Perry v. Gary Indiana The City of et al
Filing
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OPINION AND ORDER granting 113 MOTION for Attorney Fees and Costs filed by Percy Perry. Plaintiff is awarded $102,629 in attorneys fees and $14,053 in costs. Signed by Judge Joseph S Van Bokkelen on 8/8/11. (kjp)
United States District Court
Northern District of Indiana
Hammond Division
PERCY PERRY,
Plaintiff,
v.
THE CITY OF GARY, INDIANA,
CORPORAL ANTHONY BLOOD,
and OFFICER IRVING GIVENS,
Defendants.
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Civil Action No. 2:08-CV-280 JVB
OPINION AND ORDER
This matter is before the Court on Plaintiff Percy Perry’s Motion for Attorneys’ Fees and
Costs [DE 113], filed on May 13, 2011. Defendants City of Gary, Indiana and Corporal Anthony
Blood responded to the motion on June 10, 2011. Plaintiff replied on June 28, 2011.
Plaintiff filed his Complaint on September 29, 2008, alleging that Defendant Blood, a
member of Gary’s police force, used excessive force against him during an arrest. The action
was brought under 42 U.S.C. § 1983, and Plaintiff alleged that the Defendants violated his
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The case proceeded to trial on
April 11, 2011. Evidence presented at trial established the following facts when viewed in the
light most favorable to Plaintiff: On June 24, 2007, Plaintiff tried to remove a window from an
abandoned building in Gary, Indiana. A concerned citizen called the police, and Defendant
Blood and another officer responded to the call. Plaintiff ran from the officers. Plaintiff fell down
shortly thereafter and gave himself up, but Defendant Blood struck him in the eye with his baton.
The force of the beating knocked Plaintiff unconscious, and when he woke up his face was
bloody and he could not see. Plaintiff was transported to the hospital, and doctors examining him
discovered that his eye was knocked out of its socket. The eye was eventually removed.
The jury returned a verdict in Plaintiff’s favor, awarding $750,000 in compensatory
damages and $100,000 in punitive damages against Defendant Blood. As the prevailing party,
Plaintiff filed his request for attorneys’ fees pursuant to 42 U.S.C. § 1988, requesting $178,125
for 593 hours of work and $15,553 in costs. In their response, Defendants do not dispute that
Plaintiff is entitled to reasonable attorneys’ fees and costs, but they contest Plaintiff’s counsels’
hourly rates, as well as an expense pertaining to the representation of Plaintiff in a criminal
matter. Defendants contend that the prevailing standard for Plaintiff’s counsel’s hourly rates
should be that of civil rights attorneys practicing in Northwest Indiana.
A.
Standard
Title 42 U.S.C. § 1988(b) gives discretion to the court in awarding attorneys’ fees: “In
any action or proceeding to enforce a provision of [42 U.S.C. § 1983] . . . the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.”
The court determines the amount of a reasonable fee by calculating “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate,” also known as the
lodestar. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
An award of attorney’s fees is entrusted to the court’s sound discretion. Mercer v. Espy,
883 F. Supp. 300, 302 (N.D. Ind. 1995). “The party requesting fees has the burden of
substantiating the reasonableness of the hours expended and the hourly rate.” McNabola v.
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Chicago Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993) (citation omitted). Furthermore, an
attorney’s reasonable hourly rate “must be based on the market rate for the attorney’s work.” Id.
at 518. “The market rate is the rate that lawyers of similar ability and experience normally
charge their paying clients for the type of work in question.” Id. at 519. But the Supreme Court
has held that the reasonable hourly rate should be “the prevailing market rate in the relevant
community.” Blum v. Stevenson, 465 U.S. 886, 895 (1984). In its discretion, a court may adjust
an out-of-town attorney’s hourly rate to that of a local attorney:
We think that a judge, in allowing an attorney’s fee . . . , has discretion to
question the reasonableness of an out of town attorney’s billing rate if there is
reason to believe that services of equal quality were readily available at a lower
charge or rate in the area where the services were to be rendered.
Chrapilwy v. Uniroyal, Inc., 670 F.2d 760, 769 (7th Cir. 1982).
B.
Analysis
Defendants object to Plaintiff’s request for attorney’s fees and costs in two respects.
First, Defendants concede that the number of hours Plaintiff’s counsel spent on the litigation are
warranted, but they object to the rate at which Plaintiff’s counsel seeks to be compensated.
Second, Defendants object to a $1,500 charge in Plaintiff’s bill of costs for Andrea Bonds’s
criminal representation of Plaintiff. The Court will address each objection in turn.
