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SHERK v. LIEBACK

November 21, 1995

DAVID SHERK and KATHLEEN MASULIS, Plaintiff
v.
PETER LIEBACK and PITTSTON AREA SCHOOL DISTRICT, Defendants



The opinion of the court was delivered by: DURKIN

 Before the court is plaintiffs' motion for an award of attorney's fees and costs. (Doc. No. 41).

 By way of background, plaintiff Kathleen Masulis, the mother of David Sherk, and David Sherk brought this action pursuant to 42 U.S.C. § 1983 alleging that Peter Lieback, a security guard employed by defendant Pittston Area School District, committed an assault and battery against David Sherk at a school dance held on September 24, 1993, and that defendant Pittston Area School District had a policy or custom of permitting or approving violence committed against students in its schools.

 In an action under § 1983, the doctrine of respondeat superior does not apply. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Thus, the "policy or custom" allegations constituted an attempt by plaintiffs to show that the school district was directly involved in the alleged violations of Sherk's rights.

 The school district moved for summary judgment on the "policy or custom" allegations in the complaint on the basis that extensive discovery had produced no evidence that the school district had a policy or custom of permitting or approving violence committed against students in its schools. In their opposing brief and other documents, plaintiffs, in support of the "policy or custom" issue, were able to point only to an affidavit of Kucharski, noting that on one occasion, Lieback engaged in assaultive or threatening behavior toward Kucharski. The magistrate judge held that the school district was entitled to summary judgment on the "policy or custom" issue since that one isolated incident involving Kucharski was the only incident on which the plaintiff relied and under existing case law, would not indicate that there is a triable issue of fact with respect to the question "policy or custom."

 The magistrate judge noted however that in their brief, plaintiffs argued that David Sherk was also proceeding directly against the school district on the basis that the school district violated David Sherk's due process rights by deciding to suspend him for three days before giving him a meaningful opportunity to be heard. The magistrate judge noted that in their reply brief, defendants did not address the due process argument. The magistrate judge noted however that in the complaint, at least in the specific counts, plaintiffs did not appear to contend that Sherk did not receive the process that he was due and indeed it would appear from documentation submitted in connection with the motion for summary judgment that David Sherk was afforded all the process that he was due. The magistrate judge noted however that since defendants had not addressed the plaintiffs' "lack of meaningful hearing argument", the court would not address this issue, if it existed, until such time as it may be addressed by both parties.

 The defendants then filed a supplemental motion for summary judgment in which they addressed the due process claim as it relates to the denial of the meaningful hearing. The defendants noted that it agreed with the magistrate judge's observations in the decision on the prior motion for summary judgment that the complaint did not appear to allege that David Sherk did not receive a "meaningful hearing" or "meaningful opportunity to be heard." Defendants stated that it was for this reason that plaintiffs' prior argument along this line was not addressed. In any event, the defendants then addressed the due process claim.

 On the basis of the submissions of the parties, the magistrate judge held that David Sherk received the process that he was due and as a matter of law the defendants were entitled to summary judgment on the due process issue. An order was entered therefore granting summary judgment on the due process issue.

 The net effect of the granting of the two motions for summary judgment was to absolve the Pittston Area School District from direct liability in this case on the only two theories on which liability was pressed, that is, that the school district, through a "policy or custom" was directly involved in any denial of David Sherk's rights and that the school district denied him due process by not affording him a meaningful opportunity to be heard. Thus, at that point, the case was basically reduced to an action by plaintiffs against defendant Lieback for the incident which occurred at the dance. *fn1"

 Lieback, a school security guard, attempted to stop the students from performing this dance while one Doran, a police officer moonlighting as a security guard at the dancer went to get the students off the tables. While Lieback was attempting to stop the dancing and was talking to one student who "was jumping around too much", Sherk either jumped up in the air and hit Lieback in the shoulder, or fell into Lieback or danced backward into Lieback while Lieback was talking to another student. It was at that point that Lieback allegedly turned around and kneed David Sherk and dragged him by the neck to an outside door and turned him over to Doran. While Lieback was dragging David Sherk to the door, another student, Jonathan Eber, grabbed Lieback's arm. Thus, while it appeared that the parties may be disputing whether Sherk jumped on Lieback or merely bumped into him and whether Lieback over-reacted, it appeared that Lieback's actions would have to be judged in the "atmosphere" created by the moshing and the attempts to bring things under control.

