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CIVIL ACTION No. 97-3489-DJW
March 1, 2002
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff's Motion for Attorney Fees (doc. 73). The Court previously entered judgment in favor of plaintiff on a portion of his section 1983 claim against the defendant police officer and awarded him nominal damages of one dollar, as well as attorney's fees, costs and expenses pursuant to 42 U.S.C. § 1988. Plaintiff seeks an award of attorneys' fees in the amount of $23,423 and expenses in the amount of $915.16. Defendant opposes the motion on the grounds that section 1997e(d)(2) of the Prison Litigation Reform Act ("PLRA") caps the award of attorney's fees to be paid by defendant to 150% of the damage award, or, in this case, to $1.50.
The parties have consented to disposition of all aspects of this case by the Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
Plaintiff's counsel has since submitted additional billings for time spent researching and briefing the issue of whether the PLRA attorney's fee cap is constitutional.
Plaintiff argues that the PLRA's attorney's fee limitations are not applicable here under the absurdity exception to the plain meaning rule of statutory construction. He, alternatively, argues that the fee limitations are unconstitutional as applied to the facts presented. For the reasons set forth below, the Court holds that, although constitutional issues exist, they do not have to be resolved because under the absurdity exception to the plain meaning rule of statutory construction, Congress could not have intended the PLRA's attorney's fee limitations, contained in 42 U.S.C. § 1997e(d), to apply to plaintiff in this case.
See Robbins v. Chronister, 156 F. Supp.2d 1211 (D.Kan. 2001), for a more detailed discussion of the Court's findings of fact.
On December 8, 1995, defendant, an off-duty Kansas City, Kansas, police officer driving home from work in his personal vehicle, attempted to arrest plaintiff on five outstanding minor traffic warrants. Defendant initially observed plaintiff in the driver's seat of a car parked at a local gas station. During the course of events, the officer smashed the driver's side car window and discharged his weapon numerous times at plaintiff's car. Plaintiff was struck in the abdomen and chest by three bullets.
After the incident, plaintiff was charged in Wyandotte County District Court with one count of aggravated assault on a law enforcement officer. He ultimately entered a guilty plea to the reduced charge of attempted aggravated assault on a law enforcement officer. While serving his sentence at the Federal Correctional Institution in Greenville, Illinois, plaintiff filed a civil rights action pro se pursuant to 42 U.S.C. § 1983, alleging that defendant police officer used excessive force in violation of his Fourth Amendment constitutional rights. After the Court denied defendant's Motion for Summary Judgment, the Court appointed plaintiff counsel on August 2, 2000. Less than one month later, approximately three weeks prior to trial, plaintiff's appointed counsel withdrew his appearance and plaintiff's present counsel, L.J. Leatherman, entered his appearance.
After a bench trial, the Court held that defendant's use of force in breaking plaintiff's driver's side car window in an effort to effect plaintiff's arrest was objectively unreasonable and constituted a violation of plaintiff's Fourth Amendment rights. Because the Court found that plaintiff suffered no physical injury when defendant broke the car window, the Court awarded plaintiff damages of only one dollar. Because he was a prevailing party, the Court also awarded plaintiff, pursuant to 42 U.S.C. § 1988, his attorney's fees, costs, and expenses associated with that portion of his case. See Robbins v. Chronister, 156 F. Supp.2d 1211 (D.Kan. 2001).
Plaintiff has now filed his motion for attorney's fees. Defendant opposes the motion on the basis that section 1997e(d)(2) of the PLRA caps the award of attorney's fees to be paid by defendant to 150% of the damage award, or, in this case, to $1.50. The parties, at the Court's direction, submitted supplemental briefs addressing whether the attorney's fee limitations of the PLRA, contained in 42 U.S.C. § 1997e(d), are constitutional as applied to plaintiff (docs. 86 and 87).
II. Do the PLRA's Attorney's Fee Limitations Apply to Plaintiff?
As an initial matter, the Court must determine whether the attorney's fee limitations contained in section 1997e(d) apply to plaintiff in this case. Unlike the claims in the majority of cases applying the PLRA, plaintiff's Section 1983 cause of action did not arise from his treatment while incarcerated or from prison conditions. Rather, plaintiff's cause of action stemmed from events surrounding his encounter with an off-duty police officer attempting to arrest him on outstanding minor traffic warrants. Thus, all the events pertaining to plaintiff's cause of action occurred prior to his incarceration. Plaintiff filed his complaint while he was serving his sentence.
On April 26, 1996, Congress enacted the Prison Litigation Reform Act of 1993 to reduce frivolous inmate litigation and to end judicial micromanagement of state and local prison systems. 141 Cong. Rec. S14611-01, *S14626 (daily ed. Sept. 29, 1995) (statements of Senators Dole and Hatch). Section 803(d) of the PLRA, 110 Stat. 1321-66, amended the provisions for awarding attorney's fees to successful prisoner civil rights plaintiffs. Specifically, 42 U.S.C. § 1997e(d) provides: (d) Attorney's fees
Pub.L. No. 104-134, 110 Stat. 1321 (1996) (codified at 42 U.S.C. § 1997e) (West Supp. 2001)).
