Griffin v. Ozark County, Mo.

• Decision Date: 01 June 1988
• Docket Number: No. 84-3158-CV-S-2.,84-3158-CV-S-2.
• Citation: 688 F. Supp. 1372
• Parties: Sidney R. GRIFFIN, Plaintiff, v. OZARK COUNTY, MISSOURI and Herman Pierce, Sheriff, Defendants.
• Court: U.S. District Court — Western District of Missouri

688 F. Supp. 1372

Sidney R. GRIFFIN, Plaintiff, v. OZARK COUNTY, MISSOURI and Herman Pierce, Sheriff, Defendants.

No. 84-3158-CV-S-2.

United States District Court, W.D. Missouri, S.D.

June 1, 1988.

Mark C. Fels, Poole, Smith & Wieland, P.C., Springfield, Mo. (court appointed), for plaintiff.

John Jacobs, Richard T. Martin, Gainesville, Mo., for defendants.

ORDER GRANTING PETITION FOR ATTORNEY'S FEES

COLLINSON, Senior District Judge.

This case is now before this Court on motion of the plaintiff's attorney to obtain an award of attorney fees for counsel's representation of the plaintiff herein, Sidney R. Griffin.

Though plaintiff initially brought this action pro se, on July 12, 1985, the Court appointed Lowther, Johnson, Lowther, Cully & Housley to represent the plaintiff in this matter.

On July 29, 1985, this Court relieved that firm from representing plaintiff and ordered that the law firm of Poole, Croessmann and Stevens, n/d/b/a Poole, Smith, Wieland, P.C. enter the appearance of a member of the firm as attorney of record. On August 5, 1987, plaintiff's counsel herein, Mark C. Fels, entered his appearance with this Court.

The Court, on December 8, 1987, rendered a decision in favor of the plaintiff by entering an order of judgment against the two named defendants in the amount of $500.00 plus attorney's fees. This Court's order of that date directed that the award of attorney's fees would be held open until further evidence was produced. Plaintiff's counsel was directed to file with this Court within two weeks an itemized statement of the hours spent in preparation and trial and an itemized statement of any out-of-pocket expenses incurred. The defendants would then be given an opportunity to object or otherwise reply.

Counsel has submitted an itemization of his hours and is requesting approval of a fee application in the amount of $10,979.50, plus reimbursement of out-of-pocket expenses totaling $47.05. The defendants have not responded.

I. ENTITLEMENT TO FEE AWARD

This Court may award reasonable attorney's fees in conformance with the Civil Rights Attorney's Fees Awards Act of 1976 42 U.S.C. § 1988 to an attorney for representing a Section 1983 petitioner in a claim before this Court. That section provides, in part,

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.

It makes no difference if, as here, counsel was court appointed.

To allow fees to court-appointed counsel will encourage the vindication of civil rights which is the purpose of the Civil Rights Attorney's Fees Awards Act, and court-appointed counsel should be no more expensive than hired attorneys.

Miller v. Carson, 563 F.2d 741, 756 (5th Cir.1977).

The threshold question in cases where an attorney's fee is requested is whether the party moving for the award is a "prevailing party" within the meaning of Section 1988. This standard is a generous one which allows an award if a party prevails "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, 1939, 76 L.Ed.2d 40 (1983). That standard has obviously been met in the instant case as the plaintiff has proved virtually all of his allegations concerning his treatment at the hands of the County and has gotten favorable declaratory relief.

Once the Court finds that a party has prevailed and is entitled to an award of attorney's fees, most courts determine the amount of the fee by utilizing a three-step methodology. First, a base fee or "lodestar" is determined. Second, if the prevailing party succeeds on less than all of his claims, the lodestar may be adjusted according to the criteris enumerated in Hensley v. Eckerhart. Third, the sum may be adjusted up or down in consideration of other factors. See generally, Speed, Attorney's Fees Awards In Federal Court, 39 Ark.L.Rev. 99 (1985).

