/or inadequate training and

supervision and discipline” of the four officers directly

involved in the arrest of the decedent. At the close of the

evidence, the complaint was dismissed by the district court as

to defendants Leslie Germain-Rodríguez, Octavio Cruz-Candelario

and Pedro Toledo-Dávila. No appeals have been taken from these

rulings.

Defendant’s motions for judgment as a matter of law

were denied. The district court denied defendant’s motion for

a new trial.

Defendant makes the following contentions on appeal:

(1) the evidence was insufficient because it did not prove that

defendant caused or contributed to cause the death of the

decedent; (2) the district court erred by misapplying the

"eggshell skull" rule in determining liability for the death of

the decedent; (3) the verdict was the result of passion and

prejudice; and (4) the district court erred in the award of

attorney’s fees and costs.

-3- We affirm the verdict in all respects but remand for

a new determination of attorney’s fees.

Before discussing the defendant's assignments of error

we deem it useful to discuss the peculiar posture in which this

appeal arises. In this case, the plaintiffs alleged five causes

of action in their complaint. These boiled down to three sets

of claims. First, they asserted that the defendants violated

the decedent's rights under the Fourth and Fourteenth Amendments

and sought to recover damages under 42 U.S.C. § 1983. Second,

they asserted pendent claims arising under Puerto Rico law,

charging wrongful death and loss to the decedent's estate.

Third, they asserted survivors' claims, also arising under local

law, for their own emotional distress, loss of society, and the

like.

In preparing the verdict form, the district court did

not differentiate among these claims. Instead, the verdict form

simply asked the jurors to report whether they found any

defendant liable (presumably on any theory), and if so, to

indicate which defendant(s) were liable to which plaintiff(s).

The verdict form then provided a space for the jury to insert

the amount of damages awarded to each prevailing plaintiff. The

district court's jury instructions were in the same vein.

-4- Ultimately, as we have said, the jury found Pérez-

Tirado liable to two of the plaintiffs. The verdict form did

not require the jurors to state the theory under which liability

was found and damages awarded, and they did not do so. Pérez-

Tirado did not object to the judge's charge, the verdict form,

or the returned verdict for lack of particularization.1 This

constituted a waiver as to these items. We have held that a

failure to object “forfeit[s] any right to gripe about a lack of

procedural orthodoxy” in such respects. Putnam Resources v.

Pateman, 958 F.2d 448, 457 (1st Cir. 1992). After all, a party

“may not sit by without objection to rulings or instructions,

and then after verdict and judgment, and when it is too late for

the court to change its rulings or charge, come forward with

objections on appeal and seek to put the court in error.” Id.

at 457 n.6 (citation omitted). This principle controls here.

Thus, notwithstanding our serious doubts about the way in which

the district court apparently merged different causes of action

and theories of recovery, we proceed to analyze the case as the

parties have briefed and argued it.

1Perez-Tirado not only acquiesced to these proceedings below, but also has not made any coherent argument on appeal addressing these points. For that reason, too, waiver exists. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that arguments that are undeveloped on appeal are deemed waived).

-5- I.

Sufficiency of the Evidence

Our standard of review is clear.

Petitions for judgments as a matter of law under Rule 50(a)(1) Fed. R. Civ. P. will be granted only in those instances where, after having examined the evidence as well as all permissible inferences drawn therefrom in the light most favorable to non-movant, the court finds that a reasonable jury could not render a verdict to the party’s favor. In carrying out this analysis the court may not take into account the credibility of witnesses, resolve evidentiary conflicts, nor ponder the weight of the evidence introduced at trial. . . .

. . . .

The nisi prius court’s denial of a petition for new trial will be overturned only for abuse of discretion. A new trial is warranted only in those situations where the verdict is contrary to the clear weight of the evidence introduced at trial and its ratification would result in a miscarriage of justice. . . .

Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17

(1st Cir. 1999) (internal citations omitted).

Our determination of the sufficiency of the evidence

requires that we present the facts as a jury might have found

them, consistent with the record but in the light most favorable

to the verdict. See Grajales-Romero v. American Airlines, Inc.,

194 F.3d 288 (1st Cir. 1999).

The Evidence as Viewed Favorable to the Verdict

-6- On the day of decedent’s arrest and death, the

defendant and three other police officers had been assigned to

a special drug unit. Their mission was to cruise the streets of

San Juan in search of drug transactions and arrest the

participants. Defendant was in charge of the unit.

