Jones v. Olson et al

Filing 81

OPINION (See Written Opinion): Defendants' motion for judgment as a matter of law or for a new trial is denied 72 . Plaintiff's motion for Attorney Fees is granted in part and denied in part 66 . Plaintiff is awarded attorney fees in the amount of $38,813.75. Plaintiff's bill of costs in the amount of $330.20 is allowed. The clerk is directed to amend the judgment to reflect the award of attorney fees and costs. Entered by Judge Sue E. Myerscough on 3/17/2016. (VM, ilcd)

E-FILED

Thursday, 17 March, 2016 11:00:54 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BRIAN JONES,
Plaintiff,
v.
MICHELE OLSON, et al.
Defendants.

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No. 14-CV-3068

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
A three-day jury trial was held in this case starting on July 14,
2015, on seven claims arising from incidents which occurred in
2007 and 2008 during Plaintiff’s incarceration in the Western
Illinois Correctional Center. Four of the claims arose from the same
facts: the refusal to allow Plaintiff to use a bathroom near the
library due to Plaintiff’s medical condition (the “bathroom claims”).
The other three claims were unrelated to the bathroom claim or to
each other. 1

1 The claims in this case were severed from Plaintiff’s original case, 08-cv-3199. Case 08-cv3199 was transferred to this Court in September of 2011, with 40 defendants and at the
summary judgment stage. After ruling on two rounds of summary judgment motions, the
Court determined that the remaining claims would be most efficiently tried in one case, even
though some of the claims were unrelated, instead of conducting multiple trials. The claims

Page 1 of 25

The jury awarded $1.00 in compensatory damages to Plaintiff
on a retaliation claim against Defendant Annette Cowick. On the
bathroom claims the jury found against Defendants Skiles (Eighth
Amendment claim), Hamilton (Eighth Amendment claim), and the
IDOC (Rehabilitation Act claim), awarding $101 in total
compensatory damages, $1.00 in punitive damages against
Defendant Skiles, and $50.00 in punitive damages against
Defendant Hamilton. (Jury Verdict, d/e 62.) The jury found in
favor of Defendant Olson on the bathroom claim, in favor of
Defendant Jennings on a retaliation claim, and in favor of
Defendant Pritchard on an excessive force claim.
Before the Court are the post-trial motions. For the reasons
below, Defendants’ motion for judgment as a matter of law or a new
trial will be denied. Plaintiff’s counsel will be awarded attorney fees
of $38,813.75.
I.

Judgment as a Matter of Law/New Trial
A motion for judgment as a matter of law under Federal Rule

of Civil Procedure 50(b) requires the Court to determine “whether a
highly charitable assessment of the evidence supports the jury's
against the IDOC defendants were severed into this case for trial. The claims against the
medical defendants remained in case 08-cv-3199 and ultimately settled.

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verdict or if, instead, the jury was irrational to reach its
conclusion.” May v. Chrysler Group, LLC, 716 F.3d 963, 971 (7th
Cir. 2013). All reasonable evidentiary inferences are drawn in
Plaintiff’s favor, and Defendant’s evidence, if sufficiently refuted by
Plaintiff, is disregarded. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 151 (2000)(“[T]he court should give credence to
the evidence favoring the nonmovant as well as that ‘evidence
supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’”). The Court may not make credibility
determinations or weigh the relative strength of the evidence. Id.
As for Defendants alternative request for a new trial, “‘[a] new trial
is appropriate if the jury's verdict is against the manifest weight of
the evidence or if the trial was in some way unfair to the moving
party.’” Glickenhaus & Co. v. Household Intern., Inc., 787 F.3d
408, 413 (7th Cir. 2015)(quoting Venson v. Altamirano, 749 F.3d
641, 646 (7th Cir. 2014).
A. Retaliation Claim Against Defendant Annette Cowick
Defendant Cowick wrote Plaintiff a disciplinary report on
March 28, 2007 accusing Plaintiff of using intimidating or
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threatening language in a grievance. Cowick’s report stated that
Cowick had “received a request from . . . [Plaintiff] threatening legal
action against . . . [Cowick] and this facility if his requests were not
adhered to in a timely manner. Offender also, in offender’s
greivances [sic], makes similar threatening statements toward staff
member and administration.” (Pl.’s Trial Ex. 8.) The actual
grievance that Plaintiff had filed against Defendant Cowick which
sparked Cowick’s disciplinary report could not be located by
Defendants so is not in the record. Defendant Cowick testified that
she could not recall exactly what statements Plaintiff had made in
his grievance which she thought were threatening, but that, from
her disciplinary report, she surmised that Plaintiff must have
threatened to sue her, which made her fear for her job. However,
Plaintiff testified that his grievance had not contained any
intimidating or threatening language. According to Plaintiff, the
grievance was about Defendant Cowick’s failure to respond to
Plaintiff’s various grievances and Plaintiff’s need to receive a
response so that he could exhaust his administrative remedies if he
needed to file a lawsuit.

