Mackey v. Woodson et al

Filing 320

ORDER that Defendants' Motion for Remittitur or, in the Alternative, for New Trial on Punitive Damages (Doc. # 286 ) is DENIED; Defendants' Motion for Extension of Stay of Execution of Judgment Pending Resolution of their Motion for Remitt itur and Any Appeal (Doc. # 287 ) is DENIED; and Plaintiff Waldo Mackey's Partially Opposed Motion for Attorney Fees (Doc. # 285 ) is GRANTED IN PART and DENIED IN PART as follows: the Motion is granted as to a fee award of $100,820.03; 2 5% of Plaintiff's judgment funds ($45,000.50) shall be contributed to satisfy the fee award; the remaining $55,819.53 of the fee award shall be paid by Defendants, for which Defendants are jointly and severally liable; the Motion is denied to the extent it requests a greater fee award. by Judge Christine M. Arguello on 8/14/2020.(evana, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-01341-CMA-STV
WALDO MACKEY,
Plaintiff,
v.
BRIDGETTE WATSON, and
SUSAN PRIETO,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION FOR REMITTUR, OR IN THE
ALTERNATIVE, A NEW TRIAL ON PUNITIVE DAMAGES; DENYING DEFENDANTS’
MOTION FOR EXTENSION OF STAY OF EXECUTION OF JUDGMENT; AND
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S PARTIALLY OPPOSED
MOTION FOR ATTORNEY FEES
This matter is before the Court on three motions: Defendants’ Motion for
Remittitur or, in the Alternative, for New Trial on Punitive Damages (“Motion for
Remittitur”) (Doc. # 286), Defendants’ Motion for Extension of Stay of Execution of
Judgment Pending Resolution of their Motion for Remittitur and Any Appeal (“Motion for
Stay”) (Doc. # 287), and Plaintiff Waldo Mackey’s Partially Opposed Motion for Attorney
Fees (“Motion for Attorney Fees”) (Doc. # 285). For the reasons that follow, the Court
denies Defendants’ Motions for Remittitur and Stay and grants in part and denies in part
Plaintiff’s Motion for Attorney Fees.

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I.

BACKGROUND

The Court’s previous Order Affirming and Adopting the February 27, 2019
Recommendation of United States Magistrate Judge and Denying Defendants’ Motion
for Summary Judgment (Doc. # 267) recites the factual and procedural background of
this dispute and is incorporated herein by reference. Accordingly, this Order will
reiterate only what is necessary to address the instant Motions.
Plaintiff Waldo Mackey filed this lawsuit pro se while he was incarcerated at the
Fremont Correctional Facility in Cañon City, Colorado. He claimed, in relevant part, that
Defendant Bridgette Watson, a sergeant at Fremont Correctional Facility, retaliated
against him for exercising “his right to grieve/complain” in violation of the First
Amendment by performing harassing searches of his cell, confiscating his prescription
eyeglasses and clothing, directing other staff to terminate him from his job as an
Offender Care Aid, and filing a false disciplinary report. (Doc. # 1 at 16–21); (Doc. # 6 at
3–4). He further claimed that Defendant Susan Prieto, a hearing officer at the
correctional facility, denied him his due process rights in violation of the Fourteenth
Amendment at a Code of Penal Discipline (“COPD”) disciplinary hearing on March 9,
2017, by excluding his witnesses and by informing him that videotape of the incident
with Defendant Watson had been taped over and that he should have asked for it within
three days of the incident. (Doc. # 1 at 21–22); (Doc. # 6 at 4).
Plaintiff tried his First and Fourteenth Amendment claims to a jury from
September 16 through 18, 2019. At trial, Mr. Mackey submitted evidence that Defendant
Watson had violated his First Amendment rights by confiscating his prescription
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eyeglasses and/or issuing a false incident report against him after he complained about
her search of his cell, and that Defendant Prieto violated his Fourteenth Amendment
procedural due process rights by convicting him of a COPD violation despite the
corrections officers’ failure to preserve potentially exculpatory videotape evidence and
by excluding Mr. Mackey’s witness testimony that would have shown Defendant Watson
had a motive to lie about the search. The jury returned a verdict in favor of Mr. Mackey
on both claims. (Doc. # 279.) The jury awarded $1 in nominal damages and $60,000 in
punitive damages against Defendant Watson and $1 in nominal damages and $120,000
in punitive damages against Defendant Prieto. Final judgment entered in favor of
Plaintiff and against Defendants Watson and Prieto on September 19, 2019. (Doc. #
281.) The instant Motions followed.
II.
A.

