Ball et al v. LeBlanc et al

Filing 234

RULING and ORDER granting in part and denying in part 216 Plaintiffs' Motion to Set Attorney's Fees and Costs Regarding the Maintenance of the Status Quo. The Court ASSESSES COSTS against the Defendants in the amount of $15,019 in fees and $243.04 in costs. Signed by Chief Judge Brian A. Jackson on 7/17/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ELZIE BALL, ET AL.

CIVIL A CTI ON

VERSUS
JAMES M. LEBLANC, ET AL.

N0.:13-00368-BAJ-S CR

RULING AND ORDE R

Before the Co urt is P la intiffs' Motion t o S et Attorn eys' Fees and Cost s
R egarding Ma inte nance of t he Sta tus Quo (Doc. 216) filed b y E lzie Ball,
Nath a ni el Code, a nd J a m es Magee (collectively, "Plaintiffs"), seeking an order
from this Court awarding attorneys· fees and costs in the amount of $16,892.04.
The motion is filed in accordance with this Court's Ruling and Order granting
Plaintiffs' Motion to Maintain th e Status Quo of October 30, 2014.

(Doc. 214).

Defendants James M. Lebla nc, Secretary of Louisiana Department of Public Safety
and Corrections, Burl Cain, Warden of the Louisiana State Penitentiary ("Angola"),
Angela Norwood, t he Warde n of Death Row, a nd the Louisiana Department of
Public Safety and Corrections (collectively, "Defenda nts")

oppose the award as

unreasonable. (Doc. 218).
I.

B ack ground
On June 10, 2013, Plaintiffs filed a Complaint against Defendants for civil

rights abuses surrounding the conditions of confinement on the Angola death r ow
tier . (Doc. 1 at 11 1). More specifically, Plaintiffs claimed violations of t heir Eigh t h

and Fourtee nth Amendment rights and violations of the Americans with
Disabilities Act ("ADA") for da n gerous heat levels in Angola's Death Row. (Doc. 1 at

,,,11-2).

On Au gu st 5, 2013, the matter came before t he Court on a non-jury trial on

t he merits. (Docs. 76, 77). On December 29, 2013, the Court issued a Ruling a nd
Order , finding in favor of Plaintiffs and ordering Defendants to "monitor, r ecord,
and report the temperature, humidity, and the heat index in each of the death row
tiers .. .. " (Doc. 87 at p. 95).
During discovery, Plaintiffs claimed Defendants acte d to intentionally
"undermine the accuracy .. . of court-ordered collection related to the temperature,
humidity, a nd h eat index in Angola's death row tiers, a nd t hus should be sanctioned
for spoliation of evidence" because Defenda nts installed awnings over t he windows
of death row tiers, employed "soaker hoses" to "mist the walls" of cer tain t iers, and
attemp ted unsuccessfully to develop a sprinkler syste m to wet the roof .and yard of
the prison. (Doc. 88 at pp. 3, 7-8). The Court had "little trouble determining that
Defendants' construction of aw ning and installation of soaker hoses exhibited 'bad
faith ."' (Doc. 88 a t p. 33-34). The Court reasoned th a t "it [was] ab undantly clear th at
Defenda n ts' manipulations occurred after t his Court ordered th at the most accurate
data . . . be collected" and the specific intention for installing the awnings and
soaker hoses was to manipulate t he very data t hat t hey conceded t hey were
obligated to preserve. (Doc. 88 at p. 34) (internal quotations omitted). The CouTt
concluded Defendants' deliber ate breach of their du ty to maintain the status quo

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satisfied t he ba d fa it h standar d a nd sanctioned Defenda nts under t he Court's
inherent power. (Doc. 88 at p . 49).
While t he appeal of t his Court's r ulin g on the merits was pe nding before t he
United States Court of Appeals fo r the Fift h Circuit, Defenda nts removed t he
mercury th ermometer s which h ad bee n used to measure t he temperature for the
duration of t he case a nd replaced t hem with digital thermometers. (Doc. 203-1 at p .
2). Defenda nts performed t his ma nip ula tion of evide nce on t h eir own init iative
without notifYing either the Court or the Special Master. (See Doc. 213 at pp. 1-2).
Nevert heless, Defe nda nts justified their actions by fervently advocating t he
superiority of the new digital thermometer "upgrade."

In so doing, Defenda nts

failed to acknowledge th at t he Court's Order mandated mainten an ce of t he status
quo. To be clear, a ny a lteration of the heat measuring instruments, including
a lleged imp rovements, directly violated t he Court's unequivocal order.

