Click Back
Button to Return to Publication
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH JACKSON,
Plaintiff,
v.
HEATH AUSTIN, et
al.,
Defendants.
CIVIL ACTION NO.
99-3363-KHV
267 F. Supp. 2d 1059
June 12, 2003, Decided
NUNC PRO TUNC MEMORANDUM AND ORDER
Plaintiff brought suit against
defendants under 42 U.S.C. § 1983, alleging that they violated his
constitutional rights by denying him adequate medical care and through use of
excessive force. On January 17, 2003, the Court awarded plaintiff actual
damages of $15,000 and punitive damages of $30,000. This matter comes before the Court on Plaintiff's Application For
Attorneys' Fees (Doc. # 157) filed February 27, 2003. Plaintiff seeks fees of
$69,425.50 and expenses of $9,934.26. For reasons stated below, the Court
sustains plaintiff's motion in part and awards $40,654.75 in fees and $1,509.15
in expenses.
A prevailing plaintiff under Section
1983 is entitled to attorneys' fees under 42 U.S.C. § 1988. For purposes of
attorneys' fees, plaintiff may be considered the "prevailing party,"
if he succeeds on any significant issue in litigation which achieves some of
the benefit he sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424,
433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) ; see Alexander S. v. Boyd, 113
F.3d 1373, 1388 (4th Cir. 1997), cert. denied, 522 U.S. 1090, 139 L. Ed. 2d
869, 118 S. Ct. 880 (1998). Determining the amount of such an award is
committed to the district court's discretion. Carter v. Sedgwick County, 36
F.3d 952, 956 (10th Cir. 1994). The presumptively reasonable attorney's fee is
the product of reasonable hours times a reasonable rate. Id. (quotations and
citations omitted). This calculation yields a "lodestar" figure which
is subject to adjustment. Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891,
104 S. Ct. 1541 (1984). In addition, because
plaintiff's fee request is governed by the attorneys' fee provisions of the
Prison Litigation Reform Act ("PLRA"), plaintiff must show that the
fees were directly and reasonably incurred in proving a violation of his rights
and that the fees were proportional to his relief. n1 See 42 U.S.C. §
1997e(d)(1); Clark v. Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997). Plaintiff
bears the burden of establishing entitlement [*1064] to an award and documenting
the appropriate hours expended and hourly rates. See Case v. Unified Sch. Dist.
No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998).
The Court
first considers defendants' request to stay any award of attorneys' fees and
expenses until defendants have completed their appeal. Defendants argue that
depending upon the outcome of their appeal, plaintiff might not be a prevailing
party and would not be entitled to any award. The Court denies defendants'
request. By so doing, the Court allows defendants to challenge the fee award as
part of their pending appeal. If defendants' appeal alters plaintiff's status
as a prevailing party, the fee award can be amended.
I. Reasonable Hourly Rate
In setting the hourly rate,
"the court should establish, from the information provided to it and from
its own analysis of the level of performance and skills of each lawyer whose
work is to be compensated, a billing rate for each lawyer based upon the norm
for comparable private firm lawyers in the area in which the court sits
calculated as of the time the court awards fees." Ramos v. Lamm, 713 F.2d
546, 555 (10th Cir. 1983). A reasonable hourly rate comports with rates
"prevailing in the community for similar services for lawyers of
reasonably competent skill, experience, and reputation." Blum, 465 U.S. at
896 n.11. A district judge may turn to her own knowledge of prevailing market
rates as well as other indicia of a reasonable market rate. Metz v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (citation
omitted). To determine a reasonable rate, the Court focuses on the rates of
"lawyers of comparable skill and experience." Ellis v. Univ. of Kan.
Med. Ctr., 163 F.3d 1186, 1204 (10th Cir. 1998).
Under the PLRA, "no award
of attorney's fees . . . shall be based on an hourly rate greater than 150
percent of the hourly rate established under [18 U.S.C. § 3006A] for payment of
court-appointed counsel." 42 U.S.C. § 1997e(d)(3) . Under 18 U.S.C. §
3006A, the Court can only award "$60 per hour for time expended in court .
