Estate of Borst v. O'Brien, 16

Decision Date06 November 1992
Docket NumberNo. 16,91-3383,Nos. 91-3087,16,s. 91-3087
Citation979 F.2d 511
PartiesESTATE OF Daniel A. BORST, Plaintiff-Appellee, v. River Grove Police Officer Richard O'BRIEN, Star, in his individual and official capacity, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Timothy J. Touhy, Chicago, Ill. (argued), for plaintiff-appellee in No. 91-3087.

Arthur E. Engelland, Timothy J. Touhy (argued), Daniel K. Touhy, Chicago, Ill., for plaintiff-appellee in No. 91-3383.

David Lincoln Ader, Thomas G. DiCianni (argued), Ancel, Glink, Diamond & Cope, Chicago, Ill., for defendant-appellant.

Before CUDAHY, FLAUM, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Daniel Borst brought a Section 1983 action against several River Grove police officers alleging, inter alia, excessive use of force in his arrest. Borst died of natural causes and his estate was substituted at trial. The jury found in favor of the defendant police officers on all counts, except that it awarded the estate $500 in compensatory damages and $500 in punitive damages against one defendant on the excessive force claim. Plaintiff then petitioned for attorneys' fees under 42 U.S.C. § 1988, seeking approximately $300,000 and costs of $5,662. The trial court reduced the fee amount and awarded $47,254.13 in attorneys' fees and all of plaintiff's requested costs. We affirm with a reduction in costs.

I.

On November 18, 1986, police were dispatched to the home of Daniel Borst, who lived on the top floor of an apartment building in River Grove, Illinois. There were complaints that he was standing on the pitched roof outside his window and acting wildly: drinking beer, screaming loudly and dropping objects from the roof. River Grove Police Officers Richard O'Brien, Roger Loni, Patrick Ryndak and Joseph Licari arrived at the scene, and Officers O'Brien, Licari and Loni entered the apartment while Officer Ryndak stayed below. O'Brien tried to coax Borst to come in from the icy roof, but Borst began throwing beer cans at him. Officer O'Brien then grabbed Borst's arm and went through the window onto the roof. Officer Loni came to the window and assisted O'Brien in handcuffing Borst, who was now wrestling with O'Brien. As O'Brien tried to guide Borst through the window, Borst began to struggle. O'Brien then stunned Borst once in the abdomen with his XR-5000 stun gun and proceeded to push Borst through the window. He was pulled into the apartment by Loni and Licari and brought to the River Grove police station where he was charged with disorderly conduct and resisting arrest.

Borst filed suit against officers O'Brien, Loni, Licari and Ryndak under Section 1983, ultimately alleging four counts: (1) excessive force and false arrest against all of the defendants; (2) malicious prosecution against O'Brien and Loni; (3) all the defendants' failure to prevent the violation of Borst's constitutional rights; and (4) conspiracy among the defendants to violate his rights. The malicious prosecution claim was dismissed on the pleadings and summary judgment was granted on the false arrest claims. The remaining claims were tried before a jury.

Borst died of natural causes before trial and his estate was substituted as the plaintiff. Borst's testimony given during discovery, however, was introduced at trial. His version of the events of the night in question is quite different from that reported by the police officers. Borst testified that he was indeed on the roof on that night, but that O'Brien dragged him into the apartment where he was handcuffed and repeatedly punched and kicked by several police officers. He alleged that he was stunned several times on his back with the stun gun and was moved to the living room where he was again beaten before ultimately being taken to the police station. At trial plaintiff introduced a series of photographs which purportedly evidenced stun marks on Borst's back. Both plaintiff and defendants introduced expert testimony as to the validity of these photographs.

After the eight-day trial, the jury found defendants Loni, Licari and Ryndak not guilty on all counts. It found O'Brien not guilty on the failure to protect and conspiracy claims, but guilty on the excessive use of force claim. The jury awarded plaintiff $500 in compensatory damages and $500 in punitive damages, specifically finding that, on the preponderance of the evidence, O'Brien's acts or omissions were done "maliciously, wantonly or oppressively."