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Because of Cowick’s disciplinary report, Plaintiff was placed in
segregation until his disciplinary hearing three days later, when the
charges were expunged. Cowick testified that she had nothing to do
with Plaintiff being placed in segregation, but a jury could have
reasonably concluded that Cowick would have known that her
disciplinary report would trigger Plaintiff’s segregation because that
was standard procedure on a serious charge such as the charge
made by Cowick.
To sustain the verdict against Defendant Cowick, the evidence
at trial, viewed in Plaintiff’s favor, must have allowed a plausible
inference that “(1) [Plaintiff] engaged in activity protected by the
First Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the First
Amendment activity was ‘at least a motivating factor’ in [Defendant
Cowick’s] decision to take the retaliatory action.” Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012)(quoted cite omitted, bracketed
language added). Plaintiff must have also presented evidence to
rebut Defendant Cowick’s testimony that she wrote the disciplinary
report because she sincerely felt intimated or threatened. Mays v.
Springborn, 719 F.3d 631, 633 (7th Cir. 2013)(If plaintiff makes
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prima facie case, Defendants must show that the adverse action
would have occurred anyway); Thayer v. Chiczewski, 705 F.3d 237,
250-51 (7th Cir. 2012)(If Defendants have evidence that the adverse
action was taken for a legitimate reason, then the plaintiff must
show that Defendants’ proffered reason is pretextual, that is, a lie.).
Based on Plaintiff’s testimony, a reasonable juror could have
concluded that Plaintiff’s grievance was not intimidating or
threatening, particularly since Plaintiff had followed the proper
procedure for reporting a problem with staff. A reasonable juror
could have also concluded that Cowick wrote the report to retaliate
against Plaintiff for his grievance. Cowick does not argue otherwise.
Defendant Cowick challenges only whether Plaintiff suffered
an action adverse enough to deter a person of ordinary firmness
from exercising First Amendment rights. She cites Bridges v.
Gilbert, 557 F.3d 541, 555 (7th Cir. 2009), which held that “a single
retaliatory disciplinary charge that is later dismissed is insufficient
to serve as the basis of a § 1983 action.” However, the only injury
the plaintiff in Bridges had was the false accusation. In this case,
Plaintiff suffered segregation in addition to the false accusation.
Segregation is not a de minimis injury, and Ms. Cowick does not
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argue otherwise. If the Court accepted Ms. Cowick’s argument,
prison employees, with impunity, could engineer an inmate’s
segregation in retaliation for that inmate’s grievances by writing a
baseless disciplinary report. That is not what Bridges holds or
allows. Defendant Cowick’s qualified immunity argument is based
on the same overly broad reading of Bridges and so is also rejected.
B.
Bathroom Claims Against Defendants Skiles and
Hamilton
According to the testimony at trial, the law library at Western
Illinois Correctional Center is located on the second floor of the
“academic building,” which also has classrooms. There is a
bathroom in that hallway that inmates are permitted to use,
according to testimony from Ruiz, a Major at Western at the
relevant time and the Assistant Warden when she testified. She
testified that she believed that Plaintiff should have been able to use
the bathroom with a bathroom pass and that she would have been
(or should have been) notified if a rule had been implemented
prohibiting inmates from using the bathroom.
Defendant Hamilton offered testimony contradictory to Ruiz’s
testimony. Hamilton testified that he had talked with the Warden
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about not allowing inmates to use the bathroom because of fighting
that had occurred in the bathroom. He also testified that he told
Plaintiff that Plaintiff needed to produce a doctor’s note if Plaintiff
had a condition that required access to the bathroom. Neither
Skiles nor Hamilton remembered Plaintiff soiling himself.
Plaintiff testified that he has a medical condition that causes a
frequent and urgent need to void his bladder or bowels. The need
comes on without warning, is extremely urgent, and very painful if
he tries to “hold it in.” He testified that he goes to the bathroom 2025 times a day, and two or three of those times are bowel
movements. He said that if he tries to hold a bowel movement in,
he experiences blood in his stool and extreme pain. What causes
this condition is not in the record, but Plaintiff suspected that it
had something to do with three operations he had. Defendants
concede that sufficient evidence was presented that Plaintiff’s need
was serious and that his need qualified as a disability under the
Rehabilitation Act. (Defs.’ Mot. JMOL, d/e 73, p. 6.)
Plaintiff testified at trial that, on May 3, 2007, he was using
the library when he had an urgent need to use the bathroom. He
asked the librarian, Defendant Olson, for a bathroom pass, but Ms.
