Opinion
Case No. 2:99-CV-579
April 20, 2001
OPINION AND ORDER
Plaintiff instituted this action under the provisions of 42 U.S.C. § 1983, alleging that defendant Donovan Kane [hereinafter "defendant"], an officer of the Columbus Police Department ["CPD"], stopped him without legal justification, conducted an illegal pat-down search of him and, based on the result of that search, falsely arrested him and charged him with a criminal offense, all in violation of plaintiffs rights under the Fourth Amendment.
The City of Columbus, originally also named as a defendant, was dismissed upon stipulation of the parties. Stipulation of Dismissal (June 6, 2000).
Plaintiff's claims of false arrest and wrongful imprisonment were resolved adversely to him. Opinion and Order (October 20, 2000). Following trial, this Court concluded that plaintiff's rights under the Fourth Amendment had not been violated when defendant stopped the car in which plaintiff was a passenger, but that those rights had been violated when defendant searched plaintiff based solely on plaintiff's refusal to provide identification to defendant. The Court awarded compensatory damages in favor of plaintiff and against the defendant in the amount of $500.00 (Five Hundred Dollars) in connection with this violation of plaintiff's Fourth Amendment rights. Defendant's appeal from that judgment was voluntarily dismissed. Cobb v. Columbus, Case No. 01-3597 (6th Cir. October 10, 2000). This matter is now before the Court on plaintiffs motion for attorney's fees under 42 U.S.C. § 1988.
The parties have consented to disposition by the undersigned. 28 U.S.C. § 636(c).
Plaintiff requests a total award of $26,215.00, that amount reflecting 107 hours expended by counsel, compensated at an hourly rate of $245.00 per hour. Defendant challenges both the accuracy of the itemization, the reasonableness of the time expended and the hourly rate sought.
Under the provisions of the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, "the Court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of costs." The United States Supreme Court has "intimated that the award of attorney's fees under 42 U.S.C. § 1988 involves a two-step inquiry: first, whether the moving party is a `prevailing party'; and second, whether the moving party's victory was sufficient to justify a fee award of a particular amount." D.L.S., Inc. v. City of Chattanooga, 149 F.3d 1182 (table decision), No. 97-6029, 1998 WL 344046, at *3 (6th Cir. May 28, 1998) (citing Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
To qualify as a "prevailing party," "a party must `succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). See also Berger v. City of Mayfield Heights, 265 F.3d 399, 406 (6th Cir. 2001). A "plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties . . . in a way that directly benefits the plaintiff." Farrar, 506 U.S. at 111-12. See also Berger, 265 F.3d at 406. "Even a plaintiff who wins only nominal damages is a prevailing party under § 1988." Cramblit v: Fikse, 33 F.3d 633, 634-35 (6th Cir. 1994) (quoting Farrar, 506 U.S. at 115). Despite the fact that plaintiff did not prevail on all of his claims there can be no doubt that plaintiff qualifies as a prevailing party.
Defendant argues that this Court should not award attorney's fees to plaintiff because the relief awarded, i.e., $500.00, was only nominal. However,
[t]he purpose of § 1988 is to ensure "effective access to the judicial process" for persons with civil rights grievances. Accordingly, a prevailing plaintiff "`should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'"
Hensley, 461 U.S. at 429 (quoting S.Rep. No. 94-1011, p. 4 (1976), U.S. Code Cong. Admin. News 1976, p. 5912). Furthermore, the United States Court of Appeals for the Sixth Circuit has held that, absent special circumstances, a court "`must award fees to the prevailing plaintiff.'" Berger, 265 F.3d at 406 (quoting Morscott, Inc. v. City of Cleveland, 936 F.2d 271 (6th Cir. 1991)). Finally, "[a]lthough the fact that a plaintiff was awarded only nominal damages does not affect the prevailing party inquiry, `it does bear on the propriety of fees awarded under § 1988.'" Cramblit, 33 F.3d at 635 (quoting Farrar, 506 U.S. at 113). Therefore, the Court concludes that plaintiff is entitled to an award of fees.