(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.
42 U.S.C. § 1977e(d) (emphasis added).
At issue in this case is whether section 1997e(d) applies to plaintiff. To determine this issue, the Court must interpret the statute to "determine congressional intent, using traditional tools of statutory construction." INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).
As in all cases turning on statutory construction, the court begins by examining the literal and plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Id. In interpreting statutory language, words are generally given their common and ordinary meaning. Id.
Applying a literal interpretation to 42 U.S.C. § 1997e(d), the court must apply the PLRA's attorney's fee limitations to cases where: (1) the plaintiff was a "prisoner" at the time he or she brought the action, and (2) the plaintiff was awarded attorney's fees pursuant to 42 U.S.C. § 1988(b). See 42 U.S.C. § 1997e(d).
Section 1997e(d) applies to a plaintiff if he or she was a "prisoner" at the time the action was brought. The term "prisoner," as used in section 1997e(d), is defined as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h).
In this case, plaintiff meets the statutory definition of "prisoner" at the time he filed his complaint but not at the time his cause of action arose. The only language that provides any guidance on when "prisoner" status is determinative appears to be the statutory language "[i]n any action brought by a prisoner . . ." 42 U.S.C. § 1997e(d)(1). A plain meaning interpretation of this phrase suggests that the determinative time is when the action is brought to the court, i.e., when the complaint is filed.
Other courts addressing whether a former prisoner is subject to the PLRA have held that Congress' definition of "prisoner" refers to the individual's status at the time the civil action is filed. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (litigants who file prison condition actions after being released from confinement are no longer "prisoners" under the PLRA); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) ("only individuals who, at the time they seek to file their civil actions, are . . . `prisoners' within the definition of 42 U.S.C. § 1997e."). Therefore, applying the plain meaning rule, plaintiff was a prisoner at the time the action was brought.
The second criterion for plaintiff to be included within the purview of section 1997e(d) is that plaintiff be awarded his attorney's fees pursuant to 42 U.S.C. § 1988. Under Section 1988, a court may award a reasonable attorney's fee in the following actions:
in any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985 and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C.A § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [ 42 U.S.C.A § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [ 42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A § 2000d et seq.], or section 13981 of this title . . .42 U.S.C. § 1988(b). Plaintiff's action was brought to enforce 42 U.S.C. § 1983. The Court entered judgment in his favor and awarded him nominal damages of one dollar and his reasonable attorney's fees pursuant to section 1988(b). Plaintiff's case, therefore, satisfies the second criterion of the PLRA's attorney's fee limitation provision.
In addition to being classified as a "prisoner" and being awarded attorney's fees under section 1988(b), the 150% attorney's fee cap subsection requires that plaintiff be awarded a "monetary judgment." 42 U.S.C. § 1997e(d)(2). As plaintiff was awarded nominal damages of one dollar, this inquiry focuses on whether the attorney's fee cap contained in section 1997e(d)(2) applies in actions where only nominal damages are awarded.
The First and Eighth Circuits have directly addressed this question and held that the "monetary judgment" cap applies to nominal damage awards. Boivin v. Black, 225 F.3d 36, 40-41 (1st Cir. 2000); Foulk v. Charrier, 262 F.3d 687, 703 (8th Cir. 2001). The First Circuit reasoned that because an award of one dollar is just as much a monetary judgment as an award of one million dollars, the plain language of the statute makes the 150% attorney's fee cap applicable to nominal awards. Boivin, 225 F.3d at 40. The court found compelling the fact that, even though nominal damage awards are commonplace, section 1997e(d)(2) does not make an express exception for nominal damage awards or for judgments less than "X" dollars. Id. The Court agrees with the First and Eighth Circuits and concludes that the section 1997e(d)(2) term "monetary judgment" includes nominal damage awards.
Based on the discussion above, the Court holds that plaintiff was a "prisoner" at the time he filed his action, he was awarded attorney's fees under section 1988(b), and his nominal damage award constituted a "monetary judgment." Plaintiff is, therefore, under the plain meaning rule, subject to the PLRA's attorney's fee limitations contained in 42 U.S.C. § 1997e(d).
III. Should the Court Apply the Absurdity Exception to the Plain Meaning Rule of Statutory Construction?
Plaintiff urges the Court to apply the absurdity exception to the plain meaning rule of statutory construction. He argues that it is "absurd" that Congress would intend to include plaintiff within the scope of the PLRA since his cause of action arose from events that were unrelated to prison and that occurred prior to his incarceration.
