Grant, et al v. Gusman, et al

Filing 269

ORDER AND REASONS: The 261 Motion for Attorney's Fees is GRANTED IN PART and DENIED IN PART, as set forth in document. FURTHER ORDERED that Plaintiff Rodney Grant is hereby awarded $103,830.84 in attorney's fees and costs recoverable against OPSO Defendants. Signed by Chief Judge Nannette Jolivette Brown on 1/19/2023. (jls)

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 1 of 39

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RODNEY GRANT

CIVIL ACTION

VERSUS

CASE NO. 17-2797

MARLIN GUSMAN et al.

SECTION: “G”(3)

ORDER AND REASONS
Before the Court is Plaintiff Rodney Grant’s (“Plaintiff”) Motion for Attorney’s Fees. 1 In
the motion, Plaintiff requests that the Court award him $211,989.94 in attorney’s fees and costs
pursuant to 42 U.S.C. § 1988 as the prevailing party in this action. Plaintiff prevailed on claims
related to alleged violations of his constitutional and state law rights by Defendants the Orleans
Parish Sheriff’s Office’s (“OPSO”), former Sheriff Marlin Gusman (“Gusman”), OPSO Sheriff
Susan Hutson (“Hutson”), OPSO Captain Sidney Holt (“Holt”), OPSO Deputy Corey Amacker
(“Amacker”) (collectively, “OPSO Defendants”). 2 OPSO Defendants oppose the motion and ask
the Court to award $35,000 in attorney’s fees and costs. 3 Plaintiff replies in further support of the
motion. 4 Having considered the motion, the memoranda in support and opposition, the record, and
the applicable law, the Court grants the motion in part, denies it in part, and awards Plaintiff

1

Rec. Doc. 261.

Id. at 1–2. Pursuant to 42 U.S.C. § 1988(b), a “court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee.”
2

3

Rec. Doc. 264 at 21.

4

Rec. Doc. 268.

1

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 2 of 39

$103,830.84 in attorney’s fees and costs.
I. Background
A.

Factual Background
On July 2, 2000, Plaintiff was arrested for simple burglary in New Orleans, Louisiana. 5

Plaintiff allegedly spent 61 days in Orleans Parish Prison (“OPP”) following his arrest before being
released from OPP custody on September 3, 2000 after the District Attorney failed to file a Bill of
Information before the statutory deadline. 6 Plaintiff avers that on October 30, 2000, the District
Attorney filed a Bill of Information against Plaintiff. 7 Plaintiff asserts that his arraignment was
rescheduled because of a court closure and Plaintiff did not appear for arraignment on November
29, 2000 because he did not receive a summons. 8 Plaintiff alleges that the Bill of Information
eventually expired by operation of law but his arrest warrant for the simple burglary charge from
November 2000 “stayed in the system.” 9
Thereafter, between 2008 and 2015, Plaintiff was incarcerated in the custody of the
Louisiana Department of Public Safety and Corrections (the “DOC”) at the Dixon Correctional
Institute for a different crime. 10 On June 27, 2016, approximately one year after his release from
the Dixon Correctional Institute, Plaintiff was trying to obtain a driver’s license when was arrested

5

Rec. Doc. 48 at 2.

6

Id.

7

Id. at 2–3.

8

Id. at 3.

9

Id.

10

Id. Rec. Doc. 129-18 at 1.

2

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 3 of 39

for simple burglary based on the November 2000 warrant issued nearly sixteen years earlier. 11 On
June 30, 2016, Plaintiff pleaded guilty to the simple burglary charge in Orleans Parish Criminal
District Court before Judge Camille Buras (“Judge Buras”). 12 Judge Buras sentenced Plaintiff to
one year at the Department of Corrections, with “credit for time served from 9-14-08 to 2015” (the
time Plaintiff had served at Dixon Correctional Institute on the earlier crime). 13

On June 30, 2016, the day of sentencing, Judge Buras contacted Blake Arcuri (“Arcuri”), an
attorney for OPSO, to request expedited processing for Plaintiff. 14 Arcuri then sent an email to
OPSO employees stating: “[Plaintiff] really shouldn’t have to actually serve any time once DOC
processes it.” 15 Gusman responded to Arcuri’s email on the same day, stating that “once [Plaintiff]
enters a plea and is sentenced, we can get the DOC to compute his time.” 16 Holt also responded to
Arcuri’s email, stating that he had forwarded Arcuri’s email to Amacker to have him “contact
DOC and see what can be done.” 17 Amacker then emailed Arcuri stating that he would “work on
getting [Plaintiff’s] packet sent to the DOC tomorrow but with the holiday weekend he will not
get calculated till Tuesday [July 5, 2016] most likely.” 18
On July 7, 2016, seven days after Plaintiff was sentenced by Judge Buras, the DOC sent

11

Rec. Doc. 48 at 3; Rec. Doc. 136-12.

12

Rec. Doc. 165-1 at 2.

13

Id.

14

Rec. Doc. 133-5 at 2.

15

Rec. Doc. 164-1 at 2.

16

Rec. Doc. 133-16.

17

Rec. Doc. 136-12.

18

Rec. Doc. 133-15.

3

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OPSO an inmate transfer request with July 12, 2016 as the transfer date. 19 Plaintiff remained in
OPSO custody until July 12, 2016, when OPSO transported Plaintiff to the DOC facility Elayn
Hunt Correctional Center in St. Gabriel, Louisiana (“Elayn Hunt”). 20 While at Elayn Hunt,
Plaintiff allegedly explained that his sentence was “time served” and he “should be released.” 21
According to Plaintiff, an official at Elayn Hunt confirmed that Plaintiff’s “sheet indicated ‘no
sentence.’” 22 Nevertheless, Plaintiff remained in custody and was transferred to the Madison
Parish Correctional Center (“MPCC”) in Tallulah, Louisiana. 23
Approximately 15 days after Plaintiff appeared before Judge Buras, Plaintiff’s friend Alfred
Marshall purportedly became concerned and told Judge Buras that Plaintiff had not yet been
released. 24 Judge Buras allegedly called Gusman and MPCC warden Chris Stinson to determine
why Plaintiff had not been released from custody. 25 Three days later (or 18 days after being
sentenced), on July 18, 2016, Judge Buras held a hearing at which she vacated Plaintiff’s one-year
sentence for the simple burglary charge from November 2000 and resentenced him to “CREDIT
FOR TIME SERVED.” 26 Yet, according to Plaintiff, “despite having no legal authority to hold

19

Rec. Doc. 136-2 at 2.

20

Id.

21

Rec. Doc. 48 at 9.

22

Id.

23

Id.

24

Id.

25

Id.

26

Id. at 3, 9; Rec. Doc. 158-1 at 1.

4

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 5 of 39

[Plaintiff],” the DOC still did not release him. 27 On July 25, 2016, Judge Buras contacted two DOC
employees three separate times (one email and allegedly two phone calls) to determine why
Plaintiff had not been released. 28 In her July 25, 2016 email to a DOC employee, Judge Buras
stated:
I originally sentenced [Plaintiff] on June 30, 2016 to 1 year DOC with [credit for
time served] from 2008 as [Plaintiff] had already served a sentence in DOC and my
2000 case did not pop up until he was ready to be discharged. The court was
informed that [Plaintiff] was still incarcerated and so I amended his sentence [on]
July 18 2016 to CREDIT FOR TIME SERVED so that he could be immediately
released. This morning I was informed by [a DOC captain] that their records show
[Plaintiff’s] discharge date on NOV 24 2023. Please advise as to what might be the
issue with this case as the clear intention of all parties when [Plaintiff] pled guilty
was to have this credit for time served sentence result in a release. 29
Finally, 27 days after Judge Buras sentenced Plaintiff to time served and instructed OPSO to
expedite his release, Plaintiff was released from custody on July 27, 2016. 30
B.