"After a district court determines that a plaintiff is a prevailing party under § 1988, it must then determine what is a `reasonable' attorney's fee." Cramblit, 33 F.3d at 635. Ordinarily, the determination of a reasonable fee involves a determination of "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. "This figure, commonly referred to as the `lodestar,' is presumed to be the reasonable fee contemplated by § 1988." City of Riverside v. Rivera, 477 U.S. 561, 568 (1986). However, Hensley also contemplated the possibility of an upward or downward adjustment to the lodestar figure. See Hensley, 461 U.S. at 434. Furthermore,
where a prevailing plaintiff has succeeded on only some of his claims, an award of fees for time expended on unsuccessful claims may not be appropriate. In these situations, . . . the judge should consider whether or not the plaintiffs unsuccessful claims were related to the claim on which he succeeded, and whether the plaintiff achieved a level of success that makes it appropriate to award attorney's fees for hours reasonably expended on unsuccessful claims. . . .
Rivera, 477 U.S. at 568 (citing Hensley, 461 U.S. at 435). "In determining the reasonableness of a fee award `the most critical factor . . . is the degree of success obtained.'" Cramblit, 33 F.3d at 635 (quoting Farrar, 506 U.S. at 114). A "party who partially prevails is entitled to an award of attorney's fees commensurate to the party's success." Berger, 265 F.3d at 406. Therefore, defendant argues that any award of attorney's fees to plaintiff should be reduced to reflect the fact that plaintiff was unsuccessful on all but one of his claims. Moreover, defendant contends, the documentation submitted in support of the motion is inadequate to establish the reasonableness of the number of hours spent on the single claim upon which plaintiff prevailed.
The fact that a plaintiff "is a `prevailing party' . . . may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." D.L.S., Inc. v. City of Chattanooga, 149 F.3d 1182 (table decision), No. 97-6029, 1998 WL 344046, at *5 (6th Cir. May 28, 1998).
A fee applicant carries "the burden of proving the reasonableness of the number of hours expended on his prevailing claim." Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987), mod fled on other grounds, 906 F.2d 1068 (5th Cir. 1990). "Not only must attorneys exclude unnecessary hours from their bill, they must also maintain billing time records that are sufficiently detailed to enable the courts to review the reasonableness of the hours expended." Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). "Plaintiffs counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his expenditures." Hensley, 461 U.S. at 437 n. 12. However, the fee applicant's burden does not shift to the opposing party simply because that party does not make specific objections to the hours claimed. Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) [citations omitted].
James D. McNamara, plaintiffs attorney, is a 1974 graduate of the Ohio State University Moritz College of Law. Affidavit of James D. McNamara, ¶ 1, attached to Supplemental Petition for Award of Attorney Fee. He has been licensed to practice law in Ohio since 1974. Id., ¶¶ 1-2. He has also been admitted to the bars of this Court, of the United States Court of Appeals for the Sixth Circuit and of other federal courts. Id., ¶ 2. Mr. McNamara has engaged in the private practice of law for most of his career. Id. His practice has included both civil and criminal cases. Id., ¶ 3.
Mr. McNamara has handled civil rights cases as part of his case load since the beginning his career. Id. Over the last fifteen (15) years, he has specialized in police misconduct litigation, which now constitutes approximately 80% of his practice. Id. He has handled more than 1,000 police misconduct cases, and has tried between 80 to 90 such cases to verdict. Id.
Mr. McNamara has also lectured on police misconduct litigation at law schools and elsewhere. Id., ¶ 4. Although most of his clients are not charged on an hourly basis, those that are are charged at the rate of $200.00 per hour. Second Affidavit of James D. McNamara, ¶ 16, attached to Plaintiff's Reply Memorandum in Support of Application for Attorney Fees.
