Lanasa v. City of New Orleans, Civ. A. No. 83-3633.

• Citation: 619 F. Supp. 39
• Decision Date: 14 March 1985
• Docket Number: Civ. A. No. 83-3633.
• Parties: David P. LANASA v. The CITY OF NEW ORLEANS, et al.
• Court: U.S. District Court — Eastern District of Louisiana

619 F. Supp. 39

David P. LANASA v. The CITY OF NEW ORLEANS, et al.

Civ. A. No. 83-3633.

United States District Court, E.D. Louisiana.

March 14, 1985.

David P. Lanasa, New Orleans, La., for plaintiff.

J. Michael Johnson, Linda Harang, McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., New Orleans, La., for defendants.

ROBERT F. COLLINS, District Judge.

This matter is before the Court on motion of counsel for plaintiff seeking attorney's fees in the above captioned matter. Wherefore, after a careful consideration of the arguments of counsel, the submitted memoranda, the facts of the case and the applicable law, the Court, in its discretion under the terms of 42 U.S.C. § 1988, will award plaintiff attorney's fees in the amount of One Thousand One Hundred Twenty-Two and 19/100 Dollars ($1,122.19). The Court also finds that counsel for plaintiff is entitled to costs of Three Hundred Ninety-Two Dollars and No/100 Dollars ($392.00).

REASONS

The plaintiff in this action, David P. Lanasa, has submitted a Motion for Attorney's Fees seeking from this Court an award of $15,170.20. Before discussing the claims of the plaintiff's motion, however, it is necessary to recount the facts surrounding this motion.

The current action was one brought under 42 U.S.C. § 1983 by the plaintiff herein against the defendants, City of New Orleans and one Ernest Singleton, a police officer, employed by the City of New Orleans through the New Orleans Police Department, for alleged deprivation of plaintiff's civil rights at the time defendants arrested him.¹

On July 30, 1984, three (3) days before the final Pre-Trial Conference, the defendants offered a settlement package to plaintiff, which was accepted by plaintiff and his co-counsel. The "package" offer was made in the form of an Offer of Judgment, pursuant to Fed.R.Civ.P. 68 and provided in part that "defendants offer to plaintiff the sum of $500.00 plus all court costs and attorney fees accrued to date." Emphasis added. Plaintiff duly accepted the offer, by allowing a formal acceptance of Offer of Judgment to be filed into the record by both parties on the same day, July 30, 1984.

Defendant reminds the Court that the "package" offer was made by mistake — that the offer was incorrectly drafted; that from the outset of this litigation, the plaintiff has been offered a total, including all costs and attorney's fees, of $500.00 to settle this case. Defendants assert that they never intended to offer the plaintiff any more than $500.00.² Despite all, defendants assert that plaintiff, realizing the mistake, nevertheless accepted the offer as incorrectly drafted, and now comes before the Court seeking $15,170.20 in attorney's fees and costs.

Without urging the alleged mistake further, defendants oppose plaintiff's fee and costs request of $15,170.20 on three grounds:

(1) The hours allegedly spent by the plaintiff litigating this case are excessive;

(2) As a pro se litigant, plaintiff is not entitled to receive any attorney's fees in this case;

(3) The $90.00 per hour fee suggested by the plaintiff for this case is excessive.

Resolution of these three issues begins and ends with an interpretation of the attorney's fee statute, 42 U.S.C. § 1988. The Court first discusses the issue of whether plaintiff, as a pro se litigant, is entitled to attorney's fees.

A. Whether Plaintiff Proceeding Pro Se Is Entitled To Fees

The question of whether an attorney proceeding pro se is entitled to attorney's fees under the Civil Rights Attorney's Fees Awards Act ("Awards Act") cite is clearly one of first impression within this Circuit certainly. Neither plaintiff nor defendant has comprehensively addressed this issue at oral argument or in the briefs submitted. The Court finds plaintiff's citation at oral argument of the Fifth Circuit's decision in Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir.1983) unavailing. Cazalas explicitly states that the Fifth Circuit has left open the question whether an attorney proceeding pro se is entitled to attorney's fees under the Awards Act. Id. at 1055 n. 8 citing Cofield v. City of Atlanta, 648 F.2d 986, 987 (5th Cir.1981).

