Carbajal v. St. Anthony Central Hospital et al
ORDER granting in part and denying as moot in part 391 Defendants' Motion Seeking Attorney fees and Costs. Defendants are awarded reasonable attorney fees of $82,674 pursuant to 42 U.S.C. § 1988(b). By Judge Robert E. Blackburn on 10/26/2015.(mlace, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02257-REB-KLM
MICHAEL O’NIELL, Police Officer for the Denver Police Department, in his individual
JAY LOPEZ, Police Officer for the Denver Police Department, in his individual capacity,
LARRY BLACK, Police Officer for the Denver Police Department, in his individual
ORDER RE: DEFENDANTS’ MOTION
SEEKING ATTORNEY FEES AND COSTS
The matter before me is Defendants’ Motion Seeking Attorney fees and
Costs [#391],1 filed September 1, 2015, as supplemented by defendants’
Supplemental Brief in Support of Defendants’ Motion Seeking Attorney Fees and
Costs [#399], filed September 30, 2015. (See Order for Supplemental Briefing
[#392], filed September 10, 2015.) I deny the motion for costs as moot2 and grant the
motion for attorney fees in part.
“[#391]” is an example of the convention I continue to use to identify the docket number
assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF).
I use this convention throughout this order.
Costs, other than an award of attorney fees as a part of costs under 42 U.S.C. § 1988(b), have
already been awarded by the clerk of the court as provided by 28 U.S.C. § 1920, FED. R. CIV. P. 54(d)(1),
and D.C.COLO.LCivR 54.1. (See Bill of Costs [#395], filed September 24, 2015.
I have jurisdiction over the parties to and subject matter of this action. My
jurisdiction arises under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
The generally applicable “American Rule” provides that “the prevailing litigant is
ordinarily not entitled to collect a reasonable attorneys' fee from the loser.” Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616,
44 L.Ed.2d 141 (1975); see also Federal Trade Commission v. Kuykendall, 466 F.3d
1149, 1152 (10th Cir. 2006). Nevertheless, Congress has provided limited exceptions to
this rule “under selected statutes granting or protecting various federal rights.” Alyeska
Pipeline Service Co. , 95 S.Ct. at 1623. In cases brought to enforce civil rights under,
inter alia, 42 U.S.C. § 1983, attorney fees are available to a prevailing party (other than
the United States) as part of costs and in the court’s discretion. 42 U.S.C. § 1988(b).
Because “[t]he purpose of § 1988 is to ensure effective access to the judicial
process for persons with civil rights grievances . . . a prevailing plaintiff should ordinarily
recover an attorney's fee unless special circumstances would render such an award
unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103, S.Ct. 1933, 1937, 76 L.Ed.2d
40 (1983); see also Fox v. Vice, 563 U.S. 826, –, 131 S.Ct. 2205, 2213, 180 L.Ed.2d
45 (2011) (“When a plaintiff succeeds in remedying a civil rights violation, . . . he serves
as a ‘private attorney general,’ vindicating a policy that Congress considered of the
highest priority.”) (citation and internal quotation marks omitted). On the other hand,
due to the “quite different equitable considerations at stake,” the court is more
circumscribed in awarding attorney fees to a prevailing defendant. Fox, 131 S.Ct. at
2213 (citation and internal quotation marks omitted). In that circumstance, attorney fees
may be awarded only if the court finds that “the suit was vexatious, frivolous, or brought
to harass or embarrass the defendant.” Mitchell v. City of Moore, Oklahoma, 218
F.3d 1190, 1203 (10th Cir. 2000) (citations and internal quotation marks omitted).
“A frivolous suit is one ‘based on an indisputably meritless legal theory, . . . [or]
whose factual contentions are clearly baseless.’” Id. at 919 (10th Cir. Feb. 26, 2010)
(quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d
338 (1989)). See also Dill v. City of Edmond, Oklahoma, 1998 WL 740962 at *2 (10th
Cir. Oct. 23, 1998) (suit frivolous if claims “not warranted in fact or law”). It may include
both claims that were meritless at the inception of the case and those that only were
revealed to be meritless as the litigation developed. Thorpe v. Ancell, 367 Fed. Appx.
914, 919 (10th Cir. Feb. 26, 2010). Although a finding of bad faith is not necessary in
order to support an award of attorney fees to a prevailing defendant, a finding of bad
faith can bolster a defendant’s request for such an award. See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978);
Anthony v. Baker, 767 F.2d 657, 667 (10th Cir. 1985).