DISCUSSION

DEFENDANTS’ MOTION FOR REMITTITUR
Defendants argue that the jury's punitive damage award was so grossly

excessive as to violate the due process clause of the Fourteenth Amendment. They
move the Court to order remittitur of Plaintiff’s $180,000 punitive damages award to
$18, representing a 1:9 ratio of compensatory to punitive damages per Defendant or, in
the alternative, to order a new trial on damages. The Court declines to set aside the
punitive damages awarded by the jury, finding that the award was not motivated by
passion, prejudice, or bias, and is not so excessive as to shock the judicial conscience.
See Mason v. Texaco, Inc., 948 F.2d 1546, 1560 (10th Cir. 1991).

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1.

Applicable Law

“Punitive damages are only available in a Section 1983 action when ‘the
defendant's conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.’”
Hampton v. Evans, No. 11-cv-01415-RM-CBS, 2015 WL 1326147, at *4 (D. Colo. Mar.
20, 2015) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). The Supreme Court
established the guideposts for evaluating the constitutionality of a punitive damages
award in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). They are: “(1) the
degree of reprehensibility of the defendant's misconduct; (2) the disparity between the
actual or potential harm suffered by the plaintiff and the punitive damages award; and
(3) the difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 409 (2003). “Additionally, in analyzing a punitive damages
award for excessiveness, [courts] must consider the goal of deterrence.” Deters v.
Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1272 (10th Cir. 2000) (citations
omitted).
2.

Analysis
a.

Reprehensibility of Defendants’ conduct

The degree of reprehensibility is “perhaps the most important indicium of the
reasonableness of a punitive damages award.” Gore, 517 U.S. at 575–76. The
Supreme Court has observed that “some wrongs are more blameworthy than others,”
noting that “trickery and deceit” are more reprehensible than negligence. Id. (citations
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omitted). The Tenth Circuit has considered the following factors in evaluating
reprehensibility: whether a defendant's behavior causes economic rather than physical
harm, would be considered unlawful in all states, involves repeated acts rather than a
single one, is intentional, involves deliberate false statements rather than omissions,
and is aimed at a vulnerable target. Cont'l Trend Res., Inc. v. OXY USA Inc., 101 F.3d
634, 638 (10th Cir. 1996). Purely economic harm may warrant less punishment than
harm to the health or safety of individuals. Id.
Applying the Tenth Circuit’s indicia of reprehensibility to the instant case, the
Court finds that Defendants’ misconduct was reprehensible.
First, Defendants caused Mr. Mackey harm. Defendant Watson’s confiscation of
Mr. Mackey’s prescription eyeglasses caused him pain in the form of debilitating
migraines. 1 Although Defendant Watson’s actions did not permanently injure Mr.
Mackey, depriving him of proper eyesight did jeopardize his health and safety,
particularly in a prison setting. See Cont'l Trend Res., Inc., 101 F.3d at 638. Further,
Defendant Watson’s First Amendment retaliation constitutes irreparable injury. See
Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.”). With
respect to Defendant Prieto, the Court agrees with Plaintiff that “the harm was to Mr.
Mackey’s rights themselves, and to any future interest he may have that depends on his
disciplinary record.” (Doc. # 298 at 7.) Moreover, the Court regards the injury to Mr.

Mr. Mackey testified at trial that one migraine lasted 24 hours and was the worst migraine he
has ever experienced.

