Jackson v. Austin
| Decision Date | 12 June 2003 |
| Docket Number | No. CIV.A. 99-3363-KHV.,CIV.A. 99-3363-KHV. |
| Citation | 267 F.Supp.2d 1059 |
| Parties | Kenneth JACKSON, Plaintiff, v. Heath AUSTIN, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Anne W. Schiavone, Eric E. Packel, Husch & Eppenberger, Springfield, MO, Jeffrey R. Scurlock, McLeod, Nash & Franciskato, Kansas City, MO, for Plaintiff.
Julie L. St. Peter, El Dorado Correctional Facility, El Dorado, KS, Loren F. Snell, Jr., Scott B. Poor, Office of Attorney General, Topeka, KS, Rebecca Ann Weeks, Kansas Attorney General, Topeka, KS, for Defendants.
NUNC PRO TUNC MEMORANDUM AND ORDER
Plaintiff brought suit against defendants under 42 U.S.C. § 1983, alleging that they violated his constitutional rights by denying him adequate medical care and through use of excessive force. On January 17, 2003, the Court awarded plaintiff actual damages of $15,000 and punitive damages of $30,000. This matter comes before the Court on Plaintiffs Application For Attorneys' Fees (Doc. # 157) filed February 27, 2003. Plaintiff seeks fees of $69,425.50 and expenses of $9,934.26. For reasons stated below, the Court sustains plaintiffs motion in part and awards $40,654.75 in fees and $1,509.15 in expenses.
A prevailing plaintiff under Section 1983 is entitled to attorneys' fees under 42 U.S.C. § 1988. For purposes of attorneys' fees, plaintiff may be considered the "prevailing party," if he succeeds on any significant issue in litigation which achieves some of the benefit he sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see Alexander S. v. Boyd 113 F.3d 1373, 1388 (4th Cir.1997), cert, denied, 522 U.S. 1090, 118 S.Ct. 880, 139 L.Ed.2d 869 (1998). Determining the amount of such an award is committed to the district court's discretion. Carter v. Sedgwick County, 36 F.3d 952, 956 (10th Cir.1994). The presumptively reasonable attorney's fee is the product of reasonable hours times a reasonable rate. Id. (quotations and citations omitted). This calculation yields a "lodestar" figure which is subject to adjustment. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In addition, because plaintiffs fee request is governed by the attorneys' fee provisions of the Prison Litigation Reform Act ("PLRA"), plaintiff must show that the fees were directly and reasonably incurred in proving a violation of his rights and that the fees were proportional to his relief.1 See 42 U.S.C. § 1997e(d)(1); Clark v. Phillips, 965 F.Supp. 331 (N.D.N.Y.1997). Plaintiff bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998).
The Court first considers defendants' request to stay any award of attorneys' fees and expenses until defendants have completed their appeal. Defendants argue that depending upon the outcome of their appeal, plaintiff might not be a prevailing party and would not be entitled to any award. The Court denies defendants' request. By so doing, the Court allows defendants to challenge the fee award as part of their pending appeal. If defendants' appeal alters plaintiffs status as a prevailing party, the fee award can be amended.
In setting the hourly rate, "the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). A reasonable hourly rate comports with rates "prevailing in the community for similar services for lawyers of reasonably competent skill, experience, and reputation." Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541. A district judge may turn to her own knowledge of prevailing market rates as well as other indicia of a reasonable market rate. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493 (10th Cir.1994) (citation omitted). To determine a reasonable rate, the Court focuses on the rates of "lawyers of comparable skill and experience." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1204 (10th Cir.1998).