“IIn applying these criteria, it is important that a district court resist the
understandable temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must have been unreasonable or
without foundation.” Christiansburg Garment Co., 98 S.Ct. at 700. Nevertheless,
where “[t]he plaintiff acted wrongly in leveling [frivolous] allegations, . . . the court may
shift to him the reasonable costs that those claims imposed on his adversary.” Fox, 131
S.Ct. at 2214. The assessment of attorney fees to a prevailing defendant in appropriate
circumstances not only compensates the misused adversary, but also deters the filing of
future meritless suits, both by the plaintiff in the case at hand and by future litigants who
may be similarly situated or inclined. See Thorpe, 367 Fed. Appx. at 924.
This lawsuit arose out of events that allegedly transpired at St. Anthony’s Central
Hospital in Denver, where plaintiff Dean Carbajal was transported following his arrest on
several warrants on the night of August 28, 2010. Mr. Carbajal alleged that medical
personnel at the hospital, at the direction of defendant Detective Larry Black, forcibly
catheterized him while Detectives Black, Jay Lopez, and Michael O’Neill3 physically and
violently restrained him.
Mr. Carbajal initially sued fourteen defendants on six separate theories, many of
which were further divided into two or more subparts. The majority of these claims
against the majority of defendants were dismissed either at the pleading stage or on
motions for summary judgment. A single claim of excessive force against Detectives
Black, Lopez, and O’Neill remained for trial. That claim was tried to a jury on August 10
to 18, 2015. The jury quickly returned a verdict in favor of all three defendants in all
particulars. At the conclusion of the proceedings, and in connection with the entry of
judgment, I invited defendants to file the instant motions seeking attorney fees related
solely to the trial of this case. I took this extraordinary step in light of the extraordinary
Misnamed in the caption as “Michael O’Niell.”
nature of the proceedings over which I had just presided, as will be detailed more
thoroughly below. The instant motion was submitted in response to that invitation.
Even though I rejected defendants’ unexcused belated pretrial attempt to move
for summary judgment on Mr. Carbajal’s claim of excessive force against them (see
Order Overruling Objections to and Adopting Recommendation of United States
Magistrate Judge at 2-4 & nn. 3 & 4 [#334], filed June 23, 2015), that claim would not
have been appropriate for summary judgment in any event. Ultimately its resolution
required a credibility determination – specifically, whether Mr. Carbajal’s version of the
events which transpired at the hospital that evening was credible. Having now heard
Mr. Carbajal’s testimony first-hand, I am unequivocally convinced that his testimony was
not merely wholly incredible but bordered on perjurious.
It was clear to this court as Mr. Carbajal began recounting his story that he was
attempting to manufacture factitiously a state of high emotion in order to improperly
influence the jury, becoming increasingly (but disingenuously) distraught as he told the
jury that defendants choked him to the point of unconsciousness and struck him in the
testicles with such force that he wondered whether something had ruptured. As Mr.
Carbajal’s histrionics reached a crescendo, to the extent he appeared to be sobbing and
gasping for breath, I was forced to halt the proceedings for the day, ostensibly to allow
Mr. Carbajal to “compose” himself and to prevent him from improperly influencing the
jury. After excusing the jury, I committed to the record my observations that despite the
fevered tenor of Mr. Carbajal’s testimony that afternoon, he had not shed a single actual
tear during the entirety of his performance. Mr. Carbajal engaged in similar fictitiously
overwrought behavior during his closing arguments as well.
Aside from being suspect in its own right, Mr. Carbajal’s testimony also was
contrary to every piece of documentary evidence submitted at trial as well as to the
testimony of every other witness who took the stand. For one thing, there was not a
shred of evidence to suggest that Mr. Carbajal was catheterized forcibly. Both the
physicians assistant and the nurse who performed the procedure testified that Mr.
Carbajal was catheterized without objection, complaint, or difficulty. More to the point,
however, the evidence plainly showed that none of the three defendants was even
present during the procedure, much less inflicted the type of aggravated abuse on Mr.
Carbajal that he claimed to have suffered.4 Neither the medical personnel from St.
Anthony’s nor the nurse who examined Mr. Carbajal at the Denver Detention Center
following his release from the hospital noted or charted any injuries to Mr. Carbajal’s
neck or recall him complaining of having been choked or struck in the testicles. Given
Mr. Carbajal’s acknowledged litigiousness, both in general5 and in this particular lawsuit
specifically, his suggestion that he did not report these injuries or otherwise seek
medical attention for them because he does not like to complain rings exceptionally
Mr. Carbajal’s reiterated belief that the lack of evidence to support his version of
Indeed, it became readily apparent during the course of the proceedings that Detective Lopez
was not present at the hospital at any point during the fateful night of August 28, 2010, and that Mr.