1

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Mackey that “was ostensibly emotional or physiological . . . as more reprehensible than
strictly economic harm, if not equivalent to physical harm.” Tate v. Dragovich, No.
CIV.A. 96-4495, 2003 WL 21978141, at *8 (E.D. Pa. Aug. 14, 2003). Additionally, Mr.
Mackey lost his paid position as an Offender Care Aide, which Mr. Mackey enjoyed and
excelled at, following Defendants’ actions.
Second, the misconduct of both Defendants Watson and Prieto would be
considered unlawful in all states because it violated the U.S. Constitution.
Third, Defendants’ misconduct was intentional. In holding Defendant Watson
liable for First Amendment retaliation, the jury found that she “intentionally confiscated
Mr. Mackey’s personal property or filed an incident report against him.” (Doc. ## 277,
279.) Defendant Watson confiscated Mr. Mackey’s glasses in violation of Department of
Corrections regulations that require a corrections officer to obtain approval from medical
personnel before confiscating a prisoner’s prescription healthcare items. Although the
jury instructions did not specifically address the intentionality of Defendant Prieto’s
conduct, Defendant Prieto’s testimony as to her familiarity with due process
requirements and the importance of witness testimony indicates that her actions were
intentional.
Lastly, as a prisoner, Mr. Mackey presented a ‘vulnerable target’ to Defendants
Prieto and Watson, who were both senior prison staff members. See Tate, 2003 WL
21978141, at *8. Notably, Defendant Watson’s actions rendered Mr. Mackey even more
vulnerable, as she deprived him, for six weeks, of his prescription eyeglasses in a

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prison setting. In sum, the Court finds that the evidence showed that Defendants’
misconduct was reprehensible.
b.

Relationship between harm and punitive damages award

Defendants put great emphasis on the large ratio of punitive to nominal damages
in this case and cite to State Farm, 538 U.S. 408, for the proposition that Mr. Mackey
should receive no more than $18 in punitive damages (applying a single-digit multiplier
to his nominal damages). Although the Supreme Court has indicated that “few awards
exceeding a single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process,” a higher ratio “may comport with due
process where ‘a particularly egregious act has resulted in only a small amount of
economic damages.’” State Farm, 538 U.S. at 425 (quoting Gore, 517 U.S. at 582).
Such is the case here.
Defendants’ focus on the proportionality of the nominal to punitive damages
awarded in this case is misplaced because the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(e), prohibited Mr. Mackey from receiving compensatory damages
without a finding of physical injury. Jordanoff v. Coffey, CIV-15-939-R, slip op. at 3
(W.D. Okla. July 13, 2018). The PLRA does not, however, bar Plaintiff's recovery of
nominal or punitive damages, even in the absence of a showing of physical
injury. See Searles, 251 F.3d at 879, 880–81 (“[A]s a general rule, punitive damages
may be recovered for constitutional violations without a showing of compensable
injury.”); McDaniels v. McKinna, 96 F. App'x 575, 581 (10th Cir. 2004) (noting that
“Searles did not foreclose prisoners' claims for First Amendment violations that only
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sought nominal damages or punitive damages.”). Accordingly, “[i]n cases like this where
there are little to no compensatory damages to compare, courts have consistently
declined to apply the Supreme Court’s ‘ratio to the actual harm’ factor for assessing the
excessiveness of punitive damages awards.” Jordanoff, CIV-15-939-R, slip op. at 3 (first
citing State Farm, 538 U.S. at 425; then citing Gore, 517 U.S. at 580–81). Indeed,
courts have upheld large punitive damages awards in Section 1983 cases where the
PLRA applies, even where plaintiffs were awarded nominal damages against individual
defendants. 2 Constitutional violations such as the ones that took place in this case fall
within the category of exceptional cases that may constitutionally exceed the single-digit
multiplier of punitive damages. The Court rejects Defendants’ argument to the contrary.
c.

Comparison to civil penalties owed in similar cases

The Court is unable to locate any statutory penalties for due process violations or
retaliation analogous to Mr. Mackey’s claims in this case. Therefore, this guidepost “has
no application here, as neither party could direct the lower court to civil or criminal
penalties” that Defendants could face for their conduct. Haynes v. Stephenson, 588
F.3d 1152, 1159 (8th Cir. 2009) (citing Asa–Brandt, Inc. v. ADM Investor Servs.,
See, e.g., Haynes v. Stephenson, 588 F.3d 1152, 1158 (8th Cir. 2009) (citing JCB, Inc. v.
Union Planters Bank, NA, 539 F.3d 862, 877 (8th Cir. 2008) (awarding more than $100,000 in
punitive damages on a trespass claim where the compensatory damages award was $1))
(upholding $2,500 to $1 punitive to nominal damages award as constitutional and noting the
“the district court did not err in concluding that the high ratio of punitive to compensatory
damages awarded did not offend due process” because the defendant’s actions resulted in only
nominal compensatory damages); Tate, 2003 WL 21978141, at *9 (upholding $10,000 punitive
damages award where PLRA barred compensatory damages for Plaintiff on First Amendment
retaliation claim); Jordanoff, CIV-15-939-R, slip op. at 3–5 (upholding punitive damages award
of $35,000 against individual defendant where PLRA limited Plaintiff to nominal damages); cf.
Siggers-El v. Barlow, 433 F. Supp. 2d 811, 817–20 (E.D. Mich. 2006) (upholding punitive
damages award of $200,000 against individual defendant for retaliatory transfer).
2