Procedural Background
On April 2, 2017, Plaintiff filed a complaint against officials from OPSO, and against DOC

Secretary LeBlanc (“LeBlanc”) and DOC Warden Timothy Hooper (“Hooper”) (collectively, the
“DOC Defendants”) and several other officials. 31 On June 14, 2017, Plaintiff filed the First
Amended Complaint. 32 On June 28, 2017, DOC Defendants filed a motion to dismiss Plaintiff’s

27

Rec. Doc. 48 at 9.

28

Id.; Rec. Doc. 129-18 at 7; Rec. Doc. 129-22.

29

Rec. Doc. 143-16 at 2.

30

Rec. Doc. 158-1 at 2.

31

Rec. Doc. 1.

32

Rec. Doc. 16.

5

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First Amended Complaint. 33 On March 27, 2018, the Court granted the DOC Defendants’ motion
to dismiss in part, dismissing Plaintiff’s Section 1983 claim based on respondeat superior liability
and Plaintiff’s Section 1983 claims for monetary damages against DOC Defendants in their official
capacity, and denied the motion as to all other claims. 34 On March 29, 2018, the Court granted
Gusman, Holt, and Amacker’s motion to dismiss in part, dismissing Plaintiff’s Section 1983 claim
based on respondeat superior liability and denied the motion as to all other claims. 35 The Court
also granted Plaintiff leave to file a second amended complaint to address the deficiencies
identified. 36
On April 10, 2018, Plaintiff filed the Second Amended Complaint. 37 On August 14, 2018,
the Court granted DOC Defendants’ motion to dismiss in part to “the extent that the Court
dismisse[d] Plaintiff’s federal law claims against Warden Hooper;” 38 however, the Court denied
DOC Defendants’ motion to dismiss “as to Plaintiff’s Section 1983 claim against Secretary
LeBlanc and as to Plaintiff’s Monell claim against [Secretary] LeBlanc.” 39 That same day, the
Court granted OPSO Defendants’ motion to dismiss in part to the extent that it dismissed Plaintiff’s
Section 1983 claims for monetary damages against them in their individual capacities. 40

33

Rec. Doc. 17.

34

Rec. Doc. 46.

35

Rec. Doc. 47.

36

Rec. Docs. 46, 47.

37

Rec. Doc. 48.

38

Rec. Doc. 66 at 26.

39

Id.

40

Rec. Doc. 67.

6

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On January 7, 2019, DOC Defendants filed a “Motion for Stay of Proceedings” because their
counsel’s military duties affected his ability to represent DOC Defendants. 41 On January 7, 2019,
the Court granted DOC Defendants’ “Motion for Stay of Proceedings.” 42 On June 4, 2019, the
Court issued an order lifting the stay and reopening the case. 43
On April 13, 2020, the Court denied Plaintiff’s “Motion for Sanctions, or in the Alternative,
to Compel Preservation and Production of Documents,” wherein the Court rejected Plaintiff’s
request for the Court to issue an adverse inference sanction against DOC Defendants as a sanction
for alleged spoilation of electronic data. 44 In its March 30, 2021 Order and Reasons, the Court
denied Plaintiff’s motion for summary judgment against OPSO Defendants and granted OPSO
Defendants’ motion for summary judgment only to the extent that it sought dismissal without
prejudice of Plaintiff’s requests for injunctive and declaratory relief. 45 In its March 31, 2021 Order
and Reasons, the Court denied Plaintiff’s motion for summary judgment against DOC Defendants,
granted DOC Defendants’ motion for summary judgment to the extent it sought dismissal of
Plaintiff’s state law tort claims against Warden Hopper in his individual capacity and injunctive
relief against Secretary LeBlanc in his official capacity pursuant to Section 1983, and denied DOC
Defendants’ motion for summary judgment in all other respects, including Secretary LeBlanc’s
request for qualified immunity. 46

41

Rec. Doc. 87.

42

Rec. Doc. 89.

43

Rec. Doc. 90.

44

See Rec. Doc. 206.

45

Rec. Doc. 230.

46

Rec. Doc. 231.

7

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On April 26, 2021, Secretary LeBlanc appealed to the Fifth Circuit this Court’s denial of his
motion for summary judgment based, in part, on its denial of qualified immunity regarding
Plaintiff’s federal and state due-process claims. 47 Accordingly, on May 28, 2021, the Court granted
Secretary LeBlanc’s motion to stay and administratively close these proceedings pending
Secretary LeBlanc’s interlocutory appeal. 48
On February 23, 2022, the Fifth Circuit rendered judgment in favor of Secretary LeBlanc on
Plaintiff’s federal and state due process claims on the basis of qualified immunity and remanded
the matter back to this Court. 49 Accordingly, on July 12, 2022, the Court granted Plaintiff’s motion
to lift the stay in this matter and reopen the case. 50
On September 26, 2022, the parties informed the Court that they had consummated a
settlement on all remaining claims in this matter. 51 As part of the settlement, OPSO Defendants
agreed to pay Plaintiff damages and to consider Plaintiff a prevailing party for the purpose of
attorney’s fees, but Plaintiff would submit a fee and cost petition to the Court if the parties could
not agree on the quantum of attorney’s fees and costs. 52 Thus, that same day, the Court issued an
order dismissing the action without costs and prejudice to the right to reopen the action if
settlement was not consummated within sixty days. 53 The Court explicitly retained jurisdiction to

47

Rec. Doc. 234.

48

Rec. Doc. 239.

49

Rec. Doc. 240.

50

Rec. Doc. 249.

51

Rec. Doc. 256.

52

Id.

53

Rec. Doc. 259.

8

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 9 of 39

enforce the settlement terms and to determine the amount of attorney’s fees. 54
On November 21, 2022, Plaintiff filed the instant Motion for Attorney’s Fees and Costs. 55
On December 13, 2022, Amacker, Gusman, Holt, Hooper, and Hutson opposed the motion. 56 On
December 29, 2022, Plaintiff replied in further support of the motion with leave of Court. 57
II. Parties’ Arguments
A.

Plaintiff’s Arguments in Support of the Motion for Attorney’s Fees
In support of the instant motion, Plaintiff avers that, after OPSO Defendants and Plaintiff

reached a settlement, “[o]ver the next month and a half, the parties endeavored to resolve the
quantum of fees and costs without court intervention” and “exchanged twenty-one pieces of
correspondence in the effort to reach [an] agreement, but were unable to do so.” 58 Thus, Plaintiff
requests that the Court fix the amount of attorney’s fees and expenses at $211,989.94. 59 Plaintiff
bases the request on the following calculation (the “Fee Application”): 60
Attorney

Number of Hours

Hourly Rate

William Most

411.5

$350

William Most (Joint
Over-Detention)

109.5

$350 (divided by 6)

David Lanser

71.1

$275

54

Id.

55

Rec. Doc. 261.

56

Rec. Doc. 264.

57

Rec. Doc. 268.

58

Id. at 4.

59

Rec. Doc. 261-1 at 24.

60

Rec. Doc. 261 at 1–2.

9

Fees
$144,025.00
$6,387.50
$19,552.50

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 10 of 39

Caroline Gabriel

28.2

$250

$7,050.00

Meghsha Barner

19.5

$235

$4,582.50

Amanda Hass

15.6

$225

$3,510.00

Allison Sickle

127.85

$125

$15,981.25

Grant-Specific Costs

$4,577.89

Over-Detention Costs (divided by 6)

$274.36

Subtotal:

$201,088.75

Reduction for Billing Judgment (-$12,653.25)

$188,435.50

Reduction for Success of Claims (-25%):

$141,326.63

Proposed Johnson Multiplier (1.5x):

$211,989.94

Total:

$211,989.94

Plaintiff advances nine arguments in support of the Fee Application using the lodestar
method. 61 First, Plaintiff argues that, as a prevailing party in a civil rights action, he is entitled to
reasonable attorney’s fees. 62 Plaintiff contends that he is a prevailing party because he and OPSO
Defendants “agreed on an amount of damages to be paid by Defendants to Plaintiff, and agreed
that Plaintiff is the prevailing party for the purpose of attorney’s fees and costs.” 63 Thus, Plaintiff
concludes that he “is entitled to fees and costs per 42 U.S.C. § 1988.” 64
Second, Plaintiff argues that the hourly rates of counsel used for the lodestar calculation

61

See id. at 8–9.

