Spencer v. Vagnini

• Decision Date: 27 December 2022
• Docket Number: 16-cv-662-pp
• Parties: JERPAUL D. SPENCER, Plaintiff, v. MICHAEL VAGNINI, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

JERPAUL D. SPENCER, Plaintiff,
v.
MICHAEL VAGNINI, et al., Defendants.

No. 16-cv-662-pp

United States District Court, E.D. Wisconsin

December 27, 2022

ORDER REQUIRING PLAINTIFF TO AMEND MOTION FOR LEGAL FEES AND COSTS PURSUANT TO 42 U.S.C. § 1988 (DKT. NO. 178)

HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

On June 6, 2016, plaintiff JerPaul D. Spencer-who at that time was incarcerated in Green Bay Correctional Institution and was representing himself-filed a complaint under 42 U.S.C. §1983, alleging a pattern and policy of illegal searches, seizures and arrests by various current and former Milwaukee Police Department officers. Dkt. No. 1. He sued these officers, former Chief of Police Edward Flynn and the City of Milwaukee Police Department and sought compensatory and punitive damages “to be determined by the trier-of-fact.” Id. at 8. District Judge Charles N. Clevert, Jr., to whom this case previously was assigned, screened the complaint and allowed the plaintiff to proceed on Fourth Amendment claims against the officers and against former Chief Flynn on a claim of municipal liability. Dkt. No. 13. On November 8, 2018, attorney Nathaniel Cade of Cade Law Group LLC filed a notice of appearance on behalf of the plaintiff. Dkt. No. 95.

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After an extended discovery period, the defendants filed a motion for partial summary judgment. Dkt. No. 119. The court granted that motion, dismissed the plaintiff's municipal liability claim and dismissed former Chief Flynn and several of the police officers. Dkt. No. 134. During a June 2, 2021 status conference, the court discussed pretrial and trial dates for the plaintiff's remaining claims against defendants Michael Vagnini, Jacob Knight, Michael Valuch and Keith Garland. Dkt. No. 143. The court scheduled a trial to begin January 24, 2022; the parties anticipated that the trial would last four to five days. Id. On September 20, 2021, Attorney Annalisa Pusick, also of Cade Law Group LLC, filed a notice of appearance on behalf of the plaintiff. Dkt. No. 146.

On January 6, 2022, the court held the final pretrial conference. Dkt. No. 158. The court ruled on the parties' pending motions in limine and explained changes to trial procedures because of the COVID-19 pandemic. Id. Less than two weeks later, on January 18, 2022, the parties filed a joint motion to adjourn the January 24, 2022 jury trial. Dkt. No. 156. The parties explained that they had reached a tentative settlement, subject to approval of the Milwaukee Common Council. Id. The Milwaukee Common Council was scheduled to meet on February 8, 2022, and the parties asked to schedule a status conference sometime after that meeting. Id. The court granted the motion, removed the January 24, 2022 trial from its calendar and ordered the parties to file a joint status report by February 11, 2022, updating the court about the results of the Common Council's February 8, 2022 meeting. Dkt. No. 157.

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On January 31, 2022, however, the plaintiff filed a motion asking the court to re-schedule the trial. Dkt. No. 159. Plaintiff's counsel explained that the Common Council had met on January 31, 2022, during which they had discussed and rejected the proposed settlement. Id. at 1. The court granted the motion and scheduled a status conference for February 8, 2022. Dkt. No. 160. At that status conference, the court re-scheduled the trial to begin on July 11, 2022, and to last five days. Dkt. No. 162.

The trial took place from July 11 through July 15, 2022. Dkt. No. 175. The jury returned a verdict in favor of the plaintiff on his claims of excessive force and unlawful search from June 25, 2011, and on his claims of an unlawful search and seizure from an unspecified date in June or July 2011 against defendant Vagnini; the jury also found for the plaintiff on his claim of a July 4, 2011 unlawful arrest against defendant Valuch. Dkt. No. 176. The jury awarded the plaintiff $217,500 in compensatory damages against Vagnini and Valuch and $168,500 in punitive damages against Vagnini-a total award of $386,000. Id. The jury returned a verdict in favor of the defendants on all other claims, including all the claims against defendants Knight and Garland. Id.

The plaintiff filed this motion seeking attorneys' fees and costs incurred during counsel's representation. Dkt. No. 178. The defendants oppose the motion. Dkt. No. 186.