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Inc., 344 F.3d 738, 747 n. 16 (8th Cir. 2003)). However, when examining this third
factor, the Court may look to the amount of punitive damages necessary to deter similar
misconduct in the future. Tate, 2003 WL 21978141, at *10 (citing Gore, 517 U.S. at
584–85).
It is manifest from the record and the Motion that the punitive damages awarded
in this case are a reasonably necessary deterrent against future constitutional
violations. Although Defendants each had more than 10 years of experience as
corrections officers (12 years for Defendant Watson and 19 years for Defendant Prieto),
they violated Mr. Mackey’s constitutional rights. Both Defendants are still employed by
the Colorado Department of Corrections (“CDOC”). Defendants were not reprimanded
or disciplined in any way by CDOC for the misconduct underlying this case. Importantly,
the same lack of remorse Defendants demonstrated on the witness stand is echoed in
the instant Motion; Defendants proceed to minimize the harms they inflicted on Mr.
Mackey and have yet to acknowledge the severity of their misconduct. See, e.g., (Doc.
# 286 at 11–12) (characterizing this case as “involv[ing] Plaintiff’s lack of access to his
eyeglasses for a six-week period,” likening Defendant Watson’s intentional deprivation
of Plaintiff’s prescription eyewear to theft of property between $300 and $750, and
commenting that Defendants’ theft analogy is not perfect because Plaintiff’s glasses
were returned to him).
The Court finds, in light of the evidence presented at trial and the factors
discussed above, that the punitive damages awarded in this case were not motivated by
passion, prejudice, or bias, and are not so excessive as to shock the judicial
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conscience. Mason, 948 F.2d at 1560. To remit the punitive damages award to $18, as
Defendants urge, “would encourage bad behavior by prisoner officials and would
discourage settlement in litigation because it would tell prison officials that they could
violate prisoners' rights on the cheap.” Siggers-El v. Barlow, 433 F. Supp. 2d 811, 819
(E.D. Mich. 2006). Because the Court firmly believes that the jury decision in this case is
supported by the evidence, it declines to interfere with that verdict and, in effect, send
such a message to prison officials.
B.

DEFENDANTS’ MOTION TO STAY
Defendants move the Court to stay the execution of judgment during the

pendency of this Court’s consideration of the instant Motions and any subsequent
appeals either by extending Fed. R. Civ. P. 62(a)’s automatic stay or by entering a Fed.
R. Civ. P. 62(b) stay. In support of their request, Defendants assert that they have made
a “substantially founded challenge to the award of punitive damages against them” and
that “the near certainty such an award of punitive damages will not withstand appellate
review” justifies the imposition of a stay. (Doc. # 287 at 2.) Defendants posit that they
“should not be required to pay the judgment, or make any arrangements for any security
related to the judgment, until issues surrounding (without limitation) the permissibility of
a more than 10:1 ratio of actual damages are fully resolved.” (Id. at 6.)
The Court addressed herein the “permissibility of a more than 10:1 ratio of actual
damages” in general and found that a higher ratio is reasonable in the instant case
because of the PLRA’s limitation on Mr. Mackey’s ability to receive compensatory
damages. Therefore, the Court rejects Defendants’ premise that a stay is justified in the
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instant case because it is nearly certain the punitive damages award will not withstand
appellate review. To the extent Defendants move the Court to stay this action pending
any appeals, the Motion is denied for lack of good cause shown. See Landis v.
North American Co., 299 U.S. 248, 254 (1936) (“The District Court has broad discretion
to stay proceedings as an incident to its power to control its own docket.”). To the extent
Defendants move the Court for a stay pending the Court’s resolution of the instant
Motions, the Motion is denied as moot.
C.

PLAINTIFF’S MOTION FOR ATTORNEY FEES
Mr. Mackey moves the Court to award his counsel $122,661.80 in attorneys’

fees. Defendants have stipulated to counsel’s hourly rate but vehemently object to the
hours billed, arguing that counsel failed to exercise billing judgment; overbilled for travel
time, administrative tasks, and paralegal time; and that the fee award should be
reduced by 20% for vague entries and block billing. The Court agrees with Defendants
in part and reduces the fee award to $100,820.03.
1.

