Mays v. Stobie et al

Filing 250

ORDER ADOPTING REPORT AND RECOMMENDATIONS 247 Report and Recommendations; granting in part and denying in part 218 Motion for Attorney Fees. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
KEVIN E. MAYS
Plaintiff,
Case No. 3:08-CV-552-EJL
vs.
TODD STOBIE, individually and in his
official capacity as police officer, MIKE
RIGNEY, individually and in his official
capacity as police officer, JODY
MUNDELL, individually and in his official
capacity as police officer, DONALD
BLAIR, individually and in his official
capacity as a sergeant of the Nez Perce
County Sheriff’s Department, JOHN
HILDERBRAND, individually and in his
official capacity as a sergeant of the Nez
Perce County Sheriff’s Department, JOE
RODRIGUEZ, individually and in his
official capacity as a deputy of the Nez Perce
County Sheriff’s Department, DUSTIN
HIBBARD, individually and in his official
capacity as deputy of the Nez Perce County
Sheriff’s Department, John Does(s) I-V,
individually and in their official capacity as
agents, officials, and/or employees of City of
Lewiston Idaho or County of Nez Perce,
Idaho, COUNTY OF NEZ PERCE, IDAHO,
a political subdivision of the State of Idaho,
CITY OF LEWISTON, IDAHO, a
municipality incorporated in the State of
Idaho.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION- 1

On February 14, 2012, Chief United States Magistrate Judge Candy W. Dale
issued a Report and Recommendation (Docket No. 247) in this matter. Pursuant to 28
U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the
Report and Recommendation. Plaintiff filed an objection on March 2, 2012 (Dkt. 248)
and Defendant Donald Blair filed a response to the objection on March 12, 2012. The
matter is now ripe for the Court’s review.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Moreover, this Court “shall make a de novo determination of those portions of the report
which objection is made.” Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39(clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).

ORDER ADOPTING REPORT AND RECOMMENDATION- 2

Judge Dale determined Plaintiff Kevin Mays (“Mays”) was the prevailing party in
his claims against Defendant Blair and recommended awarding $84,791.41 in attorneys
fees and costs to Mays. Mays objects to the magistrate judge’s failure to include in the
award of attorneys fees the attorneys fees incurred defending the related criminal charges
against Mays and the seventy-five percent (75%) reduction based on Plaintiff’s limited
success. The Court will address each of these objections.
FACTUAL BACKGROUND
The Court is very familiar with this case since it ruled on the dispositive pre-trial
motions and conducted the jury trial on Mays’ claim of excessive force by both city and
county law enforcement officers. The Court adopts the factual background set forth in
the Report and Recommendation and incorporates the same by reference.
ANALYSIS
1. Failure to Include Attorneys Fees Incurred for Related Criminal Charges
Plaintiff argues it was error for the magistrate judge not to include the attorneys
fees related to the criminal charges that resulted when Mays was arrested. The Court
respectfully disagrees. The Court finds this request for attorneys fees as damages was
previously rejected by the Court.
While it is possible for the costs of certain related criminal charges to be included
as damages in a § 1983 claim, that is not what occurred in this case. Plaintiff did not
timely disclose his “damages” comprised of attorneys fees to successfully defend the
criminal charges Mays faced as a result of his arrest on December 23, 2006: resisting
arrest and obstruction of justice. See motions in limine filed by Defendants, Dkts. 137
ORDER ADOPTING REPORT AND RECOMMENDATION- 3

and 138. The Court heard oral argument on this motion in limine and allowed Plaintiff to
make an offer of proof as to the alleged damages. The Court orally ruled Plaintiff would
not be allowed to submit such “damages” to the jury on the excessive force claim.
Now, Plaintiff is trying to include the same damages as “attorneys fees” under
§ 1988. When the claim for damages was rejected by this Court, this did not open the
door for Plaintiff to ignore the Court’s prior ruling and re-characterize the damages as
“§ 1988 attorneys fees.” Borunda v. Richmond, 885 F.2d 1384, 1389-90 (9th Cir. 1989)
is controlling on this issue that these criminal defense attorneys fees are compensable
damages, not attorneys fees under § 1988. The Borunda court cited Kerr v City of
Chicago, 424 F.2d 1134, 1141 (7th Cir. 1970) for the specific proposition that a “plaintiff
in a civil rights action is allowed to recover the attorneys’ fees in a state criminal action
where the expenditure is a foreseeable result of the acts of the defendant.” Id. In this
case, the Court determined these economic harm damages were not timely disclosed by
Plaintiff (since such were known before the civil complaint was filed and such were not
provided to defendants until shortly before the start of the trial) and Plaintiff offered the
Court no legal authority for the submission of the damages at the time of trial.
Moreover, Plaintiff did not seek these criminal attorneys fees in his prayer for
relief in his Second Amended Complaint. The Court finds the § 1983 claim of excessive
force did not require that Plaintiff successfully defend the criminal charges received on
the same date as the alleged excessive force occurred and this claim for attorneys fees
was properly denied by Judge Dale.