. . and $40 per hour for time reasonably expended out of court, unless the
Judicial Conference determines that a higher rate . . . is justified for a
circuit or for particular districts." For work from April 1, 2001 through
April 30, 2002, the Judicial Conference of the Court of Appeals for the Tenth
Circuit limits attorneys' fees to $75 per hour for time spent in court and $55
per hour for time spent out of court. For work on or after May 1, 2002, the
maximum hourly rate is $90 per hour for both in court and out-of-court time.
Defendants argue that plaintiff should be limited to these rates. n2 Plaintiff
seeks $125 per hour for Jeff Scurlock and Anne Schiavone [*1065] and $185 per
hour for Eric Packel. The Court construes plaintiff's request as 150 per cent
of the maximum under Section 1997e(d)(3), i.e. $82.50 for out-of-court time for
Scurlock before May 1, 2002, $125 for Scurlock on and after May 1, 2002, $125
for Schiavone and $135 for Packel. n3
Defendants argue that
plaintiff's counsel is not shown to be sufficiently experienced to justify the
150 per cent enhancement. The PLRA does
not provide a scheme, however, for differentiating between the hourly rate
charged by attorneys of varying experience levels. Roberson v. Brassell, 29 F.
Supp.2d 346, 351 (S.D. Tex. 1998); Chatin v. State of New York, 1998 U.S. Dist.
Lexis 8351, No. 96 Civ. 420(DLC), 1998 WL 293992, at *2 (S.D.N.Y. June 4,
1998). Other courts have mechanically granted the 150 per cent maximum with
little or no consideration of experience. See Hernandez v. Kalinowski, 146 F.3d
196 (3d Cir. 1998); Alexander S., 113 F.3d at 1388; Roberson, 29 F. Supp.2d at
351; Rodriguez v. Zavaras, 22 F. Supp.2d 1196, 1202 (D. Colo. 1998); Chatin,
1998 U.S. Dist. Lexis 8351, [ WL] at *2. In the Court's view, the experience of
counsel is important in determining the appropriate award, but for work before
May 1, 2002, the maximum allowable rate under Section 1997e(d)(3) is so low --
relative to market rates -- that counsel could hardly be so inexperienced as to
not deserve the maximum rate. n4 Indeed the enhanced hourly PLRA rate for
out-of-court time before May 1, 2002 -- $82.50 -- is only slightly higher than
the prevailing market rate for legal assistants in the Kansas City area. See Boilermaker-Blacksmith,
2002 U.S. Dist. Lexis 3993, [ WL] at *2 ($75); Lappin v. Gwartney, 2000 U.S.
Dist. Lexis 22277, 2000 WL 1532765, at *11 (D. Kan. Sept. 18, 2000) ($80 for
2000; $70 for 1999); Aquilino, 109 F. Supp. 2d at 1325 ($65); Outdoor Sys.,
2000 U.S. Dist. Lexis 6639, [WL] at *4-5 ($70). Although plaintiff did not
provide information as to Scurlock's experience, he was admitted to the bar in
Missouri in 1997 and to the District of Kansas in 1998. Scurlock prepared the
case for trial until he withdrew in May of 2002. Scurlock successfully opposed
defendants' motion for reconsideration of the Court's summary judgment ruling
and defendants' second summary judgment motion. The Court therefore applies an
$82.50 hourly rate for Scurlock's work before May 1, 2002.
As to
Scurlock's work on and after May 1, 2002 and as to Packel and Schiavone,
plaintiff provides sufficient evidence of counsel's experience to justify an
enhancement of the standard hourly rates which the Tenth Circuit Judicial
Conference has [*1066] adopted. Given the limited information provided by
counsel, however, the Court awards an hourly rate of $120 for Scurlock, Packel
and Schiavone for work on and after May 1, 2002. The Court has outlined
Scurlock's qualifications. Packel is a member of Husch & Eppenberger law
firm and has worked in private practice for ten years. Schiavone graduated from
law school in 1999 and has worked as a litigation associate in private practice
for four years. All three attorneys performed admirably and Packel and
Schiavone obtained excellent results at trial. Given the Court's knowledge of
market rates in the community and the fact that this case did not involve
complex legal and factual issues, $120 is a reasonable hourly rate. n5
Defendants object to the hourly
rates charged for legal assistants,
investigators and law clerks. Plaintiff requests hourly rates of $95.00
for legal assistant N. Cline, $85.00 for legal assistants H. Long and L.