As the police cruiser drove through a government-

subsidized housing development, defendant saw a drug transaction

in progress. The police got out of the cruiser and attempted to

arrest three drug buyers. Defendant testified that he went

after one buyer who was attempting to swallow small plastic

envelopes (about one to one and one half inches long) presumably

containing heroin. He was unsuccessful and as he held the

suspect, he noticed that one of the other officers was having

difficulty subduing the decedent, who was vigorously resisting

arrest. Defendant left the person he had restrained and went to

help in the arrest of decedent. Once the suspect was freed from

restraint by defendant he fled the scene. The other drug buyer

was arrested without incident.

Defendant and two of the other officers continued to

struggle with the decedent. There was eye-witness testimony

about what happened during the struggle between the police

officers and decedent.

-7- Efrain Barbosa, who was the drug seller, testified by

deposition to the following effect. The police jumped on the

decedent when he tried to swallow the drugs he had bought; the

police officers hit and kicked decedent everywhere on his body.

Defendant was identified as one of the officers who hit and

kicked decedent.

Rosa Maria Gonzalez was walking by the scene on her way

to the store. She testified that she saw police officers

leaning over the decedent who was lying on the sidewalk. The

police “were hitting him on the back and they were telling him

to throw out the drugs he had swallowed . . . .” The witness

identified defendant as one of the police officers who was

hitting the decedent. The witness also testified that the

police kicked the decedent in the side and hit him on the face

with their fists.

Marisela Cotero, a tenant in the housing development,

testified that she saw two police officers punch the decedent in

the stomach, kick him, put their hands in his mouth, slap his

face, and throw him on the ground. The witness identified

defendant as one of the participating officers.

Police officer José Miguel Requena Mercado, one of the

defendants, testified as follows: He and another officer, Elvin

Fernandez, fell to the ground struggling to arrest the decedent.

-8- After the decedent was subdued he walked to the police vehicle.

When they got to the prison, the decedent started feeling ill

and Officer Requena took him to the hospital. When they arrived

at the hospital, decedent told Requena he wanted to defecate and

throw up, which he did in the toilet facilities. Neither the

feces nor the vomit was examined for drugs. As he and decedent

and the other officers came out of the bathroom, the decedent

collapsed. A doctor arrived and the decedent was taken to the

intensive care unit, where he subsequently died.

Dr. María Conde, who did the autopsy on decedent,

testified, in effect, as follows: “The deceased died of a

laceration of the spleen and a coagulation in the abdominal

cavity of approximately 20,000 cc’s [of blood].” The laceration

of the spleen was the result of a trauma, which "could be

because someone hit him or because he fell and hit that area."

The presence of opiates in the blood was a contributing factor

in his death because the opiates interfere with the respiratory

function. Independently of any contributing factor a ruptured

spleen would have caused the death. The cause of death "was

corporal trauma, not a drug overdose." On cross-examination,

Dr. Conde testified that the spleen probably had some kind of

disease and that "it’s easier to lacerate an enlarged spleen

than a normal one."

-9- Defendant argues strenuously that the “undisputed

medical evidence . . . negated the possibility of the violation

of any constitutional rights . . . .” Def’s Br. at 16 (emphasis

added). Presumably this statement is made on the basis of the

testimony of Dr. David Questell Alvarado who treated decedent

before the decedent was sent to the intensive care unit where he

died. Dr. Questell testified that the decedent died of

“narcotic intoxication.” As the district court properly pointed

out in rejecting the motion for a new trial, it was up to the

jury to choose which of the two doctors' testimony should be

accepted.

Defendant makes other assertions in his brief that are

directly controverted by the record evidence. Experienced

counsel should recognize that the jury decides disputed

questions of fact and that statements in the brief and at oral

argument cannot erase record evidence that counsel does not

II.

Liability

We next discuss defendant’s claim that he was not

responsible for the decedent's death because his spleen was

diseased and enlarged. We are not sure just what defendant's

precise claim of error is as to the court's application of the

-10- "eggshell skull" doctrine. He argues in his brief at page 32:

"In applying this doctrine to this particular case, the district

court erred in the law. It assumed that liability existed, when

the evidence established the contrary, to find that Pérez-Tirado

was liable for the pre-existing damages under the 'egg-shell

rule.'" This appears to be an argument that the district court

substituted the "eggshell skull" doctrine for a finding of

causation. The court's charge to the jury negates that

contention.

In order to find in favor of the plaintiffs under principles of negligence, you must find that there was an act or omission by fault, negligence, or intention that was proximate – that proximately caused plaintiffs' injuries.

An injury or damage is proximately caused by an act or by a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonable probable consequence of the act or of the omission.

(Emphasis added.)

There was a plethora of evidence in the record from

which the jury could have found that defendant kicked and

punched the decedent in the body and helped push him to the

-11- ground. Any or a combination of these acts could have caused

the decedent's spleen to rupture, as Dr. Conde testified.

