Washington v. Denney, Civil No. 2:14-cv-06118-NKL

• Decision Date: 03 October 2017
• Docket Number: Civil No. 2:14-cv-06118-NKL
• Parties: ECCLESIASTICAL DENZEL WASHINGTON Plaintiff, v. LARRY DENNEY, et al. Defendants.
• Court: U.S. District Court — Western District of Missouri

ECCLESIASTICAL DENZEL WASHINGTON Plaintiff,
v.
LARRY DENNEY, et al. Defendants.

Civil No. 2:14-cv-06118-NKL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

October 3, 2017

ORDER

Following entry of a jury verdict in his favor, Plaintiff Ecclesiastical Denzel Washington moves under 42 U.S.C. § 1988 for an award of attorney fees, costs, and expenses. The Court grants the motion in part and denies it in part.

I. Background

Plaintiff Ecclesiastical Denzel Washington brought this case against various officials at Crossroads Correctional Center, where he has been confined since 2010, for violation of his Eighth Amendment rights under 42 U.S.C. § 1983. Mr. Washington alleged that the officials were deliberately indifferent to his serious medical needs in failing to take reasonable steps to abate the risk of harm that secondhand smoke poses to him due to his history of asthma.

At trial, Mr. Washington presented evidence about his medical conditions, as well as evidence that he regularly is exposed to tobacco smoke due to Crossroads' inconsistent enforcement of its policy prohibiting smoking inside the prison, Crossroads' repeated refusal to permit Mr. Washington to use a medically prescribed mask, and Crossroads' refusal to assign him a nonsmoking cellmate. After a three-day jury trial, the jury found in favor of Mr.

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Washington and against Defendants Larry Denney, Ronda Pash, Cyndi Prudden, and Cheryl Richey (collectively, "Defendants"). The jury awarded $40,000 in compensatory damages and imposed an additional $71,000 in punitive damages. The jury found against Mr. Washington only as to his claim against defendant Amy Parkhurst.

On June 26, 2017, the Court denied Defendants' motion for judgment as a matter of law or for a new trial. Doc. 195.

On September 21, 2017, upon the parties' joint motion, the Court entered an order for postjudgment injunctive relief, requiring the Missouri Department of Corrections, on or before April 1, 2018, (i) to amend its smoking policy to prohibit the sale, possession, and consumption of all tobacco products—except for authorized religious purposes—inside correctional buildings and on the grounds inside the correctional perimeter in each of the specified facilities, and (ii) to thereafter enforce that policy. Doc. 215.

As the prevailing party, Mr. Washington moves for $255,093 in attorney fees, $4,492.70 in costs, and $5,306.91 in additional expenses.¹ Mr. Washington requests attorney fees for the two primary attorneys, Michael Foster (at $320 and $350 an hour) and Phillip Zeeck (at $260 and $290 per hour),² as well as two other senior attorneys, three paralegals, a paralegal assistant, and a case manager in Litigation Services who assisted in the case. The breakdown of requested hours is as follows:

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Shareholder R.S. Jones	1.90 hours	$550/hour
Shareholder K.C. Volpi	4.00 hours	$365/hour
Shareholder M. Foster	285.60 hours	$350/hour
Associate M. Foster	15.60 hours	$320/hour
Associate P. Zeeck	339.50 hours	$290/hour
Associate P. Zeeck	58.90 hours	$260/hour
Paralegal T. Tan	2.00 hours	$210/hour
Paralegal K.K. Murray	13.40 hours	$220/hour
Paralegal J.P. Thies	91.70 hours	$215/hour
Paralegal Asst. R.T. Brann	35.70 hours	$130/hour
Litigation Svcs. Case Mgr. S.L. Pateidl	31.50 hours	$195/hour
GRAND TOTAL	879.80 hours	$255,093.00

Mr. Washington also seeks reimbursement of monies paid for transportation, document reproduction, court reporter fees, meals, deposition transcripts, filing fees, and clothing that Mr. Washington wore at trial.

II. Discussion

Under 42 U.S.C. § 1988, courts may award "a reasonable attorney's fee as part of the costs" to a "prevailing party" in cases brought under § 1983. 42 U.S.C. § 1988(b). However, in prisoners' rights cases, the Prison Litigation Reform Act ("PLRA") imposes limitations on the attorney fees that a prevailing plaintiff can recover. The PLRA's provisions relating to attorney fees apply to "any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988." 42 U.S.C. § 1997e(d)(1).

