Delaughter v. Woodall et al
Filing
272
MEMORANDUM OPINION AND ORDER granting in part and denying in part 248 Motion for Attorney Fees and Nontaxable Expenses. Signed by Magistrate Judge Robert H Walker on 7/6/22 (TS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THAD EVERETT DELAUGHTER
PLAINTIFF
v.
Civil No. 1:14-cv-18-RHWR
MICHAEL HATTEN,
GLORIA PERRY, and
DONALD FAUCETT
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION [248] FOR ATTORNEY FEES
AND NONTAXABLE EXPENSES
BEFORE THE COURT is the Motion [248] for Attorney Fees and Nontaxable
Expenses filed by Plaintiff Thad Everett Delaughter. This Motion has been fully
briefed. Having considered the parties submissions, the record in this case, and
relevant legal authority, the Court finds that Plaintiff’s Motion [248] should be
granted in part and denied in part. Pursuant to 42 U.S.C. § 1988(b), Plaintiff is
entitled to reasonable attorney fees in the amount of $98, 728.95 and expenses in the
amount of $898.10, for a total award of $99,627.05. Pursuant to 42 U.S.C. §
1997e(d)(2), $95,500.00 of that amount must be paid from the compensatory damages
award. Defendant Gloria Perry must pay Plaintiff the remaining $4,127.05.
I. BACKGROUND
A detailed factual and procedural background may be found in the other
Memorandum Opinion and Order [271] entered this day.
1
II. LEGAL STANDARD
“The general rule in our legal system is that each party must pay its own
attorney's fees and expenses....” Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 550
(2010). However, in civil rights actions, such as this one, courts have the discretion
“to allow the prevailing party . . . a reasonable attorney's fee . . . . ”42 U.S.C. § 1988(b).
To attain prevailing party status, a party must achieve some judicially
sanctioned relief that either creates or materially alters a legal relationship between
the parties. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health &
Human Resources, 532 U.S. 598, 604 (2001). Following Buckhannon, the Fifth Circuit
established three requirements that must be satisfied for a plaintiff to demonstrate
prevailing party status: (1) the plaintiff must achieve judicially-sanctioned relief, (2)
the relief must materially alter the legal relationship between the parties, and (3) the
relief must modify the defendant's behavior in a way that directly benefits the
plaintiff at the time the relief is entered. See Dearmore v. City of Garland, 519 F.3d
517, 521 (5th Cir. 2008).
Following Fifth Circuit precedent, trial courts employ a two-step process when
determining an award of attorney's fees. Jimenez v. Wood Cty., 621 F.3d 372, 379 (5th
Cir. 2010) (citing Rutherford v. Harris Cty., 197 F.3d 173, 192 (5th Cir. 1999)). First,
courts calculate the lodestar “which is equal to the number of hours reasonably
expended multiplied by the prevailing hourly rate in the community for similar
work.” Id; see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Black v. SettlePou,
P.C., 732 F.3d 492, 502 (5th Cir. 2013).
2
In evaluating the reasonableness of the number of hours expended, courts
determine “whether the total hours claimed are reasonable [and] also whether
particular hours claimed were reasonably expended.” La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995) (quoting Alberti v. Klevenhagen, 896 F.2d
927, 932 (5th Cir. 1990), modified on other grounds, 903 F.2d 352 (5th Cir. 1990)).
Any duplicative, excessive, or inadequately documented time should be excluded from
the lodestar calculation. Jimenez, 621 F.3d at 379-80. The appropriate hourly rate is
based on the prevailing community standards for attorneys of similar experience in
similar cases. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). The
burden is on the applicant to establish the reasonableness of the award. See Riley v.
City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996); La. Power & Light Co., 50 F.3d at
324; In re Smith, 966 F.2d 973, 978 (5th Cir. 1992)).
Next, courts consider whether to adjust the award based on the factors set out
in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
See Jimenez, 621 F.3d at 380. If a court chooses to adjust the award, it must
“articulate and clearly apply the Johnson criteria.” See Dodge v. Hunt Petroleum
Corp., 174 F. Supp. 2d 505, 508 (N.D. Tx. 2001); see also Jimenez, 621 F.3d at 380
(quoting Perdue, 559 U.S. at 558) (noting district courts must provide “a reasonably
specific explanation for all aspects of a fee determination.”).
The Prison Litigation Reform Act (“PLRA”) imposes four additional limitations
on attorney fee awards. First, all fees must have been “directly and reasonably
incurred in proving an actual violation of the plaintiff's rights.” 42 U.S.C. §
3
1997e(d)(1)(A). Second, the fees must be either “proportionally related to the court
ordered relief” or “directly and reasonably incurred in enforcing the relief ordered.” §
1997e(d)(1)(B). Third, the fees cannot be predicated upon hourly rates which exceed
“150 percent of the hourly rate established” by 18 U.S.C.A. § 3006A, known as the
Criminal Justice Act (“CJA”). § 1997e(d)(3). Finally, the PLRA requires that twenty
five percent of the judgment be applies “to satisfy the amount of attorney's fees
awarded against the defendant.” § 1997e(d)(2).