62

Id. at 9.

63

Id. at 10 (quoting Rec. Doc. 257 at 3 (the parties’ Joint Status Update)).

64

Id.

10

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are reasonable. 65 Plaintiff contends that he “submits the declaration of lead counsel, verifying the
submitted billing entries and verifying that the rates reflect the attorneys’ actual billing rates.”66
Plaintiff further contends that he has “submitted the declarations of [seven] attorneys working in
the Eastern District [of Louisiana] opining that the hourly rates charged by counsel here are
reasonable.” 67 Plaintiff provides the following table and argues that the requested rates are
reasonable based on each attorney’s years of experience and the rates applied in comparable cases
within the Eastern District of Louisiana: 68
Team Member

Years of Practice

Hourly Rate

William Most

11

$350

David Lanser

5

$275

Caroline Gabriel

4

$250

Meghsha Barner

3

$235

Amanda Hass

2

$225

Allison Sickle

N/A

$125

Third, Plaintiff argues that the hours submitted in the Fee Application are reasonable and
have been subjected to billing judgment. 69 Plaintiff asserts that he “has attached a verified copy of
the contemporaneous billing records for this case which includes the dates, amount of time billed,

65

See id.

66

Id. at 11 (citing Rec. Doc. 261-19).

Id. (citing Rec. Docs. 261-9, 261-10, 261-11, 261-12, 261-13, 261-14, 261-15); Plaintiff avers that one
declaration from a partner at Jones Walker, LLP states that the requested rates “are less than what I am used to seeing
in private practice in New Orleans.” Id. (quoting Rec. Doc. 261-15).
67

68

See id. at 12–14 (citing cases).

69

See id. at 14.

11

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and a description of the services performed.” 70 Plaintiff avers that his “counsel has reviewed the
time entries . . . and deducted an amount totaling $12,653.25 for “entries that would not be billed
to the client” and based on “the exercise of billing discretion.” 71 Finally, Plaintiff contends that
“counsel sought opportunities to work efficiently: for example, by employing a law student clerk
with a lower billable rate than attorneys, and by noting work that was jointly of benefit to several
over-detention cases.” 72
Fourth, Plaintiff argues that the hours billed have been adjusted to reflect hours spent on
this case jointly with other over-detention cases. 73 Plaintiff avers that counsel “has been involved
in a range of over-detention cases, including others against [OPSO].” 74 Where counsel conducted
work that applied to these over-detention cases generally, “Plaintiff proposes dividing these hours
by six, for the six individual Louisiana over-detention cases brought by undersigned counsel.” 75
Fifth, Plaintiff argues that the hours billed have been adjusted to reflect hours spent on
unsuccessful claims. Plaintiff avers that, although he prevailed against OPSO Defendants but not
DOC Defendants, “[i]t is not possible . . . to divide work done into ‘OPSO hours’ and ‘DOC hours’
. . . due to the nature of [OPSO Defendants and DOC Defendants’ respective] defenses: each of
them blamed the other for [Plaintiff’s over-detention].” 76 However, Plaintiff acknowledges that “it

70

Id. at 15 (citing Rec. Doc. 261-21).

71

Id.

72

Id.

73

See id. at 16.

74

Id.

75

Id. at 16–17.

76

Id. at 17.

12

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is appropriate to discount some of the hours” to account for the unsuccessful claims. 77 “Plaintiff
proposes discounting hours by half of half (i.e. 25%) to account for the idea that perhaps half of
the DOC’s half of the case was DOC-only and not of value to prevailing against OPSO
[Defendants].” 78
Sixth, Plaintiff argues that OPSO Defendants’ “aggressive defense strategy,” which
involved filing “repeated dispositive motions, . . . resist[ing] discovery, and engag[ing] in lengthy
and inappropriate tactics during deposition,” resulted in these fees and costs. 79 Plaintiff avers that
DOC Defendants “named their own defense counsel as a 30(b)(6) witness to testify for OPSO,”
refused to make a settlement offer, and “repeatedly threatened Plaintiff—including a threat to put
Plaintiff back in prison for the explicit purpose of obtaining advantage in the civil suit.” 80 Thus,
Plaintiff concludes that OPSO Defendants must “pay for the consequences of that choice.” 81
Seventh, Plaintiff argues that the Court should apply a 50% multiplier to the lodestar
amount based on the facts identified in Johnson v. Georgia Highway Express. 82 Plaintiff argues
that the first Johnson factor—the time and labor required—warrants an upward adjustment
because counsel “was a solo practitioner with one contract attorney for assistance” when the case,
began, which strained the resources of the firm. 83 Plaintiff avers that the second Johnson factor—

77

Id. at 17.

78

Id.

79

Id. at 18.

80

Id. (citing Rec. Docs. 261-6, 261-7).

81

Id.

82

Id. (citing Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974)).

83

Id. at 19.

13

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novelty and difficulty of the case—warrants an upward adjustment because “this case presented
questions of first impression regarding OPSO’s policy of over-detention and the interplay of
responsibility between [the DOC] and sheriffs in the days after sentencing;” and because such civil
rights cases are “difficult, protracted, and risky” given defendants’ unwillingness to discuss
settlement. 84 Plaintiff contends that the third Johnson factor—the skill required—warrants an
upward adjustment because counsel prevailed against OPSO despite “dealing with unethical
threats by opposing counsel, repeated dispositive motions, an interlocutory appeal, and a large set
of documents.” 85 Plaintiff asserts that the fourth Johnson factor—preclusion of other employment
due to accepting the case—weighs in favor of an upward adjustment because counsel’s small firm
was required to turn down other work due to the time needed to litigate this case. 86
Plaintiff argues that the fifth Johnson factor—the customary fee for similar work—
warrants an upward adjustment given the affidavit from a partner at Jones Walker stating that the
rates requested are less than typical for private practice. 87 Plaintiff avers that the sixth Johnson
factor—whether the fee is fixed or contingent—weighs in favor of an upward adjustment because
the fee was entirely contingent. 88 Plaintiff contends that the seventh Johnson factor—time
limitations—warrants an upward adjustment because the case was stayed multiple times based on
defense counsel’s military service and Secretary LeBlanc’s interlocutory appeal, which allowed

84

Id. at 19–20 (quoting Rec. Doc. 261-10).

85

Id. at 20.

86

Id.

87

Id. at 20–21.

88

Id. at 21.

14

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OPSO Defendants to save due to inflation over the protracted litigation. 89 Plaintiff asserts that the
eighth Johnson factor—the amount involved and the results obtained—warrant an upward
adjustment because Plaintiff obtained “a life-changing sum, given Plaintiff’s indigent status” and
the litigation “prompted OPSO to change its ‘drive the paperwork once per week policy.’” 90
Plaintiff argues that the ninth Johnson factor—experience, reputation, and ability of
attorneys—warrants an upward adjustment because “Plaintiff’s counsel are attorneys that
specialize in civil rights cases” who, although young, are highly respected. 91 Plaintiff avers that
the tenth Johnson factor—the undesirability of the case—weighs in favor of an upward adjustment
because many private firms avoid civil rights cases as they are less likely to be profitable. 92
Plaintiff contends that the eleventh Johnson factor—the nature and length of the professional
relationship with the client—weighs in favor of an upward adjustment because counsel worked
with Plaintiff for more than half a decade to obtain this outcome and change OPSO’s policy, and
“required patience and mutual trust.” 93 Plaintiff asserts that the twelfth Johnson factor—awards in
similar cases—has already been addressed in determining reasonable hourly rates. 94 Thus,
“[b]ecause all of the Johnson factors weigh in favor of an upward[] adjustment, Plaintiff proposes
a 1.5 times multiplier be applied to the attorneys fees.” 95

89

Id.

90

Id. at 21–22.

91

Id. at 22.

92

Id.

93

Id. at 23.

94

Id.

95

Id.