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Olson refused to allow him to use the hall bathroom, based on her
understanding of a new policy which prohibited inmates in the law
library from using the bathroom. Before this, Plaintiff and other
inmates attending the library had been able to use the bathroom by
obtaining a bathroom pass from Ms. Olson. Plaintiff testified that
he began questioning Ms. Olson about the policy which brought
Defendant Skiles into the library. Plaintiff reiterated his medical
condition, asking Skiles to call the medical unit to confirm Plaintiff’s
need for immediate access to a toilet. According to Plaintiff,
Defendant Skiles did not call medical and told Plaintiff that inmates
in the library were no longer allowed to use the bathroom. Plaintiff
asked Skiles if Plaintiff could go back to his cell, but Skiles refused.
Plaintiff testified that his only option was to retreat to the back of
the library, where he tried to hold in his bowels but could not. He
soiled himself and then had to wait until the whole inmate line went
back to the housing unit before he could return to his cell. Others
laughed at Plaintiff’s predicament.
Plaintiff filed a grievance about this incident explaining his
medical condition and asking that he be allowed to use the
bathroom near the law library. The grievance was denied on the
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grounds that “due to safety and security of the institution, offenders
are not allowed to use the restroom while at the library. Offenders
are encouraged to use the restroom prior to going to the library.”
(Pl.’s Ex. 8). A similar incident occurred on July 19, 2007, when
Defendant Hamilton worked security outside the library, but
Plaintiff only urinated on himself a little before he was able to go
back to his cell with the inmate line. These were not the only two
times Plaintiff had difficulties; they were just two of the times for
which Defendants had a record of grievances. Plaintiff testified that
throughout the relevant time he wrote letters to the Warden and
repeatedly asked during his library time to use the bathroom.
Plaintiff explained that he did not ask for a medical permit to use
the bathroom because he did not think a medical permit could
override a security rule.
Defendants Skiles and Hamilton argue that the only evidence
they had of any knowledge of Plaintiff’s medical condition was
Plaintiff’s own testimony. That is enough to sustain the verdict.
Plaintiff had personal knowledge and experience of his pain, his
need for urgent access to the toilet, and what could happen without
that access. He told Skiles and Hamilton all of this and asked them
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to confirm with the medical unit. A layperson does not need
medical training to know that an urgent need to use the bathroom
or risk soiling oneself and suffering severe pain is a serious need. A
reasonable juror could have found that Defendants Skiles and
Hamilton failed to respond reasonably, instead enforcing their rule
without exception or justification. No evidence was presented that
Plaintiff had ever caused any problem using the bathroom in the
past, and Plaintiff could have been allowed into the bathroom by
himself if Defendants were concerned about fighting. A reasonable
juror could have found that Skiles and Hamilton instituted, for no
particularly good reason, an absolute rule prohibiting library
inmates from using the bathroom even though they knew that
Plaintiff’s condition required Plaintiff to have access to that
bathroom.
Defendants also argue that deliberate indifference cannot be
inferred because they told Plaintiff to obtain a doctor’s note verifying
his condition. However, accepting Plaintiff’s testimony and the
response to his grievance in which he set forth his medical
condition and asked for an exception, a reasonable juror could
conclude that Plaintiff was told that no exceptions would be made
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regardless of Plaintiff’s medical condition. The grievance response
mentioned nothing about Plaintiff obtaining a doctor’s note. The
response only advised Plaintiff that the rule was for security
reasons and that Plaintiff should use the bathroom on his housing
unit before attending the library.
Defendants Skiles and Hamilton also argue that Plaintiff was
allowed to go back to his cell within 10 minutes after asking, but
that directly contradicts Plaintiff’s testimony that he was not
allowed back to go back to his cell until the entire line of inmates
returned to the housing unit from the library.
In short, sufficient evidence was presented to support a
finding of deliberate indifference against Defendants Skiles and
Hamilton. The qualified immunity argument by Defendants Skiles
and Hamilton relies on cases which did not involve an inmate with
a medical condition requiring urgent access to a toilet to avoid
severe pain and soiling himself. The qualified immunity argument
also depends on disregarding Plaintiff’s testimony. The jury could
have reasonably believed that Defendants Skiles and Hamilton
simply did not care what kind of pain Plaintiff was in or whether he