Under the PLRA, "[n]o award of attorney's fees ... shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S.C. § 3006A] for payment of court-appointed counsel." 42 U.S.C. § 1997e(d)(3). Under 18 U.S.C. § 3006A, the Court can only award "$60 per hour for time expended in court ... and $40 per hour for time reasonably expended out of court, unless the Judicial Conference determines that a higher rate ... is justified for a circuit or for particular districts." For work from April 1, 2001 through April 30, 2002, the Judicial Conference of the Court of Appeals for the Tenth Circuit limits attorneys' fees to $75 per hour for time spent in court and $55 per hour for time spent out of court. For work on or after May 1, 2002, the maximum hourly rate is $90 per hour for both in court and out-of-court time. Defendants argue that plaintiff should be limited to these rates.2 Plaintiff seeks $125 per hour for Jeff Scurlock and Anne Schiavone and $185 per hour for Eric Packel. The Court construes plaintiffs request as 150 per cent of the maximum under Section 1997e(d)(3), i.e. $82.50 for out-of-court time for Scurlock before May 1, 2002, $125 for Scurlock on and after May 1, 2002, $125 for Schiavone and $135 for Packel.3
Defendants argue that plaintiffs counsel is not shown to be sufficiently experienced to justify the 150 per cent enhancement. The PLRA does not provide a scheme, however, for differentiating between the hourly rate charged by attorneys of varying experience levels. Roberson v. Brassell, 29 F.Supp.2d 346, 351 (S.D.Tex.1998); Chatin v. State of New York, No. 96 Civ. 420(DLC), 1998 WL 293992, at *2 (S.D.N.Y. June 4, 1998). Other courts have mechanically granted the 150 per cent maximum with little or no consideration of experience. See Hernandez v. Kalinowski 146 F.3d 196 (3d Cir. 1998); Alexander S., 113 F.3d at 1388; Roberson, 29 F.Supp.2d at 351; Rodriguez v. Zavaras, 22 F.Supp.2d 1196, 1202 (D.Colo.1998); Chatin, 1998 WL 293992 at *2. In the Court's view, the experience of counsel is important in determining the appropriate award, but for work before May 1, 2002, the maximum allowable rate under Section 1997e(d)(3) is so low—relative to market rates—that counsel could hardly be so inexperienced as to not deserve the maximum rate.4 Indeed the enhanced hourly PLRA rate for out-of-court time before May 1, 2002—$82.50—is only slightly higher than the prevailing market rate for legal assistants in the Kansas City area. See Boilermaker-Blacksmith, 2002 WL 372868, at *2 ($75); Lappin v. Gwartney, 2000 WL 1532765, at *11 (D.Kan. Sept. 18, 2000) ($80 for 2000; $70 for 1999); Aquilino, 109 F.Supp.2d at 1325 ($65); Outdoor Sys., 2000 WL 575023 at *4-5 ($70). Although plaintiff did not provide information as to Scurlock's experience, he was admitted to the bar in Missouri in 1997 and to the District of Kansas in 1998. Scurlock prepared the case for trial until he withdrew in May of 2002. Scurlock successfully opposed defendants' motion for reconsideration of the Court's summary judgment ruling and defendants' second summary judgment motion. The Court therefore applies an $82.50 hourly rate for Scurlock's work before May 1, 2002.
As to Scurlock's work on and after May 1, 2002 and as to Packel and Schiavone, plaintiff provides sufficient evidence of counsel's experience to justify an enhancement of the standard hourly rates which the Tenth Circuit Judicial Conference has adopted. Given the limited information provided by counsel, however, the Court awards an hourly rate of $120 for Scurlock, Packel and Schiavone for work on and after May 1, 2002. The Court has outlined Scurlock's qualifications. Packel is a member of Husch & Eppenberger law firm and has worked in private practice for ten years. Schiavone graduated from law school in 1999 and has worked as a litigation associate in private practice for four years. All three attorneys performed admirably and Packel and Schiavone obtained excellent results at trial. Given the Court's knowledge of market rates in the community and the fact that this case did not involve complex legal and factual issues, $120 is a reasonable hourly rate.5
Defendants object to the hourly rates charged for legal assistants, investigators and law clerks. Plaintiff requests hourly rates of $95.00 for legal assistant N. Cline, $85.00 for legal assistants H. Long and L. McWhorter, and $85.00 for investigator J. Schwarz. Plaintiff requests hourly rates of $95 for Heather McNeely and $90 for G. Nicole Hininger and David C. DeGraeff, but does not identify their positions. Based on the description of work and their proposed rates, the Court assumes that these individuals are legal assistants or law clerks. Plaintiff does not provide evidence of the prevailing market rates, however, and the requested rates do not reflect a reduction in light of the restrictions in Section 1997e(d)(3). Based on the market rate and the reduction contemplated by Section 1997e(d)(3), the Court awards $40 per hour for legal assistants, investigators, law clerks and individuals otherwise unidentified in the record. See Searles v. Van Bebber, 64 F.Supp.2d 1033, 1037 (D.Kan.1999) (); Roberson, 29 F.Supp.2d at 353 ().
Attorneys normally do not bill all hours expended in litigation to a client, and "an applicant should exercise `billing...
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