II. AMOUNT OF FEE AWARD

A. DETERMINATION OF LODESTAR

The lodestar is determined by multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40; Ladies Center, Nebraska, Inc. v. Thone, 645 F.2d 645 (8th Cir.1981). The "reasonableness" of both the number of hours expended and the hourly rate requested should be determined by the trial court in light of the twelve factors enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Both the United States Supreme Court and the Court of Appeals for the Eighth Circuit have expressly adopted these factors. See Hensley, 461 U.S. at 434, n. 9, 103 S.Ct. at 1940, n. 9 and Ladies Center at 647.

The factors enumerated in Johnson are as follows: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of counsel; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

The burden is on the party seeking fees to submit evidence from which a reasonable fee can be awarded. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). As stated above, pursuant to this Court's order, counsel for the plaintiff has submitted his application of fees and supporting documentation. Defendants never responded. As stated by Chief Justice Burger in his concurring opinion in Hensley: "A District Judge may not, in my view, authorize the payment of attorney's fees unless the attorney involved has established by clear and convincing evidence the time and effort claimed and shown that the time expended was necessary to achieve the results obtained."¹ The Court finds that the plaintiff's application meets that standard. It is excellently documented, being concise enough to be easily reviewed yet having sufficient detail to allow the Court to easily determine what type of work was done, how much time was expended, and when.

1. Hours Expended

The Supreme Court stated in Hensley that "billing judgment" should be used in fee setting. This is hardly a helpful guideline when evaluating whether the hours submitted by an attorney in a fee request were "reasonably" expended. Chief Judge Lay has recognized the difficult task the trial court faces in determining what are reasonable hours expended when he wrote: "A judge is seldom able to make adequate appraisal of what is necessary for counsel to do or not do in a given case. This appraisal turns on so many subjective factors that it seldom should be the basis for reduction of an attorney fee." Jaquette v. Black Hawk County, 710 F.2d 455, 460 (8th Cir.1983).

When undertaking this task of determining what activities are compensable, perhaps more guidance could be gleaned from what has been held to be not compensable. Duplicative hours should not be awarded.² Time spent by an attorney correcting his own mistakes and hours spent drafting an overlengthy brief when the extra pages added nothing essential are not compensable.³ Excessive travel time where there is insufficient evidence that travel time involved work on the case is not compensable.⁴

However, there is nothing in counsel's application and supporting documents that suggest that any of the time for which counsel is requesting compensation could be considered as coming under any of those categories. All of the documented activities of counsel appear to be hours spent in good faith in the preparation of this lawsuit and in the trying of the case. The Court hereby finds that the total of 169.3 hours is an amount that is reasonable within the meaning of Section 1988. It should be pointed out that a small amount of time, perhaps two or three hours at the most, was apparently expended by plaintiff's counsel in undertaking activities that might, arguably, be considered more properly done by a paralegal, secretary, law clerk, etc. The Court is quite aware that work done by an attorney that could also have been performed by a paralegal, secretary or law clerk is not compensable at the attorney's rate, but rather at some lower rate.⁵ Because of the relatively small size of the firm of which counsel is a member and because of the excellent credibility which counsel has established with the Court pursuant to bringing this case, including his conduct in Court and in Chambers, the preparation of his pleadings, the forthrightness of the documents relating to his fee request, etc. the Court hereby finds that counsel either had no other option but to handle these matters himself or else made a determination that, in his best judgment, those matters should be personally tended to by him. The Court feels comfortable in making this finding due to the inherent discretion a district court is allowed by the Supreme Court in determining the amount of a fee or award. "This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding appellant review of what essentially are factual matters." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.

2. Reasonable Hourly Rate

The "reasonable hourly rate" by which the compensable hours are multiplied, is determined according to the prevailing rate in the community in which the litigation occurred. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Avalon Cinema Corp. v. Thompson, 689 F.2d 137 (8th Cir.1980). The hourly rate requested by counsel is actually a series of five rates showing an increase during the lifetime of this lawsuit....