McWhorter, and $85.00 for investigator J. Schwarz. Plaintiff requests hourly
rates of $95 for Heather McNeely and $90 for G. Nicole Hininger and David C.
DeGraeff, but does not identify their positions. Based on the description of
work and their proposed rates, the Court assumes that these individuals are
legal assistants or law clerks. Plaintiff does not provide evidence of the
prevailing market rates, however, and the requested rates do not reflect a reduction
in light of the restrictions in Section 1997e(d)(3). Based on the market rate
and the reduction contemplated by Section 1997e(d)(3), the Court awards $40 per
hour for legal assistants, investigators, law clerks and individuals otherwise
unidentified in the record. See Searles v. Van Bebber, 64 F. Supp.2d 1033, 1037
(D. Kan. 1999) ($30 per hour for legal assistant and $45 per hour for law
clerk); Roberson, 29 F. Supp.2d at 353 (in light of attorneys' reduced rates
under PLRA, awarding $30 per hour for legal assistant).
II. Number of Hours
Attorneys
normally do not bill all hours expended in litigation to a client, and "an
applicant should exercise 'billing judgment' with respect to a claim of the
number of hours worked." Ellis, 163 F.3d at 1202 (quoting Malloy v.
Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (further quotations and citations
omitted)). To show billing judgment, "'counsel for the prevailing party
should make a good-faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary' . . . [and the] district court
has a corresponding obligation to exclude hours not 'reasonably expended' from
the calculation." Id.
Defendants
first argue that because the Court dismissed plaintiff's claim relating to
tight handcuffs, the Court should deny fees associated with that claim.
Defendants fail to note that at trial, plaintiff prevailed on a claim which
relied in part on defendants' use of handcuffs. n6 The [*1067] Court cannot
precisely determine how much time counsel spent on the dismissed claim against
Leonard Moore, but that claim was closely intertwined with plaintiff's other
claims. Also, it required very little additional briefing and the Court
dismissed it shortly after the Court appointed counsel for plaintiff.
Accordingly, the Court finds that only a slight reduction of two hours is
justified.
Defendant
next objects that entry 10780 and entry 11012 are identicaland reflect
duplicative work. Entry 10780 reflects 1.8 hours for counsel's initial review
of the court file for copying. Entry 11012 reflects 3.2 hours for counsel's
review of the court file copies. Because the file was fairly large when the
Court appointed counsel for plaintiff, these entries are reasonable and do not
reflect duplicative work.
Defendants
object that an investigator spent 31.5 hours to interview Herbert Proffitt, an
inmate in El Dorado, Kansas, and prepare a one-page affidavit for Proffitt.
Plaintiff filed the Proffitt affidavit in response to the Court's order to show
cause why his claims against Boyer should not be dismissed. The investigator
charged for three trips to El Dorado -- the first two trips to interview
Proffitt and the third trip to have Proffitt execute the affidavit. On July 17,
2000, before the Court appointed counsel, plaintiff submitted a detailed,
two-page affidavit by Proffitt which included his recollection of the brief
altercation between plaintiff and defendants. The one-page affidavit which the
investigator obtained in November of 2001 supplemented Proffitt's previous
affidavit as to Boyer's specific involvement in plaintiff's takedown. Given the
distance between Kansas City and El Dorado (approximately 170 miles), the
investigator should have coordinated his efforts with plaintiff's counsel so
that the investigator only had to travel twice to El Dorado. The Court finds
that the investigator reasonably incurred 12.0 hours to travel and 5.0 hours to
interview Proffitt, discuss the interview with counsel and obtain a short
affidavit from Proffitt. n7
Defendants
object to entry 16718, which reflects that counsel spent 1.2 hours preparing
expense reimbursement explanation forms. Plaintiff provides no explanation for
this entry and the Court therefore excludes 1.2 hours from the attorney time
requested by plaintiff.
