Harris v. Harvey, 75-C-612.
| Decision Date | 08 August 1978 |
| Docket Number | No. 75-C-612.,75-C-612. |
| Parties | Sylvester HARRIS, Plaintiff, v. Richard G. HARVEY, Jr., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Burton A. Strnad Law Offices, Paul J. Gossens, Milwaukee, Wis., for plaintiff.
Foley & Capwell, Rex Capwell, David J. Nolden, Racine, Wis., for defendant.
DECISION and ORDER
This case remains before me on the matter of the plaintiff's attorney's fees. On June 26, 1978, I ordered that the plaintiff recover attorney's fees in an amount to be determined after his counsel's submission of a more detailed application for attorney's fees. On July 5, 1978, the plaintiff's counsel filed an affidavit setting forth the requested information from which the reasonableness of an attorney's fees award could be determined.
On July 14, 1978, the defendant filed a motion for reconsideration of the portion of the decision and order dated June 26, 1978, which granted the plaintiff's request for an award of attorney's fees. The defendant's motion seeks, in the alternative, an order allowing the defendant to pursue discovery on the question of the amount of attorney's fees to be awarded to the plaintiff.
The defendant's request for reconsideration of the order awarding attorney's fees is based on his contention that this action involves a claim for damages personal to the plaintiff and that this action advances the public's interests only in an indirect sense. Zarcone v. Perry, 438 F.Supp. 788 (E.D.N.Y.1977), held under similar circumstances that an award of attorney's fees is inappropriate. The court of appeals' decision in Zarcone did not address the matter of attorney's fees, apparently because the plaintiff did not cross-appeal that issue. 572 F.2d 52 (2d Cir. 1978).
In my judgment, the extent to which the public's general interests are advanced by private litigation under 42 U.S.C. § 1983 is only one of the factors to be taken into account in the court's exercise of its discretion under 42 U.S.C. § 1988. That the constitutional deprivation upon which the § 1983 action is based was primarily private in character does not, in my opinion, preclude an award of attorney's fees to a prevailing plaintiff. To the extent that the district court's decision in Zarcone holds to the contrary, I simply disagree.
In enacting § 1988, Congress did not limit awards in § 1983 suits to those cases brought on behalf of a class or to those cases in which broad injunctive relief is sought. Neither the language of the Civil Rights Attorney's Fees Awards Act, which amended § 1988 to permit an award of attorney's fees in an action under § 1983, nor the accompanying Senate Report, No. 94-1011, 94th Cong., 2nd Sess. 2 (1976), reprinted in 5 U.S.Code Cong. & Admin. News pp. 5908, 5910, suggests that a separate interest of the public or of an identified class must have been benefited by the plaintiff's action as a condition precedent to an award of attorney's fees.
There is arguably an important benefit to the public in any meritorious action under § 1983 where a constitutional deprivation is vindicated; the constitutional guarantees themselves are thereby strengthened. The benefit is underscored in a case such as this brought against a state official charged with the responsibility of securing the state and federal rights of those who appear before him. Accordingly, I reject the contention that the personal nature of the deprivation in this case precludes an award of attorney's fees under § 1988; the motion to reconsider will therefore be denied.
The defendant's alternative motion for discovery in connection with the plaintiff's request for attorney's fees is bottomed on the defendant's desire to explore the records of the two firms for which the plaintiff's counsel was employed during the course of the litigation. The defendant seeks to obtain information concerning the plaintiff's counsel's itemization of hours. In an affidavit dated July 19, 1978, the plaintiff's counsel appears to have provided the basic information requested by the defendant's discovery motion. Accordingly, the motion seems to be moot in this respect.
In addition, however, the defendant seeks discovery based on a conversation overheard by one Sam Azarian at a restaurant in the summer of 1975. Allegedly, the plaintiff stated that a professional basketball player had given the plaintiff $5,000 to finance the commencement of...
To continue reading
Request your trial
-
Harris v. County of Racine
...The published decisions in the action are set forth in 419 F.Supp. 30 (E.D.Wis.1976), 436 F.Supp. 143 (E.D.Wis.1977), 453 F.Supp. 886 (E.D.Wis. 1978), and 605 F.2d 330 (7th Cir. 1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 Harris alleged that for racially discriminatory......
-
Scarpaci v. Milwaukee County
...98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). 24 See also, Harris v. Harvey, 419 F.Supp. 30 (E.D.Wis.1976), 436 F.Supp. 143 (1977), 453 F.Supp. 886 (1978), 605 F.2d 330 (7th Cir. 1979), cert. denied --- U.S. ----, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980); Butz v. Economou, 438 U.S. 478, 508, 509......
-
Thompson v. Village of Hales Corners
...the Village and require that the balance be made up from the damages award. In support of its decision, the court cited Harris v. Harvey, 453 F.Supp. 886 (E.D.Wis.1978) and stated that it was reducing the award "because plaintiff represented no class or group." Thompson in his cross appeal ......
-
Coyote v. Roberts
...nonconsensual). Even were Narpstek not factually distinguishable, this Court finds the approach of Judge Gordon in Harris v. Harvey, 453 F.Supp. 886, 888 (E.D.Wis.1978) more compatible with the purpose of § 14 The Court wishes to emphasize that it is not expressing any opinion on whether th......