Giorgio et al v. Clarke et al

Filing 232

District Judge Leo T. Sorokin: ORDER ON FEES AND INTEREST entered For the following reasons Plaintiffs' Renewed Motion for Attorneys' Fees and Costs, (Doc. 215), is ALLOWED IN PART. Plaintiffs' Motion for Prejudgment Interest, (Doc. 214), is DENIED. (See attached Order) (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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MATTHEW GIORGIO and
COLIN TRAVER,
Plaintiffs,
v.
STEVEN DUXBURY,
Defendant.

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Civil Action No. 12-11171-LTS

ORDER ON FEES AND INTEREST
July 25, 2016
SOROKIN, J.
Pursuant to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of Civil Procedure,
Plaintiffs seek attorneys’ fees and costs in the amount of $201,981.00, plus post-judgment
interest. 1 Doc. 215. Plaintiffs also move for pre-judgment interest. Doc. 214. For the following
reasons Plaintiffs’ Renewed Motion for Attorneys’ Fees and Costs, Doc. 215, is ALLOWED IN
PART. Plaintiffs’ Motion for Prejudgment Interest, Doc. 214, is DENIED.
I.

Background
Plaintiffs won this case at trial. 2 The view of the facts that prevailed vindicated a

substantial constitutional interest -- the right of an incarcerated inmate to practice his religion and

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Specifically, Plaintiffs ask for 486 hours at the rate of $400 per hour for Attorney McCormick,
III, and 20 hours at the rate of $275 for Attorney Maitland, for a total of $199,900, plus $2,081 in
costs.
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For purposes of this motion, familiarity with the record is assumed.
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to do so free from the threat of the imposition of burdens or punishment for doing so. 3 That the
jury found in favor of Plaintiffs is unsurprising. Among other points, Plaintiffs’ testimony and
the evidence plainly established that: (1) Plaintiffs requested in writing the ability to smudge; (2)
Plaintiffs later filed grievances seeking the right to smudge; (3) smudging is a permitted and
recognized religious practice under DOC rules as well as a matter of federal constitutional law;
(4) Defendant possessed, but never provided the smudging materials to Plaintiffs; and (5) no
DOC official (i.e., neither defendant nor anyone else) ever informed Plaintiffs of the
unidentified, unmarked, but apparently designated location for smudging. The jury awarded
$50,001.00 in favor of Mr. Giorgio and $50,000.00 in favor of Mr. Traver, for compensatory
damages and $500,000.00 as punitive damages to be shared by Mr. Giorgio and Mr. Traver. The
Court entered Judgment in these amounts. Doc. 111. Thereafter, and subsequent to the filing of
additional motions and mediation, the parties requested that the Court vacate that part of the
judgment awarding punitive damages ($500,000), Doc. 208, which the Court did. Accordingly,
an Amended Judgment was entered on March 23, 2016. Doc. 209. Now before the Court is
Plaintiffs’ renewed Motion for Attorneys’ Fees, as well as Plaintiffs’ Motion Awarding PreJudgment Interest. Docs. 21 and 215.
As a threshold matter, the Court notes that Defendant has not opposed the fee request.
The Department of Correction (“DOC”) is not a party to this litigation and has not sought to
intervene, but has filed an opposition. Doc. 219. Although DOC is a non-party in all respects, the
Court has reviewed DOC’s opposition. The Court has undertaken its own independent review of

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There was another view of the facts, a view advanced at some points throughout this case by
the defense. Under this view of the facts, Plaintiffs failure to engage in the religious rite at issue
in this case -- smudging -- arose from the Plaintiffs’ own failures to follow up on their request to
smudge. The jury rejected this view.
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the fee request to ensure it is “reasonable,” including consideration of the “lodestar method,”
Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015).
II.