Defendants
next object that because only one entry for 1.3 hours reflects that counsel did
not charge for the work, counsel did not ensure that the requested fees are
reasonable. The Court disagrees. Although plaintiff's application for fees does
not clearly reflect that counsel has attempted to eliminate all duplicative billings and to exclude time that is
not compensable, the record does not suggest broad-scale excessive billing by
counsel. To the extent that particular entries are excessive, the Court has
addressed them elsewhere in this order. In short, the Court is satisfied that
except as noted in this order, plaintiff's application for attorneys' fees does
not reflect duplicative, unnecessary, excessive or noncompensable time.
Defendant
challenges time which counsel spent to prepare an application for a writ of
habeas corpus ad testificandum for inmate Elmore Marks, who did not testify at
trial. Plaintiff does not explain the background for the application, and the
Court cannot determine whether his appearance was necessary. Because plaintiff
[*1068] bears the burden of showing that the time requested is compensable, Ellis,
163 F.3d at 1203, the Court strikes a total of 4.1 hours. n8
Defendants
object to 4.2 hours related to Scurlock's withdrawal as counsel and file review
with new counsel. The Court finds that such time was reasonable and helped new
counsel to prepare more efficiently for trial, which was scheduled less than
two months after Scurlock withdrew.
Defendants
also object to 8.0 hours related to Packel's introduction to the case, claiming
that such efforts were only necessary because plaintiff switched attorneys
shortly before trial. The Court disagrees. Plaintiff did not voluntarily switch
attorneys. He was required to do so because in May of 2002, Scurlock accepted a
position with The Honorable Thomas Newton of the Missouri Court of Appeals and
left private practice. Moreover, Packel spent a limited amount of time
familiarizing himself with the case and Scurlock likely would have required
general review time if he had taken the case to trial.
Defendants
challenge several entries which do not reflect whether certain individuals were
legal assistants, secretaries, law clerks or partners. Defendants also maintain
that their work appears to be duplicative. The Court has reviewed every
challenged entry and the evidence shows that in most cases, when one person was
involved, the person merely worked on particular tasks at different times.
Similarly, when two or more people were involved, one person prepared work for
review by others, or two persons worked on different parts of related tasks. As
to the lack of individual identification, the Court has used the $40 hourly
rate for all individuals who are not sufficiently identified.
Defendants
challenge all work by Schiavone because the Court only appointed Packel after Scurlock withdrew. This
objection is frivolous. The Court originally appointed Scurlock, who
represented plaintiff until May of 2002 -- when Schiavone and Packel entered
their appearances as replacement counsel. The Court did not specifically
appoint replacement counsel because Scurlock volunteered to find replacement
counsel who could try the case on short notice. Trial was scheduled for less
than two months after Schiavone and Packel entered their appearances, and the
decision to employ two attorneys to take the case to trial was not
unreasonable. n9
Defendants
assert that Schiavone duplicated Packel's work and plaintiff does not
specifically indicate that the time sheets were reviewed to exclude duplication
of effort. Plaintiff bears the burden
of making a "good-faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at
434. The Court recognizes that zealous representation resulted in some limited
duplication of effort on plaintiff's behalf. For example, only one attorney
needed to travel to El Dorado, tour the correctional facility and interview
Profitt as a potential trial witness. Because both Packel and Schiavone billed
10.8 hours for these tasks, the Court excludes 10.8 hours of attorney time. n10
In addition, only one attorney had to travel to Lansing shortly before trial to
[*1069] interview plaintiff and Elmore Marks. Because both Packel and Schiavone
billed 6.0 hours for these tasks, the Court excludes 6.0 hours of attorney
time. Finally, the Court recognizes some limited duplication of effort in trial
preparation. The Court therefore excludes a total of ten additional hours. As
to the other challenged entries, the tasks are separable and the entries
suggest that Packel and Schiavone were working on different parts of the same
task. n11 Accordingly, the Court declines to further reduce the hours of Packel
or Schiavone.