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soiled himself, even though allowing Plaintiff to use the bathroom
would have been a simple and feasible solution.
C. Rehabilitation Act
Plaintiff’s Rehabilitation Act claim required him to prove that
the IDOC “denied him access to a program or activity because of his
disability.” Wagoner v. Lemmon, 778 F.3d 586, 591 (7th Cir.
2015)(quoting Jaros v. IDOC, 684 F.3d 667, 672 (7th Cir. 2012).
“Refusing to make reasonable accommodations is tantamount to
denying access; although the Rehabilitation Act does not expressly
require accommodation, ‘the Supreme Court has located a duty to
accommodate in the statute generally.’” Id.
Defendants argue that Plaintiff was not denied access to the
library because, if Plaintiff at times was forced to leave the library
due to his condition, he could have requested to visit the library
again. This disregards Plaintiff’s testimony that, as a general rule,
once in the library he had to stay there with no access to a
bathroom until the entire line of inmates returned to the unit.
Further, crediting Plaintiff’s testimony, each time he visited the
library he risked severe pain or possibly soiling himself.
Defendants have already conceded that Plaintiff was disabled under
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the Rehabilitation Act, which means that Plaintiff was entitled to a
reasonable accommodation to allow him to use the library. A
rational juror could have found that telling Plaintiff to come back to
the library another time was not a reasonable accommodation.
Defendants reiterate their argument that Plaintiff would have
been allowed to use the bathroom if he had a doctor’s note, but the
evidence discussed above allowed a contrary inference: no
exceptions would be made regardless of Plaintiff’s disability.
Defendants also argue that Plaintiff was frequently allowed to
attend the library without issue despite his disability, but that
ignores his testimony that he needed to go to the bathroom urgently
20-25 times a day, and, if he did not, that he suffered severe pain.
A jury could conclude that this kind of suffering effectively deprived
Plaintiff of access to the library because, even though he was
physically present in the library, he was unable to concentrate on
actually using the library resources.
D. Jury Instruction on Rehabilitation Act Claim
Relevant to Defendants’ motion, the Court’s elements
instruction on the Rehabilitation Act claim required Plaintiff to
prove that he was denied access to the prison library “on the same
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basis as other inmates” and that the Defendants “deliberately
refused to reasonably accommodate Plaintiff’s disability, knowing
that the refusal would deny Plaintiff access to the prison library on
the same basis as other inmates,” and that Plaintiff was in fact
denied “use of the prison library on the same basis as other
inmates.” (d/e 59, pp. 34-35.)
Defendants object to the “on the same basis as other inmates”
language. Plaintiff argues that Defendants have waived this
objection, but the language of this instruction was discussed at the
jury instruction conference on July 1, 2015, with defense counsel
proffering an alternate instruction which used the term “unable to
participate” in an IDOC program and without the “same basis”
language. The Court has listened to the recording from that
conference, and defense counsel did arguably state that the
instruction should include language on Plaintiff’s ability to
participate in the program. The Court concludes that Defendants
have not waived their challenge to the “same basis” language.
However, the Court rejects Defendants’ argument on the
merits because the “same basis as other inmates” phrase is a