III. DISCUSSION
The resolution of this motion requires four inquires. First, the Court must
determine whether Plaintiff has attained prevailing party status. Next, the Court
must determine the reasonableness of the requested attorney fees using the lodestar
calculation. After that, the Court must determine whether an upward or downward
variance of the lodestar is warranted. Finally, the Court must determine whether the
award complies with the additional limitations imposed by the PLRA. The Court
addresses each in turn.
A.
Prevailing Party Status
To attain prevailing party status, “a plaintiff must (1) obtain actual relief, such
as an enforceable judgment or consent decree; (2) that materially alters the legal
relationship between the parties; and (3) modifies the defendant's behavior in a way
that directly benefits the plaintiff at the time of the judgment or settlement.”
Dearmore, 519 F.3d at 521 (quotation marks and citation omitted).
Upon review, the Court finds that Plaintiff has attained prevailing party
status. First, the jury’s compensatory damages award and the Court’s grant of
4
prospective injunctive relief both constitute “actual relief.” Id. Second, the damages
award alone materially altered the legal relationship between Plaintiff and
Defendant. See Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“material alteration”
results when there is a “judgment for damages in any amount, whether compensatory
or nominal,” because even a nominal award “forc[es] the defendant to pay an amount
he otherwise would not pay.”). Finally, by their nature both forms of actual relief
awarded “modifie[d] the defendant's behavior” in a way that “directly benefitted
plaintiffs at the time of its entry.” Dearmore, 519 F.3d at 521. Therefore, Plaintiff has
attained prevailing party status. 1
B.
Lodestar Inputs
To calculate the lodestar, the Court multiplies the reasonable number of hours
expended and the reasonable hourly rate. See Jimenez, 621 F.3d at 379-80; Dodge, F.
Supp. 2d at 508. The Court begins its analysis by addressing the reasonableness of
the hourly rates Plaintiff claimed.
a. Reasonable Hourly Rate
The general rule is that “‘reasonable’ hourly rates ‘are to be calculated
according to the prevailing market rates in the relevant community.’” McClaim, 649
F.3d at 381 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Plaintiff bears the
burden of “produc[ing] satisfactory evidence . . . that the requested rates are in line
Under Farrar, it appears the compensatory damages award alone confers prevailing party status.
See 506 U.S. at 113 (holding that a civil rights plaintiff who recovers damages in any amount, whether
compensatory or nominal, qualifies as “prevailing party”); see also Grisham v. City of Fort Worth, 837
F.3d 564, 568 (5th Cir. 2016) (noting that even an award of nominal damages is sufficient to confer
prevailing party status).
1
5
with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Id. (quoting Blum, 465 U.S. at 896
n.11).
Usually, “the ‘relevant market for purposes of determining the prevailing rate
to be paid in a fee award is the community in which the district court sits’” – here,
the Southern Division of the Southern District of Mississippi – and the reasonable
hourly rate for that community “is established through affidavits of other attorneys
practicing there.” Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) (quoting
Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998)).
Courts also look to other court decisions regarding the prevailing rate. See, e.g.,
Walker v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d 761, 660 (5th Cir. 1996)
(affirming prevailing rate arrived at by district court using “the hourly rate on awards
by other judges in the [division,] previous awards in the . . . case, and the published
billing rates of outside counsel.”).
In this case, Plaintiff was represented by attorneys Christopher Smith and
Morgan Holder. Mr. Smith has over twelve years of experience practicing civil and
criminal law. Ex. [248-2] at 1. Prior to entering private practice, Mr. Smith spent
three years as an Assistant State Attorney for the Fourteenth Judicial District of
Florida prosecuting state felony offenses. Id. at 4. Mr. Holder has a decade of civil
litigation experience. Ex. [248-3] at 1. In 2014, the pair formed Smith & Holder,
PLLC. Ex. [248-2] at 4. Their practice focuses on personal injury cases and criminal
defense.
6
Plaintiff requests a rate of $237.00 per hour for both attorneys, which is less
than their normal per hour rate of $250.00. Mem. [249] at 5. Defendant objects that
Plaintiff failed to submit affidavits from other local attorneys or cite any cases from
this district establishing the reasonableness of the requested rate. Mem. [263] at 12.
In response, Plaintiff directs the Court’s attention to five cases in this district where
courts awarded attorney fees ranging from $225.00 to $400.00 per hour. See Mem.