(See Doc.

213 at pp. 1-2). Defe nda nts later re mounted t he original mercury t her mometers.
(Doc. 203-1 at p. 4).
At the hearing held on October 29, 2014, the Court fo und Defe nda nts'
remova l of th e mercury thermometers after being put on notice to main tain the
status quo by previous sanctions constituted a bad faith violation of t his Court 's
Order. (Doc. 213 at pp. 1-2; Doc. 214 at pp . 1-2). Using no uncer tain terms, t he
Cour t ordered Defenda nts to maintain the status quo. The Court then gran ted
Pla intiffs' request for reasona ble attorneys' fees a nd costs associated with the

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motion.

(Docs. 313, 214).

The Court then ordered Plaintiffs to file a motion

detailing the fe es and costs reason ably incuncd. (Doc. 214 at p. 2).
In response, Plaintiffs filed a request for $16,649.00 in fees a nd $243.04 in
costs. (Doc. 216).

The fees included work performed by the following three

attorneys: Mercedes Montagnes ("Montagnes"), Elizabeth Co ropa ("Compa"), and
Nilay U. Vora ("Vora"). (Doc. 216- 1 at p. 6). Each attorney set hisfher own rate
using th e prevailing market rate for his/her respective ma rkets.

Specifically,

Montagnes and Compa used the prevailing market rate for New Orleans at $225
per h our and $200 per hour respectively, and Vora used the prevailing ma rket rate
for Los Angeles at $350 per h our. (Doc. 216-1 at p. 9). Together , Plaintiffs claim a
total of approximately ninety-seven hours. Plaintiffs also factored in a 20% globa l
reduction for a total of approximately seve nty-five a nd one ha lf hours. (Doc. 216-1 at
p. 7). The services for these hours fa ll into four broad categories: (1) discovering and
investigating the replaced thermometers, (2) research a nd preparation fo r t he
motion and hearin g held October 28, 2014, (3) travel to Angola with t he Special
Master ,l and (4) setting a nd justifying a ttorney fees for the motion currently before
the Court. (Doc. 216-1 at p. 9).

'fravel costs were calculated us ing t he current witness and juror mileage reimbursement rate for
the Middle District of Louisiana, S0.56 per mile. Plaintiffs cite Fee Schedule, Fees of the U.S.
District Court (Dec. 1, 2013) available at www.lamd.uscoUl·ts.gov/fee-schedule. for justification of
t his rate. Plaintiffs claim 434 miles traveled, totaling S243.04 in costs (Doc. 216-1 at pp. 9-10).
Defendants do not contest the Court's power to award travel costs. the method of calculation. rate. or
total requested; rather, Defendants only chaUenge that the rate be capped by the Prison Litigation
Reform Act ("PLRA").
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II.

Discuss ion
In Hensely u. Echerhart, 461 U.S. 424 (1983), t he United States Supreme

Court established a two-step system for calculating attorney fees, a lso called th e
"lodestar" method. Id. at 433 (applying the lodestar amount for attorney's fees
awarded under a § 1988 case). See Heidtman u. County of El Paso, 171 F.3d 1038,
1043 (5th Cir. 1999) ("This Court uses the 'lodestar' method to calculate attorney
fees."); Matter of Fender, 12 F .3d 480, 487 ("The Fifth Circuit uses the 'lodestar'
method to calculate attorneys' fees."). See also Wagner u. Boh Bros. Canst. Co.,

LLC, 2012 WL 3637392 at *12 (E .D . La. Aug. 22, 20 12) (applying the lodestar
a mount for attorney fees incurred as a result of opposing par ty's failure to comply
wit h court orders, among other things) .

Attorney fees are calculated by

"det ermining . . . t he number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate." Id.
Applying t his test, Plaintiffs' proposed award must be reduced for two
reasons . First, the request does not employ a reasonable rate because Plaintiffs use
t he prevailing market rate for their respective ma rkets, r ather th a n t he market in
which the court sits. Second, not all of Plaintiffs' requested hours were reasonably
spen t on th e litigation because the request includes a lunch with t he Special
Master.

Because of these errors, the Court will recalculate the reward in

accordance with th e prevailing market rate for the Middle District of Louisiana and
reduce t he total hours by the time spe nt at the meal.

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A.

Reasonable Attorney Rates

Plaintiffs must first show that their rates are reasonable. Id. Reasonable
rates are determined by the "prevailing market rates in the relevant community."