correct statement of the law. This language was used in Jaros,
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when the Seventh Circuit held that an inmate stated a
Rehabilitation Act claim because he alleged that prison officials’
failure “to accommodate . . . [his] disability kept him from accessing
meals and showers on the same basis as other inmates.” Jaros at
672. Further, the regulations to the Americans with Disabilities Act
and the Rehabilitation Act prohibit the provision of a service to a
qualified individual with a disability “that is not equal to that
afforded others.” 28 C.F.R. 35.130(ii)(emphasis added); 29 C.F.R.
32.4(b)(ii)-(iii); Jaros at 671-72 (ADA and RA claims are analyzed
the same). The “same basis” language in the Court’s instruction
captures that idea of equality in the provision of services. In
contrast, Defendants’ instruction implied that if Plaintiff was able to
“participate” in the library at all, then his claim failed, even if he
could not participate like other nondisabled inmates. Under
Defendants’ instruction, the fact that Plaintiff was allowed to be
physically present in the library would arguably have defeated
Plaintiff’s claim, regardless of Plaintiff’s ability to actually read or
research because of his urgent need to urinate or defecate.
The Seventh Circuit cases cited by Defendants did not hold
that a Rehabilitation Act claim requires complete denial or severely
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limited access to services. In Love v. Westville Correctional Center,
103 F.3d 558 (7th Cir. 1996), the inmate’s access was in fact
severely limited, so the question of whether inmate had “meaningful
access” was not an issue. Wagoner v. Lemmon, 778 F.3d 586, 593
(7th Cir. 2015), did not involve the denial of services because the
only claims which were not procedurally defaulted were about an
improperly equipped van used to transport the inmate to a medical
appointment and the inmate’s temporarily broken wheelchair. 778
F.3d at 591, 592. In Wagoner, the inmate “[did] not allege, for
example, that the failure to provide him with an adequate
wheelchair backrest or a wheelchair-ready van (however
inappropriate those failings might otherwise have been) denied him
access to any services or programs.” 778 F.3d at 593.
Defendants’ argument that the instruction should have
required Plaintiff to prove that he was denied “meaningful access” is
a new argument. Defendants did not offer an instruction with
anything close to that language, nor did they make the argument in
any pleading in the record, nor does the Court recall them making
the argument orally, though the Court has not listened to all the
recordings. However, the Court will address the argument anyway.
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See Davis v. Wessel, 792 F.3d 793, 802 (7th Cir. 2015)(argument for
some kind of mens rea preserved argument for any kind of mens
rea regardless of proposed alternate instruction).
The “meaningful access” language in the cases cited by
Defendants deal with how to determine whether an accommodation
is reasonable. A reasonable accommodation is one that allows for
meaningful access. The Court has no quarrel with that concept,
which was already encompassed in the instructions. The
instructions explained that Plaintiff claimed that Defendants failed
to reasonably accommodate Plaintiff’s disability, which resulted in
Plaintiff’s inability to use the library on the same basis as other
inmates. Reasonable accommodation was defined as including
changes that were reasonably within the facility’s capability and not
unduly burdensome. (d/e 59,pp. 32-35). This definition did not
imply that Defendants had to give Plaintiff any accommodation he
requested, as Defendants now argue.
II.