15

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Eighth, Plaintiff argues that he is entitled to costs along with attorney’s fees as the
prevailing party pursuant to 42 U.S.C. § 1988(b) and Federal Rule of Civil Procedure 54(d)(1).96
Thus, Plaintiff avers that, in the Fee Application, costs are divided into those unique to this case
and those “that were joint to the individual over-detention cases,” the latter of which are divided
by six. 97
Ninth, Plaintiff argues that he is entitled to the requested attorney’s fees because the lawsuit
was of substantial benefit to the public. 98 Plaintiff avers that, after the filing of this lawsuit, OPSO
changed its policy of having a deputy pick up paperwork for delivery to the DOC’s headquarters
that resulted in the over-detention of inmates. 99 Plaintiff asserts that OPSO began “to electronically
transmit records to the DOC,” which “reduced the number of overdetained people sentenced in
Orleans Parish” and “reduced the [resulting] financial burden on Louisiana taxpayers.” 100 For these
reasons, Plaintiff asks the Court to grant the motion and award him $211,989.94 in attorney’s fees
and costs. 101
B.

OPSO Defendants’ Arguments in Opposition to the Motion for Attorney’s Fees
OPSO Defendants advance five arguments in opposition to the instant motion. 102 First,

OPSO Defendants argue that the 783.25 hours claimed by Plaintiff’s lead counsel, four associates,

96

Id. at 23–24.

97

Id. at 24.

98

See id. at 7.

99

Id. at 7–8.

100

Id. at 8.

101

Id. at 25.

102

See Rec. Doc. 264.

16

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and one law student are “grossly excessive under the governing legal standard” and grossly
disproportionate in being nine times greater than the settlement received by Plaintiff.103
Specifically, OPSO Defendants argue that the hours requested are unreasonable because: (1) the
timesheets contain vague time entries; (2) those timesheets contain block billing; (3) the Fee
Application charges for administrative tasks; and (4) Plaintiff’s lead counsel, William Most
(“Most”) charged his premium fees for associate-level work. 104
OPSO Defendants assert that the hours requested are unreasonable because the timesheets
include vague time entries. 105 OPSO Defendants aver that the Court cannot “judge the
reasonableness of the time expended with descriptions as scant as ‘correspondence,’ ‘meeting,’
and ‘phone call,’” and so the “vague entries should be reduced and disallowed.” 106
OPSO Defendants also argue that the hours requested are unreasonable because Plaintiff
submits “block-billed time entries” that “describe multiple activities in one time entry or record
time by the day instead of the specific tasks.” 107 OPSO Defendants aver that these entries “may
not offer sufficient evidence of the reasonableness and necessity of the time expended” and thus
“a flat reduction of a specific percentage from the award” is warranted that is “commensurate with

103

Id. at 2–3.

104

See id. at 4–12.

105
Id. at 6 (arguing that the following dates include vague time entries: 7/12/2016, 7/22/2016, 8/4/2016,
9/21/2016, 10/6/2016, 10/24/2016, 11/18/2016, 11/21/2016, 12/19/2016, 12/22/2016, 2/23/2016, 3/15/2017,
3/20/2017, 3/27/2017, “4/3/2017, 4/28/2017, 5/8/2017, 5/8/2017, 6/8/2017, 6/12/2017, 6/12/2017, 6/12/2017,
6/5/2017, 6/15/2017, 6/25/2017, 7/19/2017, 9/8/2017,9/8/2017, 9/12/2017, 10/2/2017, 10/19/2017, 10/25/2017,
11/20/17, 12/7/2017).

2010)).

106

Id. at 6–7.

107

Id. at 7 (citing C and D Prod. Servs. v. Dir., Office of Workers Comp., 376 F. App’x 392, 394 (5th Cir.

17

Case 2:17-cv-02797-NJB-DMD Document 269 Filed 01/19/23 Page 18 of 39

the egregiousness of the inadequacy of the documentation.” 108 OPSO Defendants attach an exhibit
of entries they assert are block billed. 109 Based on these entries, where “several tasks are grouped
under one time entry,” OPSO Defendants ask the Court to reduce the fee award. 110
OPSO Defendants further argue that the number of hours requested is unreasonable
because the Fee Application contains charges for administrative tasks that should not be included
in the award. 111 OPSO Defendants aver that several entries include charges for tasks that “could
have been performed by administrative [assistants].” 112 OPSO Defendants conclude that these
entries should be disallowed for being “clearly clerical in nature.” 113
Finally, OPSO Defendants argue that the number of hours requested is unreasonable
because Most “performed tasks that could have been performed by less experienced attorneys.”114
OPSO Defendants aver that Most charged excessive hours for legal research, drafting, preparing
discovering requests, document review, and preparing documents for filing. 115 OPSO Defendants
contend that the award should therefore be reduced because this work “should have been passed
on to one of the associates on the case.” 116
108

Id.

Id. at 7, n.27 (citing Rec. Doc. 264-2); see also id. at 8–9 (offering a sample of block billing entries from
Plaintiff’s counsel).
109

110

Id. at 9.

111

See id.

Id. at 10 (citing In re Educ. Testing Serv. Litig., 447 F. Supp. 2d 612 (E.D. La. 2006) (explaining that
some work, such as researching, drafting, and document review, should be performed by associate-level attorneys)).
112

113

Id.

114

Id.

115

See id. at 11 (providing a sample of entries where Most bills up to 9.1 hours completing these tasks).

116

Id. at 11–12.

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Second, OPSO Defendants argue that Plaintiff’s requested hourly rates are not reasonable
and should be reduced. 117 OPSO Defendants assert that under the “General Maximum Hourly Fee
Schedule” promulgated by the Louisiana Attorney General (the “General Fee Schedule”), Most
should receive $225 per hour, Caroline Gabriel (“Gabriel”), David Lanser (“Lanser”) and Meghsha
Barner (“Barner”) should receive $150 per hour, Amanda Hass (“Hass”) should receive $125 per
hour, and Allison Sickle (“Sickle”) should receive $40 per hour. 118 OPSO Defendants further argue
that the affidavits of other attorneys supporting the reasonableness of the fees requested should be
given “no weight” because they pertain to rates “reasonable for civil rights litigation work” rather
than over-detention cases. 119 OPSO Defendants also contend that the affidavits are from plaintiffs’
attorneys practicing in the Eastern District of Louisiana who “have a vested interest in establishing
precedent for higher hourly rates.” 120 Finally, OPSO Defendants aver that the fees requested are
unreasonable because Plaintiff “obtained only a portion of the relief he sought” after the Court
dismissed his Section 1983 claim based on respondeat superior liability and claims for injunctive
and declaratory relief. 121 Thus, OPSO Defendants conclude that the rates requested are
unreasonable. 122
Third, OPSO Defendants argue that the Johnson factors do not warrant an upward

117

See id. at 12–16.

118

Id. at 13–14.

119

Id. at 14.

120

Id. at 15.

Id. at 15–16. OPSO Defendants also point out that the Court denied Plaintiff’s motion for leave to file a
third amended complaint and motion for summary judgment. Id.
121

122

Id. at 16.

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adjustment of the lodestar amount. 123 They argue that “there was nothing particularly undesirable
about this case as many civil rights litigation cases have problematic and unpleasant aspects of the
case.” 124 Thus, OPSO Defendants conclude that an upward adjustment of the lodestar amount is
not warranted. 125
Fourth, OPSO Defendants argue that Plaintiff’s request for out-of-pocket costs should be
reduced because it includes expenses that “are generally considered overhead, [] part of the cost
of operating a law firm,” or “vague and strictly for counsel’s convenience.” 126 For example, OPSO
Defendants aver that recovery for postage and service, and mileage for attendance at oral argument,
settlement conferences, depositions and meetings should be excluded. 127
Fifth, OPSO Defendants argue that Plaintiff seeks “‘fees on fees’ for time spent preparing
the motion for an attorney’s fee award” in the amount of ten billable hours that should be
excluded. 128 OPSO Defendants assert that courts have found eight hours to draft a motion to fix
attorney’s fees to be excessive, and under two hours to be reasonable. 129
For these reasons, OPSO Defendants assert that $35,000 in attorney’s fees is reasonable. 130
OPSO Defendants aver that they “settled the matter in a good faith attempt to resolve all aspects

123

See id.