Blum v. Stenson, 465 U.S. 886, 895 (1984); United States v. City of Jacl?-son, Miss.,
359 F.3d 727, 733 (5th Cir. 2004) (applying Blum to attorney fees awarded by
district court sanctions). For purposes of determining the market rate, the relevant
community is the "community in which the district court sits ."

Scham v. Dist.

Courts Trying Crim,inal Cases, 148 F.3d 554, 559 (5th Cir. 1998), abrogated on other
grounds by Buckhannon Bd. and Care Honte, Inc. v. West Virginia Dep't of Health

and Human Serv. , 532 U.S. 598, 610 (2001); see also Tollett v. City of Kemah, 285
F.3d 357, 368 (5th Cir. 2002); McClain v. Lufhin Indus., Inc. , 649 F.3d 374, 381 (5th
Cir. 2011).
The prevailing market fee is generally determined by affidavits filed by
attorneys practicing in the area. Tollett, 285 F.3d at 368. However, markets of
comparable sizes can be informative in determining the prevailing market rate of
another district.

See e.g., Strogner v. Sturdivant, No. 10-125-JJB-CN, 2011 WL

6140670, at *2 n.4 (M.D. La. Dec. 9, 2011) (finding that the rate in New Orleans
could help determine the rate in Baton Rouge because after Hurricane Katrina, the
size of New Orleans a nd Baton Rouge became more comparable); Advocacy Center v.

Cain, No. 12-508-BAJ-SCR, 2014 WL 1246840, at *7 n.6 (M.D. La. Mar. 24, 2014)
(same). Furt her, courts have declined to adjust a proposed attorney rate when the
other party fails to con test the rate's reasonability. Tollett, 285 F.3d at 368. In

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Tollett u. City of Kemah, t he Fifth Circuit sa nctioned t he defendan t for violatin g
Rule 37 of t he Federal Rules of Civil Procedure by awarding t he plaint iffs
a ttorneys' fees. Id. at 369. In doing so, t he court allowed the plaintiff to rely solely
"upon his own assertion in his affidavit that his is a reason able rate." Id. at 368.
Although the court questioned whether the plaintiffs rate of $300 was reasonable.
it ultim ately held the a mount reasonable based on Tollett's counsel's affidavit "only
because the [defe nda nts did] not contest [it]." Id.
Here, as in Tollett, Defe ndants do not question the reasona bleness of the
hourly rate. Id. Instead, Defendants argue that the hourly rate should be capped
by th e P rison Reform Litigation Act ("PLRA"). 2 (Doc. 218 at p. 3). Alth ou gh this
section of th e P LRA is "not a paragon of cla rity," Defend ants' ar gume nt is
nonetheless wit hou t merit. See Cody u. Hillard , 304 F.3d 767, 776 (8th Cir. 2002)
(quoting Inmates of Suffoll?. Cnty. Jail u. Rouse, 129 F.3d 649, 654 (1st CiT. 1997)).
The PRLA app lies to post-judgmen t awa rds issued u nder 42 U.S.C. § 1988.

It

states in relevan t part:
In a ny action brought by a prisoner . . . in which attorney's fees are
authorized under section 1988 of this title, such fees shall not be
awar ded, except to t he extent that . . . t he fee was directly a nd
reasona bly incurred in proving an actual violation of the plaintiffs
righ ts protected by a statute pursuant to which a fee nwy be awarded
under section 1988 of this title.

Defendants present case la w from the United States Court of Appeals for the Ninth Circuit arguing
that fees awarded under con tempt and discovery sanctions are capped by t he PLRA presum a bly
because the Fifth Circuit has yet to address whethe r the PLRA applies to sa nctions levied under a
cow·t's inherent a u t hori ty. (Doc. 218 at pp. 3-4) (citing Webb u. Ada Cnty, 285 F.3d 829 (9th Cir.
2002)). However. as Defendants acknowledge, this Cow·t is not bound by Ninth Circuit preceden t.
Moreover. the Cotu't find s the Webb case inapplicable here because Webb concerned sanctions for
contempt and Rule 37 violations. not sanctions levied under a court's inhere nt a uthority.
2

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42 U .S.C. § 1997e(d)(1)(A) (emphasis added); see Volh v. Gonzalez, 262 F.3d 528,
53 1-32 (5th Cir. 2001).
The current award of attorney fees is a sanction, iss ued under this Court's
inhere nt authority as a result of Defendants' repeated, bad faith violations of this
Court's direct order to maintain the status quo; therefore, th e PLRA is inapplicable.