Carbajal apparently had confused him with another officer. Defendants informed Mr. Carbajal of this fact
repeatedly and well prior to trial, but he nonetheless refused vindictively to dismiss his claims against
Mr. Carbajal testified that prosecuting lawsuits on his own behalf consumes 10 to 15 hours a
day of his time. Litigation – perhaps better described as barratry – has become his raison d' etre.
events was due to a grand (but not fully articulated or explicated) conspiracy involving
the police, medical personnel, and members of the defense team was nothing short of
pure fantasy. Every witness who took the stand and refuted his story was accused
argumentatively by Mr. Carbajal of lying under oath. In addition, he repeatedly and
spuriously accused defense counsel of engaging in various types of nefarious conduct
in an effort to thwart him (a charge which he repeats in response to the instant motion)
without a shred of actual evidence to support his slanderous allegations.
Having lived through this trial, it is plain to this court that Mr. Carbajal
manufactured this lawsuit almost entirely out of whole cloth, doggedly determined to
press his factually baseless claims without any regard for the truth. Indeed, this lawsuit
appears to this court to have been little more than a spurious, vindictive, retributive, and
disturbing campaign of vengeful character assassination against these three officers. In
other words, the record is plain not only that the claims lacked any merit whatsoever,
but moreover that Mr. Carbajal prosecuted this suit in the utmost bad faith. This suit was
vexatious, frivolous, and brought to both harass and embarrass the defendants.
I thus find and conclude that this case not only warrants but demands an award
of attorney fees on defendants’ behalf, both to compensate them for the loss of time and
dignity involved in being caught up in Mr. Carbajal’s web of lies and half-truths and to
deter the filing of future utterly baseless and fantastical claims, not only by Mr. Carbajal
himself (a goal I frankly think unlikely to be achieved in the absence of restrictions on
Mr. Carbajal’s ability to file pro se lawsuits) but also by other litigants who might be
tempted to follow his lead. In this case it is eminently reasonable to shift to Mr. Carbajal
the reasonable costs that his baseless claims imposed on his adversaries. Having so
concluded, I turn to consider the amount of an appropriate award of attorney fees as a
part of costs under 42 U.S.C. § 1988(b).
The starting point for any calculation of reasonable attorney fees is the “lodestar,”
that is, the number of hours reasonably expended multiplied by a reasonable hourly
rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40
(1983); Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). There is a strong
presumption that the lodestar fee represents a reasonable fee for purposes of feeshifting statutes. Homeward Bound, Inc. v. Hissom Memorial Center, 963 F.2d
1352, 1355 (10th Cir. 1992).6
Defendants in this case were represented by Senior Assistant City Attorney
David C. Cooperstein, Assistant City Attorney Jamesy C. Owen, Assistant City Attorney
Steven W. Martyn, and paralegal Cassandra Sudbeck. The qualifications of these
professionals are set forth in their affidavits, appended to the motion, and are
incorporated by reference. Mr. Cooperstein’s hourly rate is $215, Ms. Owen and Mr.
Martyn bill at rates of $160 and $150 an hour, respectively, and Ms. Sudbeck’s time is
billed at a rate of $85 an hour. Defendants’ affidavits and the court’s own knowledge of
fees typically charged in cases of this type in this area substantiate that these rates are
slightly lower than rates typically charged by other lawyers and paralegals of similar skill
and experience in the Denver metropolitan market. See Ramos v. Lamm, 713 F.2d
Mr. Carbajal has offered neither argument nor evidence contesting either the number of hours
expended by defense counsel in connection with the trial or this matter or the hourly rates requested.
546, 555 (10th Cir. 1983). I therefore approve the requested hourly rates for each
member of the defense team.
I thus turn to consider the number of hours reasonably expended in connection
with the trial of this case. In requesting reimbursement for attorney fees, defense
counsel must exercise the same “billing judgment” as would be proper in setting fees for
a paying client. Hensley, 103 S.Ct. at 1941; Malloy, 73 F.3d at 1018. “Hours that are
not properly billed to one’s client also are not properly billed to one’s adversary pursuant
to statutory authority.” Hensley, 103 S.Ct. at 1940 (citation and internal quotation
marks omitted; emphases in original). Counsel therefore must make a good faith effort
to exclude hours that are “excessive, redundant or otherwise unnecessary.” Id. at
In total, the defense team spent 698.30 hours in connection with preparation for
and prosecution of the trial of this case: 237.10 hours by Mr. Cooperstein; 323.20 hours
by Ms. Owens; 28.5 hours by Mr. Martyn; and 109.50 hours by Ms. Sudbeck.