Mr. McNamara has documented a total of 107 hours in his representation of plaintiff in this matter. Defendant, however, argues that some of those hours relate solely to plaintiffs claim against the City of Columbus, which was voluntarily dismissed on June 6, 2000. Mr. McNamara responds:
The Plaintiff did not litigate his claim against the City of Columbus. He did not try that issue, or argue it in motions, or pursue discovery on that issue. Other than the time it took to include that language in the complaint, a matter of a few minutes, I did no work in furtherance of [that claim]. All of the time submitted by counsel herein was expended working on the claim against Defendant Kane. My time sheet does not identify what hours were spent on the claim against the City, because there were no hours dedicated to working on that issue.
Second Affidavit of James D. McNamara, ¶ 11. However, Kane points to plaintiff's First and Second Requests for Production of Documents, which seek documents concerning defendant's employment and training, as well as information concerning the city's investigation of citizen complaints. Furthermore, defendant refers to a letter sent to defense counsel by Mr. McNamara concerning the city's objection to plaintiff's First Request for Production of Documents No. 2:
Defendant refers to plaintiffs request for memoranda written by the defendant city's assistant safety director discussing the investigation of citizen complaints. Plaintiff's First Request for Production of Documents No. 2. Defendant also refers to plaintiffs request for the "entire contents of the employment, disciplinary, Internal Affairs and personnel files of" defendant, Plaintiff's First Request for Production of Documents No. 3, as well as "[a]ll materials referred to by Defendant Kane . . . [in] his deposition, including the `books and materials [he has] kept', and which Defendant Kane used to research the legality of this stop. Plaintiff's Second Request for Production of Documents No. 4. However, all but the memoranda discussing the investigation of citizen complaints, addressed in Plaintiff's First Request for Production of Documents No. 2, are equally relevant to plaintiffs claim against defendant Kane, and on which plaintiff prevailed.
As you know, our third claim herein is a claim based upon unlawful customs or policies. One of the policies the Plaintiff wishes to explore by way of discovery is the failure to adequately investigate and discipline in response to citizen complaints. The documents sought in our Request for Production of Documents Number 2 are designated [sic] to illicit [sic] information on this point.
Letter Dated November 22, 1999 attached to Defendant's Surreply to Plaintiff's Reply Memorandum in Support of Application for Attorney Fees.
Mr. McNamara's itemization consists of a brief description of his work, the date the activity occurred and the time expended. Mr. McNamara expended one half hour preparing plaintiff's First Request for Production of Documents on September 20, 1999, and 1.5 hours on November 20, 1999 reviewing documents produced by defendants, composing a letter to defense counsel, and conducting legal research. Time Records attached to Affidavit of James D. McNamara. Because these items appear to relate only to plaintiffs unsuccessful claim against the city, the Court concludes that the award of attorney's fees must be reduced by the two (2) hours apparently devoted to discovery on that claim.
Defendant also argues that the fee award should be further reduced because plaintiff was unsuccessful on even most of his claims against the individual defendant, and it is impossible to distinguish, in his counsel's itemization, time devoted to the successful claim and that devoted to the unsuccessful claims. The United States Supreme Court has cautioned:
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation. . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.
Hensley, 461 U.S. at 435.
In addition to the failure to train claim asserted against the city, the complaint alleged that defendant violated plaintiff's Fourth Amendment rights by stopping the vehicle in which plaintiff was riding as a passenger without reasonable suspicion of a crime, by subjecting plaintiff to a pat-down search, and by arresting plaintiff without probable cause. Plaintiff's Fourth Amendment claims against the individual defendant were based on a common set of facts, i.e., a chain of events that lasted just a few minutes. Where, as here, the plaintiff has not prevailed on all claims, yet "plaintiffs claims for relief . . . involve a common core of facts . . . or [are] based on related legal theories," such a lawsuit cannot be viewed as a series of discrete claims. Id., 461 U.S. at 433. It is unreasonable to expect plaintiffs attorney to distinguish between time spent on the unsuccessful components of plaintiffs claims against defendant from that devoted to the successful claim. Therefore, defendant's contention that the fee award should be reduced because Mr. McNamara expended time on Cobb's unsuccessful Fourth Amendment claims lacks merit.