1.
Plaintiff’s Counsel’s Billing Rate
In his petition, Plaintiff seeks attorney’s fees of $178,125, calculated as follows: Arthur
Loevy, 19.5 hours at a rate of $470 per hour; Russell Ainsworth, 257.75 hours at a rate of $350
per hour; Elizabeth Wang, 143.75 hours at a rate of $295 per hour; Pier Peterson, 146.25 hours at
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a rate of $230 per hour; and paralegals, 25.75 hours at a rate of $105 per hour. Plaintiffs contend
that an attorney’s “actual billing rate for comparable work is ‘presumptively appropriate’ to use
as the market rate,”People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir.
1996), and a court should not look to other evidence of the prevailing market rate unless “an
attorney is unable to provide evidence of actual billing rates.” Mathur v. Bd. of Trustees of
Southern Ill. Univ., 317 F.3d 738, 743 (7th Cir. 2003). Additionally, Plaintiff provides the court
with citations to a handful of cases in which the courts accepted the hourly rates Plaintiff
requests here, in support of the proposition that “rates awarded in similar cases are clearly
evidence of an attorney’s market rate.” People Who Care, 90 F.3d at 1312. Finally, Plaintiff
argues that the Laffey Matrix, devised by the United States Attorney’s Office for the District of
Columbia to provide an official guideline for what it deems to be reasonable rates in fee-shifting
cases, should guide the Court in determining an appropriate hourly rate.
Defendants contend that Plaintiff’s counsel, whose office is located in Chicago, should
only be permitted to collect fees that are comparable to the rates of a civil rights attorney
practicing in Northwest Indiana. In support of this proposition, Defendants submitted affidavits
from civil rights attorneys practicing in Northwest Indiana who charge hourly rates significantly
lower than Plaintiff’s counsel. The first affidavit cites reasonable hourly rates for a civil rights
attorney practicing in Northwest Indiana with twenty-five or more years of experience from
about $150 to $250, and states that less experienced, associate attorney hourly rates range from
$90 to $125. The second affidavit states that experienced local attorneys handling complex civil
litigation charge around $150 to $180 per hour.
In the present case, the Court must decide the prevailing hourly market rate for a civil
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right’s attorney practicing in Northwest Indiana, the relevant community. While Plaintiff relies
primarily on People Who Care to argue that his counsel’s actual billing rates are presumptively
appropriate, this presumption can be overcome. See Gusman v. Unisys Corp., 986 F.2d 1146,
1150 (7th Cir. 1993) (an attorney’s billing rate is a “presumptive rather than a dispositive
figure”). To the extent that Plaintiff’s counsel’s hourly billing rates reflect a prevailing market
rate, they are indicative of the market rates of Chicago, a major city. The hourly market rates of
civil rights attorneys practicing in Northwest Indiana are significantly lower. Furthermore, the
Court finds the Laffey Matrix to be unpersuasive in this case.
The Court agrees with Defendants that Plaintiff’s counsel’s hourly rates should be
reduced to the market rates of Northwest Indiana, because “services of equal quality were readily
available at a lower charge or rate” in Northwest Indiana. Chrapilwy, 670 F.2d at 769. In its
discretion, and based on its many years of experience with civil rights litigation in Northwest
Indiana, the Court has determined that the following hourly rates are appropriate in this case:
Arthur Loevy, $250 per hour; Russell Ainsworth, $200 per hour; Elizabeth Wang, $150 per hour;
Pier Peterson, $150 per hour; and paralegals, $75 per hour. Therefore, because Defendants do
not object to the amount of hours Plaintiff’s counsel devoted to this case and because the Court
agrees that those hours are reasonable, Plaintiff is awarded $102,629 in attorneys fees.
2.
Plaintiff’s Costs
Additionally, Plaintiff requests compensation in the amount of $1,500 for his
representation in the related criminal charges to this case. Defendants contend that they should
not be charged for this representation because Plaintiff never alleged that he was falsely accused
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of a crime or that his rights were violated by the charges. Therefore, they request that the costs
Plaintiff seeks be reduced by $1,500, from $15,553 to $14,053. Plaintiff agrees that this cost
should be stricken from his request. The Court will so reduce the costs attributable to
Defendants.
C.
Conclusion
For the foregoing reasons, Plaintiff’s Motion for Attorneys Fees and Costs [DE 113] is
GRANTED in part. Plaintiff is awarded $102,629 in attorneys fees and $14,053 in costs.
SO ORDERED on August 8, 2011.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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