124

Id.

125

Id. at 18.

126

Id. at 19.

127

Id.

128

Id.

129

Id. at 20 (citing Williams v. Res-Care, Inc., No. 17-10200, 2020 WL 4816141, at *4 (E.D. La. Aug. 19,

130

Id. at 21.

2020)).

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of this case, including fees.” 131 OPSO Defendants assert that they offered to settle the claim for
$35,000 along with an attorney’s fees settlement but Plaintiff’s counsel “convinced his client to
accept less money in the settlement ($25,000) so that he could attempt to litigate this matter for an
excessive amount in attorney’s fees in bad faith.” 132 Thus, OPSO Defendant’s conclude that “[t]he
proposed settlement amount of attorney’s fees” is reasonable. 133
C.

Plaintiff’s Arguments in Further Support of the Motion for Attorney’s Fees.
In reply, Plaintiff makes five arguments in further support of the instant motion. First,

Plaintiff argues that OPSO Defendants “declined to follow the well-established method” of
calculating the lodestar amount and adjusting it based on the Johnson factors to determine the
appropriate attorney’s fee award. 134 Plaintiff asserts that, whereas he used this method to calculate
reasonable attorney’s fees, OPSO Defendants determined $35,000 to be a reasonable attorney’s
fee award “without describing what process they used for calculating that amount.” 135
Second, Plaintiff argues that the time entries submitted are not inadequate or vague. 136
Plaintiff asserts that the Supreme Court does not require the Court to conduct “auditing perfection”
but rather simply to “do ‘rough justice’” to its “overall sense of suit.” 137 Plaintiff further contends
that OPSO Defendants’ opposition is “comprised of reproductions of time entries already

131

Id. at 20.

132

Id.

133

Id. at 21.

134

Rec. Doc. 268 at 1.

135

Id.

136

See id. at 2.

137

Id. (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).

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submitted to the court by Plaintiff—but without the notations for Plaintiff’s counsel’s exercise of
billing judgment.”138 Plaintiff asserts that OPSO Defendants withheld that Plaintiff wrote off some
of those entries “through the exercise of billing discretion.” 139 Plaintiff further avers that certain
entries that OPSO Defendants labeled as “block billing” actually decreased the amount of time
billed. 140 Finally, Plaintiff argues that the context of Most’s practice—he began this case as “a solo
practitioner in a newly-formed practice” and his firm “remains a small one by necessity, given the
risks and long time horizons for payment in civil rights work”—is relevant to attorney’s fees. 141
Third, Plaintiff argues that his proposed hourly rates should be adopted because “Plaintiff
offered a range of evidence for [their] reasonableness.” 142 Plaintiff asserts that, in response, OPSO
Defendants only cite the General Fee Schedule, which this Court has found to be irrelevant because
no counsel is representing the State of Louisiana. 143 Plaintiff further asserts that OPSO Defendants
know that some of the attorneys that provide affidavits in support of the hourly rates do practice
over-detention cases and, regardless, “the Lodestar analysis is [not] so cramped in focus” for
affidavits from attorneys who have litigated Section 1983 cases in this district to be inapplicable
to over-detention cases. 144 Finally, Plaintiff contends that, although the Court should not double-

138

Id. (citing Rec. Doc. 261-21).

139

Id.

140

Id. at 3.

Id. at 3–4 (citing Bode v. Kenner City, No. 17-5483, 2018 WL 4701541, at *7 (E.D. La., Oct. 1, 2018)
(Brown, C.J.)); Plaintiff notes that Most gave associates work as his firm expanded and as they became familiar with
the case. Id. at 3.
141

142

Id. at 4.

143

Id. at 4–5 (citing Bode, 2018 WL 4701541, at *6).

144

Id. at 5.

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count based on the Johnson factors, “the fact that some factors overlap with the Lodestar analysis
is not dispositive” given that all factors point to an upward adjustment. 145
Fourth, Plaintiff argues that OPSO Defendants’ argument that the award requested is
unreasonable because it is nine times greater than the damages obtained has been rejected by the
Supreme Court in Riverside v. Rivera. 146 Plaintiff asserts that courts in other circuits have upheld
substantial attorney’s fees on top of only nominal damages. 147 Plaintiff further contends that OPSO
Defendants are wrong that counsel “has sought payment for ‘every minute worked on this case’”
because Plaintiff “proposes a 25% reduction of fees due to his success on claims against some
defendants but not others.” 148 Thus, Plaintiff concludes that the requested fee award is fair,
“especially considering the significant policy changes achieve[d] through this lawsuit.” 149
Fifth, Plaintiff argues that OPSO Defendants’ accusations of ethical misconduct regarding
the settlement are false. 150 Plaintiff avers that he was given two options during settlement
negotiations: (1) receive $25,000 in damages and determine attorney’s fees through negotiation or
fee petition; or (2) agree to a $32,854.21 damages award conditioned upon the parties reaching
“agreement on the quantum of attorneys fees before the overall agreement [is] finalized.” 151
Plaintiff states that he chose the first option, not through his counsel’s misconduct, but because it
145

Id. at 6.

Id. (quoting Riverside v. Rivera, 477 U.S. 561, 574 (1986) (“We reject the proposition that fee awards
under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers.”).
146

147

Id. (citing cases).

148

Id. at 7.

149

Id.

150

See id. at 7–8.

151

Id. at 7.

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was a “swift, certain settlement” rather than an “uncertain contingent settlement that would be
farther away in time.” 152 Thus, Plaintiff concludes that “[OPSO] Defendants’ accusations of
misconduct—offered with no evidence and only a faulty inference—should be disregarded.” 153
III. Law and Analysis
Pursuant to 42 U.S.C. § 1988(b), the Court, in its discretion, may allow a prevailing party
in any action brought under Section 1983 “a reasonable attorney’s fee as party of the costs.” In the
September 26, 2022 Joint Notice of Settlement, the parties “agreed that Plaintiff is the prevailing
party for the purpose of attorneys fees and costs.” 154 Thus, the Court must determine the reasonable
fees and costs to award Plaintiff as the prevailing party over OPSO Defendants.
Reasonable attorney’s fees are calculated using the “lodestar” method. 155 Under this
method, “the court calculates a ‘lodestar’ fee by multiplying the reasonable number of hours
expended on the case by the reasonable hourly rates for the participating lawyers.” 156 “[T]here is
a strong presumption that the lodestar figure is reasonable.” 157 However, after calculating the
lodestar, a district court may decrease or enhance the amount of attorney’s fees based on the
relative weights of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc. 158

152

Id. at 8.

153

Id.

154

Rec. Doc. 256 at 1.

155

Rutherford v. Harris Cty., Tex.,, 197 F.3d 173, 192 (5th Cir. 1999).

Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citing Louisiana Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995)).
156

157

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).

158
Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Johnson v. Georgia Highway Exp.,
Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)). The Johnson factors are: (1) the time and labor required to represent the
client or clients; (2) the novelty and difficulty of the issues in the case; (3) the skill required to perform the legal
services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee charged for those

24

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The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar
award already took that factor into account. 159 Such reconsideration is “impermissible doublecounting.” 160
Here, Plaintiff requests a total award of $211,989.94 based on the following calculation in
the Fee Application, which includes the proposed billing rates and the number of hours billed by
Plaintiff’s counsel: 161
Attorney

Number of Hours

Hourly Rate

Fees

William Most

411.5

$350

$144,025.00

William Most (Joint
Over-Detention)

109.5

$350 (divided by 6)

David Lanser

71.1

$275

$19,552.50

Caroline Gabriel

28.2

$250

$7,050.00

Meghsha Barner

19.5

$235

$4,582.50

Amanda Hass

15.6

$225

$3,510.00

Allison Sickle

127.85

$125

$15,981.25

$6,387.50

Grant-Specific Costs

$4,577.89

Over-Detention Costs (divided by 6)

$274.36

Subtotal:

$201,088.75

services in the relevant community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the
client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability
of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19.
159

Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006) (citation omitted).

