Von Clark v. Butler

• Decision Date: 01 November 1990
• Docket Number: No. 90-4070,90-4070
• Citation: 916 F.2d 255
• Parties: Jerry VON CLARK, Plaintiff-Appellant, v. James Bruce BUTLER, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 255

916 F.2d 255

Jerry VON CLARK, Plaintiff-Appellant, v. James Bruce BUTLER, et al., Defendants-Appellees.

No. 90-4070

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 1, 1990.

Rehearing Denied Nov. 27, 1990.

Patrick J. Gilpin, T.E. Swate, Hardy, Milutin & Johns, Houston, Tex., for plaintiff-appellant.

Richard C. Hile, Tonahill, Hile, Leister & Jacobellis, Jasper, Tex., for Hardin County and Butler.

Appeals from the United States District Court for the Eastern District of Texas.

Before GEE, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant, Jerry Von Clark (Clark), prevailed in a civil rights suit against Defendant-Appellee, Jerry Bruce Butler (Butler), and was awarded attorney's fees pursuant to 42 U.S.C. Sec. 1988. Clark appeals the amount of attorney's fees awarded him as prevailing party, claiming that the district court erred in determining the hourly rate and the number of hours for which Clark was entitled to be compensated. Finding that the district court did not commit clear error or abuse its discretion, we affirm the award.

I.

Clark brought a civil rights action against Butler, Hardin County, Texas (the County) and Neches Wildlife Association (the Club) pursuant to 42 U.S.C. Sec. 1983 for alleged violations of his constitutional rights under the fourth, fifth and fourteenth amendments. Clark also brought pendant state claims for false imprisonment intentional infliction of emotional distress and mental anguish. The Club was dismissed from the case shortly before trial.

A jury found that Butler had unlawfully arrested Clark and had used excessive force in making the arrest. It awarded Clark $2,500 actual damages and $2,500 punitive damages. The jury found that the County did not have a de facto policy or custom of encouraging its officers to make unlawful arrests or to use excessive force.

Clark then filed an application for attorneys' fees as a prevailing party in a civil rights case pursuant to 42 U.S.C. Sec. 1988. After an evidentiary hearing, the court awarded Clark attorney's fees of $12,500. Clark filed a timely notice of appeal claiming that (1) the court abused its discretion by limiting the total fees awarded to $12,500, (2) the court erred in finding that Clark was entitled to be compensated for only 100 hours for trial preparation and 12.5 hours for trial time instead of the 210 hours sought, and (3) the court erred in finding that Clark was entitled to recover only $100 per hour as a reasonable hourly rate.

II.

Clark sought to recover $72,117.50 in attorney's fees. ¹ To support his request, Clark submitted a memorandum of law, transcripts of the attorney's timesheets showing the daily time spent by each attorney, affidavits from his attorney, Patrick Gilpin, and from David Lopez, a civil rights attorney from Houston, as well as the testimony of Ernest Sample, a civil rights attorney in the "area." Both outside attorneys testified as experts that the fee requested by Gilpin and his associates was reasonable, in terms of both the hours expended and the hourly rate requested. They also stated that an enhancement of the award would be reasonable. Both experts also testified that their opinions were based on Gilpin's transcripts of time slips, not on the experts' direct examination of the attorneys' original time slips, and that Gilpin had advised them that the time transcripts did not include time spent on Clark's claim against the Club or the County.

Butler objected to Clark's application for attorneys' fees because (1) it included time expended on claims asserted against the County upon which Clark did not prevail, (2) the number of hours claimed by the attorneys was excessive and unreasonable, and (3) the hourly rate requested was excessive and unreasonable. In support of Butler's objection to Clark's fee application, Butler's attorney, Richard Hile, testified it was clear that at least 57.5 hours claimed by Gilpin were expended on Clark's unsuccessful claims against the County; that the time records as submitted made it impossible to tell the amount of time expended on issues involving Butler alone; that the time spent by attorney Swate investigating Clark's medical condition was unnecessary because it was unrelated to the arrest or the use of excessive force; and that the hourly rate for attorneys handling similar claims ranges from $85 to $150. Hile further testified that, as counsel for the defense, he was paid $125 per hour for pretrial work and $150 per hour for trial work.

