Duckworth v. Whisenant

• Decision Date: 21 October 1996
• Docket Number: No. 95-9341,95-9341
• Citation: 97 F.3d 1393
• Parties: Timothy P. DUCKWORTH, Plaintiff-Appellee, v. Michael E. WHISENANT, James Patrick, Lionel G. Higdon, Stuart Jackson, Individually and in their official capacities as Deputy Sheriffs of DeKalb County, Georgia, Pat Jarvis, Sheriff of DeKalb County, Georgia, Defendants, DeKalb County, Georgia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1393

97 F.3d 1393

Timothy P. DUCKWORTH, Plaintiff-Appellee, v. Michael E. WHISENANT, James Patrick, Lionel G. Higdon, Stuart Jackson, Individually and in their official

capacities as Deputy Sheriffs of DeKalb County, Georgia, Pat

Jarvis, Sheriff of DeKalb County, Georgia, Defendants,

DeKalb County, Georgia, Defendant-Appellant.

No. 95-9341.

United States Court of Appeals, Eleventh Circuit.

Oct. 21, 1996.

Donald Burton Howe, Jr., Howe & Dettmering, Douglasville, GA, Michael N. Weathersby, Evert & Weathersby, Atlanta, GA, for Plaintiff-Appellee.

Jonathan Weintraub, H. Walter Indermark, DeKalb County Law Dept., Decatur, GA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit Judges.

PER CURIAM:

DeKalb County, Georgia appeals the district court's award of attorneys' fees in this civil rights case. The County contends that the court abused its discretion in awarding plaintiff's counsel $162,209 in fees when plaintiff sought no injunctive relief and the fees awarded are disproportionate to the $500 recovered from the County.

We have considered the arguments the County advances and conclude that there is no abuse of discretion in this case. The district court meticulously applied the controlling legal precedent to a set of facts fully supported by the record in arriving at the fees awarded. Accordingly, we affirm on the basis of the Order dated September 25, 1995, attached as an appendix and hereby incorporated into and made a part of this opinion.

AFFIRMED.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF GEORGIA ATLANTA DIVISION

Timothy P. Duckworth, Plaintiff,

vs.

Michael E. Whisenant, et al., Defendants.

Civil Action No. 1:89-CV-1102-JOF.

ORDER

The matter before the court is Plaintiff's motion for reconsideration of an order denying an award of costs and attorney's fees [134-1]. The court explained its denial as based upon its inability to assess reasonable costs or attorney's fees because Plaintiff's exhibits in support of its motion had not been filed with the court. After full consideration of the matter, the court erred in that determination and thereby GRANTS Plaintiff's motion for reconsideration. Thus, the order entered on January 31, 1995, [133-1] is VACATED.

I. STATEMENT OF THE CASE

Plaintiff sued for injuries that he sustained as a result of excessive force used by deputies of DeKalb County Sheriff's Office while being processed into jail as a pretrial detainee. Following a non-jury trial, the court determined that Plaintiff failed to carry his burden of proof with regard to individual officers with the exception of Officer James Patrick, who conceded that he had kicked Plaintiff in the groin area when Plaintiff was handcuffed. In regard to Defendant DeKalb County, however, the court criticized its failure to discipline severely officers who filed false reports concerning excessive force, who engaged in the use of excessive force, or who testified falsely regarding the use of excessive force. The court concluded that had the officers been on notice that DeKalb County would not tolerate such conduct, the excessive force that violated Plaintiff's constitutional rights would not have occurred. Based upon these determinations, the court entered judgment for Plaintiff and awarded Plaintiff $500 in compensatory damages against DeKalb County and Officer Patrick, and $10,000 in punitive damages against Officer Patrick individually [122-1]. ¹

Plaintiff filed a motion for award of costs and attorney's fees with a brief and exhibits in support on April 18, 1994 [124-1]. In support of its motion, Plaintiff presented evidence indicating that attorney's fees and costs should include compensation: for 519.95 hours of work performed by Donald B. Howe, Jr., for 715.5 hours of work performed by Michael N. Weathersby, and for 27.50 hours of work performed by Mr. Weathersby's paralegals, as well as out-of-pocket costs paid by Mr. Howe's firm in the amount of $6,248.74, and those paid by Mr. Weathersby's firm in the amount of $8,791.75. Plaintiff submitted affidavits from eleven attorneys practicing in Georgia that showed a prevailing market rate for Atlanta ranging from $100 to $300 per hour depending upon the nature of the case and skill and experience of the attorney.