In its written opinion denying the motion for a new

trial the district court held that:

[W]e found that Decedent’s cause of death was corporal trauma . . . . It is the source of the corporal trauma that was an issue of fact left for the jury to determine. . . .

Defendant argues that, if rupture of the spleen did cause Decedent’s death, he was not responsible because Decedent’s preexisting sickness made him prone to that injury. However, we find that Decedent’s preexisting injury or weakness in the spleen, does not absolve Defendant of his liability. It is well settled that in action for damages, the tortfeasor “takes his victim as he finds him.”

If, rather than questioning the district court's

finding of causation, defendant's contention is meant to imply

that the "eggshell skull" doctrine should have been excluded as

a matter of law, we must determine whether the doctrine was

correctly applied to the facts of this case. We agree with the

district court that it was. An illuminating explication of the

“eggshell skull” doctrine is set forth in W. Page Keeton et al.,

Prosser and Keeton on The Law of Torts § 43 at 291 (5th ed.

1984).

There are some areas in which even the courts which have been most vocal in favor of the "foreseeable risk" limitation upon

-12- liability have been forced to discard it. There is almost universal agreement upon liability beyond the risk, for quite unforeseeable consequences, when they follow an impact upon the person of the plaintiff.

It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. . . . The defendant of course is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre- existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the "eggshell skull," who suffers death where a normal person would have had only a bump on the head; . . . .

Id. (emphasis added).

Neither the Supreme Court nor the First Circuit has

spoken at length as to the validity of the "eggshell skull"

doctrine. The Supreme Court held in United States v. Feola that

an offender "takes his victim as he finds him." 420 U.S. 671,

685 (1975). In that case, the Court held that in determining

the defendant's liability for an assault of a federal officer,

it was irrelevant that the assailant did not know that the

victim was an officer. The First Circuit, in Doty v. Sewall,

cited Feola as support for the proposition that "[i]n personal

injury law, it is well settled that in an action for damages,

-13- the tortfeasor 'takes his victim as he finds him.'" 908 F.2d

1053, 1059 (1st Cir. 1990).

Other circuits have spoken more definitively as to the

validity of the "eggshell skull" doctrine. The Second Circuit,

in Maurer v. United States, held that "[i]t is a settled

principle of tort law that when a defendant's wrongful act

causes injury, he is fully liable for the resulting damage even

though the injured plaintiff had a preexisting condition that

made the consequences of the wrongful act more severe than they

would have been for a normal victim." 668 F.2d 98, 99 (2d Cir.

1981).

The Fifth Circuit, in Dunn v. Denk, held that:

the "directly and only" language [taken from applicable case law] was intended to distinguish between injuries resulting from excessive force and those resulting from the justified use of force. It was not intended to displace the venerable rule that a tortfeasor takes his victim as he finds him or to immunize the exacerbation of a pre-existing condition, leaving the weakest and most vulnerable members of society with the least protection from police misconduct.

54 F.3d 248, 250-51 (5th Cir. 1995) (internal citations,

emphasis and footnotes omitted).

The Sixth Circuit, in Shannon v. Lester, held that a

plaintiff could recover damages under § 1983 for any aggravation

of his pre-existing injuries caused by the police's unreasonable

-14- delay in taking him to the hospital. 519 F.2d 76, 79 (6th Cir.

1975).

The Seventh Circuit, in Rardin v. T & D Mach. Handling,

Inc., held that "the injurer takes his victim as he finds him

and is therefore liable for the full extent of the injury even

if unforeseeable . . . even if . . . [the victim], because of a

preexisting injury sustains a much greater loss than the average

victim would have . . . ." 890 F.2d 24, 28 (7th Cir. 1989)

(citations omitted).

The Ninth Circuit, in Lutz v. United States, held that

defendant was liable for psychological damage inflicted on a

victim who had been attacked by defendant's dog, even though

that damage was caused in part by a pre-existing condition. The

court held that the situation was "an example of the general

rule that the defendant must take the plaintiff as he finds her

and accept liability for all consequences flowing from the

injury." 685 F.2d 1178, 1186 (9th Cir. 1982) (citation

omitted).

We hold that the district court did not substitute the

"eggshell skull" doctrine for a finding of cause or liability,

and that the court was correct in its application of the

doctrine.

III.