After an evidentiary hearing, the district court found that (1) Clark's attorneys did not maintain their billing records in a manner that allowed the reviewing court to identify with reasonable certainty the time spent on claims against Butler versus time spent on claims against the County; (2) the hours claimed were excessive and unnecessary, and included time spent on claims asserted against the County; (3) the hourly rate was excessive in light of the amount the plaintiff recovered and in light of the other factors set forth by this court in Johnson v. Georgia Highway Express; ² and, (4) enhancement was unwarranted because the risk of nonpayment was relatively low and the issues were neither novel nor complex. The district court, therefore, awarded Clark's attorneys $100.00 per hour for 100 pretrial hours and $200.00 per hour for 12.5 hours in trial, for a total award of $12,500.00. The district court declined to enhance the fee.

III.

A party must be a prevailing party in a civil rights suit to recover attorney fees under 42 U.S.C. Sec. 1988. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1938, 76 L.Ed.2d 40 (1983). In the instant case, Clark prevailed only on his claims against Butler and not on his claims against the Club or the County. So, Clark is entitled to fees only for those hours reasonably expended pursuing his claim against Butler. When a plaintiff fails to prevail on a claim that is separate and distinct from his successful claims, the hours expended on the unsuccessful claim should be excluded from calculation of a reasonable fee. Id. Clark argues that the claims against the County and those against Butler were so interwoven, at least at trial, as to defy separation. As the district court found, however, Clark's claims against Butler and the County "do not involve a common core of facts nor are they based on related legal theories"; therefore, the claims against Butler are separable from the claims against the County.

A. Standard of Review

We review the district court's award of attorney fees for abuse of discretion and its finding of fact supporting the award for clear error. Leroy v. City of Houston, 831 F.2d 576, 584 (1987) (Leroy IV ), modified on other grounds, 906 F.2d 1068 (5th Cir.1990).

The reasonableness of attorney fee awards under Sec. 1988 involves consideration of the twelve factors set forth by this court in Johnson. ³ The trial court should consider the twelve Johnson factors in light of the following framework: it should (1) ascertain the nature and extent of the services supplied by the attorney; (2) determine the value of the services according to the customary fee and the quality of the legal work; and, (3) adjust the compensation on the basis of the other Johnson factors that may be of significance in the petitioner's case. Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir.1982) (Copper Liquor III ), modified on other grounds, 701 F.2d 542 (5th Cir.1983) (en banc), overruled on other grounds, International Woodworkers of America, AFL-CIO v. Champion Int'l Corp., 790 F.2d 1174, 1175 (5th Cir.1986). The product of the first two steps is the "lodestar." Nisby v. Commissioners Court of Jefferson County, 798 F.2d 134, 136 (5th Cir.1986). After calculating the lodestar amount, the district court must then apply the remaining Johnson factors to determine if the lodestar should be adjusted. Id. at 137. The district court must be careful not to "double count" a Johnson factor already considered in calculating the lodestar when it determines the necessary adjustments under part three of the "framework." See Sims v. Jefferson Downs Racing Assn., 778 F.2d 1068, 1084 (5th Cir.1985). The district court however, should pay "special heed" to Johnson criteria numbers "(1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation and ability of counsel." Copper Liquor III, 684 F.2d at 1092. To avoid the risk of remand the district court should explain with a reasonable degree of specificity the findings and reasons upon which the award is based, including an indication of how each of the Johnson factors was applied. Id.

B. Number of hours awarded

As fee applicant, Clark had the burden of proving the reasonableness of the number of hours expended on his prevailing claim. Leroy IV, 831 F.2d at 586 (citing Hensley, 461 U.S. at 437, 103 S.Ct. at 1941). This burden does not shift to the opposing party merely because that party does not show that the hours are unreasonable or that it did not make specific objections to the hours claimed. Id. Part of the applicant's ability to meet his burden includes maintaining billing time records in a manner that would enable the reviewing court to identify each distinct claim. ⁴ Id. at 437, 103 S.Ct. at 1941; see also Leroy IV, 831 F.2d at 586. In this respect, Clark failed to fully meet his burden of proof.

Clark's attorneys submitted only summaries of their timesheets. ⁵ Clark claims that the summaries submitted were purged of all matters relating to the County and the Club so that the time submitted reflects only those hours spent pursuing Clark's claim against Butler. Such an unsupported statement, however, is inadequate to meet applicant's burden of proof.

The district court found, and we agree, that from the summaries submitted there is no way to distinguish the hours...