[266] at 2-3. Plaintiff also directs the Court’s attention to the declaration of nowJudge S. Trent Farve, relied on by another judge in this district to determine the
reasonable local market rate. See Lamar Company, LLC v. Harrison Cnty. Sch. Dist.,
Civ. No. 1:17-cv-206, 2017 WL 6452774, at *2 (S.D. Miss. Dec. 18, 2017). The
declaration states that $250.00 an hour is “consistent with hourly rates charged by
experienced attorneys . . . in the Mississippi Gulf Coast area.” Ex. [266-1] at 1.
Here, the Court finds that the requested rate of $237.00 per hour is reasonable.
While affidavits from local attorneys indicating a familiarity with the submitting
counsel and attesting to the reasonableness of their requested rate are generally
preferred, Fifth Circuit precedent does not explicitly impose such a requirement.
Instead, as noted above, Fifth Circuit precedent provides that “[g]enerally, the
reasonable hourly rate for a particular community is established through affidavits
of other attorneys practicing there.” Tollett, 285 F.3d at 368. Here, the declaration
provided came from a local attorney and stated that $250.00 is a reasonable hourly
rate for experienced attorneys in this community. Thus, the declaration is sufficient
to support a reasonably hourly rate of $237.00.
7
The Court also finds that previous cases in this district support that
determination. See, e.g., Walker, 99 F.3d at 660 (affirming prevailing rate arrived at
by district court using “the hourly rate on awards by other judges in the [division,]
previous awards in the . . . case, and the published billing rates of outside counsel.”).
In Lamar Company, Judge Guirola cited a litany of cases in this district supporting
an hourly rate between $225.00 and $400.00. 2017 WL 6452774, at *2. For example,
Judge Guirola cited United States ex rel. Rigsby v. State Farm Fire & Casualty
Company, in which the court awarded attorney Laura K. Barbour, who had only been
admitted to practice in 2010, an hourly rate of $262.00. Civ. No. 1:06-cv-433, 2014
WL 691500, at *17 (S.D. Miss. Feb. 21, 2014). The court found that rate
“commensurate with her experience and [ ] reasonable under the circumstances of
this particular case.” Id. Importantly, one of those circumstances was evidence
presented “that the average rate in this community for a junior partner is
$262.00.” Id.
The Court has also considered other decisions such as Brown v. Mississippi
Department of Health, an employment discrimination case that resulted in a
favorable jury verdict, in which the court awarded an attorney with approximately
nine years in practice at the time, an hourly rate of $235.00. Civ. No. 3:11-cv-146,
2013 WL 12128785, at *4 (S.D. Miss. Mar. 5, 2013). Given that Mr. Smith and Mr.
Holder have more experience in the practice of law than both of the aforementioned
attorneys, the cases in this district also support the determination that the requested
rate of $237.00 per hour is reasonable.
8
The Court further notes that Defendant does not actually contest the
reasonableness of the requested rate. Defendant’s objections focus solely on the
absence of a local attorney declaration or case law to support the requested rate.
Plaintiff has now provided both. And the party advocating the reduction of the
lodestar amount bears the burden of establishing that a reduction is justified. La.
Power & Light Co., 50 F.3d at 325. Defendant has not carried this burden.
Based on the foregoing, the Court finds that the requested rate of $237.00 per
hour is reasonable. Because this rate also comports with the additional limitations
imposed under the PLRA, see discussion infra Section III.E, the Court will apply it in
the lodestar calculation.
b. Reasonable Number of Hours
Next, the Court analyzes the reasonableness of the number of hours expended
in this case. To calculate the reasonable number of hours expended, the Court must
determine whether the total hours claimed are reasonable and if the particular hours
claimed were reasonably expended. See League of United Latin Am. Citizens v. Roscoe
Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997) (citing La. Power & Light Co.,
50 F.3d at 324; Alberti, 896 F.2d at 933-34). The applicant bears the burden of
establishing a reasonable number of hours expended and proving that billing
judgment was exercised. See Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795,
799 (5th Cir. 2006).
The exercise of billing judgment generally “refers to the usual practice of law
firms in writing off unproductive, excessive, or redundant hours.” Walker, 99 F.3d at
9
769. This burden is met by producing “billing records ... that will enable a reviewing
court to identify distinct claims.” Hensley, 461 U.S. at 437. But, “[a] district court
cannot inquire into the reasonableness of every action taken and every hour expended
by counsel.” Illinois Cent. R. Co. v. Harried, Civ. No. 5:06-cv-160, 2011 WL 283925,
at *10 (S.D. Miss. Jan. 25, 2011) (citation omitted). The Court is mindful, though, that
its “goal ... is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563
U.S. 826, 838 (2011).
Here, Defendant argues that the Court should reduce the number of
compensable hours for a variety of reasons. Mem. [263] at 6-11. The Court addresses
each in turn.
i.