160

Id.

161

Rec. Doc. 261 at 1–2.

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A.

Reduction for Billing Judgment (-$12,653.25)

$188,435.50

Reduction for Success of Claims (-25%):

$141,326.63

Proposed Johnson Multiplier (1.5x):

$211,989.94

Total:

$211,989.94

The Number of Hours
“[T]he first step in determining reasonable attorney’s fees is an evaluation of the number

of hours reasonably expended.” 162 “The fee applicant bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended and hourly rates.” 163 “[A] district
court may reduce the number of hours awarded if the documentation is vague or incomplete.”164
Furthermore, when an attorney or paralegal performs a task that could be handled by clerical staff,
the opponent should not be charged. 165 Tasks that are purely clerical in nature include faxing,
mailing, filing and delivering legal documents. 166 “Charges for excessive, duplicative, or
inadequately documented work must be excluded.” 167 The party seeking fees must demonstrate
the exercise of billing judgment, which refers to the usual practice of writing off unproductive,
excessive, or redundant hours. 168
162

Louisiana Power, 50 F.3d at 324.

163

Id. (quotation marks and citations omitted).

164

Id.

165

Kuperman v. ICF Int’l, No. 08- 565, 2009 WL 10737138, at *9 (E.D. La. Oct. 13, 2009).

See Lalla v. City of New Orleans, 161 F. Supp. 2d 686, 710–11 (E.D. La. 2001); Kuperman, 2009 WL
10737138, at *9.
166

McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (citing Watkins v. Fordice, 7 F.3d 453,
457 (5th Cir. 1993)).
167

168

Walker v. U.S. Dept. of Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996).

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In support of the motion, Plaintiff offers timesheets, which record the professional services
performed by each attorney in this matter. 169 The documentation contains information on the tasks
performed, by whom they were performed, the date they were performed, the time expended to
accomplish that task, and the applicable hourly rates charged. 170 Plaintiff argues that the requested
hours are reasonable because Plaintiff’s counsel provided verified copies of contemporaneous
billing records that comply with Local Rule 54.2, reviewed the entries and deducted $12,653.25
through the exercise of billing judgment, and worked efficiently by employing a law student clerk
with a lower billable rate and dividing by six any hours worked to the benefit of all six of counsel’s
over-detention cases. 171 OPSO Defendants argue that the requested hours are unreasonable
because the time entries are overly vague, include block billing and charges for administrative
tasks, and apply senior partner rates to work that could have been handled by junior lawyers. 172
After careful review of the Fee Application and attached records, the Court finds OPSO
Defendants’ arguments unavailing. Regarding the argument that the entries are too vague, the
Supreme Court has stated that a motion for attorney’s fees “should not result in a second major
litigation.” 173 “Trial courts need not, and indeed should not, become green-eyeshade accounts” but
rather “may take into account their overall sense of a suit” where the party “submit[s] appropriate
documentation.” 174 Thus, in recognizing that the “practical considerations of the daily practice of

169

Rec. Doc. 261-21.

170

See id.

171

Rec. Doc. 261-1 at 15.

172

See Rec. Doc. 264 at 3–12.

173

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

Fox v. Vice, 563 U.S. 826, 838 (2011) (quoting Hensley, 461 U.S. at 437) (“The fee applicant . . . must,
of course, submit appropriate documentation to meet ‘the burden of establishing entitlement to an award.’ But trial
174

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law in this day and age preclude ‘writing a book’ to describe in excruciating detail the professional
services rendered,” the Fifth Circuit has found that a district court does not err “in refusing to
reduce the hours in question for vagueness” where it has “familiarity with [the] case, including the
quality of the attorneys’ work over a period of several years.” 175 Accordingly, the Court declines
to reduce the number of hours billed over the course of a litigation where Plaintiff prevailed after
five and a half years and where Plaintiff provides the appropriate documentation to support his
request.
For these same reasons, the Court declines to reduce the number of hours due to the block
billing time entries submitted. Block billing is the practice of “describing multiple activities in
only one time entry.” 176 “A reduction for block billing is not automatic” even though “[c]ourts
disfavor the practice . . . because it impairs the required reasonableness evaluation.” 177 The Fifth
Circuit has affirmed attorney’s fee awards where the requested fees were reasonable despite block
billing.178 Therefore, given that Plaintiff’s requested number of hours is reasonable, the Court
declines to reduce the hours requested based on Plaintiff’s use of block billing. 179

courts need not . . . become green-eyeshade accountants. The essential goal in shifting fees . . . is to do rough justice,
not to achieve auditing perfection.”) (internal citations omitted).
175

Louisiana Power, 50 F.3d at 327.

176

C and D Prod. Servs. v. Dir., Office of Workers Comp., 376 F. App’x 392, 394 (5th Cir. 2010)).

Fralick v. Plumbers and Pipefitters Nat’l Pension Fund, No. 09-752, 2011 WL 487754, at *5 (N.D. Tex.
Feb. 11, 2011).
177

178

See Jinsun, L.L.C. v. Mireskandari, No. 20-20563, 2022 WL 35622, at *1 (5th Cir. 2022) (per curiam).

The Court also notes that rather than provide only one listing per day with all tasks performed, Plaintiff
generally blocked related tasks into a single entry, which makes it less difficult for the Court to assess that entry’s
reasonableness. See Rec. Doc. 264-2.
179

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OPSO Defendants also contend that the Court should exclude hours billed for
administrative tasks, but they only object to approximately 10 of the 783.25 hours billed in this
case. 180 Furthermore, OPSO Defendants’ objections omit that Plaintiff excluded some of these
entries from his calculation through the exercise of billing judgment. 181 Accordingly, the Court
will not reduce the number of hours on this basis. 182
OPSO Defendants also argue that the number of hours should be reduced because
Plaintiff’s counsel billed senior partner rates for work that could have been handled by junior
lawyers. 183 However, as Plaintiff argues, Most was a sole practitioner when he began representing
Plaintiff. The submitted timesheets reflect Plaintiff’s assertion that “[a]s [Most] hired associates
and they became conversant with the case, he assigned associate-level work to them.”184
Furthermore, Most represented Plaintiff “without guarantee [he] would be paid, and the case
required considerable time and effort.” 185 Thus, the Court finds that Most’s allocation of work
does not warrant a reduction in the number of hours billed.
Finally, OPSO Defendants argue that the number of hours spent by Most preparing the
instant motion should be reduced because the number of hours billed on the task is excessive and

180

See Rec. Doc. 264-3.

181
Compare Rec. Doc. 261-21 at 4 with 264-3 at 1 (providing one of multiple instances where OPSO
Defendants ignore that Plaintiff omitted the entry objected to from his calculation).

See Bode v. Kenner City, No. 17-5483, 2018 WL 4701541, at *5 (E.D. La. Oct. 1, 2018) (Brown, C.J.)
(declining to exclude “less than 10 hours” billed on inter-office communications and administrative tasks out of
approximately 200 hours over the course of a two-year litigation).
182

183

Rec. Doc. 264 at 10–12.

184

See Rec. Doc. 261-21; Rec. Doc. 268 at 3.

Bode, 2018 WL 4701541, at *7 (declining to reduce the lodestar amount given the riskiness of counsel’s
decision to represent the plaintiff).
185

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unreasonable. 186 Upon review, Most billed 11.2 hours for preparation of this motion. 187 In
Williams v. Res-Care, Inc., another judge in the Eastern District of Louisiana found that “8.0 hours
to draft a motion to fix attorneys’ fees is quite excessive” and noted “the lack of substantive depth
in the motion” in reducing the number of hours billed preparing the motion from eight to three
hours. 188 Although the Court finds 11.2 hours to prepare the instant motion excessive, the motion
filed cannot be described as “lacking in substantive depth.” Accordingly, the Court reduces the
number of hours spent preparing the instant motion by 50%, or 5.6 hours. Thus, the Court finds
that Most is entitled to bill for 405.9 hours. 189 The Court declines to further reduce the number of
hours billed because it finds that Plaintiff exercised billing judgment in reducing the number of
hours requested by $12,653.25 and dividing some of Most’s hours by six to account for work he
performed that applied to all six of his over-detention cases. 190
B.