Applicable Law

Under 42 U.S.C. § 1988(b), “[i]n any action or proceeding to enforce a provision
of section. . . 1983, . . . 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.” Under § 1988,
a fee claimant “must prove two elements: (1) that the claimant was the prevailing party
in the proceeding; and (2) that the claimant’s fee request is reasonable.” Arend v. Paez,
C.A. No. 12-cv- 01270-DDD-SKC, 2019 WL 2726231, at *1, (D. Colo. July 1, 2019)
(quoting Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998)).
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When evaluating a motion for attorneys’ fees, the Court follows the three-step
process set forth in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), overruled on other
grounds by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711
(1987). The first step in determining a fee award is to determine the number of hours
reasonably spent by counsel for the prevailing party. Malloy v. Monahan, 73 F.3d 1012,
1017 (10th Cir. 1996); Ramos, 713 F.2d at 553. The factors considered in a
reasonableness determination include: (1) whether the amount of time spent on a
particular task appears reasonable in light of the complexity of the case, the strategies
pursued, and the responses necessitated by an opponent's maneuvering; (2) whether
the amount of time spent is reasonable in relation to counsel's experience; and (3)
whether the billing entries are sufficiently detailed, showing how much time was allotted
to a specific task. Rocky Mountain Christian Church v. Bd. of Cty. Comm'rs of Boulder
Cty., No. 06-cv-00554, 2010 WL 3703224, at *2–3 (D. Colo. Sept. 13, 2010). Time
spent by counsel that is “excessive, redundant, or otherwise unnecessary” is not
compensable. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “The party seeking an
award of fees should submit evidence supporting the hours worked and rates claimed.
Where the documentation of hours is inadequate, the district court may reduce the
award accordingly.” Id. at 433.
Once the Court has determined the number of hours reasonably spent, it must
then determine a reasonable hourly rate of compensation. Ramos, 713 F.2d at 555. “A
reasonable rate is the prevailing market rate in the relevant community.” Malloy, 73 F.3d
at 1018 (citing Blum v. Stenson, 465 U.S. 885, 897 (1984)). The party seeking the
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award has the burden of persuading the court that the hours expended, and the hourly
rate, are reasonable. Id. The third step consists of multiplying the reasonable hourly rate
by the number of hours reasonably expended to determine the lodestar amount.
Hensley, 461 U.S. at 433.
2.

Analysis

In the instant case, it is undisputed that Mr. Mackey is a prevailing party for the
purposes of 42 U.S.C. § 1988(b) because Mr. Mackey prevailed on both of his claims at
trial and the jury awarded him $180,000 in punitive damages. The parties have
stipulated to the hourly rates sought by Plaintiff’s legal team—i.e., $222 per hour for
Attorneys Homiak and Scarpato and $100 per hour for paralegal Brianna S. Apodaca
and trial support manager Robert G. Mason. The Court finds that these hourly rates are
reasonable, Ramos, 713 F.2d at 555, and comply with the limitations established by the
PLRA. 3 Accordingly, the only element of Plaintiff’s fee award that is at issue is the
reasonableness of the hours expended.
a.

Reasonableness of the hours expended

The Court has reviewed the fee application and supporting documentation and
finds that the number of hours billed by Plaintiff’s counsel is unreasonable. Counsel is
expected to exercise billing judgment in applying for attorneys’ fees. 4 Put differently,
The Court notes that the agreed-upon hourly rate for Attorneys Homiak and Scarpato is the
maximum rate currently allowable under the PLRA. See 42 U.S.C. § 1997e(d)(3) (“No award of
attorney’s fees . . . 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.”).