Lack of Billing Judgment
First, Defendant contends that Plaintiff’s attorneys did not exercise billing
judgment. Mem. [263] at 9. This argument lacks merit. Both attorneys filed
declarations with the Court stating that they had excluded “numerous hours” spent
by their staff “assisting in the litigation and trial, including reviewing documents,
preparing correspondence, preparing exhibit and trial notebooks, and phone calls
with [Plaintiff].” Ex. [248-2] at 2; Ex. [248-3] at 2. A review of the original and
renewed billing statement establishes that, in fact, no staff work has been included.
See Ex. [248-1] at 1-16; see also [266-2] at 1-16. In the Court’s view, this reflects the
exercise of billing judgment, given that courts in this district permit the inclusion of
non-attorney work in the lodestar calculation. See Depriest v. Walnut Grove Corr.
Auth., Civ. No. 3:10-cv-663, 2017 WL 4228751, at *7 (S.D. Miss. Sept. 22, 2017).
10
Therefore, the argument that Plaintiff’s attorneys failed to exercise billing judgment
lacks merit.
ii.
Duplicative Hours
Next, Defendant contends that Plaintiff’s billing statement includes
duplicative entries, and that the Court should disallow all duplicative fees. Mem.
[263] at 6-7. Defendant first appears to argue that the 100 hours Mr. Holder billed in
this case are generally duplicative because this is “a single-issue § 1983 case that Mr.
Smith was already intimately familiar with.” Id. at 6. Defendant also argues that the
12.5 hours Mr. Holder spent reviewing the pleadings, records, and other documents
to familiarize himself with the case upon entering an appearance are duplicative. 2
Id. at 6. Defendant further argues that two other entries by Mr. Holder are
duplicative of entries by Mr. Smith, for (1) conducting legal research and work on
Plaintiff’s proposed jury instructions; and (2) conducting legal research to assist with
Plaintiff’s proposed jury instructions. Id. Those entries totaled 2.75 hours.
The Court begins with Defendant’s first argument that the 100 hours billed by
Mr. Holder in this case are generally duplicative because this is a simple single-issue
case. This argument rings particularly hollow given its contradiction with
Defendant’s position in every other post-trial filing. For example, Defendant has
continually asserted that this case presented a complex issue of first impression,
Mem. [245] at 8, and unique facts for which no analogous cases exist, id. at 25. See
also Mem. [267] at 1 (stating “this action presents a unique question of law that is
Perry did not include this entry in the list of those hours that she alleges should be removed from the
lodestar amount. See Mem. [263] at 11.
2
11
not fully answered by existing case law.”). Likewise, Defendant’s previous arguments
undercut the current assertion that this is actually a “single-issue” case. For instance,
Defendant raised numerous substantive sub-issues under Plaintiff’s Eighth
Amendment deliberate indifference claim. Mem. [245] at 5-20. Defendant also raised
issues regarding the applicability of the Ex parte Young exception to sovereign
immunity and the applicability of qualified immunity. See Mem. [245] at 5-20. Under
each issue, Defendant persisted that this case presented some new and unique
circumstances requiring extensive review of various Supreme Court and Fifth Circuit
precedents.
Additionally, whereas here, “a party does not object to particular billing entries
as inadequately documented, the court is not obligated sua sponte to sift through fee
records searching for vague entries or block billing.” Hoffman v. L & M Arts, Civ. No.
3:1-cv-953, 2015 WL 3999171, at *5 (N.D. Tx. Jul. 1, 2015) (emphasis in original)
(citing La. Power & Light Co., 50 F.3d at 325 (holding that district court erred in
failing to conduct full analysis of billing records “[a]s to the specific items of which
[opposing party] complains.”). Thus, the Court respectfully declines to undertake the
role of a “green-eyeshade accountant[].”Fox, 563 U.S. at 838. Therefore, the Court
finds these hours are not duplicative.
Defendant next argues that the 12.5 hours Mr. Holder spent familiarizing
himself with the case are duplicative. Mem. [263] at 6. In the Court’s view, these
hours are neither unreasonable nor redundant. Defendant essentially argues that
Mr. Holder should have tried this case without first familiarizing himself with it.
12
That would be an unreasonable standard. And doing so would also almost certainly
violate at least one of the Mississippi Rules of Professional Conduct, which this
district adopted under Local Uniform Civil Rule 83.5. For example, Mississippi Rule
of Professional Conduct 1.1 which provides that “[a] lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.”
Miss. R. Prof’l Conduct 1.1. Therefore, the Court finds these hours are not duplicative.