-15- Prejudice or Passion

We have read the record carefully and do not find

sufficient evidence suggesting that prejudice or passion played

a part in the jury's verdict to warrant a reversal on that

ground. Defendant advances two bases for his prejudice and

passion argument. The first is a question asked by the jury

during deliberations as to the consequences of an adverse

verdict on the other defendant police officers. After

consulting with counsel, the district court properly instructed

the jury that the consequences of the verdict were not the

jury’s concern because its duty was to decide the case on the

basis of the facts and regardless of the verdict’s

repercussions. Neither the jury's question nor the court's

response established prejudice or passion.

The second basis for asserting the prejudice or passion

claim is that the verdicts were for decedent’s mentally retarded

son and decedent’s two-year-old daughter. If either or both of

the verdicts were inordinately excessive, defendant might have

a stronger argument. But in a wrongful death case, verdicts of

$15,000 and $20,000 do not connote much passion or any

prejudice. This is especially so in light of testimony by an

economist that the present value of the decedent's future loss

of earnings was $89,000. We think the jury’s verdict was

-16- realistic. The evidence showed that decedent did not have much

of a future ahead. He was addicted to drugs and resisted arrest

because he was on probation for the murder of his brother and

was afraid he would go to jail. The verdict comports with a

realistic (if not inevitable) appraisal of the facts.

We have read the record carefully and have no

difficulty affirming the verdicts. We also affirm the district

court’s denial of the Rule 50 motion and the motion for a new

trial.

IV.

Attorney's Fees

We preface our discussion of attorney's fees with a

reminder that Pérez-Tirado has waived the district court's

agglomeration of different causes of action. See supra at 3-4.

Because the damages awarded were payable to individual

survivors, not to the decedent's estate, it appears quite

probable that the jury found no liability on the § 1983 claim

simpliciter. The defendant, however, did not object to the

award of fees on this ground, nor does he assign error in this

respect on appeal. He has, therefore, forfeited the point. See

Zannino, 895 F.2d at 17. In all events, this court has held

that when state-law and § 1983 claims are inextricably

intertwined, a plaintiff who prevails only on the state-law

-17- claim nonetheless may receive a fee award under 42 U.S.C. §

1983. See Williams v. Hanover Housing Auth., 113 F.3d 1294,

1298-99 (1st Cir. 1997) (holding that if a plaintiff in such

circumstances succeeds in the primary objective of his law suit,

he may receive attorney's fees even if he prevails only on a

state-law claim). It is against this backdrop that we turn to

the complaint made by the defendant vis-à-vis the fee award.

The attorney for the plaintiffs submitted a sworn

statement to the district court showing that he spent 441.8

hours out of court preparing the case and 58.5 hours in court.

He requested $225 per hour for his in-court time and $175 for

his out-of-court work. This amounted to a total of $90,477.50.

The plaintiffs' attorney also asked for $13,162.50 for the

services of his paralegal, billed at the rate of $75 per hour

for 85 hours.

The district court reduced the rate for the in-court

time to $150 per hour and $130 per hour for the out-of-court

time. The court also reduced the rate of the paralegal to $40

per hour. The court explicitly stated:

In making this determination, we were mindful of the constellation of factors of which the First Circuit cautions courts to be aware. However, the sole basis on which we reduce the rates is to reflect the prevailing market rate of lawyers and paralegals of comparable skill, experience, and reputation in this jurisdiction.

-18- Therefore, we note that we do not reduce the rate because Plaintiffs only prevailed against one of the Defendants, . . . because Plaintiffs received a significantly lower amount of damages and attorney's fees than they requested.

The district court denied the motion of the defendants

sued in their supervisory capacity - Toledo-Dávila and Cruz

Calendario - for attorney's fees and costs. That ruling has not

been appealed.

We discussed the standard of review applied to district

court decisions concerning awards of attorney's fees in Coutin

v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 336 (1st

Cir. 1997):

We will disturb such an award only for mistake of law or abuse of discretion. . . . In this regard, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.

(Internal citation and quotation marks omitted.) When a court

has relied on impermissible criteria in determining the

appropriate amount of fees awarded, the case can be remanded for

a clearer statement of the rationale upon which the award was

based. See, e.g., id. at 342 (holding that the district court

had offered no plausible reason for neglecting to apply the

-19- lodestar method of calculating fees, and requiring that the fees

awarded be adjusted to reflect its proper application).

The district court was succinct in its treatment of the

severability issue, simply citing Hensley v. Eckerhart, 461 U.S.

424, 435 (1983), and Coutin, 124 F.3d at 338-39, and asserting

that "often claims are related factually and legally; thus a fee

award should not necessarily be reduced simply because the

plaintiff failed to prevail on every contention in the lawsuit."