This circuit and others have held, on numerous occasions, that section 1988 is not intended to compensate pro se litigants. Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980); Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir.1981). Several other circuits are in accord. See, Lovell v. Snow, 637 F.2d 170 (1st Cir.1981); Pitts v. Vaughn, 679 F.2d 311 (3rd Cir.1982); Wright v. Crowell, 674 F.2d 521 (6th Cir.1982); Owen v. Lash, 682 F.2d 648 (7th Cir.1982); Davis v. Parratt, 608 F.2d 717 (8th Cir.1979); Turman v. Tuttle, 711 F.2d 148 (10th Cir.1983). Likewise, the legislative history supports this conclusion. As the Fifth Circuit has urged in Cofield at 987:

The Civil Rights Fee Awards Act of 1976, 42 U.S.C. § 1988, permits a court in its discretion to allow the prevailing party a reasonable attorney's fee as part of the costs of an action to enforce a provision of, inter alia, section 1983. Cofield plaintiff is not an attorney, yet undoubtedly he devoted considerable time and effort in the pursuit of this claim. We do not suggest that he was an unworthy advocate; to be sure, he has prevailed. Nor do we imply that it is improper for a person to serve as his own advocate. We feel strongly, however, that the intent of Congress in enacting section 1988 would be seriously undermined if we allowed pro se litigants to recover legal fees under that section.

The federal courts, however, have not come to a definitive resolution of the issue in the case where the pro se litigant is himself an attorney.³ Several circuits, including the Fifth, have granted attorney's fees to attorneys who have represented themselves in Freedom of Information Act (FOIA) suits. See, Cazalas v. United States Department of Justice, 709 F.2d at 105; Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980); Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977). See also, Lovell v. Alderete, 630 F.2d 428, 434 (5th Cir.1980). Since these cases, however, have emphasized the legislative history of the attorney's fee provision of the FOIA and the public service performed by FOIA plaintiffs, the analysis offered does not necessarily focus on the distinctions this Court must face in a Civil Rights Attorney's Fees Awards Act case. See also, White v. Arlen Realty & Development Corp., 614 F.2d 387 (4th Cir.1980) (Truth-in-Lending Act Proceeding); Pacific Coast Agricultural Export Association v. Sunkist Growers, Inc., 526 F.2d 1196 (9th Cir.1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1741, 48 L.Ed.2d 204 (1976). The award of fees under the FOIA is essentially a punitive measure taken against the government if it unreasonably refuses to release information. Although the language of the FOIA regarding the award of attorney fees is similar to Section 1988, the purposes of the two sections are so disparate that the Court does not find the Cazalas case persuasive on this matter.⁴ See, Grooms v. Snyder, 474 F.Supp. 380, 383 (N.D.Ind. 1979) (for discussion of legislative history of attorney's fees under the FOIA); 1974 U.S.Code Cong. & Adm.News 6267, 6268.

As noted, the applicable statute herein is 42 U.S.C. § 1988, which states in pertinent part:

"In any action or proceeding to enforce ... 42 U.S.C. § 1983 ..., the court, in its discretion, may allow the prevailing party, ... a reasonable attorney's fee as part of the costs."

The plain language of Section 1988 does not preclude an award of fees to a lawyer representing himself. It is against this statutory backdrop that Mr. Lanasa's request for fees must be considered. Before this, however, the Court must determine whether plaintiff is a "prevailing party" under Section 1988.

From the outset, there is no question that Mr. Lanasa, if he is to be awarded fees, may be considered a "prevailing party" under section 1988. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). The legislative history of the Awards Act specifically defines what is necessary for a plaintiff to be considered to have prevailed on his claim. The Senate Report, for example, states that plaintiffs should be "considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep. No. 94-1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.Code Cong. & Adm. News 5908, 5912. As the Supreme Court has stated in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), "A typical formulation is that `plaintiffs may be considered prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Id. 103 S.Ct. at 1939, quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). See also, Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Brown v. Culpepper, 559 F.2d 274 (5th Cir.1977), reh. denied, 561 F.2d 1177. This is true despite the fact that the plaintiff may have settled the litigation by means of a voluntary agreement of the parties. That plaintiff is a "prevailing party," however, may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved. See, E.R. Larson, Federal Court Awards of Attorney's Fees (1981) (for a thorough analysis of legislation and cases construing the term "prevailing party"). Assuming that plaintiff is a prevailing party, a determination must now be made on whether plaintiff as a pro se litigant is entitled to attorney's fees.

Arguing against such a fee request, defendant first relies on that line of cases within this circuit which have clearly held that Section 1988 is not intended to compensate pro se litigants. See, Cofield, supra. Implicit in defendant's reasoning is that since courts have already refused to grant fees to pro...