I. Relevant Law

In a lawsuit involving claims of violations of 42 U.S.C. §1983 (and various other federal laws), “the court, in its discretion, may allow the

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prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. §1988(b). As the court explained years ago in the screening order, however, the Prison Litigation Reform Act (“PLRA”) applies to this case because the plaintiff was a prisoner when he filed his complaint. Dkt. No. 13 at 1. The PLRA “sets both absolute and relative limits on attorneys' fee shifting.” Johnson v. Daley, 339 F.3d 582, 583 (7th Cir. 2003). The Seventh Circuit discussed the PLRA's limits (defined in 42 U.S.C. §1997e(d)):

Subsections (1) and (2) establish relative limits: fees must be ‘proportionately related to the court ordered relief' and, when monetary relief is awarded, the fees attributable to that relief cannot exceed 150% of the damages. Subsection (3) establishes an absolute limit at 150% of the hourly rate for defense counsel under the Criminal Justice Act [“CJA”], times the number of hours reasonably devoted to the litigation

Id. at 583-84 (quoting §1997e(d)).

The hourly rate for defense counsel under the CJA changes periodically. Attorney Cade filed his notice of appearance on November 8, 2018. At that time, the hourly rate for CJA counsel in non-capital cases was $140 an hour and it remained $140 an hour through February 14, 2019. This means that for any work an attorney performed between November 8, 2018 and February 14, 2019 on a case governed by the PLRA, the maximum limit that attorney may be compensated per hour is 150% of $140, or $210 per hour. See https:// www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-230-compensation-and-expenses (Guide to Judiciary Policy, Vol. 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 2: Appointment and Payment of Counsel, §230.16). On February 15, 2019,

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the hourly rate for CJA counsel in non-capital cases increased to $148 per hour. This means that for any work an performed on a case governed by the PLRA during that period, the maximum limit the attorney may be compensated per hour is 150% of $148, or $222 per hour. Id. For the calendar year 2020, the CJA hourly rate for non-capital cases rose to $152 per hour, which means the maximum limit an attorney may be compensated for work done on a case governed by the PLRA during the year 2020 is 150% of $152, or $228 per hour. Id. For the calendar year 2021, the CJA hourly rate for noncapital cases rose to $155 per hour, which means the maximum limit an attorney may be compensated for work performed on a PLRA case during the year 2021 is 150% of $155, or $232.50 per hour. Id. Finally, from January 1, 2022 to the present, the CJA hourly rate for non-capital cases has been $158, which means that the maximum limit an attorney may be compensated for work performed in a case governed by the PLRA during the year 2022 is 150% of $158, or $237 per hour. Id.

Courts apply the “lodestar method” to determine a reasonable fee amount under §1988. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Under that method, the court must determine a base amount (the “lodestar”) by multiplying the reasonable hours counsel expended on a case by a reasonable hourly rate. Hensley, 461 U.S. at 433. The party seeking attorneys' fees has the burden of submitting evidence establishing the reasonable hours and reasonable hourly rate the court should use to calculate the lodestar and determine an appropriate fee amount. Id.

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After the court calculates the lodestar, it adjusts that figure up or down depending on a variety of factors not included in the calculation of the lodestar. See Montanez v. Simon, 755 F.3d 547, 553 & n.2 (7th Cir. 2014) (citing Hensley, 461 U.S. at 434, and discussing the twelve “so-called ‘Hensley factors' [that] were used before the lodestar method became popular”).

“[T]he most critical factor” the court must consider “in determining the reasonableness of a fee award ‘is the degree of success obtained.'” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436). The degree of success “is particularly crucial where a plaintiff is deemed ‘prevailing' even though he succeeded on only some of his claims for relief.” Hensley, 461 U.S. at 434. A district court “may not ‘eyeball'” a fee amount and must instead “provide a clear and concise explanation for its award.” Schlacher v. Law Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856-57 (7th Cir. 2009) (citing Small v. Richard Wolf Med. Instruments Corp., 264 F.3d 702, 708 (7th Cir. 2001)). The court's “guiding inquiry is whether ‘the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.'” Montanez, 755 F.3d at 553 (quoting Hensley, 461 U.S. at 434).

II. The Parties' Positions

The parties agree that the lodestar method applies to calculating the fee award and that the plaintiff is the prevailing party in this lawsuit. But neither party appears to have been aware of the PLRA compensation limits and neither party calculated the lodestar using the hourly rate limits mandated by the

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PLRA. Further, they quibble over most details of the lodestar calculation, including the proper starting point given the plaintiff's success on some but not all of his claims at trial, the reasonable hourly rate to use for plaintiff's counsel and...