935 F.2d 761 (6th Cir. 1991), 90-3254, Perotti v. Seiter

Docket Nº:90-3254.
Citation:935 F.2d 761
Party Name:John PEROTTI, Plaintiff-Appellee, v. Richard P. SEITER, et al., Defendants, Gary F. Brown, Sgt., Defendant-Appellant.
Case Date:June 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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935 F.2d 761 (6th Cir. 1991)

John PEROTTI, Plaintiff-Appellee,


Richard P. SEITER, et al., Defendants,

Gary F. Brown, Sgt., Defendant-Appellant.

No. 90-3254.

United States Court of Appeals, Sixth Circuit

June 6, 1991

Argued March 29, 1991.

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John D. Poley and Hilary Lerman, argued, Dayton, Ohio, for plaintiff-appellee.

Steven P. Fixler, Asst. Atty. Gen., argued, Office of the Atty. Gen., Federal Litigation Section, Cincinnati, Ohio, for defendant-appellant.

Lee Hornberger, Cincinnati, Ohio, for amicus curiae.

Before GUY and RYAN, Circuit Judges, and JOINER, Senior District Judge. [*]

JOINER, Senior District Judge.

Defendant, Gary Brown, appeals an award of attorney fees pursuant to 42 U.S.C. section 1988. The plaintiff, a prisoner at the Southern Ohio Correctional Facility, filed suit on April 19, 1983, seeking damages under section 1983 for violation of his eighth amendment rights. Plaintiff alleged that he had been beaten by guards at the prison on three separate occasions. The suit named thirteen defendants, a number of whom were dismissed prior to trial.

On February 17, 1987, plaintiff was awarded a verdict in the amount of $1,000 against defendant Brown alone, as to the third of the alleged beating incidents. The jury found against plaintiff and in favor of

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three defendants as to the first of the alleged incidents, against the plaintiff and in favor of defendant Brown and two other defendants on the second of the alleged incidents, and against defendant Brown but in favor of several other defendants as to the third incident. The judgments entered on these verdicts were affirmed by a panel of this court in an unpublished opinion. Perotti v. Seiter, 869 F.2d 1492 (6th Cir.1989).

Plaintiff's two lawyers submitted requests for attorney fees in the amount of $33,355 (for 238.25 hours, plus a .25 multiplier) and $30,210 (for 251.75 hours, plus a .25 multiplier), pursuant to 42 U.S.C. section 1988. On December 11, 1989, the trial court awarded attorney fees to plaintiff's counsel in the amount of $50,800, plus $1,588.76 in costs. Noting that plaintiff had not prevailed on all incidents or against all defendants, the district court reduced the amount sought by 40 percent for "duplication," and then reduced the resulting sum by one-third for lack of success, leaving $25,400. The court then awarded a 2.0 multiplier, stating:

We believe that a multiplier of one hundred (100%) percent is warranted in this case where the results obtained by Messrs. Poley and Lerman were exceptional, the Court having observed the high caliber of their representation, especially considering the problems attendant to representing Mr. Perotti given his relationship to the guard force and administration at the prison. We are persuaded that the risks involved in assuming representation of such prisoner's civil rights cases on a contingent fee basis warrant an enhancement of the fee award.

The $33,355 and $30,210 base figures upon which the district court performed these calculations already included a .25 multiplier requested by plaintiff's counsel in addition to the lodestar amount. Plaintiff's counsel conceded at oral argument that the district court erred in using figures which were inflated by a .25 multiplier as the base amounts.

Defendant argues that the trial court's award is unreasonable. Brown also asserts specifically that the trial court erred in (1) awarding compensation for pre-appearance billing entries, (2) awarding compensation for travel time at the regular hourly ("lodestar") rate, (3) awarding a multiplier, and (4) awarding as costs items not within the limitations imposed by 28 U.S.C. section 1920. Plaintiff argues that the district court erred in failing to include an award for time spent on litigation of the attorney fees issue itself.

Defendant's general argument that the amount of the award was "unreasonable" is not to the point, because we review the award of attorney fees for abuse of discretion. Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir.1986). The district court followed the dictate of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), in reducing the attorney fees for the claims which were unsuccessful:

The total fees ... shall be reduced by forty (40%) percent by reason of duplication. A product of $38,139 shall be further reduced by one-third ( 1/3) representing that portion of the effort devoted to unsuccessful results in the trial court, resulting in a lodestar figure of $25,400.

We believe that the amount of the trial court's award was not an abuse of discretion in light of the evidence in the record in this case. The degree of discretion given to the district courts by Hensley is, however, limited:

There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.

Id. at 436-37, 103 S.Ct. at 1941. Among the contentions specifically rejected by the Court was "a mathematical approach comparing the total number of issues in the case with those actually prevailed upon."

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The Court noted that "[s]uch a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors." Id. at 435-36 n. 11, 103 S.Ct. at 1940-41 n. 11.

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