III. Lodestar Calculation
Based on the
above discussion, the Court calculates the lodestar as follows:
Hours Rate Total
McLeod Law Firm
205.9 $ 82.50 $ 16,986.75
(attorney before 5-1-02)
McLeod Law Firm
21.1 $ 120.00 $ 2,532.00
(attorney on/after 5-1-02)
McLeod Law Firm:
46 $ 40.00 $ 1,840.00
Legal Asst., Law Clerk,
Investigator
Packel
77.8 $ 120.00 $ 9,336.00
Schiavone
75.2 $ 120.00 $ 9,024.00
Husch & Eppenberger:
23.4 $ 40.00 $ 936.00
Legal Asst., Law Clerk,
TOTAL: $
40,654.75
Once a
court has determined the lodestar amount, "there remain other
considerations that may lead the district court to adjust the fee upward or
downward." Hensley, 461 U.S. at 434. Neither party seeks a change in the
lodestar, and the Court sees no reason to alter the fee award. In addition,
given the limits set forth in Section 1997e(d)(3), the Court likely could not
grant plaintiff an increase.
IV. Expenses
In addition
to attorneys' fees, the prevailing party is entitled to recover reasonable
expenses that are usually itemized and billed separately, as long as the
expenses are reasonable. See Sussman v. Patterson, 108 F.3d 1206, 1213 (10th
Cir. 1997). As an initial matter, plaintiff seeks $3,146.26 for copies,
$2,269.25 for deposition costs, $266.15 in witness fees and $90.00 in service
fees. These expenses are considered "costs" which are taxed by the
clerk against the losing party. See 28 U.S.C. § 1920; Lappin, 2000 U.S. Dist. Lexis
22277, [WL] at *12. Pursuant to Rule
54(d)(1), costs other than attorneys' fees are allowed as a matter of course to
the prevailing party unless the Court directs otherwise. D. Kan. Rule 54.1(a)
provides that the party entitled to recover costs shall file a bill of costs
with the clerk within 30 days after the time for appeal has expired or receipt
by the clerk of an order terminating the action on appeal. Therefore the Court
will not assess costs at this time.
a. Long
Distance Telephone Calls
Plaintiff
seeks $384.60 in long-distance calls. Defendant argues that this expense is
covered by counsel's hourly rates. The Court disagrees. The PLRA requires a significantly reduced
hourly rate that does not include long-distance phone calls. n12
Furthermore, long-distance [*1070] telephone calls are typically billed as
expenses in addition to hourly fees. See Barvick v. Cisneros, 1997 U.S. Dist. Lexis
10904, No. 95-2326-GLR, 1997 WL 417994, *16 (D. Kan. July 18, 1997); Dutton v.
Johnson County Bd. of Comm'rs, 1995 U.S. Dist. Lexis 7658, No. 93-2184-JWL,
1995 WL 337588, at *4 (D. Kan. May 26, 1995).
Defendants
next argue that plaintiff provides no telephone log. Plaintiff's application
does not show the purpose of every long-distance call. The total long-distance
expense falls well within the bounds of reason, however, and reasonable
timekeeping practices do not require counsel to itemize the purpose of each
telephone call. Plaintiff's counsel was located in Kansas City, plaintiff was
located in El Dorado and Lansing, and defense counsel was located in Topeka.
Long-distance calls were therefore necessary and the Court awards $384.60.
b. Fax
Expenses
Plaintiff
seeks $77.00 for 167 pages of faxed materials. While plaintiff seeks $0.50 per
page, defendant argues that this amount is excessive. The Court finds that
$0.50 per page is not excessive. See Searles, 64 F. Supp. 2d at 1040 .