Nor does the Court view the 2.75 hours Mr. Holder spent on Plaintiff’s proposed
jury instructions as unreasonably duplicative or redundant. Although duplication of
effort is not per se unreasonable, “[i]f more than one attorney is involved, the
possibility of duplication of effort along with the proper utilization of time should be
scrutinized.” Walker, 99 F.3d at 768. Here, the Court required both parties to submit
a complete set of proposed jury instructions and to be prepared to discuss them at a
pre-trial status conference. In the Court’s experience having two attorneys split up
the work to complete such a task in not unreasonable. Additionally, Defendant had
at least two attorneys working on her own proposed jury instructions. If Defendant
saw it necessary to use multiple attorneys, why should a different standard apply to
Plaintiff? Moreover, according to Defendant, preparation of the jury instructions
required the consideration of not only the delay in medical care claim, which she
suggests is complex in and of itself, but also of the issues of qualified immunity and
respondeat superior, which she contends are equally as complex. Therefore, the Court
finds these hours are not duplicative.
13
Equally unpersuasive is Defendant’s contention that the 18.7 combined hours
Mr. Smith and Mr. Holder spent on the proposed jury instructions are excessive.
Mem. [263] at 7. In her view, these hours are “especially” excessive “given that the
model jury instructions were used at trial.” Id. That is misleading. As already noted,
the Court required both parties to submit a complete set of proposed jury instructions
and come prepared to discuss them at a pre-trial in-chambers conference. As also
noted, according to Defendant the preparation of such instructions required extensive
research on multiple issues. Additionally, while the model instructions were used in
many instances, substantive changes were made to others. As just one example, the
Eighth Amendment delay in medical care instruction was altered, based on the
research and arguments of the parties. Based on the Court’s own experience 18.5
hours is not excessive to draft a complete set of proposed jury instructions. Therefore,
the Court finds these hours are also not excessive.
Based on the foregoing, the Court finds that Plaintiff did not include
duplicative or excessive hours in his billing statement. Accordingly, the Court will
not reduce those hours.
iii.
Inadequately Documented Hours
Defendant also contends that the Court should disallow the 44.5 hours billed
by Mr. Smith and the 40.5 hours billed by Mr. Holder for trial preparation. Mem.
[263] 7-8, 11-11. Defendant contends that these billing entries are too vague for the
Court to determine whether they are reasonable. Id.
14
The Court “may properly reduce or eliminate hours when the supporting
documentation is too vague to permit meaningful review.” La. Power & Light Co., 50
F.3d at 326. Trial courts in this Circuit have disallowed hours billed for vague time
entries such as “trial preparation.” M.B. v. Rankin Cnty. Sch. Dist., Civ. No. 3:13-cv241, 2016 WL 1077833, at *4 (S.D. Miss. Mar. 17, 2016) (court deducted hours billed
related to trial preparation because the entries lacked specificity about the actual
tasks performed); Barrow v. Greenville Ind. Sch. Dist., Civ No. 3:00-cv-913, 2005 WL
6789456, at *11-*12 (N.D. Tex. Dec. 20, 2005). However, the Court is mindful that
“practical considerations of the daily practice of law in this day and age preclude
‘writing a book’ to describe in excruciating detail the professional services rendered
for each hour or fraction of an hour.” LULAC v. Roscoe Ind. Sch. Dist., 119 F.3d 1228,
1233 (5th Cir. 1997). The attorney must merely provide “the date, the number of
hours spent (calculated to a tenth of an hour), and a short but thorough description
of the services rendered,” id, supplemented, if need be, by a sworn declaration.
Dunigan v. Miss. Valley State Univ., Civ. No. 4:19-cv-33, 2021 WL 4392132, at *3
(N.D. Miss. Sept. 24, 2021).
Here, the revised billing statement provides sufficient detail to permit the
Court to determine whether the hours were necessarily and reasonably expended.
For each formerly vague entry, the revised statement provides, the date of the
services performed, the number of hours expended, and a short, but thorough,
description of the specific trial preparation tasks undertaken. See Ex. [266-2] at 9-10,
14-15. For example, Mr. Smith’s revised billing statement indicates that on December
15
11, 2021, he spent 8.0 hours preparing for trial, and provides the following description
of the tasks undertaken “update outline of Client’s direct examination; continue
working on outline for opening statement; prepare PowerPoint presentation for use
in opening statement; review exhibits for use in same; factual research re: artificial
hip replacements and rheumatoid arthritis[.]” Id. at 10. Thus, the revised billing
statement cures any vagueness issues. Therefore, the Court will not reduce the hours
for vagueness or redundancy.
iv.
