Hall v. Colorado Department of Corrections et al

Filing 158

SUPPLEMENTAL ORDER ON ATTORNEY FEES AND PREJUDGMENT INTEREST denying 154 Motion for prejudgment interest; granting 155 Motion for Attorney Fees in the PLRA-limited amount of $84,261.03, with 10%, or $8,426.10, of this award is to b e satisfied out of the judgment in this case. Leave is GRANTED for Hall to supplement her motion to recover reasonable costs and attorneys fees incurred subsequent to the filing of the instant motion, as well as those directly and reasonably incurred in enforcing the relief ordered for the violation, 42 U.S.C. § 1997e(d)(1)(B)(ii). by Judge David M. Ebel on 8/18/09.(erv, )

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C i v i l Action No. 08-cv-00999-DME-MEH A M A N D A HALL, Plaintiff, v. L E S H A W N TERRELL, Sergeant at the Denver Women's Correctional Facility a n d the Denver Reception and Diagnostic Center, in his individual and o f f i c i a l capacities, Defendant. S U P P L E M E N T A L ORDER ON ATTORNEYS' FEES AND PREJUDGMENT INTEREST T h i s matter is before the Court on Plaintiff Amanda Hall's Motion for P r e j u d g m e n t Interest (Dkt. #154) and Motion for Attorneys['] Fees and Expenses ( D k t . #155). For the reasons explained below, the Court DENIES the motion for p r e j u d g m e n t interest and GRANTS IN PART the motion for attorneys' fees. I. Background I n this 42 U.S.C. § 1983 action, Hall sued a number of defendants, a l l e g i n g that while she was in custody at the Denver Women's Correctional F a c i l i t y , she was the victim of both ongoing sexual abuse and a brutal rape by g u a r d Leshawn Terrell. Hall settled with all defendants except Terrell, and on J a n u a r y 23, 2009, the Court issued an order granting Hall's motion for entry of

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d e f a u l t judgment as to him. (Dkt. #106.) The clerk entered default judgment a g a i n s t Terrell on February 3, 2009. (Dkt. #111.) Following a bench trial to determine Hall's damages as against Terrell, the C o u r t issued an opinion and order on June 10, 2009, awarding Hall total d a m a g e s of $1,354,070.41. (Dkt. #149.) This award comprised $354,070.41 in c o m p e n s a t o r y damages and $1,000,000.00 in punitive damages. The clerk e n t e r e d judgment on damages on June 11, 2009. (Dkt. #150.) These motions followed. II. P r e j u d g m e n t Interest H a l l ' s motion seeks prejudgment interest on the entire compensatory d a m a g e s award of $354,070.41. (Mot. for Prejudgment Interest at 3-6.) T h e Tenth Circuit has explained that "`although prejudgment interest is o r d i n a r i l y awarded in a federal case, it is not recoverable as a matter of right.'" M a l l o y v. Monahan, 73 F.3d 1012, 1019 (10th Cir. 1996) (quoting Zuchel v. City & County of Denver, 997 F.2d 730, 746 (10th Cir. 1993)). Under federal law, t h e purpose of prejudgment interest "is to compensate the wronged party for b e i n g deprived of the monetary value of his loss from the time of the loss to the p a y m e n t of the judgment." Zuchel, 997 F.2d at 746 (quotation omitted). In the T e n t h Circuit, an award of prejudgment interest is to be determined by a twos t e p analysis. Id. F i r s t , the trial court must determine whether an award o f prejudgment interest would serve to compensate the i n j u r e d party. Second, when an award would serve a c o m p e n s a t o r y function, the court must still determine 2

w h e t h e r the equities would preclude the award of p r e j u d g m e n t interest. I d . (quotation omitted). This Court must exercise its discretion in determining w h e t h e r an award of prejudgment interest is appropriate. Id. (quotation omitted). I n this case, Hall's compensatory damages consisted of economic d a m a g e s of $4,070.41 for medical costs, and non-economic damages of $ 3 5 0 , 0 0 0 for emotional distress, mental anguish, and suffering. The Court a d d r e s s e s each in turn. A. E c o n o m i c damages

W h i l e the judgment against Terrell included $4,070.41 for medical costs, H a l l did not herself pay those costs. With that in mind, the Court concludes that p r e j u d g m e n t interest is inappropriate on this portion of the judgment, because H a l l was not ever deprived of the "monetary value of [her] loss" in connection w i t h her medical costs. Therefore, an award of prejudgment interest would not c o m p e n s a t e Hall, and the Court need not go on to determine whether the e q u i t i e s would preclude such an award. See Zuchel, 997 F.2d at 746. B. N o n - e c o n o m i c damages

O n c e again, Tenth Circuit precedent dictates that the Court not award p r e j u d g m e n t interest on this portion of the judgment. While Hall's injuries were h o r r i f i c , her emotional distress, mental anguish, and suffering did not "deprive[ h e r ] of the monetary value of [her] loss from the time of the loss to the payment o f the judgment," id. Rather than compensating Hall, then, an award of 3

p r e j u d g m e n t interest on this portion of the judgment would "duplicate damages a l r e a d y awarded" and thus would be improper under federal law. F.D.I.C. v. U M I C , Inc., 136 F.3d 1375, 1388 (10th Cir. 1988). C. C o n c l u s i o n as to prejudgment interest

T h e motion for prejudgment interest is DENIED. III. A t t o r n e y s ' fees H a l l ' s motion requests attorneys' fees of $141,082.55. However, in p r o p o s i n g hourly rates for the calculation of attorneys' fees, the motion neglects t o account for the effect of the Prison Litigation Reform Act of 1995 ("PLRA"), 4 2 U.S.C. § 1997e(d), which governed Hall's lawsuit and now restricts her ability t o recover attorneys' fees. A. T h e PLRA

I n relevant part, the PLRA reads as follows: (d) (1) A t t o r n e y ' s fees I n any action brought by a prisoner who is confined to any j a i l , prison, or other correctional facility, in which attorney's f e e s are authorized under section 1988 of this title, such fees s h a l l not be awarded, except to the extent that­ (A) t h e fee was directly and reasonably incurred in proving a n actual violation of the plaintiff's rights protected by a s t a t u t e pursuant to which a fee may be awarded under s e c t i o n 1988 of this title; and (i) (ii) t h e amount of the fee is proportionately related to t h e court ordered relief for the violation; or t h e fee was directly and reasonably incurred in e n f o r c i n g the relief ordered for the violation.

(B)

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(2)

W h e n e v e r a monetary judgment is awarded in an action d e s c r i b e d in paragraph (1), a portion of the judgment (not to e x c e e d 25 percent) shall be applied to satisfy the amount of a t t o r n e y ' s fees awarded against the defendant. If the award o f attorney's fees is not greater than 150 percent of the j u d g m e n t , the excess shall be paid by the defendant. N o award of attorney's fees in an action described in p a r a g r a p h (1) shall be based on an hourly rate greater than 1 5 0 percent of the hourly rate established under section 3006 o f Title 18 for payment of court-appointed counsel.

(3)

4 2 U.S.C. § 1997e(d) (footnote omitted). This subsection of the PLRA " a m e n d e d the Civil Rights of Institutionalized Persons Act . . . as it applied to t h e fees that may be awarded to attorneys who litigate prisoner lawsuits." Deborah F. Buckman, Attorney's Fees Awards under § 803(d) of Prison L i t i g a t i o n Reform Act, 165 A.L.R. Fed. 551 (2000). B e f o r e the passage of the PLRA, courts were authorized under 42 U . S . C . A . § 1988(b) to award attorney's fees in prisoner civil rights l a w s u i t s based on the market rate for the legal services rendered. The new law significantly limits the attorney's fees that may be a w a r d e d to a prisoner recovering a monetary judgment in a civil r i g h t s action, by placing a cap both on an attorney's maximum h o u r l y rate and on the total amount of attorney's fees that may be r e c o v e r e d from a defendant. In addition, it requires that the plaintiff a s s u m e the responsibility for a portion of those fees out of any r e c o v e r y of damages and prohibits payment of fees that are not " d i r e c t l y and reasonably" incurred in proving a violation of prisoners' rights. I d . See also Martin v. Hadix, 527 U.S. 343, 347 (2001) ("Section 803(d)(3) of t h e Prison Litigation Reform Act . . . , § 1997(e)(d)(3) . . . , places limits on the f e e s that may be awarded to attorneys who litigate prisoner lawsuits."). T o determine whether the PLRA applies in this case, the Court first must d e t e r m i n e (1) whether Hall is a "prisoner who is confined to any jail, prison, or 5

o t h e r correctional facility," and (2) whether her lawsuit against Leshawn Terrell w a s one "in which attorney's fees are authorized under section 1988." 42 U . S . C . § 1997e(d)(1). Hall clearly meets the first of these requirements, as she h a s been, at every stage of this lawsuit, a prisoner confined to either the Denver W o m e n ' s Correctional Facility or the La Vista Correctional Facility. As to the s e c o n d requirement, § 1988 dictates that "[i]n any action or proceeding to e n f o r c e a provision of section[] . . . 1983 . . . , the court, in its discretion, may a l l o w the prevailing party, other than the United States, a reasonable attorney's f e e as part of the costs." 42 U.S.C. § 1988(b). Hall was the "prevailing party" in h e r § 1983 lawsuit against Terrell, and the lawsuit was an "action . . . in which a t t o r n e y ' s fees are authorized under section 1988." Consequently, the PLRA g o v e r n s the Court's discretionary award of attorneys' fees in this case. T h e Court's next step under the PLRA is to ensure that the award of a t t o r n e y s ' fees "was directly and reasonably incurred in proving an actual v i o l a t i o n " of rights protected under § 1983. 42 U.S.C. § 1997e(d)(1)(A)-(B). The Court has carefully reviewed the billing records that Hall submitted with the m o t i o n for attorneys' fees. Because the case included a number of stater e p r e s e n t e d defendants until April 13, 2009, when those defendants were d i s m i s s e d from the case following their settlement with Hall (Dkt. #137), some of t h e time billed is not exclusively for work on the case against Terrell. However, H a l l has addressed that potential problem, and thus sought "only those fees f a i r l y attributable to Defendant Terrell" (Mot. at 6), by requesting fees for only

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7 0 % of the total time billed. 1 With that reduction in place, the Court is satisfied t h a t the fees Hall requests were both "directly and reasonably incurred in p r o v i n g an actual violation" of her constitutional rights by Terrell. B. C a l c u l a t i o n of the lodestar amount

N e x t , the court must calculate the "lodestar" amount for the fee award. "Courts determine what is a reasonable [attorneys'] fee by first figuring a ` l o d e s t a r ' amount and then adjusting that figure based on facts specific to the c a s e . " Bell v. Bd. of County Comm'rs of Jefferson County, 451 F.3d 1097, 1101 n . 3 (10th Cir. 2006). "The lodestar amount is the product of the reasonable h o u r s worked on the case multiplied by a reasonable hourly rate." Id. at 1101. In cases governed by the PLRA, the "reasonable hourly rate" is limited by t h e statute, which requires that "[n]o award of attorney's fees in an action d e s c r i b e d in paragraph (1) shall be based on an hourly rate greater than 150 p e r c e n t of the hourly rate established under section 3006 of Title 18 for payment o f court-appointed counsel." 42 U.S.C. § 1997e(d)(3). Section 3006 is the C r i m i n a l Justice Act ("CJA"). "The United States Supreme Court has yet to rule o n the issue of whether," in PLRA cases, "to apply the maximum [hourly] rate [in C J A ] provided by the Judicial Conference or the actual rate received by a t t o r n e y s " in a specific district or circuit. Skinner v. Uphoff, 324 F. Supp. 2d 1 2 7 8 , 1282 (D. Wyo. 2004). The Tenth Circuit likewise has not ruled on that

T h e total time billed, before the reduction by 30% as described a b o v e , reflects Hall's attorneys' "exercise[] of billing judgment" in including o n l y fees that would be charged to a paying client. (Mot. at 3, 6.)
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i s s u e . "However, it appears that the majority of courts have adopted the policy o f using the established rate for that jurisdiction." Id. (collecting cases, i n c l u d i n g Searles v. Van Bebber, 64 F. Supp. 2d 1033, 1037 (D. Kan. 1999) ( " u s i n g the rate established by the Judicial Conference for the Court of Appeals f o r the Tenth Circuit")). The Court agrees with the majority rule in this context, and thus applies t h e hourly rate for CJA appointments in the Tenth Circuit and the District of C o l o r a d o . As relevant here, that rate­for both in-court and out-of-court w o r k ­ w a s $94.00 / hour from May 20, 2007, through December 31, 2007; $ 1 0 0 . 0 0 / hour from January 1, 2008, through March 10, 2009; and $110.00 / h o u r as of March 11, 2009. Under § 1997e(d)(3), Hall may recover 150% of that r a t e , which translates to $141.00 / hour for attorney work performed between M a y 20, 2007, and December 31, 2007; $150.00 / hour for attorney work p e r f o r m e d between January 1, 2008, and March 10, 2009; and $165.00 / hour f o r attorney work performed on March 11 and thereafter. U n f o r t u n a t e l y , Hall's request for fees does not break down those fees by d a t e . However, the billing records she has provided (which include hours not i n c l u d e d in the fee request) permit the Court to determine what percentage of t h e work on the case was done as of each of the above dates. Of the 950.10 h o u r s included in the billing records, 3.3 hours were recorded before December 3 1 , 2007; this accounts for 0% of the total. 345.2 hours were recorded on or a f t e r March 11, 2009; this accounts for 36% of the total. The remaining 64% of t h e work thus was completed between January 1, 2008, and March 10, 2009. 8

T h e r e f o r e , in calculating fees, the Court uses the rate of $150.00 / hour f o r 64% of the hours for which Hall requests fees for the work of attorneys, and t h e rate of $165.00 / hour for the remaining 36% of those attorney hours. Because Hall is requesting fees for 70% of a total of 679.3 attorney hours, that c a l c u l a t i o n is as follows: 4 3 4 . 7 5 hours (64% of 679.3 hours) charged at $150.00 / hour = $65,212.50 2 4 4 . 5 5 hours (36% of 679.3 hours) charged at $165.00 / hour = $40,350.75 $105,563.25 R e d u c e d by 30% to ensure that Hall receives "only those fees fairly a t t r i b u t a b l e to Defendant Terrell" (Mot. at 6) T O T A L FEES FOR WORK BY ATTORNEYS = $ 73,894.28 The PLRA does not mandate an hourly payment rate for the work of p a r a l e g a l s or law clerks. 165 A.L.R. 551 § 2[b]. In this situation, "courts have u s e d their own discretion." Id. See, e.g., Jackson v. Austin, 267 F. Supp. 2d 1 0 5 9 , 1066 (D. Kan. 2003) (discounting by roughly half the amount requested f o r legal assistants based on "the restrictions in Section 1997(e)(d)(3)"). Hall h a s requested an hourly rate of $115.00 for two paralegals, and an hourly rate o f $90.00 for an assistant whose specific position is not named. The requested r a t e for paralegals is roughly 64% of the average rate that Hall requested for n o n - s e n i o r attorneys; the requested rate for the assistant is roughly 50% of the r a t e requested for non-senior attorneys. The Court thus exercises its discretion t o limit the paralegals' hourly rate to 64% of $150.00 and of $165.00 (the hourly r a t e s for attorneys under the PLRA), and the assistant's hourly rate to 50% of t h o s e figures. For paralegals, that hourly rate would be $96.00 for 64% of the h o u r s charged, and $105.60 for 36% of the hours charged; for the assistant, the 9

f i g u r e would be $75.00 for 64% of the hours charged, and $82.50 for 36% of the h o u r s charged. B e c a u s e Hall is requesting fees for 70% of a total of 135 paralegal hours, t h e Court's calculation of fees for paralegal work is as follows: 8 6 . 4 hours (64% of 135 hours) charged at $96.00 / hour = 4 8 . 6 hours (36% of 135 hours) charged at $105.60 / hour = $ 8,294.40 $ 5,132.16 $13,426.56

R e d u c e d by 30% to ensure that Hall receives "only those fees fairly a t t r i b u t a b l e to Defendant Terrell" (Mot. at 6) T O T A L FEES FOR WORK BY PARALEGALS = $ 9,398.59 B e c a u s e Hall is requesting fees for a total of 17.8 assistant hours, the C o u r t ' s calculation of those fees is as follows: 1 1 . 3 9 hours (64% of 17.8 hours) charged at $75.00 / hour = $ 854.25 6 . 4 1 hours (36% of 17.8 hours) charged at $82.50 / hour = $ 528.83 $ 1,383.08 R e d u c e d by 30% to ensure that Hall receives "only those fees fairly a t t r i b u t a b l e to Defendant Terrell" (Mot. at 6) T O T A L FEES FOR WORK BY ASSISTANT = $ 968.16 C. T o t a l attorneys' fees

B a s e d on the foregoing, the lodestar amount in this case is $84,261.03. Finding no reason to adjust that amount based on facts specific to this case, see B e l l , 451 F.3d at 1101 n.3, the Court awards Hall a total of $84,261.03 in a t t o r n e y s ' fees. D. P L R A requirement for portion attributed to Hall