Pertinent Considerations
The Court finds the following pertinent as it relates to the instant motion.
First, Plaintiffs are not entitled to pre-judgment interest where they did not submit the

question of pre-judgment interest to the jury. Cordero v. De Jesus-Mendez, 922 F.2d 11, 14 (1st
Cir. 1990) (“The substantive obstacle to an award of prejudgment interest is insurmountable.
Plaintiffs did not, in either trial, request that the question of prejudgment interest be submitted to
the jury; nor did they ask for a jury instruction on it.”).
Second, Plaintiffs request $145,541.00 in attorney fees and costs incurred up to entry of
the original judgment in this case. Doc. 215 at 2. The time records submitted by counsel in this
case, albeit a bit sparse, are nonetheless sufficient to support the requests in terms of allowing the
Court to analyze the reasonableness of the fee request.
Third, the rate for counsel is determined by reference to the rates “prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886, 896 (1984); Torres-Rivera v. O’Neill-Cancel, 524
F.3d 331, 336 (1st Cir. 2008). Counsel has supported his application with affidavits from two
attorneys, a detailed affidavit from an attorney experienced in defending civil rights cases and a
brief affidavit from a plaintiffs’ attorney stating that the hourly rate of $400 is acceptable given
the experience and level of skill demonstrated by Plaintiffs’ counsel, citing this Court’s decision
in Matalon, 806 F.3d at 638 ($400 an hour approved). The Court finds that the appropriate rate is
$350 per hour. The Court recognizes it awarded a higher rate in Matalon, however, that case
presented legal and factual issues of substantially greater complexity than the instant case.

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Nothing about the Court’s determination reflects adversely on Plaintiff’s counsel who litigated
the case vigorously but with focus, skill and parsimony, especially at the trial.
Fourth, in preparation for the filing of the Complaint, the time records submitted show an
entry which states: “Legal Research Relative To Civil Rights Actions and Validity of Causes of
Action Regarding Native American Religious Services v. Security Concerns, Requests etc.” Doc.
215-2. This same entry was listed for eleven different days, for a total of 42.5 hours. The entries
are repetitive and do nothing to inform the Court of the specific nature of the research or need for
this amount of research in order to draft a complaint on a relatively narrow issue. Moreover, the
need to research at this stage of the litigation is at least partly to ensure that the claims, if
brought, would be able to withstand a motion to dismiss. Defendants brought a Motion to
Dismiss and counsel spent an additional 26 hours preparing the opposition. The Court dismissed
four out of the six named defendants. These hours (42.5 and 26), which both related to the
sufficiency of the Complaint, are excessive given the level of success of Defendants’ motion. In
light of the foregoing considerations, a reduction of 33% (22.61 hours) is appropriate. See
Andrade v. Jamestown Housing Auth., 82 F.3d 1179, 1191 (1st Cir. 1996) (reduction of lodestar
based on level of success). Thus, counsel should be awarded for 45.89 hours and not for the 68.5
hours requested (a reduction of 22.61 hours). Finally, counsel spent 3.5 hours amending the
Complaint to add a Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim that
failed as a matter of law at the summary judgment stage. See Doc. 215-2 at 5. This amount
should not be compensated.
Fifth, on summary judgment, the Court rejected Plaintiffs’ claims as they related to
“prayer feathers,” “off-site pow-wows,” and “sweat lodge ceremonies,” as well as their claim for
violation of RLUIPA. Doc. 90. The remaining claim related only to Plaintiffs’ denial of their