Clerical Hours
Defendant further contends that Mr. Smith and Mr. Holder 3 improperly billed
for clerical work. Mem. [263] at 8. As the Supreme Court has recognized “[p]urely
clerical or secretarial tasks should not be billed at a paralegal rate,” let alone an
attorney rate, “regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274,
288 n.10 (1989). However, there exists no precise test for determining whether a
specific task qualifies as legal or clerical. Instead, courts routinely provide nonexhaustive lists of tasks that qualify as clerical. Compare Missouri, 491 U.S. at 288
(approving a fee for work on legal tasks that were not as sophisticated as many but
nonetheless legal in nature, including “factual investigation, . . . assistance with
depositions, interrogatories, and document production; compilation of statistical and
financial
data;
checking
legal
citations;
and
drafting
correspondence”
is
appropriate), with Walker, 99 F.3d at 771 (holding that “responding to requests . . .
for information, . . . gathering information, . . . interviewing class members,
3
Defendant incorrectly identifies Mr. Holder as “Mr. Holden.” Mem. [263] at 8.
16
investigating complaints, and developing a coherent picture” were clerical tasks).
Therefore, the Court must use its judgment in making such a determination and
“consider whether the work performed was ‘legal work in the strict sense’ or was
merely clerical work that happened to be performed by a lawyer.” Abrams v. Baylor
Coll. of Med., 805 F.2d 528, 536 (5th Cir. 1986)
Despite alleging that Mr. Holder billed hours for clerical work, Defendant does
not identify any allegedly clerical hours. See Mem. [263] at 8, 11. On the other hand,
Defendant cites numerous billing entries by Mr. Smith that involve allegedly clerical
work. Id. at 10. These objections can be broken down into four distinct categories,
which the Court addresses in turn.
Defendant first objects to the 8.0 hours Mr. Smith billed for reviewing
Plaintiff’s medical records as clerical. Id. at 10. Defendant cites no authority, and
offers no explanation, to support this proposition. Nonetheless, the Court does not
view these hours as clerical. The review of medical records in this case is markedly
different than other cases in which courts in this district have classified such work as
clerical. For example, in Minter-Smith v. Mukasey, the court disallowed time spent
reviewing medical records for the purpose of determining which records had been
sent to the opposing party and which remained outstanding. Civ. No. 3:02-cv-1057,
2008 WL 2164565, at *12 (S.D. Miss. May 22, 2008). Here, the review does not appear
to share a similar clerical nature. The first billing entry is dated, February 8, 2019,
id. at 10, shortly after Mr. Smith was appointed as counsel, Order [156](entered Jan.
14, 2019), and shortly before Plaintiff filed his amended complaint, Am. Compl. [162]
17
(filed Feb. 20, 2019). Based on this context, it appears that the review of Plaintiff’s
medical records was undertaken to gain familiarity with this case and draft an
amended complaint. Such work, especially in a delay in medical care case, requires
legal skill, knowledge, and judgment. Therefore, these hours will not be deducted as
clerical.
Defendant next objects to the 3.6 hours Mr. Smith billed writing letters to his
client as clerical. Mem. [263] at 10. This objection is somewhat perplexing given that
one of the cases Defendant cites specifically provides that “[e]xamples of work that
may be billed at an attorney’s rate are . . . conferences, telephone calls, and other
correspondence.” Mem. [263] at 8 (citing Hardy v. City of Tupelo, Miss., Civ. No. 1:08cv-28, 2010 WL 730314, at *7 (N.D. Miss. Feb. 25, 2010) (emphasis added). In
response to this objection, Plaintiff explained that given his incarceration, the
principal means for attorney-client communication were via telephone or letter. Mem.
[266] at 8. He went on to explain that Mr. Smith’s letters provided “detailed updates
on [the] case, explanations of potential issues in the litigation and litigation
strategies, and counsel’s thoughts on the likelihood of success in various courses of
action.” Id. He also noted that other letter’s prepared by staff, were excluded from the
billing statement. Id. Because the letters were effectively a form attorney-client
communication, and their substance the result of legal research and analysis that is
generally performed by a lawyer, these hours are not clerical.
Defendant also objects to the 1.5 hours Mr. Smith billed for the preparation of
different notices and waivers as clerical. Mem. [263] at 10. Defendant argues that the
18
Court should deduct these hours because the work is “typically performed by either
a secretary or paralegal.” Id. at 8. However, under Fifth Circuit precedent while
secretarial
work
is
not
recoverable,
paralegal
work
is
recoverable
in
an attorney fees award if the work is legal in nature, rather than clerical. Vela v. City
of Houston, 276 F.3d 659, 681 (5th Cir. 2001); see also Johnson, 488 F.2d at 717
(providing that it is the nature of the work, not the title or education of the person
performing it, that determines whether it is legal, paralegal, or secretarial/clerical in
nature). Therefore, these hours will not be deducted as clerical.
However, consistent with the practices in this district a lower hourly rate will
apply. On this issue, the Court finds the Hardy case cited by Defendant persuasive.
Mem. [263] at 8. In that case, the district court determined that that the “preparation
of notices” should be billed at the paralegal rate. Hardy, 2010 WL 730314 at *7.
