FSM SUPREME COURT TRIAL DIVISION

Cite as Walter v. Chuuk, 14 FSM Intrm. 336 (Chk. 2006)

[14 FSM Intrm. 336]

KINDMAN WALTER and FRANKIE HARPER,

Plaintiffs,

vs.

CHUUK STATE GOVERNMENT, CHUUK STATE

PUBLIC SAFETY, and POLICE OFFICERS MEKAY

SHIRAI, SAIMON ROCHON, LARRY SOTAM,

TERIOS RUBEN and KINSEY WALTER,

Defendants.

CIVIL ACTION NO. 2004-1009

FINDINGS OF FACT AND CONCLUSIONS OF LAW;

ORDER TO SUBMIT FEE REQUEST

Dennis Yamase

Associate Justice

Trial: January 31, May 8, 10, 2006

Decided: August 15, 2006

APPEARANCES:

For the Plaintiff:   Fredrick Hartman

                              P.O. Box 222

                              Weno, Chuuk   FM   96942

[14 FSM Intrm. 337]

For the Defendants:   Joses Gallen, Esq.

                                     Acting Attorney General

                                     Office of the Chuuk Attorney General

                                     P.O. Box 189

                                     Weno, Chuuk   FM   96942

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HEADNOTES

Civil Rights; Criminal Law and Procedure ) Arrest and Custody

    Although the plaintiffs contend that they were not drunk but merely had hangovers and that they could not be arrested for being hungover, the police, based on what they personally could see, hear, and smell, had probable cause to believe that the plaintiffs were under the influence of alcohol in public and had probable cause to arrest the plaintiffs. Whether the plaintiffs were actually intoxicated or just hungover is irrelevant since the police had probable cause to believe they were intoxicated. Thus, the plaintiffs’ arrest and transportation to the state jail on Weno did not violate their civil rights. Walter v. Chuuk, 14 FSM Intrm. 336, 339-40 (Chk. 2006).

Civil Rights; Criminal Law and Procedure ) Prisons and Prisoners

    Confining a person in dangerously unsanitary conditions, which represents a broader government-wide policy of deliberate indifference to the person’s dignity and well-being, is a failure to provide civilized treatment, in violation of detainees’ due process protections, and renders the state liable under 11 F.S.M.C. 701(3). Walter v. Chuuk, 14 FSM Intrm. 336, 340 (Chk. 2006).

Civil Rights; Criminal Law and Procedure ) Prisons and Prisoners

    The state has a duty to protect the persons it has confined from themselves and each other and violating a person’s civil right to be free from excessive force while detained in a jail, is a violation of 11 F.S.M.C. 701(3). The state can violate that duty by failing to intervene and stop the prisoners’ attacks on the arrestees. Walter v. Chuuk, 14 FSM Intrm. 336, 340 (Chk. 2006).

Attorneys’ Fees; Civil Rights

    The prevailing party in civil rights actions under 11 F.S.M.C. 701(3) is entitled to reasonable attorney fees and costs of suit as part of compensatory damages. The court must first determine the reasonableness of any claim for attorney’s fees and costs. The usual method of determining reasonable attorney’s fees awards is based on an hourly rate. Thus the initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Walter v. Chuuk, 14 FSM Intrm. 336, 340-41 (Chk. 2006).

Attorneys’ Fees; Civil Rights

    Any award of attorney’s fees must be based upon a showing and a judicial finding, that the amount of fees is reasonable. The plaintiffs must therefore submit detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation is made. Walter v. Chuuk, 14 FSM Intrm. 336, 341 (Chk. 2006).

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[14 FSM Intrm. 338]

COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     Trial in this matter was held on January 31, 2006 and May 8 and 10, 2006. The plaintiffs asked that they later present the testimony of Wiseman Moses by deposition. The court ordered any such deposition to be completed by May 25, 2006 and that the court proceedings would resume on May 26, 2006.

     When the case was called on May 26, the defendants’ counsel was present but plaintiffs’ counsel was inexplicably absent. The court heard defense counsel’s report on whether Moses had been deposed or whether the parties had made stipulations making the proposed deposition unnecessary. He reported no progress.

