Bonner v. Coughlin

• Decision Date: 20 August 1981
• Docket Number: Nos. 80-2186,80-2187,s. 80-2186
• Citation: 657 F.2d 931
• Parties: Alonzo BONNER, Plaintiff-Appellee, Cross-Appellant, v. Joseph COUGHLIN, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 931

657 F.2d 931

Alonzo BONNER, Plaintiff-Appellee, Cross-Appellant, v. Joseph COUGHLIN, et al., Defendants-Appellants, Cross-Appellees.

Nos. 80-2186, 80-2187.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1981.

Decided Aug. 20, 1981.

William M. Wippold, Asst. Atty. Gen., Chicago, Ill., for Joseph Coughlin et al.

Aram A. Hartunian, Pressman & Hartunian, Chicago, Ill., for Alonzo Bonner.

Before PELL, Circuit Judge, MARKEY, Chief Judge, ^* and WOOD, Circuit Judge.

PER CURIAM.

The defendants appeal from an amended order of the district court which substantially increased the amount of attorneys' fees originally granted to the plaintiff pursuant to 42 U.S.C. § 1988. Plaintiff Alonzo Bonner, a state inmate, argues that the amended award was appropriate, or alternatively, that the district judge should have awarded an even higher amount. He also contests the district court's grant of judgment notwithstanding the verdict (JNOV) to one of the defendants.

I. Background

This litigation has followed a troubled course protracted beyond that justified by the relatively pellucid underlying grievance. On November 28, 1972, after completing a work assignment, Bonner returned to his cell to discover the door ajar, his cell in complete disarray, and the transcript from his state court trial missing. The defendants admitted that two prison guards, defendants Rumley and Robinson, had conducted a "shakedown" of Bonner's cell pursuant to a prison regulation authorizing periodic surprise searches. ¹ That regulation, however, expressly prohibited damaging or confiscating an inmate's permitted personal property.

Bonner's appeal from his state court conviction was pending at the time of the search. Although the original transcript was never returned to Bonner, he was represented by counsel who did have a copy of the transcript and the common law record. Shortly after his murder conviction was affirmed by the Illinois Appellate Court, the plaintiff commenced a federal civil rights action seeking declaratory and injunctive relief and monetary damages for his loss. ² Approximately six months later, Bonner was given a substitute copy of his transcript. On March 22, 1974, the district court granted the defendants' motion for summary judgment. On appeal, this court, addressing the plaintiff's legal theories of recovery, ruled that Bonner had stated a claim regarding the seizure of his transcript (1) as an unreasonable search under the Fourth Amendment, and (2) as an interference with Bonner's right of access to Illinois courts under the Fourteenth Amendment. Accordingly, the judgment was vacated and the case remanded. This court however, held that Bonner failed to state an alternative negligence claim under 42 U.S.C. § 1983. In the subsequent en banc rehearing, a majority of this court reaffirmed that no cause of action for negligence could lie under § 1983.

Bonner had alleged that prison guards seized the transcript in violation of the plaintiff's constitutional rights, or alternatively, that their negligence in leaving the cell door ajar allowed some other unauthorized individual to remove the transcript. In the panel opinion, Bonner I, the court declined to decide whether mere negligence was ever cognizable under § 1983, and instead disposed of the claim by ruling that, under the circumstances of the case, "the availability of an adequate state remedy for a simple property damage claim avoids any constitutional violation." 517 F.2d at 1319 (footnote omitted).

On rehearing, Bonner II, this court squarely rejected Bonner's contention that the alleged negligence was actionable under § 1983. The court additionally noted that "(i)n view of Monroe v. Pape, (365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492) we do not hold that Section 1983 is inapplicable on the ground that plaintiff has an adequate remedy in the Illinois courts." ³ 545 F.2d at 568 n.7.

Bonner's trial on remand commenced on March 28, 1979, and lasted for two days. The jury awarded the plaintiff $100 in compensatory damages for the loss of his transcript.

On June 21, 1979, the trial judge entered an order granting defendant Robinson a JNOV and awarding the plaintiff costs and $6,000 in attorneys' fees although Bonner had sought over $40,000. The judge refused to apply a multiplier and determined that the issue before the en banc court had been resolved against the plaintiff. He characterized this lawsuit as a "simple, one issue case" which "was not particularly complex" and found that the hours claimed were excessive.