The Hourly Rates
The second step of the analysis is to determine a reasonable hourly rate for each attorney.

“Hourly rates are to be computed according to the prevailing market rates in the relevant legal
market, not the rates that lions at the bar may command.” 191 It is the plaintiff’s burden to “produce
satisfactory evidence . . . that the requested rates are in line with those prevailing in the relevant

186

Rec. Doc. 264 at 19–20.

187

See Rec. Doc. 261-21 at 19.

188

No. 17-10200, 2020 WL 4816141, at *4 (E.D. La. Aug. 19, 2020).

189

The 411.5 hours billed by Most reduced by 5.6 hours equals 405.9 hours.

190

See Rec. Doc. 261-1.

191

Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000) (quotations and citation omitted).

30

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community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” 192
As discussed above, Plaintiff’s Fee Application indicates hourly billing rates of $350 for
Most, who has practiced for approximately 11 years and has eight years of civil rights litigation
experience, $275 for Lanser, who has practiced for approximately five years, $250 for Gabriel,
who has practiced for approximately four years, $235 for Barner, who has practiced for
approximately three years, $225 for Hass, who has practiced for approximately two years, and
$125 for Sickle, a law student intern from Loyola University New Orleans College of Law. 193
Plaintiff asserts that the requested rates are reasonable in light of comparable cases in the Eastern
District of Louisiana. 194 Plaintiff also offers declarations from other attorneys working in the
district stating that the requested rates are reasonable. 195 OPSO Defendants argue that the billing
rates are unreasonable because they exceed those in the General Fee Schedule, the attached
declarations are self-serving and inapplicable to over-detention cases, and Plaintiff achieved only
partial success on his claims. 196
The Court may reduce the hourly rate if it determines that the requested rate is not within
the range of prevailing market rates. Although Plaintiff offers declarations from other attorneys in
the Eastern District of Louisiana, the Fifth Circuit makes clear that the district court “is itself an

192

Wheeler v. Mental Health & Mental Retardation Auth. of Harris Cty., Tex., 752 F.2d 1063, 1073 (5th Cir.

193

Rec. Doc. 261-1 at 12–14.

194

Id. at 12.

195

Id. at 11.

196

Rec. Doc. 264 at 13–16.

1985).

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expert on the question [of reasonable billing rates] and may consider its own knowledge and
experience concerning reasonable and proper fees and may form an independent judgment either
with or without the aid of testimony.” 197 Therefore, the declarations attached to the Fee Application
are not determinative. Furthermore, many of the cases cited by Plaintiff to support the attorneys’
hourly rates are not for similar services performed during civil rights litigation. 198 Accordingly,
the Court conducts its own analysis regarding the attorneys’ reasonable hourly rates.
Upon a review of the case law, the Court determines that the requested billing rates for the
services provided are excessive. As the senior attorney representing Plaintiff, Most requests a
billing rate of $350 per hour based on his 11 years of practice and eight years of civil rights
litigation experience. In 2014, another judge in the Eastern District of Louisiana found that $185
was a reasonable hourly billing rate for an attorney with 11 years of practice in a civil rights case. 199
Furthermore, in 2018, the court in Gilmore v. Audobon Nature Institute, Inc. awarded $275 per
hour to two attorneys in a civil rights case with 16 years of experience, finding that $275
“represents a reasonable blending of various other hourly rates awarded in other cases [in the
Eastern District of Louisiana].” 200 Most recently, four months ago this Court determined that a rate
of $350 per hour was a reasonable billing rate for an attorney with 30 years of experience in a civil
rights case. 201 By comparison, Most has only been practicing for 11 years and, when he first began

197

Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940).

See Rec. Doc. 261-1 at 12–13, n.80 (citing numerous cases that did not involve the denial of a plaintiff’s
civil rights).
198

199

Cacho v. Gusman, No. 11-225, 2014 WL 4854737, at *6 (E.D. La. Sept. 29, 2014).

200

Gilmore v. Audobon Nature Inst., Inc., 353 F. Supp. 3d 499, 509–510 (E.D. La. 2018).

201

Richard v. St. Tammany Par. Sheriff’s Dep’t, No. 17-9703, 2022 WL 4534728, at *2–*3 (E.D. La. Sept.

28, 2022).

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representing Plaintiff over five years ago, he had less than three years of civil rights litigation
experience. Accordingly, the Court finds $275 per hour to be a reasonable billing rate for an
attorney of Most’s experience. 202
Regarding the hourly billing rates for the rest of Plaintiff’s attorneys, they are entitled to
lower hourly billing rates as associates with five years or less experience. “Judges in this district
award attorney’s fees in the amount of $200 for work performed by an associate with less than five
years of experience.” 203 However, associates with five to six years of experience can command
hourly billing rates up to $250. 204 Accordingly, the Court finds $225 to be a reasonable hourly
billing rate for Lanser, the most senior associate, and $200 to be a reasonable hourly billing rate
for Gabriel, Barner, and Hass. With regard to the work performed by Sickle, this Court has found
that a “$75.00 hourly rate. . . for work performed by a law clerk [is] appropriate.” 205 Thus, the
Court finds that $75 is a reasonable hourly billing rate for Sickle. “The Court finds that further
reduction of the hourly rates is not warranted in light of the [General Fee Schedule] as counsel was
not representing the State of Louisiana in this matter” and because the General Fee Schedule is not
district specific. 206

See Ivy v. Tran, No. 20-1475, 2021 WL 1428877, at *2 (E.D. La. Apr. 15, 2021) (determining that Most’s
request that he receive attorney’s fees at an hourly billing rate of $275 per hour was prima facie reasonable given that
the requested rate was not opposed).
202

Girod LoanCo, LLC v. Heisler, No. 19-13150, 2020 WL 3605947, at *8 (E.D. La. July 2, 2020) (Brown,
C.J.) (citing Batiste v. Lewis, No. 17-4435, 2019 WL 1591951, at *3 (E.D. La. Apr. 12, 2019) (awarding $200.00 per
hour to attorney with five years of experience)).
203

Metro Serv. Grp., Inc. v. Waste Connections Bayou, Inc., No. 21-1136, 2022 WL 17830466, at *8 (E.D.
La. Dec. 21, 2022) (Brown, C.J.).
204

205

Bode, 2018 WL 4701541, at *6.

206

Id.

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C.

The Lodestar Calculation
In the final step, “the court calculates a ‘lodestar’ fee by multiplying the reasonable number

of hours expended on the case by the reasonable hourly rates for the participating lawyers.” 207 In
sum, the Court awards $116,641.25 for work performed by Most (109.5 hours at $275 per hour
divided by 6, plus 405.9 hours at $275 per hour), $15,997.50 for work performed by Lanser (71.1
hours at $225 per hour), $5,640 for work performed by Gabriel (28.2 hours at $200 per hour),
$3,900 for worked performed by Barner (19.5 hours at $200 per hour), $3,120 for work performed
by Hass (15.6 hours at $200 per hour), and $9,588.75 for work performed by Sickle (127.85 hours
at $75 per hour). Accordingly, the lodestar amount equals $154,887.50.
The Court also finds that a further reduction based upon Plaintiff’s partial success is
necessary. In the Fee Application, Plaintiff asks the Court to reduce the lodestar amount by 25%
to account for his lack of success on some claims. 208 The Fifth Circuit has recognized that
unsuccessful litigation efforts cannot be recognized as reasonable and must be deducted. 209 If
recoverable fees can be segregated from unrecoverable fees, even if difficult, the party seeking
recovery must segregate unrecoverable fees. 210 When the prevailing party incurs costs for a claim
that involves a common core of facts or will be based on legal theories related to another claim,
and counsel’s time is devoted to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis, the court need not segregate fees. 211 Federal courts authorize
207

Migis, 135 F.3d at 1047 (citing Louisiana Power, 50 F.3d at 324).