3

The Court notes that attorneys often reduce the fee award sought by 10 to 20% to close the
gap between actual hours and billable hours. See, e.g ., Deasy v. Optimal Home Care, Inc., No.
4

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counsel should determine what subset of the actual hours spent on a case were
reasonably expended in the litigation and is, therefore, billable:
Compiling raw totals spent, however, does not complete the inquiry. It does
not follow that the amount of time actually expended is the amount of time
reasonably expended. In the private sector, ‘billing judgment’ is an important
component in fee setting. It is no less important here. Hours that are not
properly billed to one's client also are not properly billed to one's adversary
pursuant to statutory authority.
Copeland v. Marshall, 641 F.2d at 891 (emphasis in original). Although Plaintiff’s
counsel claims to have exercised billing judgment by not seeking reimbursement for
additional paralegal time, counsel seeks to recover fees for all time spent by Attorneys
Homiak and Scarpato on this case. The Court rejects counsel’s position that the actual
hours spent on this case were all reasonably expended in the litigation. Ramos, 713
F.2d at 553 (noting courts “must determine not just the actual hours expended by
counsel, but which of those hours were reasonably expended in the litigation”).
From review of the fee application, it is clear to the Court that Plaintiff’s counsel
has not carried its burden to “make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at
434 (emphasis added). For example, the fee application seeks reimbursement for
administrative or clerical work performed by Attorney Scarpato and Ms. Apodaca.
Plaintiff conceded in his reply that $4,050 should be deducted from the fee award for

17-CV-00287-MSK-CBS, 2019 WL 2521676, at *3 (D. Colo. June 19, 2019), appeal
dismissed, No. 19-1258, 2019 WL 7596276 (10th Cir. Aug. 22, 2019) (noting the party moving
for attorneys’ fees reduced their billings by 20% to account for any unnecessary overlap or
excess). Such a reduction was not made by Plaintiff’s counsel in this case.
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clerical work performed by Ms. Apodaca, and the Court agrees. 5 Further, Plaintiff billed
all transportation time at full cost. 6 The Court finds that the vast majority of Plaintiff’s
travel time was improperly billed at full rate and should have been billed at half rate. See
Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990) (recognizing compensability of
productive travel time and trial court discretion to apply a reduced hourly rate to travel
time that is otherwise unproductive).
Lastly, to the extent Plaintiff argues that his attorneys took longer to complete
tasks because they are inexperienced litigators, the Court finds that billing Defendants
(and Mr. Mackey, pursuant to the PLRA)7 for the entirety of counsel’s learning curve is
inappropriate. Plaintiff’s counsel is billing at the maximum rate allowable under the
PLRA. Therefore, attorneys with decades of trial experience would bill at the same rate
for far fewer hours of work. The Court finds that the additional length of time Plaintiff’s
counsel required to complete tasks due to inexperience should be absorbed into their

5

(Doc. # 306 at 9–10.) A reduction of $4,050 yields a fee request of $118,611.80.

Even if the Court accepts counsel’s representation that the round-trip travel of Attorneys
Homiak and Scarpato to the depositions of Defendant Watson and Christopher Wood was
productively spent discussing “trial preparation, trial strategy, and discovery strategy” and
should be billed at full rate, this only accounts for 12 total hours of travel time billed. The same
representation has not been made as to the remaining almost 50 hours of travel time billed
between Attorneys Homiak and Scarpato at full billing rate. See, e.g., (Doc. # 285-7 at 5–7)
(“Travel to Fremont Correctional Facility and gain clearance to facility” on 5/14/2019 – 3.5 hours,
“Return travel from Fremont Correctional Facility” on 5/14/2019 – 2.1 hours, “Travel to Fremont
Correctional Facility for client visit” on 5/28/2019 – 2.3 hours, “Return travel from Fremont
Correctional Facility” on 5/28/2019 – 2.3 hours, “Travel to Pueblo for Ms. S. Prieto's deposition”
on 6/26/2019 – 2.9 hours, “Travel from Pueblo deposition location back to Denver” on 6/26/2019
– 1.6 hours).
6

As discussed in more detail below, the PLRA requires Mr. Mackey to contribute 25% of his
judgment to Plaintiff’s attorneys’ fees.