Defendants do not dispute that Mr. Washington is the prevailing party and therefore entitled to reasonable fees under § 1988. However, Defendants argue that the PLRA requires the Court to: (i) limit the hourly rate to 150 percent of the amount established for this time period by the Eighth Circuit Judicial Conference; (ii) reduce any fees awarded for work performed by

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support staff in proportion to their market rate relative to that of attorneys; (iii) apply the statutory cap of $166,500 to the total award; (iv) apply twenty-five percent of Mr. Washington's monetary judgment to satisfy the amount of attorney fees; (v) limit any award to those fees directly and reasonably incurred in proving an actual violation; and (vi) limit the fee award based on Mr. Washington's success relative to his claims against eighteen individuals, most of whom he dismissed prior to submitting the case to the jury.

The basis for any fee award under § 1988 is the lodestar calculation, the product of the number of hours reasonably expended on the litigation and a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) ("The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."); Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) ("The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates."). The PLRA has altered the lodestar calculation method in prisoner rights cases in three ways. "First, rather than hours reasonably expended in the litigation, hours used to determine the fee award are limited to those that are (1) directly and reasonably incurred in proving an actual violation of the plaintiff's rights and (2) either proportionately related to court-ordered relief or directly and reasonably incurred in enforcing such relief." Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (citing 42 U.S.C. § 1997e(d)(1)). Second, the hourly rate used for the attorney fee award cannot exceed 150 percent of the hourly rate used for paying appointed counsel under the Criminal Justice Act, 18 U.S.C. § 3006A. See 42 U.S.C. § 1997e(d)(3)). Finally, to the extent the plaintiff obtains a monetary judgment, the attorney fees award cannot exceed 150 percent of that judgment. See

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§ 1997e(d)(2)).

The party seeking the award must submit documentation supporting the requested amount, making a good faith effort to exclude hours that are excessive, redundant or otherwise unnecessary. See Hensley, 461 U.S. at 434. Reimbursement for reasonable expenses of the kind a law firm ordinarily would bill its client may be included in an attorney fee award under § 1988. See Williams v. ConAgra Poultry Co., 113 F. App'x 725, 728 (8th Cir. 2004) (noting that "travel expenses for attorneys" and other "expenses that a law firm normally would bill to its client" are "properly characterized as part of an attorney's fees award"); Sapa Najin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988) ("Reasonable expenses of litigation incurred by counsel on the prevailing side can be awarded as part of the fees due under Section 1988.").

A. Applicable Hourly Rates

1. Attorneys

The PLRA limits the hourly rate for attorney fees to no "greater than 150 percent of the hourly rate established under section 3006A of title 18 for payment of court-appointed counsel." § 1997e(d)(3). The rate established under § 3006A of Title 18 for the relevant time period is $129 per hour for attorneys. See United States Court of Appeals for the Eighth Circuit, CJA Information, available at http://www.ca8.uscourts.gov/cja-information.³ Therefore, the maximum rate an attorney may charge under the PLRA is $129 x 1.5, or $193.50 per hour.

There are a number of factors that would have warranted using a higher rate to calculate the lodestar figure. Plaintiff's counsel's billing rates, which far exceed the $193.50 rate cap, are in line with market rates for comparable attorneys in Kansas City (see Doc. 176-4) and appear

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both reasonable and fair, given counsel's years of experience, superior preparation, and skill. The primary attorneys, Mr. Foster and Mr. Zeeck, performed admirably and obtained excellent results for their client at trial. However, the PLRA prevents the Court from calculating the attorneys' fees using a rate greater than $193.50. Accordingly, the Court will use that maximum rate for all of the attorneys in calculating the lodestar figure.

2. Support Staff

The PLRA is silent with respect to compensation for work performed by paralegals and similar support staff. See Hall v. Terrell, 648 F. Supp. 2d 1229, 1235 (D. Colo. 2009) (citing 165 A.L.R. Fed. 551 § 2(b)); Ilick v. Miller, 68 F. Supp. 2d 1169, 1179 (D. Nev. 1999) (noting that "the PLRA is silent with respect to fees allowed to paralegals"). As such, "courts have used their own discretion" in determining appropriate rates for such staff. Hall, 648 F. Supp. 2d at 1235.

Mr. Washington's legal team included three paralegals with billable hourly rates of $210, $215, and $220, a paralegal assistant with a billable hourly rate of $130, and a litigation services case manager with a billable hourly rate of $195. The publications provided by plaintiff's counsel establish that the firm's billing rates for these individuals and the attorneys who worked on this case are in line with average rates in the Kansas City market. Compare Doc. 176-3 at 26 with Doc. 176-4 at 6 (rates for the primary plaintiff's counsel average to 305/hour, while average attorney rate in Kansas City is $355/hour; rates for plaintiffs' support...