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McKenna v. City of Philadelphia

October 2, 2009

MICHAEL MCKENNA; BETH MCKENNA; TIMOTHY MCKENNA; PATRICIA SULLIVAN, APPELLANTS
v.
CITY OF PHILADELPHIA; ANDREW JERICHO; MARK STOOTS; CAPTAIN DEBORAH KELLY; 2 JOHN DOE MALE POLICE OFFICERS ONE WHITE AND ONE BLACK, SUED IN OFFICIAL AND INDIVIDUAL CAPACITY, SUED INDIVIDUALLY AND JOINTLY, HELD LIABLE INDIVIDUALLY AND JOINTLY; JONATHAN JOSIE



On Appeal from the United States District Court for the Eastern District of Pennsylvania, (D.C. Civ. No. 07-110), Honorable J. William Ditter, Jr., District Judge.

The opinion of the court was delivered by: Greenberg, Circuit Judge.

PRECEDENTIAL

Argued June 2, 2009

BEFORE: MCKEE, HARDIMAN, and GREENBERG, Circuit Judges

OPINION OF THE COURT

I. INTRODUCTION

This matter comes on before this Court on plaintiffs' appeal from orders entered in this action under 42 U.S.C. § 1983, denying their motion for a judgment as a matter of law or for a new trial and granting defendants partial summary judgment and a partial judgment as a matter of law. In addition, plaintiffs appeal from an order awarding them attorneys' fees, claiming that the award was inadequate.

This case arose from encounters between the Philadelphia police and revelers at an impromptu street celebration following the Philadelphia Eagles' National Football Conference championship win on January 23, 2005.*fn1 The four plaintiffs - Timothy McKenna; his parents, Michael and Beth McKenna (hereinafter "Mr. and Mrs. McKenna"); and his aunt, Patricia Sullivan - watched the game on television and then, bringing two video cameras, left home to join thousands of other Eagles fans celebrating in the streets of northeast Philadelphia in the vicinity of Cottman and Frankford Avenues. Eventually, the gathering started to get out of control, and plaintiffs crossed paths with police officers attempting to disperse the crowd so that injuries and property damage could be avoided.

At the trial, plaintiffs and the officers offered what in some respects were differing accounts of their encounter. They all agreed, however, that during the encounter the police, in particular Officer Andrew Jericho, arrested 17-year-old Timothy McKenna. After they arrested Timothy, the police brought him to the 15th District Headquarters (the "15th District") for processing. His parents arrived at the 15th District sometime later. While arguing with Sergeant Mark Stoots regarding Timothy's status, Mr. McKenna was using his video camera to film activities in the 15th District's operations room, an area that was not open to the public for unrestricted access but which could be viewed through a window by occupants of the public area of the 15th District building. After Sergeant Stoots repeatedly asked Mr. McKenna to stop videotaping, Mr. McKenna gave the camera to his wife to take to the car, but she returned with the camera hidden under her jacket, still recording.*fn2 Ultimately, the police escorted Mr. and Mrs. McKenna from the building after which they were free to go to wherever they wished. The police, however, transported Timothy to a hospital for evaluation because he complained of injuries. Moreover, on their own initiative, Mr. and Mrs. McKenna and Ms. Sullivan also went to the hospital seeking evaluation and treatment. When the family returned to the 15th District, the police released Timothy to his parents. Though the police filed disorderly conduct charges against Timothy, a local court dismissed the complaint for lack of prosecution after the police did not appear for several scheduled proceedings.

On January 10, 2007, the four plaintiffs filed a complaint in the District Court alleging that the City of Philadelphia (hereinafter, the "City") and various police officers directly had committed or were responsible for multiple violations under section 1983 of their constitutional rights during the course of the foregoing events. The City successfully moved for summary judgment on plaintiffs' claims against it, but the case then proceeded to trial against defendants Captain Deborah Kelly, Officer Jericho, Sergeant Stoots, and Sergeant Jonathan Josey*fn3 on claims of Fourth Amendment malicious prosecution, false arrest, excessive force, and First Amendment retaliation. The First Amendment claim alleged that defendants improperly delayed Timothy's release in retaliation for Mr. McKenna's action in bringing a prior lawsuit against the City, and for the McKennas' refusal to stop videotaping the operations room at the 15th District where the police were holding Timothy.

At the trial the District Court granted Officer Jericho's motion for judgment as a matter of law on the malicious prosecution claim and granted judgment in favor of Sergeant Stoots and Sergeant Josey on supervisory liability claims. The Court also granted judgment as a matter of law in favor of Captain Kelly, finding that there was no evidence that she witnessed either the arrest or an improper delay in Timothy's release.

On September 14, 2007, following a five-day trial on the remaining claims, the jury found in favor of defendants on all charges except Timothy McKenna's false arrest claim against Officer Jericho. The jury awarded Timothy $150,000 in damages on that claim.

Subsequently, Timothy's attorney, Brian Puricelli, filed a fee petition pursuant to 42 U.S.C. § 1988, seeking $181,340 for representation of Timothy. Moreover, he separately filed a bill of costs with the Clerk of the District Court seeking the taxation of costs, but only against Officer Jericho, the sole defendant who had been held liable in the case. In a post-trial motion, plaintiffs also raised multiple grounds for the grant of a judgment as a matter of law and, in the alternative, a new trial. On September 30, 2008, the District Court denied plaintiffs' post-trial motions and, in a separate opinion and order, awarded them $27,178.75 in attorneys' fees, explaining at length its reasons for awarding so much less than the amount sought in the fee application. See McKenna v. City of Philadelphia, Civ. No. 07-110, 2008 U.S. Dist. LEXIS 76769 (E.D. Pa. Sept. 30, 2008). The Court declined to rule on Timothy's request for costs, noting that the Clerk of its Court had not yet taxed costs and that, therefore, under the procedure outlined in Eastern District Local Rule 54.1(b), there was nothing for it to review.

Subsequently, plaintiffs filed an appeal challenging certain aspects of both orders. For the reasons we discuss below, we will affirm the District Court's award of attorneys' fees and its denial of plaintiffs' motion for a judgment as a matter of law or for a new trial and will dismiss the appeal insofar as plaintiffs are seeking costs for the District Court proceedings.*fn4

II. JURISDICTION

The District Court had jurisdiction over plaintiffs' section 1983 claims pursuant to 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291 to review the orders challenged on this appeal, except we lack jurisdiction over the District Court's action in deferring disposition of Timothy's request for it to fix costs. Under the procedures outlined in Fed. R. Civ. P. 54(d)(1) and Local Rule 54.1(b), the Clerk taxes costs, and then, if there is an objection to the Clerk's action, the District Court reviews the Clerk's award. Here, the District Court declined to take any action on Timothy's request for costs because the Clerk had not yet taxed costs. Thus, because neither the Clerk nor the District Court has made any determination of whether Timothy is entitled to costs, let alone settled on the quantum of the costs, there is not a final order on the costs issue for us ...


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