The court's function is to construe the statutory language to give effect to the intent of Congress. United States v. American Trucking Ass'ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed.1345 (1940). The words chosen by the legislature to give expression to its wishes are the most persuasive evidence of the statute's purpose, and such words are to be given their plain meaning. Id. at 543. Often these words are sufficient themselves to determine the purpose of the legislation. Id. If, however, the plain meaning of those words leads to absurd, futile or unreasonable results, the court may look beyond the words to the purposes of the act. Id.
The Supreme Court has recognized that "frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislators intended to include the particular act." Public Citizen, 491 U.S. at 454, 109 S.Ct. at 2567 (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed.226 (1892)). "It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers." Holy Trinity Church, 143 U.S. at 459, 12 S.Ct. at 512. Where the literal reading of a statutory term would "compel an odd result," the court must search for other evidence of congressional intent to lend the term its proper scope. Public Citizen, 491 U.S. at 454, 109 S.Ct. at 2567. The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect. Id. (citing Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981)).
In this case, a literal interpretation of the statutory phrase "in any action brought by a prisoner" in section 1997e(d)(1) would be that the statute applies to all actions filed by plaintiffs who are prisoners at the time they file their actions. Such as literal reading of the term "brought" compels an absurd result when applied to this case. The Court must therefore search for other evidence of congressional intent to give the term its proper scope.
After reviewing the legislative history surrounding the enactment of the PLRA, the Court is convinced that Congress could not have intended to include plaintiff within the PLRA's attorney's fee limitations. Congress clearly was concerned about prisoner litigation; however, its concerns were focused on inmate grievances such as "insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and . . . being served chunky peanut butter instead of the creamy variety." 141 Cong. Rec. S14611-01, *S14626 (daily ed. Sept. 29, 1995) (statement of Sen. Dole). The Congressional Record is replete with anecdotal evidence of inmate abuse of the court system. It even included a "Top 10 List: Frivolous Inmate Lawsuits Nationally." 141 Cong. Rec. S14611-01, *S14629 (daily ed. Sept. 29, 1995). This list references cases filed by inmates based on the imates being served melted ice cream, being forced to listen to country and western music, having to mail a package UPS rather than U.S. mail, and being provided Converse brand shoes rather than L.A.Gear or Reebok "Pumps." Id.
While other senators raised concerns about the chilling effect the PLRA might have on meritorious lawsuits, such as those involving overcrowded jails and sexual assaults, their concerns were again directed at claims that would occur while incarcerated. 141 Cong. Rec. S14611-01, *S14628 (daily ed. Sept. 29, 1995) (statement of Sen. Biden). Addressing these concerns, proponents of the PLRA declared that it was not intended to "prevent inmates from raising legitimate claims." 141 Cong. Rec. S14611-01, *S14627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch).
The Court is unable to determine whether Congress specifically considered and addressed the impact of the PLRA's attorney's fee limitations provision on meritorious claims that prisoners bring with them when they enter prison. Did Congress intend for those claims to be included within the PLRA's attorney's fee limitations?
From a review of the Congressional Record, the Court concludes that Congress did not intend the PLRA's attorney's fee limitations to apply to individuals with meritorious civil rights claims who happen to be incarcerated at the time they file their complaints. Ironically, with this timing-based distinction, an individual who files his "peanut butter" lawsuit — the type clearly targeted by the PLRA — after being released from prison is not subject to the PLRA at all. See Greig, 169 F.3d at 167 (litigants who file prison condition actions after being released from confinement are no longer "prisoners" under the PLRA). In contrast, a free citizen with a meritorious civil rights claim who is later incarcerated and who brings his action while incarcerated would be subject to the PLRA's attorney's fee limitations.
The following example serves to illustrate the absurdity. If the Court were to apply the PLRA's attorney's fee limitation provision under its literal interpretation, then incoming prisoners who have been subjected to employment discrimination, and who file their section 1981 lawsuits while incarcerated, would be subject to the attorney's fee limitation provision of the PLRA. No matter how egregious the discrimination against these plaintiffs, their discrimination claims would be subject to the attorney's fee limitations simply because they were "prisoners" at the time they filed their claims.
In light of the purported purposes behind the PLRA and the type of litigation Congress sought to curb, Congress could not have intended the PLRA's attorney's fee limitations provision to include meritorious causes of action that arose prior to the prisoner's confinement. Furthermore, this result would be strikingly inconsistent with the Congress' purposes in enacting the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Congress enacted section 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible. City of Riverside v. Rivera, 477 U.S. 561, 577, 106 S.Ct. 2686, 2696, 91 L.Ed.2d 466 (1986) (citing H.R. Rep. No. 94-1558, at 9 (1976)). Congress also enacted section 1988 because it found that the private market for legal services failed to provide victims of civil rights violations with effective access to the judicial process. Riverside, 477 U.S. at 576, 106 S.Ct. at 2695 (citing H.R. Rep. No. 94-1558, at 3.).