     The court therefore ordered that any deposition or stipulation in lieu of deposition be completed no later than June 26, 2006, and that the parties were to file and serve their closing arguments in writing no later than July 24, 2006, with any responses to those filings to be filed and served within ten days. That order was memorialized and served on counsel.

     No deposition or stipulation, or written closing arguments were filed by the dates set or at any later time. The court therefore considers that the matter has now been submitted for its decision.

     This action was brought under 11 F.S.M.C. 701(3) and alleges that the defendants violated the plaintiffs’ civil rights. At trial, Kindman Walter, Mekay Shirai, Saimon Rochon, Furacy Bonochou, Terios Ruben, and Frankie Harper testified. Based on the evidence and testimony presented, the court makes the following

Findings of Fact.

    1.   On the morning of June 11, 2004, plaintiffs Kindman Walter and Frankie Harper with one other person, left Weno for Tonoas.

    2.   The purpose of their trip was to shut down the Southern Namoneas Jr. High School, on Wiseman Moses’s behalf, and evict the state from part of the property on which that school was located because the state had
           allegedly not paid Moses the rent money that was due. They had a letter from Moses to that effect.

    3.   Wiseman Moses claims to be the landowner of Nerong, on which part of the school is located, although there is some question whether he is the sole landowner or the representative of other landowners.

    4.   A graduation ceremony was being held at the school when the three arrived.

    5.   The three gave the principal the letter from Wiseman Moses to vacate the property. The school principal asked to see Wiseman Moses. The three transported the principal back to Weno to speak with Moses there.

    6.   After speaking with Moses, the three returned, with the principal, to Tonoas to shut down the school as Moses had directed them to do. The graduation ceremony was over by the time they had returned to Tonoas,
          but many people were still present.

[14 FSM Intrm. 339]

    7.   The plaintiffs were unsteady and zigzagged when they walked from their boat back to the school.

    8.   The plaintiffs (by their own admission) had been drinking the night before, smelled of alcohol, and had bloodshot eyes and were wearing dark glasses. They asserted that they were not drunk, but were merely
           hungover.

    9.   The three again showed their documents and said they came to close the school.

    10.  The three were then arrested by Chuuk state police officers Mekay Shirai, Saimon Rochon, Larry Sotam, Terios Ruben, and Kinsey Walter.

    11.  The three were handcuffed and then taken in a pickup over bumpy roads to another village on Tonoas where they were put on a boat to Weno. The boat arrived on Weno at Neuao, near Blue Lagoon Resort. From
           there they were taken by pickup to the state jail in Nepukos, where their handcuffs were taken off and they were put in the cell for arrestees.

    12.  During the trip to jail, plaintiff Walter complained that the handcuffs were too tight, but he did not need, or ask for, any medical treatment, and any swelling of the wrists was gone within two days.

    13.  While in jail, the police, at Walter’s request, called his relatives who brought food to the jail. Harper did not ask the police to call anyone for him.

    14.  The arrestees’ cell that night was dirty, smelled of urine, with debris around. Arrestees had to ask to be let out of the cell to use a nearby restroom, but the restroom was unusable that night because it was filled with
           urine and unsanitary.

    15.  That night, one prisoner threw a padlock at the arrestees in the arrestees’ cell. Another prisoner, a mental patient, climbed up on top of the arrestees’ cell, which was made of rebars, and tried to spear or stab the
           arrestees inside with a rebar.

    16.  The plaintiffs were not injured, but were scared and yelled for police assistance. None was forthcoming.

    17.  The plaintiffs were released the next day before they had been confined more than 24 hours.  No formal charges were ever filed against them.

     Based upon these findings, the court makes the following

Conclusions of Law.

    1.  The police had probable cause to arrest the plaintiffs. Although the plaintiffs contend that they were not drunk but merely had hangovers and that they could not be arrested for being hungover, the police, based on what they personally could see, hear, and smell, had probable cause to believe that the plaintiffs were under the influence of alcohol in public. Whether the plaintiffs were actually intoxicated or just hungover is irrelevant since the police had probable cause to believe they were intoxicated.