Plaintiff then filed an attorneys' fees petition pursuant to 42 U.S.C. § 1988, and a request for costs. Plaintiff submitted fees totaling approximately $146,416, and then requested that the amount be doubled because of the risk of losing the case in light of a 40 percent contingent fee agreement--bringing the total request to roughly $300,000. The district court recalculated the lodestar amount by reviewing the time entries and reducing the total hours from 760.60 to 580.025. It also reduced the requested hourly rate for each attorney working on the case. The revised lodestar--$78,756.88--was then reduced by 40 percent to bring the amount in line with the limited success obtained by the plaintiff. The trial court awarded plaintiff attorneys' fees in the amount of $47,254.13 and $5,662.11 in costs. Defendant O'Brien appeals, challenging the amount of fees awarded and the full award of costs. 1

II.

Appellate review of attorneys' fees awards is limited to a "highly deferential abuse of discretion standard." Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 439 (7th Cir.1992); Dutchak v. Central States, S.E. & S.W. Areas Pension Fund, 932 F.2d 591, 596 (7th Cir.1991). Indeed, this court has noted that

[i]f ever there was a case for reviewing the determinations of a trial court under a highly deferential version of the "abuse of discretion" standard, it is in the matter of determining the reasonableness of the time spent by a lawyer on a particular task in a litigation in that court.

Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir.1988). Such deference is warranted for essentially three reasons. First, the district court is accorded this great discretion in light of its "superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Second, the need for uniformity in awarding attorneys' fees is not so great as to warrant "microscopic appellate scrutiny." Ustrak, 851 F.2d at 987. Finally, reviewing courts should defer to the district court's determination so as to avoid "a second major litigation" strictly over attorneys' fees. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; see also Nanetti v. University of Illinois at Chicago, 944 F.2d 1416 (7th Cir.1991) (noting that case, which was settled before trial, spawned five years of litigation over issue of attorneys' fees, generating fees of over $45,000 for plaintiff alone). We can think of few matters more wasteful of judicial resources than ancillary litigation over an attorneys' fee award.

A.

Defendant first argues that plaintiff is not entitled to an attorneys' fee award because the plaintiff was not successful on its major claim or because the plaintiff's success was only negligible. These arguments are without merit. To be eligible for attorneys' fees under 42 U.S.C. § 1988, a plaintiff need only be a prevailing party. Parties may be considered to have prevailed "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (citation omitted); Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1492-93, 103 L.Ed.2d 866 (1989) (rejecting requirement that plaintiff be successful on "central issue" of litigation in order to be prevailing party). Plaintiff need only show that resolution of the dispute changed the legal relationship between it and the defendant. Texas Teachers, 489 U.S. at 792, 109 S.Ct. at 1493. Although in this case the plaintiff was not successful on all of its claims, the jury did award relief on the excessive force claim. The fact that the jury awarded only a small percentage of what was requested is irrelevant. Id. at 793, 109 S.Ct. at 1493 ("the degree of the plaintiff's overall success goes to the reasonableness of the award under Hensley, not to the availability of a fee award vel non" ). Indeed, a party who receives only nominal damages is deemed to have prevailed, and is thus eligible for attorneys' fees. Ustrak, 851 F.2d at 989; Smith v. DeBartoli, 769 F.2d 451, 453 (7th Cir.1985), cert. denied, 475 U.S. 1067, 106 S.Ct. 1380, 89 L.Ed.2d 606 (1986); Lynch v. City of Milwaukee, 747 F.2d 423, 429 (7th Cir.1984); Redding v. Fairman, 717 F.2d 1105, 1119 (7th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984); Domegan v. Ponte, 972 F.2d 401, 407 (1st Cir.1992); Romberg v. Nicols, 970 F.2d 512, 519 (9th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3207 (U.S. Sept. 3, 1992) (No. 92-402); Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.1991); Allen v. Higgins, 902 F.2d 682, 684 (8th Cir.1990); Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9th Cir.1988); Coleman v. Turner, 838 F.2d 1004, 1005 (8th Cir.1988); Nephew v. City of Aurora, 830 F.2d 1547, 1550 (10th Cir.1987) (en banc), cert. denied, 485 U.S. 976, 108 S.Ct. 1269, 99 L.Ed.2d 481 (1988); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.1987). But see Estate of Farrar v. Cain, 941 F.2d 1311 (5th Cir.1991), cert. granted sub nom., Estate of Farrar v. Hobby, --- U.S. ----, 112 S.Ct. 1159, 117 L.Ed.2d 407 (1992). Therefore, the district court did not abuse its discretion in awarding attorneys' fees in the first instance.

B.

The defendant next contends that, assuming the...

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