Though the Court does not share the view that the $85.00 per hour paralegal rate
applied by the Hardy court should apply here. In this district, courts have determined
that paralegal rates between $110 and $130 per hour are reasonable. Wiemer v.
Rubino, Civ. No. 1:16-cv-99, 2019 WL 2461817, at *3 (S.D. Miss. Jun. 12, 2019) (citing
Rigsby, 2014 WL 691500, at *17); Trout Point Lodge Ltd. v. Handshoe, Civ. No. 1:12cv-90, 2013 WL 6524650, at *6 (S.D. Miss. Dec. 11, 2013). Out of fairness the Court
will split the difference and apply a per hour of $115.00 to the 1.5 hours Mr. Smith
billed preparing notices and waivers.
Defendant also objects to the 0.50 hours Mr. Smith billed for meeting with
courthouse technology personnel prior to trial as clerical. Defendant does not cite any
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authority, or offer any explanation, to support the assertion that this work is clerical.
For the trial to proceed in an orderly fashion, it was necessary for Mr. Smith’s device
to be compatible with the courtroom systems and for him to understand how those
systems operated. Thus, in the Court’s view this is not a task that could have been
performed by someone else. It is also worth noting that the purpose of this task was
to use that device for opening and closing arguments, and to examine witnesses,
which only a lawyer may do. Therefore, that time will not be deducted as clerical.
c. Travel Time
Also included within the lodestar is hours billed for attorney travel time. In
this district, courts “typically compensate travel time at 50% of the attorney's rate in
the absence of documentation that any legal work was accomplished during travel
time.” Depriest, 2017 WL 4228751, at *7 (collecting cases). No objection has been
made to the 19.5 hours Plaintiff requested on behalf of Mr. Smith for travel time. And
Plaintiff has not asserted that any work was accomplished while Mr. Smith was
traveling. Therefore, the Court finds a reasonably hourly rate for Mr. Smith’s 19.5
hours of travel time to be 50% of his hourly rate, or $118.50.
d. Reasonable Expenses
Finally, a court calculating the lodestar must take reasonable expenses into
account. Depriest, 2017 WL 4228751, at *8 (citing Missouri, 491 U.S. at 285 (providing
that reasonable attorney fees “must also take account of other expenses . . . .”)). Here,
the Court finds all expenses related to lodging, travel, and postage, to be reasonable.
20
See Ex. [266-2] at 15. And no substantive objection has been made to them. Therefore,
the lodestar will include a total of $898.10 for expenses.
C.
Lodestar Calculation
Based on the inputs provided above, Plaintiff’s attorneys are entitled to the
following:
Category
Hours
Rate
Total
Christopher Smith
306.0
$237.00
$72,522.00
Paralegal Type Work
1.5
$115.0
$172.50
Travel Time
19.5
$118.50
$2,310.75
100.1
$237.00
$23,723.70
G. Morgan Holder
D.
Expenses
$898.10
Lodestar
$99,627.05
Lodestar Adjustment – Johnson Factors
After calculating the lodestar, the court must consider whether an upward or
downward adjustment to the amount of attorney’s fees is warranted based on the
Johnson factors. Strong v. Bellsouth Telecomm., Inc., 137 F.3d 844, 850 (5th Cir.
1998). These factors are:
(1) the time and labor required; (2) the novelty and difficulty of the
questions involved; (3) the skill required to perform the legal service
properly; (4) the preclusion of other employment by the attorney due to
the acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) the time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and the length of the
professional relationship with the client; and (12) awards in similar
cases.
21
Johnson, 488 F.2d at 717-19.
However, subsequent decisions have imposed some limitations on which
factors courts may consider in awarding a variance. For example, in Shipes v. Trinity
Industries, the Fifth Circuit held that “[f]our of the Johnson factors the novelty and
complexity of the issues [factor 2], the special skill and experience of counsel [3], the
quality of representation [9], and the results obtained from the litigation [8] are
presumably fully reflected in the lodestar amount.” 987 F.2d 311, 320-21 (5th Cir.
1993) (holding that upward adjustments for these factors would be “proper only in
certain rare and exceptional cases.”). The Shipes court also found that “time
limitations [7]” were “accounted for in the lodestar amount,” and that “preclusion of
other employment [4] . . . will ordinarily be subsumed within the lodestar
amount.” Id. at 321-22.