    2.  Accordingly, the plaintiffs’ arrest did not violate their civil rights.

[14 FSM Intrm. 340]

    3.  The plaintiffs’ transportation to the state jail on Weno also did not violate their civil rights.

    4.  Accordingly, defendants Mekay Shirai, Saimon Rochon, Larry Sotam, Terios Ruben, and Kinsey Walter did not violate the plaintiffs’ civil rights. The plaintiffs’ claims against them are therefore dismissed.

    5.  The conditions under which the plaintiffs were held in the state jail (both the jail’s holding cell’s unsanitary condition and the jailers’ failure to prevent prisoners from assaulting the detainees)     violated their civil rights.

    6.  Confining a person in dangerously unsanitary conditions, which represents a broader government-wide policy of deliberate indifference to the person’s dignity and well-being, is a failure to provide civilized treatment, in violation of detainees’ due process protections, and renders the state liable under 11 F.S.M.C. 701(3). See Plais v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991); see also Warren v. Pohnpei State Dep’t of Public Safety, 13 FSM Intrm. 483, 491 (Pon. 2005).

    7.   The state has a duty to protect the persons it has confined from themselves and each other and violating a person’s civil right to be free from excessive force while detained in a jail, is a violation of 11 F.S.M.C. 701(3). See Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 11 (Chk. 2001); Herman v. Municipality of Patta, 12 FSM Intrm. 130, 135 (Chk. 2003). The state violated that duty that night by failing to intervene and stop the prisoners’ attacks on the arrestees.

    8.   Defendants Chuuk State Government, Chuuk State Public Safety are liable to the plaintiffs for these constitutional violations.

     Based upon these findings of fact and conclusions of law, the court awards the following

Damages.

     The plaintiffs are entitled to damages for being confined in dangerous and unsanitary conditions on June 11, 2004. In Plais in 1991, a prisoner was awarded damages calculated at $5 an hour for unconstitutional conditions of confinement. Plais, 5 FSM Intrm. at 213. In a more recent case, an arrestee was awarded damages calculated at $10 an hour for being confined in unconstitutional jail conditions for 63½ hours and not being permitted to call his relatives. Warren, 13 FSM Intrm. at 500. The plaintiffs in this case were released before 24 hours had passed and the police had called relatives when asked to. The court therefore awards each plaintiff $180 in compensatory damages.

     The plaintiffs’ complaint also prayed for an award of their attorney’s fees. The prevailing party in civil rights actions under 11 F.S.M.C. 701(3) is entitled to reasonable attorney fees and costs of suit as part of compensatory damages. Herman, 12 FSM Intrm. at 137; Estate of Mori, 10 FSM Intrm. at 14; Davis v. Kutta, 8 FSM Intrm. 218, 220 (Chk. 1997); Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996).

     The court must first determine the reasonableness of any claim for attorney’s fees and costs. Senda v. Creditors of Mid-Pacific Constr. Co., 7 FSM Intrm. 664, 673 (App. 1996). The usual method of determining reasonable attorney’s fees awards is based on an hourly rate. See, e.g., Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987); Bank of Guam v. O’Sonis, 9 FSM Intrm. 106, 110 (Chk. 1999) (in determining a reasonable attorney’s fees award, the fair hourly rate in the locality is used), aff’d sub nom., Hartman v. Bank of Guam, 10 FSM Intrm. 89 (App. 2001); Plais v. Panuelo, 5 FSM Intrm. 319, 322 (Pon. 1992). Thus the initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable

[14 FSM Intrm. 341]

hourly rate. Herman v. Municipality of Patta, 12 FSM Intrm. 130, 137 (Chk. 2003); Davis v. Kutta, 8 FSM Intrm. 218, 220 (Chk. 1997).

     Any award of attorney’s fees must be based upon a showing and a judicial finding, that the amount of fees is reasonable. Bank of the FSM v. Bartolome, 4 FSM Intrm. 182, 184 (Pon. 1990). The plaintiffs must therefore submit detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which a claim for compensation is made. Bank of Hawaii v. Jack, 4 FSM Intrm. 216, 219 (Pon. 1990).

     Plaintiffs’ counsel therefore has ten days after service of these findings and conclusions to file and to serve on opposing counsel his detailed affidavit of time spent working on this case and what that time was spent doing. Opposing counsel shall have ten days after service to respond to the attorney’s fee request. The court will then make an appropriate order and direct the clerk to enter judgment.

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