Defendants’ request for reimbursement attributable to Ms. Owens’s work has been
reduced by 25 percent given that this was her first trial in a case of this type, which
understandably may have created some inefficiencies. While the court appreciates
counsels’ efforts to exercise billing judgment in connection with their request for attorney
fees, it still appears to this court that the hours requested are moderately excessive.
More particularly, I perceive some not inconsequential duplication of effort on the
part of Mr. Cooperstein and Ms. Owens. See Hensley, 103 S.Ct. at 1039-40. Although
certainly it makes sense for a more senior attorney to supervise the work of a junior
colleague, many of the entries for similar or identical tasks show that Mr. Cooperstein
spent nearly as much time on these tasks as did Ms. Owens.7 The records also reveal
a certain amount of Mr. Cooperstein’s time spent in matters that were largely clerical
and thus could have been delegated to a junior attorney or even a paralegal. See
Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 2471 n.10, 105
L.Ed.2d 229 (1989). Likewise, at least three hours of Mr. Martyn’s time are attributable
to simply gathering past pleadings from and preparing a list of Mr. Carbajal’s prior
lawsuits against the City, work which could have been performed by a competent
paralegal billing at a little more than half the rate of a junior attorney.
Where an attorney has failed to exercise billing judgment, the court may do so for
him by striking problematic entries or by reducing the hours requested by a percentage
intended to substitute for the exercise of billing judgment. See Harper v. City of
Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000), cert. denied, 121 S.Ct. 883
(2001), and cert. denied, 121 S.Ct. 1092 (2001); Walker v. United States Department
of Housing and Urban Development, 99 F.3d 761, 770 (5th Cir. 1996). In this case, I
find it most appropriate to impose a percentage reduction on the total amount of fees
requested. I therefore will decrease the requested total attorney fee award of $103,343
by an additional 20 percent ($20,669), resulting in a total fee award of $82,674. Neither
For instance, both attorneys expended many hours in the review of documentary evidence and
preparation of trial exhibits. Indisputably, there was a substantial amount of documentary evidence in this
case, and the court does not fault counsel for being thorough, especially given Mr. Carbajal’s propensity
to challenge the documents as fabricated, withheld in discovery, or otherwise infirm. Nevertheless, the
sheer amount of time expended by two attorneys – one a senior attorney – on these tasks still gives the
party having suggested that any further adjustments to the lodestar are appropriate, I
find this amount reasonable and adequate to compensate defense counsel for their
preparation for and representation at trial in this matter. See Pennsylvania v.
Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 564-65, 106 S.Ct.
3088, 92 L.Ed.2d 439 (1986) (adjustments to lodestar should be made only in rare and
Section 1983 provides an important safeguard against abuses of government
officials. This case demonstrates what can happen when the laudable goals of the
statute are turned on their head and used as a cudgel to bully, intimidate, and defame
otherwise good and decent police officers. Blinded by whatever psychological cataract
prevents him from perceiving reality no matter how pellucidly presented to him, Mr.
Carbajal has perverted our system of justice in this iteration of his campaign against the
City of Denver and its police officers. The imposition of costs in the form of attorney
fees is the least this court can do at this juncture to attempt to reign in his egregious
excesses. To the extent applicable, the court also finds that this case should count as a
strike against Mr. Carbajal for purposes of 28 U.S.C. § 1915(g).
THEREFORE, IT IS ORDERED as follows:
1. That Defendants’ Motion Seeking Attorney fees and Costs [#391], filed
September 1, 2015, is granted in part and denied as moot in part as follows:
a. That the motion is granted with respect to defendants’ request for
attorney fees as a part of costs under 28 U.S.C. § 1988(b); and
b. That the motion is denied as moot with respect to defendants’ request
for additional costs under 28 U.S.C. § 1920;
2. That defendants are awarded reasonable attorney fees of $82,674 pursuant
to 42 U.S.C. § 1988(b); and
3. That to the extent applicable, this case shall count as a strike against Mr.
Carbajal for purposes of 28 U.S.C. § 1915(g).
Dated October 26, 2015, at Denver, Colorado.
BY THE COURT:
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