See Chambers v. Nasco, 501 U.S. 32, 43-46 (1991) (h olding courts h ave inherent
authority to manage their own proceedings and finding that awarding attorney's
fees is within t his power).

As in Tollett, Defendants failed to challen ge t h e

reasonability of Plaintiffs' rates, instead focusing on the incorrect assertion that
Plaintiffs' rate should be capped by the PLRA. As a result, th e Court would be
r easonable in accepting Plaintiffs' rate without further inquiry. See Tollet, 285 F.3d
at 368.
However, the question of reasonability is ultimately a question for the district
court to decide, a nd this Court is free to address Plaintiffs' rate on its own init iative.

See, e.g., La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995)
(notin g t he district court must determine the reasonable number of hours expended
on litigation a nd t he reasonable hourly rates). Although Montagnes and Compa
presen t the prevailing market rate for New Orleans (Doc. 216-2 at p. 3; Doc. 216-4
at p. 3) this Court finds the rates in t he New Orleans market informative as to the
rates in Baton Rouge. See Stogner, 2011 WL 6140670, at *2 n.4; Advocacy Center v.

Cain, 2014 WL 1246840, *6 n .6. Furth ermore, additional affidavits presented by

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Plaintiffs state that the rates are comparable in the Eastern and Middle Districts of
Louisiana. (Doc. 187-8 at p. 3).
Vora states in his affidavit that $350 would be a reasonable rate for attorneys
of comparable sk ill and experience in Los Angeles, California. (Doc. 216-6 at p . 3).
Because this Court does not sit in Los Angeles area, nor is the Los Angles market of
comparable size to the Middle District, the information presented in the affidavit is
not germane as to the reasonableness of a prevailing market rate for an attorney of
Vera's skill and experience in the relevant legal market. See Creecy u. Metro. Prop.

and Cas. Ins. Co., 548 F. Supp.2d 279, 284 (E.D. La. 2008) (finding t estimony a lone
is inadequate to establish a reasonable market rate).

Thus, considering Vora

contributed significantly fewer hom·s:3 than Montage or Compa and Defen dants did
not contest the reasonableness of the rates, the Court finds it reasonable to reduce
Vera's rate to that of Montage's, which is $225 per hour. (Doc. 216- 1 at p. 9; Doc.
218 at pp. 3-4). See Hensley, 461 U .S. at 1939 (finding that a court can reduce a
reward if the party's documentation is inadequate to prove a reasonable rate).
Defendants argue that the Court cannot grant sanctions under its inherent
authority because t he order granting attorney fees did not specifically find
Defendants in bad faith.

(Doc. 216 at pp. 2-3).

This argument is meritless.

Defendants were on notice from a previous finding of bad faith, which resulted in
similar sanctions, that any alteration of evidence would result in further sanctions .
(Doc. 88 at p. 49). Despite this warning, Defendants willingly violated t he Court's

Specifically, Vora's billings constitute roughly six and a quarter hours of the total seventy-five and
one half hours billed.
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Order for a second time. That the Defendants were found to be in bad faith at the
October 29, 2014 hearing was obvious. The Court made it ab undantly clear to
Defendants again that further violation of Co urt Orders would not be tolerated.

B.

Reasonable Hours

In addition to demonstrating that rates are reasonable, Plaintiffs must also
establish that the number of hours expended was reasonable. The calculation for
attorneys' fees must constitute a good faith effort to exclude hours that are
"excessive, redundant or otherwise unnecessary." Hensly, 461 U.S. at 434. Further,
the plaintiff bears the burden of "proving that the number of hours for which
comp ensation is reque sted is reasonable." Cooper u. Pentecost, 77 F.3d 829, 832 (5th
Cir. 1996). The court may reduce the reward if a plaintiffs requested hours are
"vague or incomplete." La. Power, 50 F.3d at 324.
Courts have stricken um·easonable travel time from an attorneys' fee award.

See e.g., Leonard u. State of Louisiana , No. 07-0813, 2010 WL 3780793, at *5 (\V.D.
La. Sept. 20, 2010). For example, in Leonard u. State of Louisiana, the court
awarded the plaintiffs attorneys' fees as the prevailing party in a 42 U.S.C. § 1983
claim . Id. at *3. Defendants challenged the attorneys' travel time, which allotted
nearly ten hom·s for travel fro m Baton Rouge to New Orleans. Id. at *5. Although
the attorneys claimed the delay was caused by "bad weather and traffic," the court
r educed the travel time to two hours, presuma bly the average travel time from
Baton Rouge to New Orleans. Id.

