Neal v. Calloway et al (INMATE 2)

Filing 81

OPINION AND ORDER: it is ORDERED that plf Dion Neal's 80 motion for approval of attorneys' fees is granted, and that Honorable Joel T. Caldwell's fee of $32,000.00 is approved. Signed by Honorable Judge Myron H. Thompson on 1/10/2017. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DION MARIO NEAL,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
LEON BOLLING, et al.,
Defendants.

CIVIL ACTION NO.
2:15cv174-MHT
(WO)

OPINION AND ORDER
In

this

lawsuit

brought

pursuant

to

42

U.S.C.

§ 1983, plaintiff Dion Mario Neal charged defendants,
who

were

correctional

staff

at

Elmore

Correctional

Facility, with subjecting him to excessive force and
failing to protect him from that force in violation of
the Eighth Amendment and with invading his privacy when
strip-searching
Amendment.
assault

in

violation

of

the

Fourteenth

He also brought claims under state law for

and

connection

him

battery,

with

the

negligence
use

of

or

force,

wantonness
and

in

negligent

supervision or retention of the subordinate defendants

involved in the alleged use of force.
settled

this

case

for

$ 80,000.00,

The parties

and

the

court

entered judgment, dismissing the case with prejudice.
Currently

before

the

court

is

Neal’s

motion

for

approval of attorneys’ fees.
After the court appointed attorney Joel T. Caldwell
to

represent

him,

Neal

and

Caldwell

entered

a

contingency-fee arrangement such that Caldwell would be
entitled to 40 % of any recovery.

Under the agreement,

Caldwell’s share of the $ 80,000.00 recovery equates to
$ 32,000.00.

As Caldwell worked 129 hours on the case,

this equates to an hourly rate of $ 248.06.

For the

reasons that follow, Caldwell’s fee will be approved.
The court determines reasonable attorneys’ fees by
determining the “lodestar” figure, which is the product
of the number of hours reasonably expended to prosecute
the lawsuit and the reasonable hourly rate for work
performed
community.

by

similarly
After

situated

determining

the

attorneys

in

the

lodestar

fee,

the

court then evaluates whether any portion of this fee
2

should

be

adjusted

upwards

or

downwards.

Eckerhart, 461 U.S. 424, 433-34 (1983).

Hensley

v.

In making the

above calculations, the court follows the 12 factors
set out in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974).*

These factors

are (1) the time and labor required; (2) the novelty
and difficulty of the questions; (3) the skill required
to

perform

the

legal

services

properly;

(4)

the

preclusion of other employment by the attorney due to
acceptance of the case; (5) the customary fee in the
community; (6) whether the fee is fixed or contingent;
(7)

time

limitations

imposed

by

the

client

or

circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability
of

the

attorneys;

(10)

the

“undesirability”

of

the

case; (11) the nature and length of the professional

* In Bonner v. City of Prichard, Alabama, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit Court of Appeals adopted as binding precedent
all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30,
1981.
3

relationship

with

the

client;

and

(12)

awards

in

similar cases.
Given

Caldwell’s

extensive

complaints,

conducting

Neal

defense

and

time

discovery,

counsel,

spent

drafting

corresponding

and

other

with

necessary

activities to bring about the settlement in this case,
the court finds that the request for fees for 129 hours
is reasonable.
“A reasonable hourly rate is the prevailing market
rate

in

the

relevant

legal

community

for

similar

services by lawyers of reasonably comparable skills,
experience, and reputation.”
City

of

1988).

Montgomery,
“In

836

evaluating

Norman v. Hous. Auth. of

F.2d

1292,

comparability

1299
of

(11th
the

Cir.

market

rates . . . , the district court may wish to consider
any of the Johnson factors to the extent that ... they
may affect the weight to be given to the comparables
being

offered

the

court.”

Id.

at

1299-1300.

Here,

plaintiff’s counsel has provided an affidavit from an
experienced

Montgomery

attorney
4

who

attests

that

a

contingency fee of 40 % is customary in a case such as
this one; moreover, the court is itself an expert on
the prevailing contingency rate in the community, and
may

consult

its

reasonable rate.
Taking

own

experience

in

determining

a

Id. at 1303.

into

consideration

the

Johnson

factors--including the complexity and undesirability of
this

case

Caldwell,

and

the

the

excellent

affidavit

results

attesting

achieved

that

a

by
40 %

contingent fee is customary, and the court’s knowledge
of attorneys’ fees in the community--the court finds
that

the

prevailing

40

%

market

contingency
rate

comparable to Caldwell.

for

fee

fits

Montgomery

within

the

attorneys

Because this is a contingency

case, the court has assessed the fee on that basis
rather than an hourly fee basis.
Therefore, the court finds the contingency lodestar
to be $ 32,000.00.

Although there may be circumstances

justifying an upward or downward adjustment from the
loadstar, no adjustments are warranted in this case.
5

Hensley, 461 U.S. at 434.
$ 32,000.00

is

a

The court concludes that

reasonable

fee

for

Caldwell’s

prosecution of Neal’s case.
***
Accordingly,

it

is

ORDERED

that

plaintiff

Dion

Neal’s motion for approval of attorneys' fees (doc. no.
80) is granted, and that Honorable Joel T. Caldwell’s
fee of $ 32,000.00 is approved.
DONE, this the 10th day of January, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE