Kemp v. Zavaras et al

Filing 190

ORDER sustainng in part 182 Glen Kemp's Motion To Award Plaintiff's Attorney's Fees. Plaintiff is awarded $48,003.00 in attorney's fees. By Judge Kathryn H. Vratil on 11/18/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

GLENN H. KEMP,

)
)
Plaintiff,
)
)
v.
)
)
BRIAN WEBSTER, et al.,
)
)
Defendants. )
__________________________________________)

CIVIL ACTION
No. 09-295-KHV

MEMORANDUM AND ORDER
This matter comes before the Court on Glenn H. Kemp’s Motion To Award Plaintiff’s
Attorney’s Fees (Doc. #182) filed November 30, 2012. For reasons set forth below, the Court finds that
plaintiff’s motion should be sustained in part.
Procedural Background
In February of 2008, plaintiff was an inmate at Sterling Correctional Facility in Sterling,
Colorado. He suffered injuries when the correctional van in which he was riding crashed into another
vehicle. Under 42 U.S.C. § 1983, he brought suit against the van driver, Christopher Wade, another
correctional officer, Tracy Tarver, and other prison officials. Among other things, the complaint alleged
that Wade and Tarver were deliberately indifferent to plaintiff’s Eighth Amendment rights. After
plaintiff filed two amended complaints pro se, attorney Brett Lampiasi entered an appearance on his
behalf. Plaintiff then asserted additional claims of failure to provide medical treatment against
additional defendants, including Beverly Dowis, the Sterling medical scheduler. Ultimately, the case
proceeded to jury trial on plaintiff’s claims that (1) Wade and Tarver were deliberately indifferent to his
health and safety by refusing his request for a seatbelt and (2) Dowis was deliberately indifferent to his

serious medical needs when she failed to schedule a biopsy which a urologist had ordered. The jury
found that Wade, Tarver and Dowis had each violated plaintiff’s constitutional rights. On plaintiff’s
claims against Wade and Tarver, the jury awarded $1.00 in nominal damages as to each defendant and
punitive damages of $1,000.00 as to each defendant. On plaintiff’s claims against Dowis, the jury
awarded $30,000.00 in actual damages and no punitive damages.
Analysis
Plaintiff seeks attorney’s fees totaling $169,657.30. A prevailing plaintiff under Section 1983
may seek attorney’s fees under 42 U.S.C. § 1988.1 As noted, the jury awarded plaintiff $1,001.00 on
his claims against both Wade and Tarver and $30,000.00 on his claims against Dowis. Plaintiff is thus
a “prevailing party.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (plaintiff is prevailing party
for attorney’s fees purposes if succeeds on any significant issue in litigation which achieves some of
benefit sought in bringing suit); see also Farrar v. Hobby, 506 U.S. 103, 112 (1992) (even party who
wins only nominal damages under 42 U.S.C. § 1983 is prevailing party under Section 1988).
Under Section 1988, a prevailing party should ordinarily recover an attorney’s fee unless special
circumstances would render such an award “unjust.” Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th
Cir. 1997) (quoting Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989)). The Tenth Circuit has applied
a three-part test to determine whether a prevailing party has achieved sufficient success to receive
attorney’s fees under Section 1988. The “relevant indicia of success” are (1) the difference between the
judgment recovered and the recovery sought; (2) the significance of the legal issue on which plaintiff
1

The Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988, provides in relevant
part as follows:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983,
1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.
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prevailed; and (3) the public purpose of the litigation. Phelps, 120 F.3d at 1131 (citing Farrar, 506 U.S.
at 121-22 (O’Connor, J., concurring)).
As to the first factor, plaintiff sought $200,000.00 in compensatory damages and $375,000.00
in punitive damages each from Tarver and Wade. Plaintiff recovered $1.00 in compensatory damages
and $1,000.00 in punitive damages from each of them. Plaintiff sought $200,000.00 in compensatory
damages and $750,000.00 in punitive damages from Dowis, and recovered $30,000.00 in compensatory
damages and no punitive damages. Although the recovery is low compared to the amount sought, it is
not merely technical. See Phelps. 120 F.3d at 1132.
As to the second factor – the significance of the legal issue on which plaintiff prevailed – the
Eighth Amendment protection against cruel and unusual punishment is an important right.
As to the third factor, the public purpose served by plaintiff’s success, the judgment here
vindicates important rights under the Eighth Amendment. See Cartwright v. Stamper, 7 F.3d 106, 110
(7th Cir. 1993). The Court finds that each of the Farrar factors weighs in favor of an attorney’s fee
award in this case.
The amount of an attorney’s fee award under Section 1988 is committed to the district court’s
discretion. Zinna v. Congrove, 680 F.3d 1236, 1239 (10th Cir. 2012). The presumptively reasonable
attorney’s fee is the product of reasonable hours times a reasonable rate. Id. at 1242. This calculation
yields a “lodestar” figure which is subject to adjustment. Id.; see Blum v. Stenson, 465 U.S. 886, 888
(1984). In addition, because plaintiff’s fee request is governed by the attorney’s fee provisions of the
Prison Litigation Reform Act (“PLRA”), plaintiff must show that the fees were directly and reasonably
incurred in proving a violation of his rights and that the fees were proportional to his relief.2 See 42
2

42 U.S.C. § 1997e(d) provides in relevant part as follows:
(continued...)
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U.S.C. § 1997e(d)(1); Riley v. Kurtz, 361 F.3d 906, 914 (6th Cir. 2004). Plaintiff bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.
See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998).
I.

Reasonable Hourly Rate
In setting the hourly rate, “the court should establish, from the information provided to it and

from its own analysis of the level of performance and skills of each lawyer whose work is to be
compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers
in the area in which the court sits calculated as of the time the court awards fees.” Ramos v. Lamm, 713
F.2d 546, 555 (10th Cir. 1983) (overruled on other grounds by Pennsylvania v. Del. Valley Citizens’
Council For Clean Air, 483 U.S. 711 (1987); see Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203
2

(...continued)
(1) In any action brought by a prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney’s fees are authorized . . . such fees shall not
be awarded, except to the extent that -(A) The fee was directly and reasonably incurred in proving an actual
violation of the plaintiff’s rights protected by a statute pursuant to which a
fee may be awarded under [Section 1988]; and
(B)(i) the amount of the fee is proportionately related to the court ordered
relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief
ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph
(1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy
the amount of attorney’s fees awarded against the defendant. If the award of
attorney’s fees is not greater than 150 percent of the judgment, the excess shall be
paid by the defendant.
(3) No award of attorney’s fees in an action described in paragraph (1) shall be based
on an hourly rate greater than 150 percent of the hourly rate established under section
3006A of title 18, United States Code, for payment of court-appointed counsel.

42 U.S.C. § 1997e(d).
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(10th Cir. 1998). A reasonable hourly rate comports with rates “prevailing in the community for similar
services for lawyers of reasonably competent skill, experience, and reputation.” Blum, 465 U.S. at 896
n. 11. A district judge may turn to her own knowledge of prevailing market rates as well as other indicia
of a reasonable market rate. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493
(10th Cir. 1994) (citation omitted). To determine a reasonable rate, the Court focuses on the rates of
“lawyers of comparable skill and experience.” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1204
(10th Cir. 1998).
Plaintiff seeks $325.00 per hour for Brett Lampiasi. Under the PLRA, “[n]o award of attorney’s
fees . . . shall be based on an hourly rate greater than 150 percent of the hourly rate established under
[18 U.S.C. § 3006A] for payment of court-appointed counsel.” 42 U.S.C. § 1997e(d)(3). The hourly
rate set by the Judicial Conference for the Tenth Circuit for the relevant time period was $125.00.
Defendant argues that plaintiff is therefore limited to an hourly rate of 150 per cent of $125.00, i.e.
$187.50.
Plaintiff asserts that the Court should not apply the PLRA cap on the hourly rate because it is
unconstitutional. Relying on Judge Ilana Rovner’s dissent in Johnson v. Daley, 339 F.3d 582, 600-20
(7th Cir. 2003), plaintiff argues that the PLRA cap irrationally discriminates against prisoners, and thus
violates the Equal Protection clause.3 Every court of appeals to address constitutional challenges to the
3

Judge Rovner reasoned as follows:

As a means of discouraging frivolous or trivial suits by prisoners, the PLRA imposes
no restriction on fees that § 1988 does not already impose. As a means of reducing
the burden on states, there is no rational reason to single out prisoners. The PLRA
fee restrictions will, however, have a significant, predictable impact on the ability of
prisoners with meritorious cases to obtain representation. As the district court
recognized, “the only prisoners affected are those who file meritorious complaints
for whom the court cannot secure counsel because of the limited fees available to
(continued...)
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PLRA fee caps in a precedential opinion, however, has rejected the challenges. Parker v. Conway, 581
F.3d 198, 202 (3d Cir. 2009) (citing, inter alia, Royal v. Kautzky, 375 F.3d 720, 725-26 (8th Cir. 2004));
Riley v. Kurtz, 361 F.3d 906, 917 (6th Cir. 2004); Daley, 339 F.3d at 598 (7th Cir. 2003) (en banc);
Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 797-98 (11th Cir. 2003); Boivin v. Black, 225
F.3d 36, 46 (1st Cir. 2000); Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999)). Further, although
plaintiff argues that the PLRA does not apply here because of the “unique nature” of this case and the
jury verdict, he cites no controlling authority on that issue.
Plaintiff provides sufficient evidence of counsel’s experience to justify the maximum allowable
rate of $187.50. Mr. Lampiasi has worked in private practice for six years. He has experience in
representing indigent criminal defendants and in federal civil rights litigation. Mr. Lampiasi performed
admirably and obtained excellent results at trial. Given the Court’s knowledge of market rates in the
District of Colorado and the PLRA cap, the Court finds that $ 187.50 is a reasonable hourly rate.
II.

Number of Hours
Attorneys normally do not bill all hours expended in litigation to a client, and “an applicant

should exercise ‘billing judgment’ with respect to a claim of the number of hours worked.” Ellis v.
Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998) (quoting Malloy v. Monahan, 73 F.3d

3

(...continued)
lawyers in such cases.” Johnson, 117 F.Supp.2d at 896. Rather than decrease the
burden on courts, these restrictions will have the opposite effect, making it more
difficult for courts to persuade lawyers to accept appointment. Id. at 898. The
inevitable result will be that constitutional violations against prisoners will go
unremedied, and that is contrary to the purposes of the civil rights acts and § 1988.
Congress has no legitimate governmental interest in deterring the filing of
meritorious lawsuits. As such, the classification is not rationally related to the goals
and fails Equal Protection scrutiny.

Daley, 339 F.3d at 619 (dissent).
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1012, 1018 (10th Cir. 1996) (further quotations and citations omitted)). To show billing judgment,
“‘[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary’ . . . [and the] district court has a corresponding
obligation to exclude hours not ‘reasonably expended’ from the calculation.” Ellis, 163 F.3d at 1202.
Here, plaintiff seeks attorney’s fees for 522 hours of work. Defendants first argue that the Court
should eliminate 14 hours and 36 minutes for time spent on a response to a motion to dismiss claims
against Correctional Health Partners and its employees. The Court agrees that this time did not
reasonably relate to plaintiff’s claims against Wade, Tarver or Dowis and that a reduction of 14 hours
and 36 minutes is in order.
Defendants next argue that the Court should eliminate nine hours and 12 minutes spent on a
response to a motion to dismiss filed by defendant Dr. Stephen Krebs. Plaintiff ultimately dismissed
Dr. Krebs from the lawsuit. The claims against Dr. Krebs were not related to plaintiff’s claims against
Wade, Tarver or Dowis, and a reduction of nine hours and 12 minutes is therefore justified.
Defendants also argue that the Court should eliminate nine hours and 45 minutes spent on an
unsuccessful motion regarding claim preclusion. The Court agrees.
Finally, defendants ask the Court to disallow 18 hours and 30 minutes which counsel spent
working on a potential motion for a temporary restraining order which plaintiff never filed. The Court
agrees that this time was not necessary.
In sum, the Court finds that the 522 hours requested should be reduced by 52 hours, to 470 hours.
III.

Lodestar Calculation
Based on the above discussion, the Court calculates the lodestar as follows:
470 hours x $187.50 = $88,125.00.

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Once a court has determined the lodestar amount, “other considerations . . . may lead the district
court to adjust the fee upward or downward.” Hensley, 461 U.S. at 434. Defendants seek a reduction
in the loadstar to account for block billing regarding unsuccessful claims and for limited success at trial.
Defendants note that plaintiff’s counsel “block billed” 51 hours and 48 minutes drafting a third
amended complaint which named 13 defendants, but plaintiff went to trial against only three of them.
The Court finds that a 76 per cent reduction is justified, and therefore reduces the lodestar by $7,381.50.
Defendants also note that plaintiff’s counsel block billed 50 hours and 24 minutes on a response
to a summary judgment motion that involved claims against two defendants (Chamjock and Webster)
which were unrelated to the claims against Tarver, Wade and Dowis. Plaintiff did not succeed on his
claims against Chamjock and Webster and thus is not entitled to recover for time spent on those claims.
The billing records do not specify what portion of the block billing related to the claims against Tarver,
Wade or Dowis. The Court finds that a 40 per cent reduction is reasonable, and therefore reduces the
lodestar by $3,780.00.
Finally, defendants assert that the Court should further reduce the lodestar for the limited success
at trial. The Court finds that the degree of success does not warrant further reduction or enhancement
of the adjusted lodestar amount of $76,963.50. As defendants point out, however, the PLRA, 42 U.S.C.
§ 1997e(d), caps the fee award at 150 per cent of the judgment. The Tenth Circuit has held that the
language of section 1997e(d)(2) may be “inartful,” but that it limits defendant’s liability for attorney’s
fees to 150 per cent of the money judgment. Robbins v. Chronister, 435 F.3d 1238, 1240 (10th Cir.
2006). Although plaintiff argues that the PLRA cap should not apply, he points to no controlling
authority in support of his position.4 The Court finds that plaintiff’s fee award is limited to 150 per cent
4

Plaintiff asserts that the Court should not consider the punitive damage award a
(continued...)
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of the monetary judgment. As noted, the jury awarded plaintiff $1,001.00 each against Tarver and Wade
and $30,000.00 against Dowis. The fee award is therefore capped at 150 per cent of $32,002.00, or
$48,003.00. The Court finds that plaintiff’s counsel directly and reasonably incurred $48,003.00 in
proving an actual violation of plaintiff’s constitutionally protected rights.

See 32 U.S.C.

§ 1997(e)(d)(1)(A). The amount of the fee must be “proportionately related” to the relief for the
violations. 42 U.S.C. § 1997e(d)(1)(B)(i). The Court therefore finds that plaintiff should recover as
attorney’s fees 150 per cent of the jury award on his claims against each defendant: $1,501.50 from
Tarver and Wade and $45,000.00 from Dowis.
Finally, the PLRA provides that a portion of plaintiff’s monetary judgment, not to exceed 25 per
cent, “shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” 42
U.S.C. § 1997e(d)(2). The United States Supreme Court and the Tenth Circuit Court of Appeals have
not directly addressed whether this language mandates that 25 per cent of a judgment must be applied
to satisfy a fee award. Miranda, 629 F. Supp.2d at 1257. The vast majority of courts addressing this
issue, however, have held that a court does not have to automatically apply 25 per cent of a judgment
to a fee award. See Boesing v. Spiess, 540 F. 3d 886 (8th Cir. 2008).5
4

(...continued)
“monetary judgment” subject to the 150 per cent cap, because it constitutes injunctive or declaratory
relief directed against the State. The complaint, however, did not contain claims for injunctive or
declaratory relief, and the State was not a party to the lawsuit. Further, as defendants point out, the
plain language of the PLRA refers to a “monetary judgment” and does not distinguish between
compensatory and punitive damages.
5

Ten years ago, the undersigned judge found that the PLRA mandates that 25 per cent
of the judgment must be applied to satisfy the fee award. See Jackson v. Austin, 267 F. Supp.2d
1059, 1071 (D. Kan. 2003). The Court reasoned that although the statute is not a “model of clarity,”
the “more plausible interpretation – especially given the other limits that Section 1997e places on
both prisoners and the courts – is that the Court must automatically apply plaintiff’s fee award
against his damages to the extent that it does not exceed 25 per cent of the damages.” Id. The vast
(continued...)
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The PLRA does not identify how a court should determine the portion of a monetary judgment
to apply to a fee award. This Court has followed the Eighth Circuit Court of Appeals in considering the
following non-exclusive factors:
(1) the degree of the opposing parties’ culpability or bad faith, (2) the ability of the
opposing parties to satisfy an award of attorneys’ fees, (3) whether an award of
attorneys’ fees against the opposing parties could deter other persons acting under
similar circumstances, and (4) the relative merits of the parties’ positions.
Hall v. Terrell, 648 F. Supp.2d 1229, 1236 (D. Colo. 2009) (quoting Kahle v. Leonard, 563 F.3d 736,
743 (8th Cir. 2009) (district court has broad discretion to determine allocation under Section
1997e(d)(2)).
The first factor – the opposing parties’ culpability or bad faith – favors plaintiff over defendants.
In particular, the jury found that Wade and Tarver are liable for punitive damages, and the purpose of
a punitive damage award is to punish defendants. As to factor two, defendants provide no evidence as
to each defendant’s ability to satisfy an award of attorney’s fees or whether the state has agreed to
indemnify any or all of them. Because defendants have not provided this information, the Court finds
that this factor favors plaintiff. Factor three, the possibility that the award may deter other persons
acting under similar circumstances, favors plaintiff. And factor four, the relative merits of each party’s
5

(...continued)
majority of cases decided since then, however, have found that the statute sets forth 25 per cent as
a maximum, not a mandatory amount. See Parker v. Conway, 581 F.3d 198, 205 (3d Cir. 2009)
Boesing, 540 F.3d at 866, 891-92 (collecting cases) (citing Siggers-El v. Barlow, 433 F.Supp.2d
811, 822-23 (E.D. Mich. 2006) (statute does not provide guidance for percentage to apply)); Farella
v. Hockaday, 304 F.Supp.2d 1076, 1081 (C.D. Ill. 2004) (plain language sets forth 25 per cent as
maximum, not mandatory, amount); Collins v. Algarin, No. Civ. A. 95-4220, 1998 WL 10234, at
*10 (E.D. Pa. Jan. 9, 1998) (PLRA does not impose minimum percentage that must be applied
toward fees); Murphy v. Gilman, Nos. 03-145, 04-103, 2008 WL 2139611, at *1-3 (W.D. Mich.
May 20, 2008) (applying $1.00 against judgment); Sutton v. Smith, No. AW-98-2111, 2001 WL
743201, at *2 (D. Md. June 26, 2001) (same); Morrison v. Davis, 88 F. Supp.2d 799, 811 (S.D. Ohio
2000) (same)). But see Jackson, 267 F. Supp.2d at 1071-72; Roberson v. Brassell, 29 F. Supp.2d
346, 355 (S.D. Tex. 1998). On further reflection, the Court adopts the majority view.
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position, also favors plaintiff.
Based on these considerations, the Court finds that five per cent of the damages from plaintiff’s
claims against Dowis should be applied to satisfy the $45,000.00 attorney’s fee award against her. The
Court also finds that five per cent of the damages from plaintiff’s claims against Tarver and Wade
should be applied to the $1,501.50 attorney’s fee award against each of them. See Norwood v. Vance,
No. 03-2554-GEB-GGH-P, 2008 WL 686901, at * (E.D. Cal. March 12, 2008); Morrison v. Davis, 88
F. Supp. 2d 799, 811 (S.D. Ohio 2000).
IT IS THEREFORE ORDERED that Glen Kemp’s Motion To Award Plaintiff’s Attorney’s
Fees (Doc. #182) filed November 30, 2012 be and hereby is SUSTAINED IN PART.
IT IS FURTHER ORDERED that plaintiff is awarded $48,003.00 in attorney’s fees.
IT IS FURTHER ORDERED that five per cent, or $1,500.00 of the damages award obtained
by plaintiff Glenn Kemp against Beverley Dowis shall be applied to satisfy the award of attorney’s fees.
IT IS FURTHER ORDERED that five per cent, or $50.05 of the damages award obtained by
plaintiff Glenn Kemp against Chris Wade shall be applied to satisfy the award of attorney’s fees.
IT IS FURTHER ORDERED that five per cent, or $50.05 of the damages award obtained by
plaintiff Glenn Kemp against Tracy Tarver shall be applied to satisfy the award of attorney’s fees.
IT IS FURTHER ORDERED that no later than December 2, 2013, defendants shall pay
to plaintiff’s counsel, Brett Daniel Lampiasi, Post Office Box 347, Hatfield, Massachusetts 01038,
their portion of the attorney’s fees award, as follows:
Beverly Dowis – $43,500.00.
Chris Wade - $1,451.45.
Tracy Tarver - $1,451.45.

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IT IS FURTHER ORDERED that no later than December 2, 2013, defendants shall satisfy
the Final Judgment (Doc. #178) in favor of plaintiff. In doing so, defendants shall deduct
plaintiff’s attorney fee obligation and shall remit the following fees to Mr. Lampiasi on plaintiff’s
behalf:
Beverly Dowis - $1,500.00.
Chris Wade - $50.05.
Tracy Tarver - $50.05.
Dated this 18th day of November, 2013, at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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