Defendant also argues that plaintiff does not show that the faxes were
necessary. Because plaintiff has not explained why such expenses were
necessary, the Court excludes them.
c. Online
Research Charges
Plaintiff
seeks $225.33 for online computerized research. Defendant argues that this
request is excessive because counsel could have done the same work manually.
Again, the Court disagrees. Computerized research typically saves a significant
amount of manual research time, and the Court finds that an award of $225.33 is
reasonable.
d. Delivery
Expenses
Plaintiff
seeks to recover $576.37 for localand express delivery expenses. Defendants
object that plaintiff has not shown the need for such deliveries. Plaintiff
provides no explanation for these expenses. On review of plaintiff's application, the Court awards $8.00 for
delivery of the court file to Scurlock when the Court originally appointed him.
Except as to that entry, the Court cannot determine that the local and express
delivery charges were necessary. The Court therefore excludes the remaining
$568.37 of delivery expenses.
e. Postage
Expenses
Plaintiff
seeks $68.70 for postage expenses. Defendants argue that postage expenses are
incidental costs which are ordinarily covered by counsel's hourly rates. The
Court disagrees. The PLRA's significantly reduced hourly rate does not
contemplate that postage expenses are included. n13 The Court awards $68.70 for
postage expenses.
f. Travel,
Lodging and Meals
Plaintiff
seeks $1,001.29 for travel, lodging and meals. The Court has already excluded
$190.27 of these expenses. See supra note 10. Defendants object that a portion
of the investigator's expenses include tips and movies. Counsel apparently
erroneously included these items in the billing statement, but the total
expenses of the investigator for two overnight trips to El Dorado are
reasonable. n14 Defendants [*1071] do not object to the remaining travel,
lodging and meals expenses. Plaintiff's entries regarding travel, lodging and
meals are reasonable, especially given the travel required for counsel to visit
plaintiff in El Dorado and Lansing and to take depositions in El Dorado. The
Court therefore awards $811.02 in travel, meals and lodging.
g. Medical
Records And Research
Defendants
object to several entries related to "medical records and research"
which total $1,388.22. In addition, plaintiff has listed additional entries for
"medical records and research" which total $337.34. Plaintiff
provides no explanation for the expenses. The Court therefore excludes them.
h. Other
Expenses
Defendants
do not object to various other expenses (parking and a witness social security
number search) which total $11.50. The Court finds that these expenses are
reasonable.
In sum, the
Court awards $1,509.15 in expenses.
V. Section 1997e(d)(2)
Based on the above discussion,
the Court determines that $40,374.75 is a reasonable fee and $1,509.15 is
reasonable award for plaintiff's expenses. In addition, the Court finds that
said fees and expenses were directly and reasonably incurred in proving an
actual violation of plaintiff's rights. See 42 U.S.C. § 1997e(d)(1); Clark, 965
F. Supp. at 331. Likewise, the Court finds that the fee award is sufficiently
proportional to plaintiff's relief. 42 U.S.C. § 1997e(d)(1).
Normally, these findings would end the Court's analysis. Because
plaintiff is an inmate, however, Section 1997e places yet another limit on his
recovery. Under Section 1997e(d)(2),
Whenever a
monetary judgment is awarded . . . a portion of the judgment (not to exceed 25
percent) shall be applied to satisfy the amount of attorneys' fees awarded
against the defendant. If the award of attorneys' fees is not greater than 150
percent of the judgment, the excess shall be paid by the defendant.
Some courts
have concluded that Section 1997e(d)(2) gives the district court discretion to
determine what constitutes a proper portion -- up to 25 per cent. See Sutton v.