Defendants oppose Plaintiff's motion for costs and fees on the grounds that Plaintiff is seeking an excessive sum based upon the amount of recovery and initially request the court to deny the motion in its entirety [127-1]. Defendants further dispute whether Plaintiff has properly calculated attorney fees and costs. First, they contest whether the evidence of "prevailing market rates" has provided this court with a proper range of rates for civil rights litigation as conducted by Plaintiff's counsel. Second, Defendants argue that the request does not include any deduction for unsuccessful claims or excessive, unnecessary, or redundant hours, and demonstrates poor "billing judgment." After outlining their objections to Plaintiff's evidence of fees, Defendants have suggested that their tally of "reasonable" hours for Plaintiff's counsel not surpass 904.2 hours, as compared with the 1,262.5 hours set forth by Plaintiff. Finally, after comparing the monetary awards to Plaintiff with the monetary relief sought, Defendants urge this court either to deny all fees requested or to adjust the lodestar to a minimal fee.

II. DISCUSSION

A. Attorney's Fees

Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir.1988), prescribes the law in our circuit for determining the appropriate award of attorney's fees. The court must multiply the number of hours reasonably expended by a reasonable hourly rate. Id. at 1299, 1302. The party who applies for attorney's fees is responsible for submitting satisfactory evidence to establish both that the requested rate is in accord with the prevailing market rate and that the hours are reasonable. Id. at 1303. After determining the lodestar, the court may adjust the amount depending upon a number of factors, including the quality of the results and representation of the litigation. Id. at 1302.

1. Reasonable Hourly Rate

The first step is to ascertain a rate to charge for the attorney's representation. Plaintiff has requested $175 per hour for both attorneys and argues that the relevant range based upon the affidavits submitted is from $135 to $300 per hour. Defendants protest on the basis that Plaintiff provided the court with only one affidavit establishing actual rates for § 1983 civil rights cases. Furthermore, Defendants assert that this affiant inflated the estimate of his hourly rate in light of the affiant's unsuccessful § 1983 cases for which he would receive no payment. Also contested by Defendants is the skill that Plaintiff's attorneys exhibited based upon the valuation of the claims, the legal theories pursued and the fact that this was Mr. Weathersby's first § 1983 case.

"A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299. Contrary to Defendant's supposition, this circuit has recognized that a movant may meet his burden by producing either direct evidence of rates charged under similar circumstances or opinion evidence of reasonable rates. Id. at 1299. Furthermore, a civil rights case involving a single plaintiff may require analogies to other areas of representation with the absence of "ongoing relationship between the attorney and the client." Id. at 1300. While the court is cognizant that some opinion evidence may be afforded less weight due to differences such as the affiant's type of casework or experience, Defendant's attack upon the affidavits submitted is not availing.

Based upon a practice in securities and experience with civil rights and securities cases involving attorney's fees, Robert D. Feagin estimated that a prevailing market rate ranged from $125 to $300 per hour. Ralph S. Goldberg assessed the range as between $125 and $250 per hour depending upon the experience of the attorney. Richard W. Hendrix stated that he charges and receives $190 per hour for civil rights cases. ² Plaintiff clearly has met his burden in providing evidence by which this court may assess the prevailing market rate. Plaintiff's attorneys have requested $175 per hour, the amount that they charge their clients in their respective practices.

This court has also been given ample opportunity to assess the lawyering of this case for the Plaintiff. Both attorneys are experienced litigators who ably represented their client. Since his admission to the bar in 1961, Donald B. Howe, Jr., has handled over a dozen civil rights cases through trial and at least twenty cases that settled before trial, with the occasion to represent both plaintiffs and defendants. An hourly rate of $200 appropriately represents the efforts of Mr. Howe. His co-counsel, Michael N. Weathersby, has been practicing in Atlanta for over a decade with a pronounced emphasis upon the areas of products liability and commercial litigation. Because the case at bar was Mr. Weathersby's first § 1983 excessive force case, this court deems the rate of $150 per hour as a reasonable basis for calculating his fees.

2. Reasonable Hours Expended

The second step requires a determination as to the number of reasonable hours expended by counsel. While exercising proper "billing judgment," the party should have excluded those hours that would be unreasonable to bill a client or opposing counsel without reference to skill, reputation or experience. Norman, 836 F.2d at 1301. The court will therefore deduct unnecessary or redundant hours and time spent upon "discrete and unsuccessful claims" from the calculations. Id. at 1301-02.

Because reducing...