One final consideration tips the balance decisively in favor of applying the absurdity rule to section 1997e(d). When the validity of an act of Congress is drawn into question, and even if serious doubt as to its constitutionality is raised, "it is a cardinal principle that the court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 465, 109 S.Ct. 2558, 2572, 105 L.Ed.2d 377 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932)). "It has long been an axiom of statutory interpretation that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988). "This approach not only reflects the prudential concerns that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution." Id. The court's reluctance to decide constitutional issues is especially great where they implicate the fundamental relationship between the relative powers of coordinate branches of government. American Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 1697-98, 104 L.Ed.2d 139 (1989). Hence, the court is reluctant to decide the constitutional issue in the absence of firm evidence that Congress intended for the statute to apply at all. Public Citizen, 491 U.S. at 466, 109 S.Ct. at 2573.
Without conducting a detailed constitutional analysis, the Court has serious concerns as to whether section 1997e(d) is constitutional as applied to plaintiff. The federal circuit courts that have addressed the constitutionality of PLRA's attorney's fee limitations have generally held that they do not violate equal protection. See Walker v. Bain, 257 F.3d 660 (6th Cir. 2001); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001); Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Collins v. Montgomery Co. Bd. of Prison Inspectors, 176 F.3d 679 (3rd Cir. 1999) (en banc) (noting that the court was "divided equally on the question of whether the limitation on fees to 150% of the judgment is constitutional"); Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999). However, unlike the facts of this case, those decisions involved litigation arising from alleged civil rights violations that occurred while the plaintiff was a "prisoner."
The Court can conceive of no rational justification for distinguishing between prisoner and non-prisoner litigants based upon when they file their lawsuits. The governmental interests historically advanced in support of the PLRA's prisoner classification in general, such as deterring or reducing the filing of frivolous civil rights claims brought by prisoners, reducing trivial or inconsequential prisoner suits, preventing windfall fee awards, and protecting public finances and expenditures are not rational when applied to claims that arise prior to the plaintiff's incarceration. As to the asserted governmental interest in preventing windfall fee awards to lawyers, the Supreme Court has rejected the idea that the failure to limit recovery of attorney's fees will result in windfalls to lawyers. See Blanchard v. Bergeron, 489 U.S. 87, 96, 109 S.Ct. 939, 946, 103 L.Ed.2d 67 (1989). The very nature of recovery under section 1988 is designed to prevent windfall because fee awards, when properly calculated, will represent the reasonable worth of services rendered in vindication of a plaintiff's civil rights claim. The last governmental interest advanced, protecting the public finances and expenditures, appears to be a legitimate goal, but it unjustifiably burdens one group based upon a classification that is not rational.
Courts ruling on the constitutionality of the PLRA's attorney's fee limitations have universally rejected strict scrutiny review and analyzed them under the rational basis test. See Walker, 257 F.3d at 667-8; Foulk, 262 F.3d at 704; Boivin v. Black, 225 F.3d at 42-44; Madrid v. Gomez, 190 F.3d at 995.
Even though the Court has grave concerns regarding the constitutionality of the fee limitations provision as applied to plaintiff, the Court need not resolve the constitutional issue. The Court's reluctance to unnecessarily resolve the constitutional question thus solidifies its conviction that Congress could not have intended for the PLRA' attorney's fee limitations to be applied to plaintiff. The Court will therefore apply the absurdity exception to the plain meaning rule in this case and award plaintiff a reasonable attorney's fee without regard to the attorney's fee limitations contained in 42 U.S.C. § 1997e(d).
IV. What Amount of Attorney's Fees Should be Awarded Under 42 U.S.C. § 1988(b)?
Holding that plaintiff is entitled to an award of attorney's fees without regard to the attorney's fee limitations set forth in section 1997e(d), the Court proceeds to the attorney's fee determination under 42 U.S.C. § 1988(b). Plaintiff's original application for fees requested an award of attorney's fees in the amount of $23,423 and expenses in the amount of $915.16.
Calculation: 109.8 hours x $225 per hour.
Title 42 U.S.C. § 1988(b) provides that in certain civil rights actions, including those brought pursuant to 42 U.S.C. § 1983, the court, in its discretion, may allow the prevailing party to recover "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). In any fee request under section 1988(b), a claimant must prove two elements: (1) that the claimant was the "prevailing party" in the litigation; and (2) that the claimant's fee request is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).
A. Is Plaintiff a "Prevailing Party" Under 42 U.S.C. § 1988(b)?
The first question in determining whether a party is entitled to attorney's fees under the mandate of section 1988 is whether plaintiff is a "prevailing party." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790, 109 S.Ct. 1486, 1492, 103 L.Ed.2d 866 (1989). A plaintiff "prevails" when actual relief on the merits of his claim "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). In addition, a plaintiff may be considered a "prevailing party" for attorney's fee purposes if he or she succeeds on any significant issue that achieves some of the benefits sought by the litigation. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.