T h e PLRA requires that [ w ] h e n e v e r a monetary judgment is awarded in an action described i n paragraph (1), a portion of the judgment (not to exceed 25 10

p e r c e n t ) shall be applied to satisfy the amount of attorney's fees a w a r d e d against the defendant. If the award of attorney's fees is n o t greater than 150 percent of the judgment, the excess shall be p a i d by the defendant. 4 2 U.S.C. § 1997e(d)(2). The plain language of the statute suggests that the C o u r t has discretion to determine what portion of the judgment, up to twenty-five p e r c e n t , should be applied to the award of attorneys' fees. At least one district c o u r t has concluded that the provision requires that twenty-five percent of the j u d g m e n t always be applied against the attorneys' fees award. See Searles v. V a n Bebber, 64 F. Supp. 2d 1033, 1041-42 (D. Kan. 1999), vacated on other g r o u n d s , 251 F.3d 869 (10th Cir. 2001). However, the Eighth Circuit recently e x p l a i n e d that "[t]he majority of courts that have directly addressed this issue h a v e held that the plain language of section 1997e(d)(2) does not require district c o u r t s to automatically apply 25 percent of the judgment to pay attorney's fees." Boesing v. Spiess, 540 F.3d 886, 891 (8th Cir. 2008) (citing cases). In adopting t h a t majority view as Eighth Circuit law, the Boesing court explained that the s t a t u t o r y "term `shall' indicates that the district court must apply some p e r c e n t a g e of the judgment to pay attorney's fees," but that "the phrase `not to e x c e e d 25 percent' clearly imposes a maximum, not a mandatory, percentage." Id. at 892. T h e Court agrees with the Eighth Circuit, and the majority view, that "[t]his s t a t u t e is not ambiguous," id., and that the Court thus has discretion to apply up t o twenty-five percent of the judgment to attorneys' fees. The Eighth Circuit has a l s o explained that "[n]o circuit court has articulated factors for a district court to 11

a p p l y when determining an appropriate percentage under § 1997e(d)(2)." Kahle v . Leonard, 563 F.3d 736, 743 (8th Cir. 2009). The Kahle court articulated four s u c h factors, explaining that "[w]hen determining the percentage of an award to a p p l y to attorneys' fees under § 1997e(d)(2), a district court should consider [the following]:" ( 1 ) the degree of the opposing parties' culpability or bad faith, (2) t h e ability of the opposing parties to satisfy an award of attorneys' f e e s , (3) whether an award of attorneys' fees against the opposing p a r t i e s could deter other persons acting under similar c i r c u m s t a n c e s , and (4) the relative merits of the parties' positions. The court may also use other relevant considerations. A district c o u r t need not mechanically apply these factors. A district court h a s broad discretion in determining an appropriate percentage u n d e r § 1997e(d)(2). I d . at 743. Applying these factors to Hall's case, and pursuant to the PLRA, the Court d e t e r m i n e s that 10% of the awarded fees should be borne by the Plaintiff out of t h e recovery awarded to her. Factor one, the opposing parties' culpability or b a d faith, favors Hall over Terrell; factor two, the ability to satisfy the award of a t t o r n e y s ' fees, suggests that Hall should bear some portion of the attorneys' f e e s out of her judgment because she received a large judgment that, if c o l l e c t e d from Terrell, would likely give her a greater ability to pay the attorneys' f e e s than Terrell would have; factor three, the possibility that the award may d e t e r other persons acting under similar circumstances, favors Hall; and factor f o u r , the relative merits of each party's position, likewise favors Hall. In the C o u r t ' s judgment, requiring Hall to pay 10% of the awarded attorneys' fees out o f her judgment against Terrell is reasonable and just. 12

E.

F i n a l PLRA requirements

T h e Court concludes that an attorneys' fee award of $84,261.03, with 1 0 % of that award, or $8,426.10, to be satisfied out of the judgment in this case, i s "proportionately related to the court ordered relief for the violation," 42 U.S.C. § 1997e(d)(1)(B)(i). IV. Conclusion T h e motion for prejudgment interest is DENIED. The motion for attorneys' f e e s and expenses is GRANTED in the PLRA-limited amount of $84,261.03, with 1 0 % , or $8,426.10, of this award is to be satisfied out of the judgment in this case. The clerk has taxed costs pursuant to Hall's Bill of Costs. (Dkt. #156.) Therefore, the Court does not rule on Hall's request for "costs and expenses of s u i t as reflected in the contemporaneously filed Bill of Costs" (Mot. for A t t o r n e y s ' Fees and Expenses at 7). L e a v e is GRANTED for Hall to supplement her motion to recover r e a s o n a b l e costs and attorneys' fees incurred subsequent to the filing of the i n s t a n t motion, as well as those "directly and reasonably incurred in enforcing t h e relief ordered for the violation," 42 U.S.C. § 1997e(d)(1)(B)(ii). D A T E D at Denver, Colorado, this 18th day of August, 2009. B Y THE COURT: s / David M. Ebel _________________________ D a v i d M. Ebel U n i t e d States Circuit Judge 13