Searles v. Van Bebber, Civ.A. 96-3515-KHV.

• Decision Date: 27 July 1999
• Docket Number: No. Civ.A. 96-3515-KHV.,Civ.A. 96-3515-KHV.
• Citation: 64 F.Supp.2d 1033
• Parties: Jimmy SEARLES, Plaintiff, v. Durward A. VAN BEBBER, Defendant.
• Court: U.S. District Court — District of Kansas

64 F.Supp.2d 1033

Jimmy SEARLES, Plaintiff, v. Durward A. VAN BEBBER, Defendant.

No. Civ.A. 96-3515-KHV.

United States District Court, D. Kansas.

July 27, 1999.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on Plaintiff's Motion For Attorneys' Fees Pursuant To 42 U.S.C. § 1988 (Doc. # 91) filed March 5, 1999. Plaintiff brought suit against defendant under 42 U.S.C. § 1983, alleging violations of his right to free exercise of religion. On February 19, 1999, a jury awarded plaintiff actual damages of $3,650 and punitive damages of $42,500. Plaintiff now seeks fees of $31,629.98 and costs and expenses of $2,176.64. For the reasons stated below, the Court sustains plaintiff's motion in part and awards $30,621.83 in fees and $1,210.90 in expenses.¹

A prevailing plaintiff under Section 1983 is entitled to attorneys' fees under 42 U.S.C. § 1988. "[P]laintiffs may be considered `prevailing parties' for attorneys' fees purposes if they 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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); see also Alexander S. v. Boyd, 113 F.3d 1373, 1388 (4th Cir.1997). "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. (further quotations and citations omitted). This calculation yields a "lodestar" figure which is subject to adjustment. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (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 fee request was directly and reasonably incurred in proving a violation of his rights and that the fee was proportional to plaintiff's relief.² See 42 U.S.C. § 1997e(d)(1); Clark v. Phillips, 965 F.Supp. 331 (N.D.N.Y.1997).

The Court first considers defendant's request to stay any award of attorneys' fees and expenses until defendant completes his appeal. Defendant argues that depending upon the outcome of that appeal, plaintiff might not be a prevailing party and would therefore not be entitled to any award. The Court denies defendant's request and considers plaintiff's request for an award. By so doing, defendant will then have the opportunity to challenge any award as part of his pending appeal. If defendant's appeal alters plaintiff's status as a prevailing party, the fee award can obviously be amended.

1. 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, 104 S.Ct. 1541.

Under the PLRA, "[n]o 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 of not in excess of $75 per hour is justified for a circuit or for particular districts." As the parties both note, the Judicial Conference of the Court of Appeals for the Tenth Circuit limits attorneys' fees to $65 per hour for time spent in court and $45 per hour for time spent out of court. Defendant argues that plaintiff should receive this $65/$45 rate. Plaintiff seeks the 150 percent maximum under Section 1997e(d)(3) — $97.50 for in-court time and $67.50 for out-of-court time for Scott Nehrbass and Greg Wolf.³

Defendant argues that plaintiff fails to show that counsel is sufficiently experienced to justify $97.50 and $67.50. 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) (citing Chatin v. State of New York, No. 96 Civ. 420(DLC), 1998 WL 293992, at *2 (S.D.N.Y. June 4, 1998)). Other federal courts have mechanically granted the 150 percent 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 WL at *2. In the Court's view, the experience of counsel is important in determining the appropriate award, but the maximum allowable rate under Section 1997e(d)(3) is so low — relative to market rates — that counsel would be hard pressed to be so inexperienced as to not deserve the maximum rate.⁴

Plaintiff provides sufficient evidence of the experience of counsel to justify the maximum hourly rate. Mr. Nehrbass graduated law school in 1993, worked for two years as law clerk to the Honorable Monti L. Belot in the District of Kansas, and has worked for four years in private practice. He has experience working on religious freedom cases. Mr. Wolf graduated law school in 1995, worked for two years as a law clerk to the Honorable John W. Lungstrum in the District of Kansas, and has been in private practice for two years, working as a litigation associate. Both attorneys performed admirably — outshining many attorneys of considerably greater trial experience — and obtained excellent results at trial. Given the Court's knowledge of market rates in the community, the hourly rates which plaintiff requests are beyond reasonable; defendant is getting a windfall because of the PLRA limitations. The Court therefore will award an hourly rate of $97.50 for in-court time for Mr. Nehrbass and $67.50 for his out-of-court time. The Court likewise awards an hourly rate of $67.50 for out-of-court time by Mr. Wolf.

Plaintiff also requests hourly rates of $30 for Mary Ann Gaston, a legal assistant, and $45 per hour for Jason Pepe, a law clerk. Defendant argues that these numbers are arbitrary and are not reasonable. While plaintiff does not provide evidence of the prevailing market rates, the Court finds that plaintiff's request is lower than the going market rate. Recently, in Hampton v. Dillard Dep't Stores, Inc., 1998 WL 724045 (D.Kan. Sept.24, 1998), the Court awarded $55 per hour for a law clerk and $65 per hour for a paralegal. Id. at *2. Plaintiff's requested rates are not only reasonable, they reflect a reduction that is appropriate in light of the restrictions in Section 1997e(d)(3). See Roberson, 29 F.Supp.2d at 353.

2. Number of Hours

Defendant challenges the total hours which plaintiff requests as "excessive, redundant, unnecessary and duplicative." Defendant's Response To Plaintiff's Motion For Attorneys' Fees and Expenses (Doc. # 105) at 17. 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 v. University of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir.1998) (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (further quotations and citations omitted)). To show billing judgment, "`[c]ounsel 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.

Defendant argues that plaintiff generally has not made a good-faith effort to exclude duplicative and excessive time. The Court disagrees. Plaintiff states that he has eliminated all duplicative requests, and a review of plaintiff's requested hours shows that he has in fact made a reasonable effort to exclude duplicative time. See Plaintiff's Memorandum In Support Of His Motion For Attorneys' Fees and Expenses (Doc. # 97) at 7 n. 3. Plaintiff has also made a good-faith effort to exclude time that is not compensable, such as time spent deposing Steven Dechant, one of the defendants who won at trial. See id. at 8. Also, the record does not reflect any broad-scale excessive billing by counsel. To the extent that particular entries are excessive, the Court deals with them below. In short, the Court is satisfied that plaintiff has made a sufficient effort to exclude duplicative, unnecessary, excessive and noncompensable time.

Defendant specifically lists 61 examples of purportedly questionable entries. Defendant challenges many of plaintiff's entries as duplicative or redundant, apparently because the entries are similar. The Court has reviewed every challenged entry, and the evidence shows that in most cases, when one person was involved, the person merely continued working on a particular task at a different time. Similarly, when two or more people were involved, one person prepared work for review by others, or two persons worked on different parts of a related task. For example, defendant argues that Mr. Nehrbass duplicated Ms. Gaston's time when he reviewed the cast of characters and chronology which Ms. Gaston prepared. The evidence, however, shows that the work which he performed was not duplicative. Ms. Gaston prepared these...