In cases where only nominal damages are awarded, the "technical" nature of the victory does not affect the prevailing party inquiry but does bear on the propriety of the attorney'sfee awarded. Farrar, 506 U.S. at 114, 113 S.Ct. at 574. Justice O'Connor, in her concurrence in Farrar, set forth a three-part test for determining whether a "prevailing party" who receives only nominal damages is entitled to attorney's fees under section 1988(b). See Farrar, 506 U.S. at 122, 113 S.Ct. at 579 (O'Connor, J., concurring). Under this test, the court examines three factors in evaluating the "relevant indicia of success." Id. These factors include: (1) the difference between the judgment recovered and the judgment sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose served by the litigation. Id.
The Tenth Circuit has emphasized that the application of the Farrar factors does not undermine the general rule under section 1988 that prevailing parties should ordinarily recover an attorney's fees "unless special circumstances would render such an award unjust." Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997) (quoting Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67 (1989)). In Phelps, the court further clarified its position on the issue of awarding attorney's fees by quoting from the legislative history of section 1988(b): "All of these civil rights laws depend heavily upon private enforcement, and fee awards have proven an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain." Id. (quoting S.Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976)). In view of Congress' expressed intent, the court recognized that the district court's discretion to deny fees to a prevailing party was quite narrow. Id.
The first and most critical factor in determining the reasonableness of a fee award is the degree of success obtained. Hensley, 462 U.S. at 436, 103 S.Ct. at 1941. In this case, plaintiff sought $250,000 in compensatory damages and his attorney's fees. Plaintiff was awarded nominal damages of one dollar and his attorney's fees pursuant to 42 U.S.C. § 1988(b).
See Plaintiff's Memorandum in Support of His Findings of Fact and Conclusions of Law (doc. 68).
Defendant argues that the Court's award of nominal damages does not merit an award of attorney's fees because plaintiff only prevailed on a small portion of his claims. He argues that the Court ruled in favor of defendant on all issues except one, the officer's conduct in breaking plaintiff's car window in his attempt to arrest plaintiff. Plaintiff did not prevail on the arguably more serious claims against defendant in which he sustained greater physical injuries.
The extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the reasonableness of the fee. Id. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief on one of the related claims should not have his attorney's fee reduced simply because the court did not adopt each contention raised. Id. But where the plaintiff achieved only limited success, the court should award only that amount of fees that is reasonable in relation to the results obtained. Id.
In its decision, the Court separated defendant police officer's conduct into three acts: (1) using his baton to break plaintiff's driver's side car window; (2) firing a single bullet into the driver's side door of plaintiff's car, which struck plaintiff in lower abdomen; and (3) firing several bullets into the hood and windshield of plaintiff's car, two of which struck plaintiff in the chest. Analyzing each act separately, the Court held that defendant's initial use of force in breaking plaintiff's driver's side car window while plaintiff was seated in the driver's seat in an effort to effect plaintiff's arrest for outstanding minor traffic warrants was objectively unreasonable and constituted a violation of plaintiff's Fourth Amendment rights. As to defendant's act of firing a single shot into plaintiff's car door, the Court was unable to determine whether defendant fired the single shot while he was standing adjacent to plaintiff's car door or while plaintiff's car was fishtailing on the icy parking lot area. Unable to make this finding from the evidence presented at trial, the Court held that plaintiff had failed to meet his burden of proving that defendant's act was unreasonable. As to the third action analyzed, the Court concluded that defendant's use of deadly force in firing the shots that struck the car hood and windshield, and ultimately plaintiff, was objectively reasonable and did not violate plaintiff's Fourth Amendment rights to be free from excessive force.
As plaintiff only prevailed on one of the issues in his case, the Court will proportion the amount of attorney's fees awarded to plaintiff. Because the time spent by plaintiff's counsel cannot be precisely allocated to each claim, the Court will reduce the attorney's fee award based upon the number of issues prevailed upon. Plaintiff prevailed on one issue, while defendant prevailed on the other two. The Court, therefore, will award attorney's fees based upon one-third of the total hours expended by plaintiff's counsel.
The Court next evaluates the significance of the legal issues on which plaintiff prevailed. In this case, the Court ordered judgment in favor of plaintiff based upon defendant's smashing plaintiff's car window in initially attempting to arrest plaintiff for outstanding warrants on minor traffic violations. Robbins, 156 F. Supp.2d at 1218. As the Court determined that one of defendant's actions violated plaintiff Fourth Amendment rights to be free from excessive force, plaintiff prevailed on a substantive legal issue. The fact that he did not prevail on all three issues, especially the arguably more egregious actions of defendant resulting in greater physical injury to plaintiff, does lessen his success. Thus, the Court will only award attorney's fee in proportion to the number of issues on which plaintiff prevailed.