Smith, 2001 U.S. Dist. Lexis 9011, 2001 WL 743201, at *2 (D. Md. June 26, 2001)
(PLRA does not impose minimum percentage that must apply toward fees); Johnson
v. Daley, 117 F. Supp.2d 889, 905 (W.D. Wisc. 2000) (same); Morrison v. Davis,
88 F. Supp.2d 799, 811 (S.D. Ohio 2000) (same); Collins v. Algarin, 1998 U.S.
Dist. Lexis 83, 1998 WL 10234, at *10 (E.D. Pa. Jan. 9, 1998) (same). The
statute is not a model of clarity, but the
more plausible interpretation -- especially given the other limits that Section
1997e places on both prisoners and the courts -- is that the Court must
automatically apply plaintiff's fee award against his damages to the extent
that it does not exceed 25 per cent of the damages. See Spruytte v. Hoffner,
197 F. Supp.2d 931, 934 (W.D. Mich. 2001) (reduced damages by 25 per cent); Searles,
64 F. Supp.2d at 1042 (damages must be reduced by amount of fee award up to 25
per cent of total damages); Beckford v. Irvin, 60 F. Supp.2d 85, 89-90
(W.D.N.Y. 1999) (same); Roberson, 29 F.
Supp. 2d at 355 (same); see also Walker v. Bain, 257 F.3d 660, 669 (6th Cir.
2000) (in dicta, noting that Section 1997e(d)(2) requires 25 per cent of fee
award to be paid from plaintiff's recovery).
Plaintiff does not dispute that under Section 1997e, he is responsible for his [*1072] own attorneys' fees, up to 25 per cent of his total damages. The total fee award is $40,654.75. Plaintiff's damages total $45,000, and 25 per cent of this amount is $11,250. Because plaintiff's award of attorneys' fees is not greater than 150 per cent of the judgment, plaintiff must pay $11,250 of the fee award. See Roberson, 29 F. Supp.2d at 355. Accordingly, defendants must pay plaintiff the remaining fee balance which is $29,404.75.
IT IS THEREFORE ORDERED that
Plaintiff's Application For Attorneys' Fees (Doc. # 157) filed February 27,
2003 be and hereby is SUSTAINED in part. The Court awards $40,654.75 in fees
and $1,509.15 in expenses. Pursuant to 42 U.S.C. § 1997e(d)(2), plaintiff shall
pay his attorneys $11,250.00 of the fee award from the proceeds of the monetary
judgment against defendants. Defendants must pay plaintiff $29,404.75 in fees
and $1,509.15 in expenses.
Dated this
12th day of June, 2003 at Kansas City, Kansas.
KATHRYN H.
VRATIL
United
States District Judge
FOOTNOTES:
n1 42 U.S.C. § 1997e(d) provides:
(1) In any action brought by a
prisoner who is confined to any jail, prison, or other correctional facility,
in which attorney's fees are authorized under section 1988 of this title, such
fees shall not be awarded, except to the extent that--
(A) the fee was directly and
reasonably incurred in proving an actual violation of the plaintiff's rights
protected by a statute pursuant to which a fee may be awarded under section
1988 of this title; and
(B)(i) the amount of the fee is
proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and
reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment
is awarded in an action described in paragraph (1), a portion of the judgment
(not to exceed 25 percent) shall be applied to satisfy the amount of attorney's
fees awarded against the defendant. If the award of attorney's fees is not
greater than 150 percent of the judgment, the excess shall be paid by the
defendant.
(3) No award of attorney's fees in
an action described in paragraph (1) shall be based on an hourly rate greater
than 150 percent of the hourly rate established under section 3006A of Title
18, for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering
into an agreement to pay an attorney's fee in an amount greater than the amount
authorized under this subsection, if the fee is paid by the individual rather
than by the defendant pursuant to section 1988 of this title.
n2 Defendants actually request that the Court apply the rates of
$65 per hour for in-court time and $45 per hour for out-of-court time. The Judicial
Conference amended those rates effective January 1, 2000. The Court construes
defendants' objection as a request to apply the standard rates adopted by the
Tenth Circuit Judicial Conference for the relevant time period.
n3 Scurlock did not bill for any
in-court time. Schiavone and Packel did not bill for any work before May 1,
2002.