Furthermore, the Court concludes that plaintiff achieved excellent results. Although plaintiff was awarded only $500.00 in damages, that amount, in the estimation of this Court, fully compensated plaintiff for the violation of his constitutional right established at trial. The fact that plaintiffs damages are not easily quantifiable cannot be used to deny plaintiff a full recovery on either his substantive Fourth Amendment claim or his right to recover his attorney's fees. To conclude otherwise would jeopardize the ability of all such civil rights plaintiffs to obtain meaningful access to counsel and an opportunity to vindicate their constitutional rights.
Because plaintiff, to his credit, "resisted exaggeration, even when testifying about his subjective response to the events of that night[,]" Opinion and Order (April 20, 2001), at 4, the Court found that damages in the amount of $500.00 would reasonably compensate plaintiff for the "humiliation, mental suffering and the intangible loss" of his Fourth Amendment rights. Id., at 13.
Defendant contends that the rate of compensation sought, i.e., $245.00 per hour, is unreasonable because the claim on which plaintiff ultimately prevailed was neither novel nor complex. A prevailing plaintiff is entitled to recover an attorney's fee under 28 U.S.C. § 1988 based upon "the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984).
To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable, and referred to — for convenience — as the prevailing market rate.
Id., at 896 n. 11. See also Coulter v. State of Tennessee, 805 F.2d 146, 149 (6th Cir. 1986).
In satisfaction of this burden, plaintiff presents the affidavit of Mr. McNamara as well as other civil rights litigators. Although portions of Mr. McNamara's affidavits are based on inadmissible hearsay, see, e.g., Affidavit of James D. McNamara ¶ 6; Second Affidavit of James D. McNamara ¶ 17, Mr. McNamara does attest to a recent court-awarded fee to him at an hourly rate of $245.00. McNamara Affidavit, ¶ 6.
Plaintiff also offers as evidence the affidavits of Louis A. Jacobs and John S. Marshall, attorneys with professional backgrounds similar to that of Mr. McNamara, to support his contention that $245.00 per hour is the prevailing market rate for attorneys with experience in federal civil rights litigation in the Columbus metropolitan area. Jacobs, a law professor at the Ohio State University Moritz College of Law and supervising attorney in the school's clinical programs, avers that a rate of $175.00 — $300.00 per hour for counsel of similar experience in federal civil rights litigation is a prevailing and fair market rate in the Columbus metropolitan area. Affidavit of Louis A. Jacobs, ¶ 7.
Professor Jacobs typically charges at a rate of only $175.00 per hour because he has no overhead expenses. Affidavit of Louis A. Jacobs, ¶ 12.
John S. Marshall, a specialist in civil rights and employment litigation, Affidavit of John S. Marshall, ¶ 3, currently bills hourly clients in police misconduct and civil rights cases at the rate of $250.00 per hour. Id., ¶ 8. Marshall opines that $245.00 per hour is less than the market rate for an attorney with Mr. McNamara's background, skill and experience. Id., ¶ 10.
Defendant offers no independent evidence of the prevailing rates for attorney's fees, but refers only to the records of this Court in Jane Doe v. Higgins, et al., C-2-98-738, in which another judge of this Court granted an unopposed motion for attorney's fees and costs in the amount of more than $90,000.00. Id., Order (June 20, 2000). It does not appear that the issue of prevailing hourly rate was actually litigated in that case. This Court concludes that plaintiff has met his burden of establishing that $245.00 per hour is a reasonable hourly rate for an attorney with Mr. McNamara's skills and experience.
Plaintiffs petition for an award of attorney's fees is GRANTED. Plaintiff is hereby AWARDED an attorney fee in the total amount of twenty-five thousand, seven hundred twenty-five dollars ($25,750.00). That amount reflects compensation for 105 hours at the hourly rate of $245.00.