Finally, the Court considers the public purpose served by plaintiff's success. This factor examines whether the judgment deters future lawless conduct as opposed to merely "occupying the time and energy of counsel, court, and clients." Phelps, 120 F.3d at 1133. Plaintiff's success in this lawsuit comes not in the form of a large award of damages or in a significant personal benefit but in the form of serving the greater public good of deterring future violations of the Constitutional rights of citizens coming into contact with law enforcement officers. In addition to serving the citizens of the community, plaintiff's suit serves to inform law enforcement agencies and officers of the Constitutional parameters on their actions so that they may adjust departmental policies and procedures or ensure existing policies and procedures are being followed. This Court has recognized that some cases serve the public purposes of clarifying the scope of constitutional rights in previously unchartered territories and establishing the parameters of civil rights of similarly situated individuals. See Caruthers v. Proctor and Gamble Mfg. Co., 177 F.R.D. 667, 670 (D.Kan.), aff'd, 161 F.3d 17 (10th Cir. 1998). Furthermore, the Supreme Court has analogized meritorious civil rights plaintiffs to "private attorney generals." Newman v. Piggie Park Enters. Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Civil rights litigation serves an important public purpose because a plaintiff bringing a civil rights action "does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered to be of the highest priority." Id. While plaintiff's victory benefitted him little, its significance is derived from the public purposes it serves. To that effect, plaintiff's suit was a success.
The Court, therefore, concludes that plaintiff is a "prevailing party" under section 1988(b). Because he only prevailed on one of the three issues in his case, he only will be awarded one-third of his attorney's time.
B. Is the Attorney's Fee Requested Reasonable?
Once the court determines that plaintiff is a "prevailing party" for purposes of awarding attorney's fees under section 1988(b), then the court assesses what amount of reasonable attorney's fees should be awarded to the prevailing party. 42 U.S.C. § 1988(b). Generally, the court determines the reasonableness of the fee by calculating the "lodestar" figure. Blanchard, 489 U.S. at 94, 109 S.Ct. at 945. Under the "lodestar" approach, the proper starting point is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998). This figure is presumed to be a reasonable fee; however, the court may adjust it upward or downward based on collateral considerations. Phelps, 120 F.3d at 1131. The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Case, 157 F.3d at 1249.
1. Are the number of hours claimed by plaintiff's counsel reasonable?
In calculating the "lodestar" figure, the Court first determines whether the number of hours claimed expended are reasonable. The burden to show that the hours claimed are reasonable is on the prevailing party. Blum, 465 U.S. at 897, 104 S.Ct. at 1548. 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." Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (quoting Hensley, 461 U.S. at 437, 103 S.Ct. at 1941). To show billing judgment, counsel for the prevailing party should make a good-faith effort to exclude excessive, redundant, or otherwise unnecessary hours from the fee request. Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998). The district court has a corresponding obligation to exclude hours not reasonably expended from the calculation. Id.
Plaintiff seeks compensation for 109.8 hours of attorney time, which includes 36 hours preparing for trial, 32 trial hours, 20 hours on post-trial submissions, and 21.8 hours pursuing fees. Defendant objects to the inclusion of hours billed for travel time at counsel's full hourly rate. Defendant contends that travel time should not be included in an attorney's fee award under section 1988, or, alternatively, should be at 25% of counsel's hourly billing rate.
The Tenth Circuit has adopted a two-part inquiry for determining whether travel time should be compensated at counsel's full hourly rate: (1) Are the travel costs normally billed to a private client in the locality; and (2) is the amount reasonable? Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990). Counsel claimed travel time for round trips between Topeka and Kansas City on five occasions for court appearances and once for travel time between Topeka and Leavenworth to consult with plaintiff. In this locality, travel time to and from court appearances is of the type that is normally billed to a private client. Furthermore, the approximate seventeen hours of travel time is a reasonable amount. Based upon the Bee factors, the Court determines that it is appropriate to include counsel's travel time in the attorney's fee award.
Plaintiff's counsel resides and practices in Topeka.
Defendant alternatively contends that travel time should be included at 25% of counsel's hourly billing rate. The Court disagrees. Plaintiff's counsel should not be penalized for his time spent traveling from Topeka to Kansas City for required court appearances. By accepting the appointment to represent plaintiff in Kansas City, counsel gave up other opportunities to work on other work at his full hourly rate. Therefore, counsel's travel time for the five trips to Kansas City and one trip to Leavenworth will be awarded at counsel's full reasonable hourly rate.