Plaintiff’s Motion for Attorney Fees
42 U.S.C. § 1988(b) allows the Court "in its discretion" to allow

"the prevailing party, . . . a reasonable attorney's fee as part of the
costs . . . ." in certain actions, including actions under 42 U.S.C. §
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1983 like this one. However, in § 1983 actions filed by prisoners, a
cap on attorney’s fees is set at 150% of the jury award. 42 U.S.C. §
1997e(d)(1). Defendants do not dispute, though, that Plaintiff’s
Rehabilitation Act claim is not subject to this limit. See 29 U.S.C. §
794a(b); 42 U.S.C. 1997e(d)(1). The Court agrees with Plaintiff that
the legal work on the Eighth Amendment claims and the
Rehabilitation Act claim are inseparable, since those claims were all
different theories of recovery based on the same facts.
Defendants argue that no attorney fees are warranted because
Plaintiff’s win was insignificant, citing Farrar v. Hobby, 506 U.S.
103 (1992). In Farrar, the Supreme Court recognized that a civil
rights plaintiff who wins any amount of damages, even nominal
damages of $1.00, is a prevailing party for purposes of 42 U.S.C. §
1988. 506 U.S. at 112. However, the Court explained further that
the "'degree of success'" factors largely into determining what is a
reasonable attorney fee. Id. (quoted cite omitted). The Farrar Court
upheld the lower court's denial of an attorney fee award, even
though the plaintiff had prevailed on his claim against one
defendant. The Court remarked, "[i]n some circumstances, even a
plaintiff who formally 'prevails' under § 1988 should receive no
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attorney's fees at all. A plaintiff who seeks compensatory damages
but receives no more than nominal damages is often such a
prevailing party." 506 U.S. at 115. The Seventh Circuit has
similarly upheld the denial of a fee award where the recovery was
minimal compared to the amount sought:
[The] three factors, articulated in Justice O'Connor's
concurrence [in Farrar], are the difference between
amounts sought and recovered, the significance of the
legal issue on which the plaintiff prevailed compared to
those litigated, and public goal achieved. See Farrar, 506
U.S. at 121–22; Simpson, 104 F.3d at 1001. Of these
three factors, the sum-awarded-versus-requested (which
is also part of the threshold inquiry into whether to apply
Farrar) is the most important.
Aponte v. City of Chicago, 728 F.3d 724, 729 (7th Cir.
2013)(affirming denial of a fee award where, on the plaintiff’s one
successful claim, the plaintiff asked for $25,000 in compensatory
damages and was awarded $100 (.4 %)(bracketed language added)).
“[I]n determining whether an award should be analyzed under
Farrar, district courts should look at the entire litigation history,
including the number of victorious versus unsuccessful claims, the
amount of damages sought versus recovered, time expended by the
parties, and judicial resources.” 728 F.3d at 728.