 After the whole incident was concluded -- and the matter was reviewed that same evening in the presence of Sherk's mother at the principal's office -- Sherk's deposition indicated that Sherk left the school and drove a friend home and then returned to his own house. In the meantime, his uncle had suggested to his mother that he go to the hospital. He went to the emergency room sometime after midnight. They took some photographs to document the scratches and put Betadine ointment on a scraped area on his neck. He stayed for 40 minutes and was given no other medications and no pain killers. There was no neck pain other than the scratches being caused to sting from the ointment. He may have had a bruise on his left shoulder which he described as "slight minor." He never had any pain or soreness in the neck afterwards. Evidence of marks and scratches were gone completely in nine days. He missed no school because of any injury; missed no employment in his part-time job. He does not link any physical limitation or limitations on his activities to this incident.

 After summary judgment was granted in favor of the school district on the "policy or custom" and due process issues, defendant Peter Lieback then moved for summary judgment based primarily on Sherk's own deposition. He argued that since David Sherk suffered little or no injury and considering the circumstances which existed at the dance at the time of the incident, the incident did not rise to the point of a constitutional violation and that in any event, under existing case law, reasonable minds could differ as to whether there was a use of excessive force and therefore Lieback was entitled to qualified immunity.

 In a phone conference, the plaintiffs' counsel objected to what he considered a "piecemeal" filing of summary judgment motions. It was pointed out however that because a motion for summary judgment mirrors the standard for a directed verdict (now called a motion for judgment as a matter of law), Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the contentions advanced in support of defendants' most recent motion for summary judgment would have to be heard sometime, either before trial or at the trial, and that it would appear to be better to address these matters before trial. In any event, the parties agreed that a settlement conference would be in order and that the plaintiff could defer a response to defendants' most recent motion for summary judgment pending the outcome of the conference.

 Following the conference, the parties in March 1995 agreed to a settlement of $ 8,000.00 to be paid to the plaintiffs. The parties also agreed to negotiate with respect to the question of attorney's fees and reimbursement for costs advanced. The negotiations were not fruitful with the result that the plaintiffs filed the motion for attorney's fees and costs which are now before this court.

 Before discussing the matter of a fee, several observations appear to be in order. The incident in question involved an altercation between a teenager and an adult school district employee who was charged with the duty of maintaining order at a high school dance. There was little or no physical injury. Yet, the attorney's fees sought in this case (over $ 34,000.00 for the case in chief) are over four times the amount which was eventually paid to the plaintiffs themselves. This points up the desirability in a case of this type of early investigation to determine whether some form of settlement can be achieved without the need for full blown discovery and related counsel fees.

 Each party to this action appears to point a finger at the other side with respect to the matter of who impeded settlement. Counsel for the plaintiff states in an affidavit that before suit was brought, he attempted to settle the case with the school district for the sum of $ 1,000.00 payable to the plaintiffs and a reasonable attorney fee in relation to the time then expended. Plaintiffs' counsel states that he was in effect told to sue, and the action was filed October 20, 1993. Defendants' counsel counters that he was not in the case at that time could not confirm or deny this. However, defendants' counsel states that when the solicitor for the school district was first contacted about this action, the solicitor indicated that plaintiffs' counsel viewed it in exaggerated terms as a "million dollar case." Plaintiffs' counsel denies this, and indicates that when it was clear to him that the school district was protecting Lieback at all costs, he stated the "next case [involving Lieback] will be a million dollar case. May God direct that plaintiff to me."

 In any event, in March 1994, after depositions had been taken, plaintiffs' counsel, in response to a request from defense counsel that a demand be made, made a demand of $ 50,000.00 *fn2" plus attorney's fees. Defense counsel states that based on plaintiffs' counsels' billing records, the demand at that time would have been in the neighborhood of $ 70,000.00 including fees. Defense counsel states that since there appeared to be substantial liability questions in view of the almost non-existent injuries, on April 29, 1994, or about eight months after this action was filed, defense counsel made an offer of $ 7,000.00 which plaintiffs' counsel rejected as an "insult" even though this was close to the $ 8,000.00 settlement ultimately agreed upon. (Doc. No. 45, Exh. C & D). Plaintiffs' counsel responds that the $ 7,000.00 was to be divided between his clients and him, even though his fees and costs at that time ...


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