n4 This Court has found that the prevailing market rate for lead counsel in a variety of cases ranges from $120 per hour to $225 per hour, depending on counsel's experience in the field. Robbins v. Chronister, 2002 U.S. Dist. Lexis 3835, No. 97-3489-DJW, 2002 WL 356331, at *13 (D. Kan. Mar. 1, 2002) (prevailing market rate for lead counsel in civil rights litigation between $120 and $225 per hour); see also Erickson v. City of Topeka, Kan., 239 F. Supp.2d 1202, 1211 (D. Kan. 2002) ($175 per hour); Sheldon v. Vermonty, 237 F. Supp. 2d 1270, 1279 (D. Kan. 2002) ($155 per hour); Boilermaker-Blacksmith Nat'l Pension Fund v. ACE Polyethylene Bag Co., 2002 U.S. Dist. Lexis 3993, 2002 WL 372868, *2 (D. Kan. Mar. 7, 2002) ($150 per hour); Wilder-Davis v. Bd. of County Comm'rs, 2000 U.S. Dist. Lexis 22187, Civ. A. No. 98-2363-GTV, 2000 WL 1466691, *5 (D. Kan. Aug. 8, 2000) ($165 per hour); Aquilino v. Univ. of Kan., 109 F. Supp.2d 1319, 1325 (D. Kan. 2000) ($155 per hour); Lintz v. Am. Gen. Fin., Inc., 87 F. Supp.2d 1161, 1171 (D. Kan. 2000) ($155 per hour); Outdoor Sys., Inc. v. City of Merriam, Kan., 2000 U.S. Dist. Lexis 6639, 2000 WL 575023 at *4-5 (D. Kan. Feb. 25, 2000) ($165 and $155 per hour); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 592 (D. Kan. 1999) ($155 per hour for lead counsel, $120 per hour for other attorneys).
n5 This rate is consistent with the low end of hourly rates
recently approved in the District of Kansas. See supra note 5.
n6 The Court dismissed plaintiff's
claim that Leonard Moore refused to immediately loosen the handcuffs, see Jackson
v. Simmons, 2001 U.S. Dist. Lexis 18879, 2001 WL 1456859, at *6 (D. Kan. 2001),
but the Court considered the tightness of the handcuffs as part of the totality
of the officers' response to plaintiff's alleged conduct. See Jackson v.
Austin, 241 F. Supp.2d 1313, 1317 (D. Kan. 2003) (finding handcuffs were
excessively tight, officers had pulled up on handcuffs, and handcuffs were
cutting into plaintiff's skin); see also Jackson v. Simmons, 2001 U.S. Dist. Lexis
18879, [WL] at *4 (D. Kan. Nov. 2, 2001) (injury to plaintiff's wrists may be
insufficient by itself to constitute Eighth Amendment violation, but reasonable
fact finder could conclude that plaintiff's injuries taken together were more
than de minimis).
n7 Because counsel only requested expenses for two of the
three trips, the Court does not reduce the investigator's travel expenses.
n8 The Court strikes .5 hours from
entry 4970003, 1.0 hours from entry 18619, 1.5 hours from entry 18906 and 1.1
hours from entry 18750.
n9 The Court does exclude the time
spent by Paul Seyferth, who consulted with Packel 1.0 hours the day before
trial and spent 1.5 hours listening to Packel's opening statement and
discussing strategy during trial. Plaintiff has not shown that a third attorney
was necessary at trial.
n10 The Court likewise excludes
the travel expenses of one of the attorneys ($190.27).
n11 Defendants also employed two
attorneys at trial.
n12 Scurlock incurred most of the
long distance telephone charges before May 1, 2002 when the maximum hourly rate
was $82.50.
n13 Again, Scurlock incurred most
of these charges before May 1, 2002 when the maximum hourly rate was $82.50.
n14 The investigator spent on
average $142.01 per trip which is less than the expenses charged by the three
attorneys who billed for comparable trips. See Entry dated July 9, 2002 (attorney
billed $190 for overnight trip to Wichita/El Dorado); Entry dated July 19, 2002
(attorney billed $189 for overnight trip to Wichita/El Dorado); see also Entry
16507 (attorney billed $134.68 for mileage and tolls on trip to El Dorado).