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Applying this standard, the Court concludes that an award of
attorney fees is warranted despite the fact that the jury awarded
only $152.00. Plaintiff’s second amended complaint sought
$10,000 on the Rehabilitation Act claim, but Plaintiff did ask the
jury for much less in his closing argument, admitting that his case
was not a big dollar case. Plaintiff asked the jury for only $5001,000 on his bathroom claims, of which his award represents 15%
to 30%, depending on which figure is used. In Farrar, the plaintiff
had asked for 17 million dollars and was awarded $1.00, an
enormous disparity not present here, and the district court in
Farrar had awarded $280,000 in attorney fees.
Defendants point out that Plaintiff did not lower his damage
request until closing arguments in the jury trial, and Plaintiff does
not dispute Defendants’ assertion that Plaintiff’s settlement offer
before trial on the bathroom claims was $9,500. However, a $9,500
settlement offer is not such an unreasonable request like the $17
million sought in Farrar.
The rights Plaintiff vindicated, though personal to him, are
also important rights for the humane treatment of prisoners, and
therefore have broader significance and public value. An inmate’s
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exercise of his right to file a grievance or a lawsuit alerts authorities
of a possible problem. Prison administrators and the Courts cannot
act as checks on the abuse of power if inmates fear segregation for
filing a grievance or complaint. As for Plaintiff’s Eighth Amendment
and Rehabilitation Act claims, those claims were about the basic
dignity of a human being. Though Defendants argue that Plaintiff
effected no change in policy, the Court wonders whether the library
bathroom rule Plaintiff challenged is still in place. See Hyde v.
Small, 123 F.3d 583, 595 (7th Cir. 1997)(if fees were not awarded
because the verdict was small and the case broke no new ground,
then unconstitutional conduct would be, "as a practical matter,
beyond the reach of the law."). Additionally, Plaintiff’s counsel
makes a valid point that some of his fees might have been avoided if
Defendants had been more cooperative in discovery. (Pl.’s Pet. Fees,
d/e 66, pp. 4-6.)
The fact that Plaintiff lost on the claims unrelated to the
claims he won should not be held against counsel. This Court
made the decision to saddle pro bono counsel with all of Plaintiff’s
unrelated claims and ordered that those claims be tried at the same
time. If the Court had severed the bathroom claim and retaliation
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claim against Cowick into a separate trials, Plaintiff would have won
both cases. And, while the request-versus-award factor is
important, court-appointed pro bono counsel, as a practical matter,
does not have the luxury of withdrawing if a client refuses to revise
unreasonable expectations. Recruiting pro bono counsel on a civil
case like this is difficult. Failing to reasonable compensate pro
bono counsel for the rare win will make that recruitment even more
difficult.
Accordingly, the Court rejects Defendants’ argument that no
fees are warranted, and the Court will use the lodestar approach.
Defendants agree that the $250 hourly rate of Plaintiff’s counsel is
reasonable. Defendant also agree that 108.3 hours of attorney
work on Plaintiff’s successful claims is reasonable, which amounts
to $27,050. (d/e 77, pp. 6, 8.) Defendants object to the other
156.75 hours claimed.
The Court has reviewed and agrees with some of Defendants’
objections. However, the Court concludes that counsel’s work
before official appointment to the case is compensable (2 hours),
that at least half of the attorney time spent amending the complaint
is compensable (7 hours), and two-thirds of the attorney time spent
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in July, through the trial, was attributable to the successful claims
(39.8 hours). Much of the trial testimony focused on the bathroom
claims and the retaliation claim against Cowick, which were the
strongest claims in the Court’s opinion. The Court agrees with
Plaintiff that paralegal time of $813.75 was reasonable and
necessary. The Court also concludes that $1,000 of fees were
reasonably and necessarily incurred in preparing and filing the fee
petition. The Court agrees with Defendants that the expenses
sought as fees under 42 U.S.C. § 1988 are subject to the 150%
attorney fee cap in 42 U.S.C. §1997e(d)(1), which is already
subsumed in the lodestar calculation.
Taking the above into account, the total attorney fees awarded
are $38,813.75. This represents $27,050 which Defendants agree
is reasonable (if Farrar does not apply), plus $9,950 (2/3 of the
objected time spent in July through trial), plus $813.75 (paralegal),
plus $1,000 (fee petition).
No portion of the judgment shall be applied to satisfy this
award because that requirement applies only to fees awarded under
42 U.S.C. § 1988. 42 U.S.C. § 1997e(d)(2). Here, the statutory

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authorization to award more than nominal fees comes from the
Rehabilitation Act, 29 U.S.C. § 794a(b).
IT IS ORDERED:
(1)

Defendants’ motion for judgment as a matter of law or

for a new trial is denied (72).
(2)

Plaintiff’s motion for Attorney Fees is granted in part and

denied in part (66). Plaintiff is awarded attorney fees in the amount
of $38,813.75.
(3)

Plaintiff’s bill of costs in the amount of $330.20 is

allowed.
(4)

The clerk is directed to amend the judgment to reflect the

award of attorney fees and costs.
ENTER: March 17, 2016
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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