208

See Rec. Doc. 261-1.

209
See Leroy v. City of Houston, 906 F.2d 1068, 1084 (5th Cir. 1990); see also Jason D.W. v. Houston Indep.
Sch. Dist., 158 F.3d 205, 211 (5th Cir. 1998).
210

United States for Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 915, 922 (5th Cir. 1998).

211

Mota v. University of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 528 (5th Cir. 2001); see also Varco,

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a percentage reduction of overall fees when a fee award is due on a claim that is so intertwined
with another claim that the time cannot be segregated. 212
Plaintiff argues that a 25% reduction is appropriate because OPSO Defendants and DOC
Defendants defended the claims against them by blaming each other for Plaintiff’s over-detention,
requiring him “to do discovery and research about DOC Defendants to defeat OPSO Defendants’
defenses, and vice versa.” 213 Plaintiff asserts that a 25% reduction is fair because it approximates
that only half of the hours spent on DOC Defendants were specific them. 214 The Court agrees that
the claims against DOC Defendants and OPSO Defendants involved a common core of facts. The
Court also acknowledges that counsel obtained a settlement of approximately $1,000 per day for
each of Plaintiff’s 27 days of over-detention to constitute substantial relief in its claims against
OPSO Defendants. However, the Court does not believe that a 25% reduction is sufficient to
capture work on unsuccessful claims. Upon review of the timesheets, Plaintiff’s counsel charges
for communications exclusively with DOC Defendants’ attorneys, 215 time spent on unsuccessful
discovery motions against DOC Defendants, 216 and time spent on DOC Defendants’ successful

161 F.3d at 919–20 (holding that a party who won claim for costs of extra work but lost claims for delay damages,
fraud and misrepresentation was not required to segregate fees for the successful versus unsuccessful claims because
the claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof
or denial of essentially the same facts).
212

22, 2006).

See, e.g., Navigant Consulting, Inc. v. Wilkinson, No. 02-2186, 2006 WL 2437882, at *2 (N.D. Tex. Aug.

213

Rec. Doc. 261-1 at 17.

214

Id.

215

See, e.g., Rec. Doc. 261-21 at 3 (entry regarding phone call with DOC Defendants’ counsel).

216

See, e.g., id. at 14–15 (entries regarding unsuccessful motion for spoliation sanctions).

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appeal. 217 Accordingly, the Court determines that a reduction of 35% is appropriate. 218 Thus, the
lodestar amount is reduced to $100,676.88. 219
D.

Further Adjustment to the Lodestar Calculation
After calculating the lodestar, a district court may decrease or enhance the amount of

attorney’s fees based on the relative weights of the twelve factors set forth in Johnson v. Georgia
Highway Express, Inc. 220 The lodestar may not be adjusted due to a Johnson factor, however, if
the creation of the lodestar award already took that factor into account. 221 Such reconsideration is
“impermissible double-counting.” 222 A court should presume that the lodestar calculation is
reasonable and should only modify it in exceptional circumstances. 223 Here, the Court finds that
the circumstances of this case do not warrant an adjustment to the lodestar. The relevant factors
that would warrant an increase or decrease are already accounted for in the Court’s determination
of the reasonable number of hours and hourly rate. The Court has already factored the time and
labor required to represent Plaintiff, the desirability of the case, and Plaintiff’s limited success in
217

See, e.g., id. at 17–18 (entry regarding replying to DOC Defendants’ appeal).

See Navigant Consulting, 2006 WL 2437882, at *2 (reducing fees by 40% where successful claims were
inextricably intertwined with unsuccessful claims).
218

219

65% of $154,887.50 is $100,676.88.

Black, 732 F.3d at 502 (5th Cir. 2013) (citing Johnson, 488 F.2d at 717–19). The Johnson factors are: (1)
the time and labor required to represent the client or clients; (2) the novelty and difficulty of the issues in the case; (3)
the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5)
the customary fee charged for those services in the relevant community; (6) whether the fee is fixed or contingent; (7)
the time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19.
220

221

Saizan, 448 F.3d at 800 (citation omitted).

222

Id.

223

Watkins, 7 F.3d 453, 457 (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).

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determining the lodestar. The Court has also factored the experience of the attorneys in reducing
the hourly billing rates included in the lodestar calculation. Adjusting the lodestar based on these
same factors “would be impermissible double counting.” 224 The parties’ other arguments for
adjusting the lodestar calculation are unavailing because they do not provide evidence of
exceptional circumstances that would warrant a changing of the lodestar amount based on any of
the other Johnson factors.
However, OPSO Defendants also argue that the original request should be reduced because
it was “almost 9 times what his client received in the instant case.” 225 As Plaintiff correctly asserts,
the Supreme Court has “reject[ed] the proposition that fee awards under § 1988 should necessarily
be proportionate to the amount of damages a civil rights plaintiff actually recovers” in part because
“a successful civil rights plaintiff often secures important social benefits that are not reflected in
nominal or relatively small damages awards.” 226 This reasoning is applicable here. Plaintiff’s
litigation has contributed to OPSO amending its policies and decreasing the number of days
inmates are over-detained. Accordingly, the Court rejects the argument that the attorney’s fee
award should be reduce because they are disproportionate to the relief obtained.
Finally, OPSO Defendants argue that the fee award should be reduced because they agreed
to settle the claim in good faith for $35,000 but Plaintiff’s counsel convinced Plaintiff to accept a
$25,000 settlement so that counsel could litigate the quantum of fees in this Court. 227 However,

224

Saizan, 448 F.3d at 800 (citation omitted).

225

Rec. Doc. 264 at 2.

226
227

City of Riverside v. Rivera, 477 US 561, 574 (1986).
Rec. Doc. 264 at 20.

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Plaintiff’s counsel represents that the higher settlement amount was conditioned upon the parties’
later agreeing to attorney’s fees through negotiation. 228 The Court agrees with Plaintiff’s argument
that it was reasonable, and perhaps advisable, for him to accept a definite and immediate $25,000
offer over a conditional higher settlement amount that would be received at a later date, if at all.
Thus, the Court declines to reduce the fee award for this reason. Accordingly, the Court awards
Plaintiff $100,676.88 in attorney’s fees.
E.

Costs and Expenses
In addition to attorney’s fees, Plaintiff requests $3,153.96 in costs. 229 OPSO Defendants

argue that these costs should be reduced because they include costs for counsel’s convenience and
costs that are generally considered overhead. 230 “In view of the length and complexity of the case,”
$3,153.96 is a modest request. 231 Furthermore, a review of the costs charged indicate that the
entries are not unreasonable. 232 Accordingly, the Court declines to reduce the costs requested.
V. Conclusion
For the reasons discussed above, the Court awards Plaintiff attorney’s fees in the amount
of $100,676.88 and expenses in the amount of $3,153.96 for a total award of $103,830.84
Accordingly,

228

Rec. Doc. 268 at 7.

See Rec. Doc. 261 at 1–2. Plaintiff reduces attorney’s fees and costs by 25%. Id. at 2. However, the Court
has determined that a 35% reduction is appropriate. Therefore, the Court calculates the costs requested by adding the
“case specific costs” ($4,577.89) to 1/6 of the costs applicable to all six of Most’s over-detention cases ($274.36) and
reducing this amount by 35%.
229

230

Rec. Doc. 264 at 19.

Fucich Contracting, Inc., v. Shread-Kuyrkendall & Assocs., Inc., No. 18-2885, 2023 WL 156874, at *5
(E.D. La. Jan. 11, 2023) (reducing a $150,852.17 request for costs by only five percent given the nature of the case).
231

232

See Rec. Doc. 261-19 at 4–5.

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IT IS HEREBY ORDERED that Plaintiff Rodney Grant’s Motion for Attorney’s Fees 233
is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff Rodney Grant is hereby awarded $103,830.84
in attorney’s fees and costs recoverable against OPSO Defendants.
NEW ORLEANS, LOUISIANA, this _____
19th day of January, 2023.

_________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

233

Rec. Doc. 261.

39