Scott v. Bradley, Civ. A. No. 77-0410-R.

• Decision Date: 12 April 1978
• Docket Number: Civ. A. No. 77-0410-R.
• Citation: 455 F. Supp. 672
• Parties: Daniel SCOTT v. Harold BRADLEY, etc.
• Court: U.S. District Court — Eastern District of Virginia

455 F. Supp. 672

Daniel SCOTT v. Harold BRADLEY, etc.

Civ. A. No. 77-0410-R.

United States District Court, E. D. Virginia, Richmond Division.

March 24, 1978.

Order April 12, 1978.

Robert P. Geary, Richmond, Va., for plaintiff.

John B. Mann, Richmond, Va., for defendant.

MEMORANDUM

WARRINER, District Judge.

The above styled action was heard on its merits in open court 9 March 1978. Liability was found in favor of the plaintiff and the Court instructed counsel for both parties to brief the matter of damages and injunctive relief sought. Said briefs are now before the Court and the matter is ripe for disposition.

In regard to compensatory damages, the Court finds and awards plaintiff the following:

1. Plaintiff lost one step in salary increase from July 1976 through June 1977 in the amount of $650.

2. Plaintiff had to pay rent of $150 per month for 18 months for a total of $2,700.

3. Humiliation and embarrassment caused to plaintiff by defendant is in the amount of $1,000.

4. Plaintiff's suspension by defendant was appropriate and hence no award of back pay, other than that awarded in paragraph 1 above, can be made.

5. Plaintiff's total compensatory damages are in the amount of $4,350.00.

In regard to court costs, the Court finds and awards plaintiff $557.20 consisting of filing fee ($15.00), service fees ($15.60), and court reporter ($526.65).

In regard to punitive damages, although there is authority that punitive damages may be awarded under the civil rights statutes, see, Spence v. Staras, 507 F.2d 554, 558 (6th Cir. 1974), punitive damages are not required in this case.

Counsel fees should be such amount as will fairly compensate counsel and encourage counsel to undertake representation in civil rights cases. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). A one-third contingent fee in the field of personal injury has proved most efficacious in encouraging counsel to represent injured plaintiffs in even the marginal cases of doubtful liability and transitory injury. There is no reason to believe similar awards where compensatory damages, as here, are substantial, would not have the same effect in civil rights cases.

The Court has fully considered the provisions of Disciplinary Rule 2-106, see, Waters v. Wisconsin Steel Works of Int. Harvester Co., 502 F.2d 1309, 1322 (7th Cir. 1974), and giving due consideration to those factors sees no reason to modify the percentage award. Accordingly, in regard to counsel fees, the Court finds and awards plaintiff counsel fees in the amount of $1,450.00.

In deciding the plaintiff's prayer for injunctive relief, the Court has considered the evidence of racial discrimination found in the trial of this action on the merits. In view of these findings the Court holds that an injunction should issue to require the defendant to refrain from such or similar unlawful activity in the future. The Court will not enjoin the defendant to re-hire the plaintiff depending upon the outcome of his pending criminal appeal since the outcome on appeal may not depend upon a determination of plaintiff's guilt or innocence of the acts charged.

Accordingly, based on the above findings, the Court will enjoin the defendant from discriminating in discipline, conditions of employment, and promotion on the basis of race.

An appropriate order shall issue.

ORDER

In accordance with the memorandum this day filed, and deeming it in the best interests of justice, the Court doth ADJUDGE and ORDER the following:

1. Plaintiff be awarded compensatory damages in the amount of $4,350.00;

2. Plaintiff be awarded his court costs in the amount of $557.20;

3. Plaintiff be awarded counsel fees in the amount of $1,450.00;

4. Judgment shall enter for plaintiff against defendant in the amount of $5,800.00 and costs assessed in the amount of $557.20;

5. Defendant is enjoined from discriminating in discipline, conditions of employment, or promotion on the basis of race.

Let the Clerk send a copy of this order and the accompanying memorandum to all counsel of record. It is further ORDERED that the order and memorandum be served upon the defendant.

ORDER

Plaintiff's motion of 31 March for reconsideration of attorney's fees must be denied.

Counsel for plaintiff is an able and conscientious lawyer who performed valuable services for his client. The Court weighed these factors carefully in setting counsel fees as well as the factors mentioned in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-20 (5th Cir. 1974).

The Court has, at the suggestion of counsel, also studied the exhaustive but polemical article in 126 U. of Pa.L.Rev. 281 entitled "Court Awarded Attorneys' Fees: What is Reasonable"? This article was prepared under the auspices of the Council for Public Interest Law, Washington, D.C., which represents itself upon telephone inquiry as having been created for the purpose of obtaining more adequate funding for public interest law advocates. Though the author's arguments may be sound, his objectivity is clearly suspect.

Nevertheless, having considered his arguments the Court adheres to the view that the primary purpose behind the legislation was to encourage lawyers to represent persons in the civil rights field. Even without such protective legislation lawyers have been massively encouraged to enter the personal injury field upon the expectation of being compensated on a contingent fee basis. The Court recognizes that many types of civil rights cases do not result in any monetary reward and others result in only minimal monetary awards. Obviously, in such cases a percentage fee would be inappropriate. This is not such a case, however, and the Court need not base a fee determination on conditions contrary to fact.

The Court recognizes that there are other differences between civil rights torts and personal injury torts. For instance in the personal injury field the contingent fee is paid out of the plaintiff's recovery. Under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 the fee is an additional recovery from defendant, taxed as part of the costs. This leaves a civil rights plaintiff's lawyer free to seek fee adjustment through contract with his client without violating law, ethics or custom.

The fact that the defendant is required to answer in damages to fully recompense a plaintiff and then, over and above that, to fully recompense the plaintiff's lawyer (as well as his own lawyer) brings up a consideration of how much recompense is it reasonable to require a defendant to pay. Serious criminal offenses often draw fines of lesser magnitude than the aggregate of payments to be required of defendant in plaintiff's proposal. Though...