7

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law firm’s overhead and not billed to their adversary. Cf. Ramos, 713 F.2d at 554 (“time
spent reading background cases, civil rights reporters, and other materials designed to
familiarize the attorney with this area of the law . . . would be absorbed in a private firm's
general overhead and . . . would not [be billed to] a client.”).
Overall, “because there are so many billing entries that would require minute
adjustments, a wholesale reduction in the fees claimed by Mr. [Mackey] is a more
efficient and effective way to capture the amount of time unreasonably billed to due
overlap or excess.” Deasy v. Optimal Home Care, Inc., No. 17-CV-00287-MSK-CBS,
2019 WL 2521676, at *3 (D. Colo. June 19, 2019), appeal dismissed, No. 19-1258,
2019 WL 7596276 (10th Cir. Aug. 22, 2019). The Court finds that a 15% reduction in the
fee application would address the deficiencies identified and make the hours sought
reasonable. 8 Accordingly, Plaintiff’s fee request is reduced from $118,611.80 to
$100,820.03.
Defendants argue that vague time entries and block billing each warrant 10%
reduction in attorneys’ fees but neglect to identify any time entries that are vague or
block billed. Although courts are obligated to exclude hours not reasonably expended
The Court will not address the individual hours spent on each litigation task by Attorneys
Scarpato and Homiak in recognition that they obtained excellent results for their client at trial
and those results flowed from counsel’s preparation. See, e.g., Farrar v. Hobby, 506 U.S. 103,
114 (1992) (citations omitted) (noting “‘the most critical factor’ in determining the
reasonableness of a fee award ‘is the degree of success obtained.’”); Santacruz v. Standley &
Assocs., LLC, No. 10-CV-00623-CMA-CBS, 2011 WL 3366428, at *1 (D. Colo. Aug. 4, 2011)
(“The Court also takes into consideration plaintiff’s high degree of success in this case, which
underscores the reasonableness of plaintiff’s counsel’s time expended on jury instructions.”);
Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By and large, the court
should defer to the winning lawyer’s professional judgment as to how much time he was
required to spend on the case; after all, he won, and might not have, had he been more of a
slacker.”).
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from the fee award, courts need not “identify and justify every hour allowed or
disallowed, as doing so would run counter to the Supreme Court's warning that a
‘request for attorney's fees should not result in a second major litigation.’” Malloy, 73
F.3d at 1018 (quoting Hensley, 461 U.S. at 437); see Fox v. Vice, 563 U.S. 826, 838
(2011) (“The essential goal in shifting fees . . . is to do rough justice, not to achieve
auditing perfection.”). The Court concludes that a 15% reduction in the fee award is
sufficient to make the hours sought reasonable.
b.

Prison Litigation Reform Act

The PLRA limits the recovery of Plaintiff’s counsel to 150% of the judgment and
requires that 25% of the judgment obtained by Plaintiff be allocated toward the fee
award. 42 U.S.C. § 1997e(d)(2); 9 see Murphy v. Smith, 138 S. Ct. 784, 790 (2018) (“In
cases governed by § 1997e(d), we hold that district courts must apply as much of the
judgment as necessary, up to 25%, to satisfy an award of attorney’s fees.”); Poore v.
Glanz, No. 11-CV-797-JED-PJC, 2019 WL 1425884, at *7 (N.D. Okla. Mar. 30,
2019), aff'd, 791 F. App'x 780 (10th Cir. 2020) (“Under Murphy, 25% of the judgment . . .
must be applied pursuant to § 1997e(d) to satisfy fees, and the defendants are liable
only for the remainder . . . of the total capped fees.”).
As the Court has upheld Mr. Mackey’s judgment of $180,002.00, the fee award of
$100,820.03 falls below the cap set by the PLRA. Pursuant to the Supreme Court’s

42 U.S.C. § 1997e(d)(2) provides that: “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.”

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interpretation of § 1997e(d) in Murphy, Plaintiff shall contribute 25% of his judgment—
$45,000.50—to satisfy the fee award. Defendants shall pay the remaining $55,819.53 of
the fee award.
III.

CONCLUSION

For the foregoing reasons, it is ORDERED as follows:
•

Defendants’ Motion for Remittitur or, in the Alternative, for New Trial on
Punitive Damages (Doc. # 286) is DENIED;

•

Defendants’ Motion for Extension of Stay of Execution of Judgment
Pending Resolution of their Motion for Remittitur and Any Appeal (Doc. #
287) is DENIED; and

•

Plaintiff Waldo Mackey’s Partially Opposed Motion for Attorney Fees
(Doc. # 285) is GRANTED IN PART and DENIED IN PART as follows:
o the Motion is granted as to a fee award of $100,820.03;
o 25% of Plaintiff’s judgment funds ($45,000.50) shall be
contributed to satisfy the fee award;
o the remaining $55,819.53 of the fee award shall be paid by
Defendants, for which Defendants are jointly and severally liable;
o the Motion is denied to the extent it requests a greater fee award.

DATED: August 14, 2020
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge
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