The court then stated that "we note that we do not reduce the

rate because Plaintiffs only prevailed against one of the

Defendants, . . ." and cited Cobb v. Miller, 818 F.2d 1227, 1233

(5th Cir. 1987), a Fifth Circuit decision allowing for

attorney's fees to be based on an aggregation of claims where

the claims cannot easily be separated. But while the

juxtaposition of these brief statements with the cases cited is

apparently meant to imply that the claims in the present case

are similarly inseparable, the court fails to make any findings

or to point to any facts justifying such an analogy.

Both the Supreme Court and this circuit have spoken as

to when claims can appropriately be fused for the purpose of

determining attorney's fees. The Supreme Court held in Hensley:

Many civil rights cases will present only a single claim. In other cases the plaintiff's claim for relief will involve a common core of facts or will be based on

-20- related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by- claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

* * * *

Where the plaintiff has failed to prevail on a claim that 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.

Hensley, 461 U.S. at 435, 440 (emphasis added).

We recently held that "[w]hen different claims for

relief are not interconnected – that is, when the claims rest on

different facts and legal theories – they are by definition

severable and unrelated. Attorneys’ fees normally should not be

awarded for time spent litigating (or preparing to litigate)

unsuccessful, severable claims." Coutin, 124 F.3d at 339. The

Coutin opinion follows a long line of our cases reaffirming the

doctrine of interrelatedness. See, e.g., Nydam v. Lennerton,

948 F.2d 808, 812 (1st Cir. 1991); Culebras Enters. Corp. v.

Rivera-Rios, 846 F.2d 94, 102 (1st Cir. 1988); Wagenmann v.

Adams, 829 F.2d 196, 225 (1st Cir. 1987); Aubin v. Fudala, 782

F.2d 287, 291 (1st Cir. 1986).

-21- The district court was justified in refusing to

differentiate between the claims brought against each of the

four officers alleged to have been involved in the beating of

the decedent, especially in light of City of Riverside v.

Rivera, 477 U.S. 561 (1986). In Rivera, the Court allowed for

high attorney's fees despite the acquittal of numerous

defendants, agreeing with the lower courts that "it was never

actually clear what officer did what until we had gotten through

with the whole trial." Id. at 570 (internal quotation marks

But while the claims against the officers can clearly

be said to have arisen out of a "common core of facts" or to

have been "based on related legal theories," thus justifying

their aggregation in determining the appropriate amount of

attorney's fees awarded, the same is not so for those claims

alleging supervisory liability. While it is true that the

claims all stemmed from a common incident - the alleged

mistreatment of the deceased - it does not follow that the

claims cannot be severed. Whatever common elements there may be

between the claims, it is indisputable that the facts that would

have to be proved to prevail against the arresting officers, as

well as the legal theories that would serve as a foundation for

the claims alleging direct participation in the arrest and

-22- mistreatment, are wholly different than those relating to

supervisory liability.

In order to establish supervisory liability under §

1983, a plaintiff must show an "affirmative link" between the

subordinate officer and the supervisor. See Carmona v. Toledo,

215 F.3d 124, 131 (1st Cir. 2000). A supervisor "may be liable

for the foreseeable consequences of [offending conduct by

subordinates] if he would have known of it but for his

deliberate indifference or willful blindness. . . ." Maldonado-

Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).

"To demonstrate deliberate indifference a plaintiff must show

(1) a grave risk of harm, (2) the defendant's actual or

constructive knowledge of that risk, and (3) his failure to take

easily available measures to address the risk. . . .

[D]eliberate indifference alone does not equate with supervisory

liability; a suitor also must show causation." Camilo-Robles v.

Hoyos, 151 F.3d 1,7 (1st Cir. 1998), cert. denied, 525 U.S. 1105

(1999) (citations omitted). Discovery relating to supervisory

liability would almost certainly entail a much wider and more

diverse set of facts than discovery relating to the officers'

individual liability. That success on the former claims is

contingent upon success on the latter does not mean that the two

are based on common facts or legal theories.

-23- The unsuccessful supervisory liability claims were

based on different facts and legal theories than the successful

excessive force claims, and were thus severable. Because such

unsuccessful claims do not fall within the ambit of § 1988(b),

the district court acted beyond the bounds of its discretion in

awarding attorney's fees stemming from them. The time sheets

submitted by plaintiffs' lawyer, upon which the district court's

calculation of attorney's fees was based, do not differentiate

between time spent on the different claims. The case must be

remanded for determination of what portion of plaintiffs'

lawyer's time was spent in furtherance of the unsuccessful

supervisory liability claims. Such time must be deducted from

the amount of the fee award at the applicable rates approved by

the district court.

Affirmed in part; reversed in part. Remanded for

further proceedings in accord with this opinion. Costs shall be

taxed against the defendant.

-24-