Defendant also objects to counsel's billing for legal research without further elaboration. Defendant contends this time is more properly attributed to general firm overhead and cites Gudenkauf v. Stauffer Communications, Inc., 953 F. Supp. 1237, 1243 (D.Kan. 1997), in support. The Court declines to deduct the four hours of counsel's time expended on legal research. While hours spent by counsel on background research to familiarize themselves with the general area of the law are ordinarily deemed to be absorbed in the firm's overhead, hours incurred for research on specific issues rather than mere general familiarization have been allowed. See McCue v. State of Kansas, No. Civ. A. 95-CV-2116-DES, 1997 WL 381757, *3 (D.Kan. June 30, 1997). The Court finds that the four hours counsel expended researching the specific issues that arose in this case is a reasonable amount of time and will therefore include these hours in the fee award.
Defendant also objects to the proposed fees for abstracting the billing in this case. He contends such activity is firm overhead and not generally properly billed to a client, because the time expended is for the benefit of the firm and not the client. The Court determines that this time should be included in the fee award because it was expended by counsel in preparing the fee application. Case, 157 F.3d at 1254 ("An award of reasonable attorneys' fees may include compensation for work performed in preparing and presenting the fee application."). The seven hours counsel expended on preparation of the billing to be submitted along with the motion for fees should be included in the award of attorney's fees under section 1988(b).
The Court finds that the reasonable amount of hours expended by plaintiff's counsel on all three issues to be 109.8 hours. However, as plaintiff only prevailed on one of the three issues and counsel's hours cannot be allocated specifically by issue, only one-third of the hours expended by plaintiff's counsel will be awarded as attorney's fees.
2. What is a reasonable hourly rate for plaintiff's counsel in this locality?
The next step in calculating the lodestar is to determine the reasonable hourly rate. In determining the reasonable hourly rate, the court must base its hourly rate award on what the evidence shows the market commands for civil rights or analogous litigation. Case, 157 F.3d at 1255. The fee applicant bears the burden of showing that the requested hourly rate is in line with the prevailing rates in the community for similar services by lawyers of reasonably comparable skills, experience, and reputation. Malloy, 73 F.3d at 1018. The court may not use its own knowledge to establish the hourly rates, unless the evidence of the prevailing market rates before it is inadequate. Case, 157 F.3d at 1257.
Plaintiff asserts that the reasonable hourly rate for a civil rights litigation attorney in this locality and with Mr. Leatherman's experience is between $175 and $325 per hour. Mr. Leatherman's affidavit states that his regular hourly billing rate is $250. Plaintiff requests that the Court award him attorney's fees based upon the reasonable hourly rate of $225. Counsel does not request any upward loadstar adjustment to the requested hourly rate. In support of his requested hourly rate of $225, plaintiff's counsel has submitted three affidavits from attorneys who practice in Wichita and Topeka stating that their regular hourly rate in similar litigation is $250. Aff. of Kielh Rathbun; Aff. of David Alegria; Aff. of David P. Calvert.
Mr. Leatherman's affidavit indicates that he practices in Topeka and has been involved in complex civil rights litigation for approximately nine years.
The Court notes that plaintiff has not provided any evidence establishing the prevailing market rate in Kansas City. In determining the appropriate hourly rate, a court must determine the "prevailing market rates in the relevant community" for services rendered. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). The relevant community is the area in which the litigation occurs. Schmidt v. Cline, 171 F. Supp.2d 1178, 1181 (D.Kan. 2001) (citing Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983) ( overruled on other grounds)). In this case, the relevant community would be Kansas City, not Topeka or Wichita. As plaintiff has not provided any evidence regarding the prevailing market rate in Kansas City, the Court will turn to its own knowledge of prevailing market rates in Kansas City as well as other indicia of a reasonable market rate. See Metz v. Merrill Lynch, Pierce, Fenner Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994).
Defendant objects to plaintiff's asserted reasonable hourly rate of $225 but does not provide any evidence establishing the prevailing market rate in Kansas City. Instead, he argues that a survey of recent Court decisions shows that the prevailing hourly rate in this judicial district for lead counsel in a civil rights case is between $125 and $175 and any award based on an hourly rate in excess of $155 for this case would be unreasonable.