In the Court’s view, the lodestar calculation has adequately subsumed these
and other factors. For example, of the remaining factors, the Court specifically
addressed the first, fifth, eleventh, and twelfth factors in calculating the lodestar
calculation. See discussion infra Section III.B. The sixth factor – whether the fee is
fixed or contingent – is not relevant in this case. Leaving only the tenth factor – the
“undesirability” of the case. However, following Perdue, that factor is moderately
linked to the “performance” factor. In that case, the Court concluded that only in “rare
and exceptional” circumstances might an attorney's performance justify an
enhancement, but that it would “require specific evidence that the lodestar fee would
not have been adequate to attract competent counsel . . . .” Perdue, 559 U.S. at
22
553 (citation and internal quotation marks omitted). Because there is no evidence
that the lodestar fee of $237.00 per hour is inadequate to attract competent counsel,
the Court cannot consider an upward adjustment based on that factor.
In sum, the Court has carefully considered Plaintiff’s arguments in support of
an upward variance. While many of the arguments are compelling, they were already
considered in the lodestar calculation. Because the majority of the factors were
subsumed into the lodestar calculation, the Court declines to award an upward
variance.
E.
PLRA Limitations
Because this case arises under the PLRA, the Court must also consider the
four additional limitations imposed by that Act on the award of attorney fees. 42
U.S.C. § 1997e(d). First, the PLRA requires that awarded fees have been “directly
and reasonably incurred in proving an actual violation of the plaintiff's rights.”42
U.S.C. § 1997e(d)(1)(A). Here, the entirety of Plaintiff’s attorneys work either directly
led to (1) the jury’s determination that Defendant violated Plaintiff’s Eighth
Amendment rights or (2) the Court’s granting of prospective injunctive relief to
remedy that current and ongoing Eighth Amendment violation. Accordingly, the
lodestar award satisfies this requirement.
Second, the PLRA requires that awards must be either “proportionally related
to the court ordered relief” or “directly and reasonably incurred in enforcing the relief
ordered.”42 U.S.C. § 1997e(d)(1)(B). Here, both provisions apply. A portion of the fees
were “proportionally related” to the relief ordered. For example, to obtain prospective
23
injunctive relief Plaintiff had to first prove the elements of his Eighth Amendment
claim. The remainder of the fees were “directly and reasonably incurred” in enforcing
that relief by encompassing work undertaken to effectuate the entry of prospective
injunctive relief and defend the granting of that relief. Accordingly, the lodestar
satisfies this requirement as well.
Next, the PLRA caps the hourly rates for court-appointed counsel at 150
percent of the rate established by the CJA. 42 U.S.C. § 1997e(d)(3). The current
maximum hourly rate for appointed counsel in non-capital cases in $158.00. See
Guide to Judiciary Policy, Vol. VII, § 230.16(a), https://www.uscourts.gov/rulespolicies/judiciary-policies/cja-guidelines/chapter-2-ss-230-compensation-andexpenses. Therefore, the PLRA caps the hourly rate at $237.00
In Perdue, the Supreme Court noted that “[a]n attorney who expects to be
compensated under § 1988 presumably understands that payment of fees will
generally not come until the end of the case, if at all.” 559 U.S. at 556. As the Court
explained, “[c]ompensation for this delay is generally made “either by basing the
award on current rates or by adjusting the fee based on historical rates to reflect its
present value.” Id (quoting Missouri, 491 U.S. at 282). Therefore, the Court will use
the current CJA rate of $237.00 for all hours billed, rather than applying different
rates based on the date each hour was billed.
Finally, the PLRA provides that “a portion of the judgment (not to exceed 25
percent) shall be applied to satisfy the amount of attorney's fees awarded against the
defendant. If the award of attorney's fees is not greater than 150 percent of the
24
judgment, the excess shall be paid by the defendant.” § 1997e(d)(2). The Supreme
Court has recently interpreted this provision to require trial courts to “apply as much
of the judgment as necessary, up to 25%, to satisfy an award of attorney's fees”
Murphy v. Smith, — U.S. —, 138 S. Ct. 784, 790 , 200 L.Ed.2d 75 (2018). Here, the
jury awarded compensatory damages of $382,000.00. Final J. [241] at 1. Thus,
$95,500.00 ($382,000.00 * 0.25)
of that judgment must be applied towards the
attorney fees award. Accordingly, Defendant is responsible for paying the difference
of $4,127.05.
IV. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion [127]
for Attorney’s Fees and Nontaxable Expenses, filed by Plaintiff Thad Everett
Delaughter is GRANTED IN PART AND DENIED IN PART. Pursuant to 42
U.S.C. § 1988(b), Plaintiff is entitled to reasonable attorney fees in the amount of $98,
728.95 and expenses in the amount of $898.10, for a total award of $99,627.05.
IT IS, FURTHER, ORDERED AND ADJUDGED that, pursuant to 42
U.S.C. § 1997e(d)(2), that $95,500.00 of those fees shall be paid from the
compensatory damages award. Defendant Gloria Perry is ordered to pay Plaintiff the
remaining $4,127.05.
SO ORDERED AND ADJUDGED, this the 6th day of July 2022.
s/ Robert H. Walker______
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE
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