ORDER ADOPTING REPORT AND RECOMMENDATION- 4

2. Overall Reduction in Requested Attorneys Fees
Plaintiff’s second objection is that the seventy-five percent (75%) recommended
reduction to the already reduced attorneys fees is unwarranted. The Plaintiff originally
sought $1.5 million damages in his initial Complaint. The jury awarded $1,954.27 in
damages and numerous causes of action were dismissed by the Court prior to the
excessive force claim being submitted to the jury. The Court notes that it referred this
motion for attorneys fees to the magistrate judge to allow for an independent review of
the request for fees, because this Court was shocked when it initially reviewed the
Plaintiff’s motion wherein Plaintiff was requesting $439,678.20 in § 1988 attorneys fees
when Plaintiff had only prevailed against one of five individual law enforcement officers,
did not prevail against any of the municipal entities, was only awarded $1,954.27 in
compensable damages and was not awarded any punitive damages by the jury. The Court
has now had the opportunity to review the magistrate judge’s detailed analysis of the
attorneys fees request and finds her calculation of fees and costs under § 1988 to be both
well reasoned as well as proper under the existing case law.

Plaintiffs’ objection

regarding the reductions calculated by Judge Dale shall be denied.
The Court is well aware of its duties in calculating attorneys fees under § 1988.
Hensley v. Eckerhart, 461 U.S. 242 (1983) provides authority for a court to reduce the
lodestar calculations after considering the overall success of the party seeking attorneys
fees. In the absence of “excellent” results, a fully compensatory fee may be excessive
and the court should reduce the lodestar figure to account for the limited success. Id. at
434. “Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award
ORDER ADOPTING REPORT AND RECOMMENDATION- 5

‘is the degree of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citing
Hensley at 436).
In this case, the results achieved by Plaintiff were not excellent. In fact, in this
Court’s judgment the results were achieved were barely above the level of de minimis
success since no other damages than the minimal medical costs were recovered. The jury
rejected Plaintiff’s request during closing arguments for significant punitive damages and
only found excessive force was used by one of the five officers that started the trial.
There was no evidence of a change in departmental policy as a result of this incident like
this Court awarded fees in a nominal damages § 1983 case. See Beier v. City of Lewiston,
Civ. 99-244-N-EJL, Dkt. 163. There simply is no evidence of a non-monetary benefit
that was obtained by Plaintiff or the public due to this case.
“[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case” but that does not provide a
‘a form of economic relief to improve the financial lot of attorneys.’” Perdue v. Kenny A,
___U.S. ___, 130 S.Ct. 1662, 1672 (2010) (citations omitted). The Court agrees with
Plaintiff that the lodestar method yields a fee that is presumptively sufficient to achieve
this objective. Id. at 1673. However, in this particular case, the presumptive fee must be
adjusted as to do otherwise would be encouraging attorneys to take civil rights cases with
insignificant damages in order to recover exorbitant attorneys fees. The fees would
benefit the attorneys, but there would be little benefit to the client who had his or her civil
rights violated.

ORDER ADOPTING REPORT AND RECOMMENDATION- 6

Even Plaintiff’s counsel seems to acknowledge the very limited success achieved
when counsel argues that a more reasonable reduction would be fifty percent (50%) from
the lodestar calculation.
Therefore, in taking into account the results obtained in the action, the Court finds
the recommended seventy five percent reduction is appropriate in this particular case.
The Court concurs in this recommended reduction percentage by weighing the extent
Plaintiff prevailed, the limited damages awarded, the Court’s view the excessive force
claim was not overly complex and the law well-established, the fact that whether or not
excessive force actually occurred in this case was a very close call as indicated by the
testimony of the Plaintiff, officers involved and the experts, the fact this case has not been
shown to have led to changes to the City of Lewiston policies, all other claims against the
other four law enforcement officers were dismissed (one before being submitted to the
jury) and the claims against the municipalities were also dismissed before being
submitted to the jury. The Court has also considered the significance of the legal issues
on which the Plaintiff prevailed and the public purpose the Plaintiff’s litigation served.
Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). Because the jury did
find Plaintiff’s civil rights had in fact been violated by one officer, the legal fees are not
being reduced by more than seventy-five percent.

In sum, Plaintiff’s attorneys are

entitled to a recovery of fees, but such recovery must be very limited when the record in
this matter is fully considered.

ORDER ADOPTING REPORT AND RECOMMENDATION- 7

This Court takes seriously the purpose behind § 1983 actions to protect the civil
rights of our citizens, but the attorneys fees requested are excessive and a reasonable
award based on Plaintiff’s very limited success against Defendant Blair is more than
adequately covered by an award of $84,791.41 in attorneys fees and costs under § 1988.
ORDER
IT IS ORDERED:
1) The Report and Recommendation (Docket No. 11) shall be INCORPORATED
by reference and ADOPTED in its entirety.
2) The Plaintiff’s Petition for Award of Attorneys Fees (Dkt. 218) is GRANTED
IN PART AND DENIED IN PART and that Plaintiff be awarded $84,791.41 in
attorneys fees and costs under 42 U.S.C. § 1988.
3) Other costs submitted in the parties Bills of Costs will be addressed in the
taxation of costs by the Courtroom Deputy.

DATED: March 16, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION- 8