A review of recent decisions by this Court indicates that the Kansas City prevailing market rate for lead counsel in civil rights litigation is between $120 and $225 per hour. See Rahn v. Junction City Foundry, Inc., No. 00-2128-KHV, slip op. at 5 (D.Kan. August 27, 2001) ($225 is reasonable hourly rate for employment attorney with 20 years of litigation experience); Ricks v. Xerox Corp., No. 93-2545-JWL, 1995 WL 584444, *1 (D.Kan. Sept. 29, 1995) ($210 per hour is high but representative of the rate charged by comparable attorneys in employment discrimination area); Hampton v. Dillard Dep't Stores, Inc., No. Civ. A. 97-2182-KHV, 1998 WL 724045, * 2 (D.Kan. Sept. 24, 1998) ($190 is a reasonable hourly rate for civil rights attorney with 28 years of experience); Outdoor Systems, Inc. v. Merriam, Kan., No. Civ. A.98-2397-KHV, 2000 WL 575023, *5 (D.Kan. Feb. 25, 2000) (hourly rates between $120 and $165 are reasonable for lead counsel in civil rights action); Ellis v. University of Kan. Med. Ctr., Civ. A. No. 95-2376-GTV, 2000 WL 1310508, *3 (D.Kan. Aug. 31, 2000) ($150 is a reasonable hourly rate for lead counsel in civil rights action); Lintz v. American Gen. Fin., Inc., 87 F. Supp.2d 1161, 1171 (D.Kan. Jan. 28, 2000) ($155 is a reasonable hourly rate for attorney with 17 years experience); Wilder-Davis v. Board of Co. Comm'rs of Johnson Co., Kansas, Civ. A. No. 98-2363-GTV, 2000 WL 1466691, *5 (D.Kan. Aug. 8, 2000) ($165 per hour is generous but reasonable for lead counsel in employment discrimination case). Based upon the range of hourly rates this Court has recently found to be reasonable and the Court's own knowledge of the prevailing market rate in Kansas City, the Court therefore finds $175 to be a reasonable hourly rate for an attorney with Mr. Leatherman's experience with respect to this type of litigation.
In sum, the Court finds the reasonable amount of hours expended by plaintiff's counsel on all three issues to be 109.8 hours. As discussed above, however, only one-third of the hours expended by plaintiff's counsel will be awarded because plaintiff only prevailed on one of three issues. One-third of 109.8 hours equals 36.6 hours. Multiplying this number of hours by the reasonable hourly rate of $175, the "lodestar" figure is computed as $6,405.
Calculation: (109.8 hours x) x $175 per hour.
Accordingly, plaintiff's initial request for attorney's fees (doc. 73) will be granted, but the amount of attorney's fees awarded will be decreased to $6,405.
C. Expenses
In addition to attorney's fees, a prevailing party in a civil rights action is entitled to recover reasonable expenses incurred in representing a client under 42 U.S.C. § 1988(b), if (1) "such expenses are usually billed in addition to the attorney's hourly rate," Case, 157 F.3d at 1257; and (2) the expenses are reasonable. Bee, 910 F.2d at 690. The fee applicant bears the burden of establishing the amount of compensable expenses to which he is entitled. Id. Plaintiff requests $915.16 in expenses incurred by counsel in representing him. The Court has reviewed the list of expenses submitted by plaintiff and finds them to be of the type usually billed in addition to counsel's hourly rate and reasonable. The Court finds it inappropriate to grant only a portion of the expenses as it appears all of the listed expenses would have been necessarily incurred without regard to which claim plaintiff prevailed on. Plaintiff will, therefore, be awarded the full amount of $915.16 in expenses submitted.
V. May Plaintiff Obtain Attorney's Fees Expended on Supplemental Briefing of the PLRA Constitutionality Issue?
Plaintiff has also requested the Court award supplemental attorney's fees for fifteen additional hours of counsel's time spent researching and briefing the issue of whether the PLRA attorney's fee cap is constitutional. He also requests ten hours of counsel's law clerk's time at an hourly rate of $65. The Tenth Circuit has recognized that a party may be awarded fees incurred in resolving the fee issue itself. Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 726 (10th Cir. 1993); Case, 157 F.3d at 1254. Here, the Court ordered supplemental briefing from the parties relating to whether the PLRA was constitutional as applied to plaintiff in this case. Although the Court did not base its decision on the constitutional question, plaintiff's supplemental briefing was necessary to resolve the fee issue. In addition, as the hours expended by counsel in preparing the supplementing briefing were at the direction of the Court and related directly to the fee application, the Court determines that the inclusion of these fees is appropriate. The Court further determines that the fifteen hours plaintiff's counsel and ten hours his law clerk spent briefing this issue are reasonable and should be included in the fee award. The requested $65 hourly rate for the law clerk's time is in line with the law clerk hourly rates recently awarded by this court. See Wilder-Davis, 2000 WL 1466691 at *6. The Court will therefore grant plaintiff's supplemental request for attorney's fees in the total amount of $3,275 (15 hours multiplied by $175 per hour and 10 law clerk hours multiplied by $65 per hour).
IT IS THEREFORE ORDERED BY THE COURT that the Motion for Attorney Fees filed by plaintiff (doc. 73) is granted in part. Pursuant to 42 U.S.C. § 1988, the Court awards plaintiff $9,680 in attorney's fees and $915.16 in expenses.
Calculation: ((109.8 hours x) x $175/hour) + (15 hours x $175/hour) + (10 law clerk hours x $65/hour).
IT IS SO ORDERED.