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Like Leonard, Plaintiffs included travel time" for a trip to Angola to meet
with the Special Master.5 (Doc. 216-1 at p. 6). Both Montagnes a nd Compa stated
in their affidavits th at the trip was "sched uled in response to the removal of the
thermometers."

(Doc. 216-4 at p. 3; Doc. 216-6 at p. 3).

Similarly, the Special

Master specified that the purpose of the trip was to "educate [him] about the death
row facilities and present status of temperature measures." (Doc. 218-2 at p. 1).
Because the purpose of the visit was related to t he temperature measurement
devices, t he Court finds that the hours for the visit were reason ably associated with
the motion to maintain the status quo. (Doc. 214 at p. 1).6
Defendants a rgue that travel to Angola was not reasonably in furtherance of
the litigation7 beca use it was undertake n voluntarily by P la intiffs .s (Doc. 218 at p.
5). However, a lthough the inspection was for the purpose of "educating the Special

Master," his education principally concerned the measuremen t devices being used
in th e prison. (Doc. 218 at p. 7; Doc. 218-2). In an email, the Specia l Master wrote,

·• Round trip mileage is calculated at 272 miles. (Doc. 216-9 at p. 1). Total time for the trip is eight
hours and thirty-five minutes. (Doc. 216-3 at p. 1). Compa also included thirty-two minutes for a
meeting discussing the trip into her total. (Doc. 216-6 at p. 1).
Plaintiffs also seek fees a nd costs to cover traveling from their office in New Orleans to Baton
Rouge to attend a hearing on the matter; however, Defendants do not contest these hours or costs.

5

Defendants do not contest the Court's power to award travel expenses as part of the reward for
a ttorney's fees, only the reasonableness of the travel.

G

Because Defendants only contest the Plaintiffs' hours spent traveling to Angola, the Court awards
t he re mainder of Plaintiffs' hours .

7

s Defendants also a rgue the Special Master undertook this trip volunta rily because the Court
"suggested- not orde red-Special Master to tour the death row tiers." (Doc. 218 at p. 7). This
a rgume nt is wholly without merit. and thus need not be addr essed. However . the Com·t notes that
Defendants' cavalier attitude and general lack of respect for the Court's "suggestions" exemplifies
why Defendants have been repeatedly sanctioned for violating this Com·t's orders.
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"As I indicated in my earlier ema il this is a visit for my purpose only a nd simply to
educate me about the death row facilities a nd t he temperature measurement
devices ." (Doc. 218-2 at p. 1) (emphasis added).

The Special Master furt her stated, "I would expect some discussion by t he
State reps of facilities a nd t he temperature measurement devices and how they are
monitored." (Doc. 218 at p. 7) (emphasis added). Because t he explicit purpose of
the investigation was to educate the Special Master about the temperature
measuring devices -- the crux of Plaintiffs' Motion -- Plaintiffs' decision to join th e
Special Master was at t he very least "associated with the .. . motion [to Maintain
the Status Quo]" a nd, t herefore, reasonably considered attendant to t he instant
motion. (Doc. 214 at p. 1).
Defendants a lso argue t hat Plaintiffs included two hours at a lunch with the
Special Master, which is not time reason ably spent on litigation. (Doc. 218 at p. 8).
On t his point, Plaintiffs concede that t he meal with the Special Master could
reasonably be deducted.

(Doc. 225 at p. 3).

Althou gh Plaintiffs claim traffic

congestion accounted for thirty minutes of t he lunch (Doc. 225 at p. 4), as in
Leonard, this Court may find time spe nt on t ravel delay (even r easonable delay) is

not reasonably spent on litigation. See Leonard, 20 10 WL 3780793, at *5. Because
the meal h ours were not reasonably spent on litigation, the Court will reduce the
Plaintiffs' reward by two hours for both Montages a nd Campa, for a total of a four
hour reduction to the total number of hours.

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III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Plaintiffs' Motion to Set Attorney's Fees and

Costs Regarding the Maintenance of the Status Quo (Doc. 216) is
GRANTED IN PART and DENIED IN PART. The Court ASSESSES COSTS
against the Defendants in the amount of $15,019 in fees and $243.04 in costs.

Baton Rouge, Louisiana, this

/]~day of July, 2015.

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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