The court granted the plaintiff's subsequent motion to amend the fee award, however, on July 15, 1980. The original award of $6,000 was increased to $24,985. Without explaining the motivation for his sudden change in position, the judge concluded that the plaintiff had prevailed on the issue which initiated the en banc rehearing, determined that the amount of time spent on the case was reasonable, and applied a multiplier to the award for hours expended at the appellate level. The record indicates that the amended award was not based on any new information submitted to the district judge other than a breakdown of the hours billed for time subsequent to remand more detailed than that originally submitted.

II. Fee Award Factors

In determining a fee award under § 1988, a trial court should of course consider the hours spent on the case and the billing rate requested. Various factors in setting fees have been recognized by different courts. This court has recognized as appropriate the factors set forth in the Code of Professional Responsibility adopted by the American Bar Association: ⁴

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

Disciplinary Rule 2-106. Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980), quoting Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1322 (7th Cir. 1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976).

Although nominal damages will justify a fee award to a prevailing plaintiff, Skoda v. Fontani, 646 F.2d 1193 (7th Cir. 1981) (per curiam); Coop v. City of South Bend, 635 F.2d 652, 654 (7th Cir. 1980), the nominal nature of the damages is a factor to be considered in determining the amount of the award. Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979). ⁵ The purpose of the Attorney's Fees Awards Act is to encourage private enforcement of civil rights acts by awarding reasonable fees to prevailing parties, S.Rep.No.94-1011, 94th Cong., 2d Sess. 1, 2 (1976), reprinted in (1976) U.S.Code Cong. & Ad.News 5908, 5910, for all time reasonably expended. Id. at 5913. The amount recovered may sometimes indicate the reasonableness of the time spent to vindicate the right violated. Scott v. Bradley, 455 F.Supp. 672, 675 (E.D.Va.1978).

In determining a fee award, the court should consider the number of hours ordinarily necessary competently to prepare comparable cases. Brown v. Bathke, 588 F.2d 634, 638 (8th Cir. 1978). See, e. g., Gagne v. Maher, 594 F.2d 336, 345 (2d Cir. 1979), aff'd, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (trial court did not commit error by disallowing half the hours worked where the issues were relatively simple and most attorneys would not have spent as much time on the case); Cole v. Tuttle, 462 F.Supp. 1016, 1020 (N.D.Miss.1978) (court regarded counsel's request for more than 200 hours for trial and pretrial work on a one-day trial as excessive, noting that reasonable preparation should not have exceeded 100 hours). Fee awards based upon an excessive number of hours would encourage overpreparation of often relatively simple cases:

(W)hen a lawyer is working for his own client he sensibly limits his research and preparation in proportion to the magnitude of the results sought by his client and his client's perceived ability and willingness to pay. No such constraints work on a civil rights plaintiff's counsel. Indeed, the temptation is just the opposite. Since "the enemy" will be paying anyway, counsel is induced to read every case, depose every witness, examine fully every tactic, leave no stone unturned....

Scott v. Bradley, 455 F.Supp. at 675. As this court has recognized, the interest in promoting the redress of civil rights violations by awarding fees under the Act does not include the creation of "a civil rights fee bank to be liberally drawn upon by lawyers for their own welfare." Coop, 635 F.2d at 655.

In the instant case, the judge allowed compensation for 253.5 hours of discovery, pretrial, and trial work for a two-day trial. ⁶ He found that the preparation was done efficiently and without any duplication of effort although in denying a multiplier to the trial work, he recognized that "after the Seventh Circuit's rulings there were no difficult legal issues to be resolved ... and the factual issues were relatively simple." A year earlier, with the trial undoubtedly fresher in his mind, the same judge had characterized this as "a simple, one issue case." He there acknowledged that damages recovered are often an indicator of the worth of the case, and noted that plaintiff's counsel "never seriously argued for anything but nominal damages.... (W)e do not belittle Mr. Bonner's feeling of vindication of his individual rights. But this Court seriously doubts that the verdict rendered in his...