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right to smudge. The Court then denied Plaintiffs’ Cross Motion for Summary Judgment, which
related only to the smudging issue, finding that the issue presented disputed issues of fact. Doc.
90. The time records reflect that counsel spent 62 hours in connection with work on the summary
judgment motions. Doc. 215-2 at 8-10. Most of counsel’s summary judgment briefing was
unsuccessful. Thus the Court finds that a 50% reduction in the 62 hours claimed is appropriate.
See Andrade, 82 F.3d at 1191. Accordingly, Plaintiffs may recover for 31 hours rather than the
62 hours requested in connection with the motions for summary judgment (a reduction of 31
hours).
Sixth, the Court considers the issue of counsel’s failure to distinguish between core and
non-core work. This distinction is not required under the case law, Matalon, 806 F.3d at 638, and
it is neither necessary nor reasonable in this case. The administrative or non-core work was
fairly limited as this was not a “paper” case involving large amounts of non-core work. And,
Plaintiffs’ counsel represents that he excluded entirely from his fee request “time spent on
telephone calls,” Doc. 215-1 at 4, and included “little to no administrative work.” Doc. 223 at 4.
Seventh, there were substantial post-verdict motions filed by the Defendant, Docs. 128
and 154, work for which Plaintiffs seek $56,440 (i.e., 141.1 hours at the proposed rate of $400
per hour). Doc. 215-3 at 5. At first blush, this amount might seem excessive in relation to the
amount of fees up to and through the verdict. However, the record demonstrates that substantial
work was required in response to significant issues raised in the Defendant’s initial post-verdict
motion, and his supplemental post-verdict motion (raising different issues and filed by different
counsel), which included challenges based upon asserted jury misconduct, qualified immunity,
and remittitur. Notably, the supplemental post-verdict motion, Doc. 154, was necessary because
DOC legal counsel (provided to the Defendant), withdrew from the case citing the appearance of

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a conflict of interest. Doc. 151. This in turn raised significant issues for new counsel as to
whether the Defendant was represented fairly—to which Plaintiffs were required to respond or
risk having the judgment vacated. Under these circumstances, it is expected that counsel would
spend considerable time and effort opposing the two sets of post-verdict filings. Plaintiffs
prevailed on these motions. The post-trial motions also challenged the punitive damage award,
which the parties (i.e., the Defendant and Plaintiffs) ultimately resolved by agreement, resulting
in a revised judgment which did not include any punitive damage award. In reviewing counsel’s
bills, and considering the issues before the Court, I find a reduction of only 5% of the total posttrial hours is warranted due to the punitive damages issue. Therefore, the Court reduces the
claimed post-trial hours from 141.1 hours to 134.1 hours (a reduction of 7 hours).
Finally, included in the fee request were hours billed by counsel’s second chair at trial -20 hours at the rate of $275. The Court finds both the hours and the rate to be reasonable. For
ease of analysis these hours are converted to 15.71 hours at the $350 per hour rate awarded for
Attorney McCormack’s time.
CONCLUSION
For the reasons set forth herein Plaintiffs’ Motion for Attorneys’ Fees and Costs, Doc.
215, is ALLOWED IN PART. Plaintiffs request fees for a total of 506 hours of work, but the
Court finds fees are only warranted for 437.6 hours. 4 The Court finds further that a rate of $350
per hour is warranted. Thus, given the number of hours (437.6), the rate per hour ($350), and the

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As the Court has explained, it subtracts from Plaintiffs’ request: (1) 14.03 hours for research in
drafting the Complaint; (2) 8.58 hours for preparing the opposition to Defendant’s Motion to
Dismiss; (3) 3.5 hours for amending the Complaint to include a RLUIPA claim; (4) 31 hours for
work related to the motions for summary judgment; (5) 7 hours for post-verdict motions; and (6)
4.29 hours for associate conversion (albeit at a higher rate than the one Plaintiffs request, such
that there is no effect on the amount of fees awarded).
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additional costs ($2,081), the Court hereby enters judgment awarding Plaintiffs’ attorneys’ fees
and costs in the amount of $155,241.00. Post-judgment interest is also awarded according to the
applicable federal rate from the date of entry of judgment until the date of payment. 5 The Motion
for Prejudgment Interest, Doc. 214, is DENIED.
SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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See McDonough v. City of Quincy, 353 F. Supp. 2d 179, 192 (D. Mass. 2005).
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