Howard v. Connett et al

Filing 240

ORDER granting in part and denying in part 221 Motion for New Trial. The Court GRANTS the remittitur of punitive damages against Defendant Connett as to the Equal Protection Claim in Count V from $2,200 to $50. The Court further GRANTS in part and DENIES in part Plaintiff's 200 motion for attorney fees consistent with its findings. Signed by Judge Richard F. Boulware, II on 10/17/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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REGINALD C. HOWARD,

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Case No. 2:11-cv-01402-RFB-GWF
Plaintiff,

ORDER
Plaintiff’s Motion for Attorney Fees (ECF
No. 200)

v.
BRIAN CONNETT, et al.,

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Defendants.

Defendants’ Motion for New Trial (ECF No.
221)

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I.

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Before the Court are Defendants’ Motion for New Trial (ECF No. 221) and Plaintiff’s

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Motion for Attorney Fees (ECF No. 200). This case arises from various constitutional violations

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brought under 42 U.S.C. 1983, which occurred to the Plaintiff Reginal C. Howard, while

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incarcerated at the Southern Desert Correctional Center (“SDCC”). Specifically, Plaintiff’s claims

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relate to First, Eighth, and Fourteenth Amendment violations at the hands of various Defendants,

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including numerous correctional officers, lieutenants, and the religious adviser. At trial, the

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Plaintiff advanced eight counts and prevailed on six.

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INTRODUCTION

On November 6, 2015, the jury returned a verdict as follows (ECF No. 193):
1. Count 1
a. Count 1: 8th Amendment Excessive Force against Defendant Joseph Lewis: found
in favor of Defendant Joseph Lewis.
b. Count 1: 8th Amendment Excessive Force against Defendant Jimmy Jones: found
in favor of Defendant Jimmy Jones.

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2. Count 2

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a. Count 2: 14th Amendment Due Process against Defendant Ron Jaeger: the Court

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found in favor of Plaintiff Howard. The jury awarded $3,000 in compensatory

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damages and $4,000 in punitive damages.

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3. Count 3

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a. Count 3: 1st Amendment Free Exercise against Defendant Ron Jaeger: The jury

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found in favor of Plaintiff Howard and awarded $1000 in compensatory damages

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and $1000 in punitive damages.

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b. Count 3: 1st Amendment Free Exercise against Defendant Vincent Raybourn: The

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Jury found in favor of Plaintiff Howard and awarded $1000 in compensatory

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damages and $1000 in punitive damages.

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4. Count 4

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a. Count 4: 8th Amendment Excessive Force against Defendant Rene Galvan: The

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jury found in favor of Plaintiff Howard and awarded $1000 in compensatory

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damages and $4000 in punitive damages.

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5. Count 5

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a. Count 5: 1st Amendment Free Exercise against Defendant Brian Connett: The jury

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found in favor of Plaintiff Howard and awarded $1000 in compensatory damages

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and $2,200 in punitive damages.

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b. Count 5: 1st Amendment Free Exercise against Defendant Julio Calderin: The jury

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found in favor of Plaintiff Howard and awarded $1000 in compensatory damages

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and $2,200 in punitive damages.

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c. Count 5: 14th Amendment Equal Protection against Defendant Brian Connett: The

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jury found in favor of Plaintiff Howard and awarded $1000 in compensatory

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damages and $2,200 in punitive damages.

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d. Count 5: 14th Amendment Equal Protection against Defendant Julio Calderin: The

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jury found in favor of Plaintiff Howard and awarded $1000 in compensatory

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damages and $2,200 in punitive damages.

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Defendants move for a new trial on every claim and every issue. Defendant state the
following as grounds for the motion:

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1. Prejudicial misstatements during closing argument by opposing counsel;

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2. Cumulative verdicts awarded for same harm under multiple legal theories;

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3. Punitive damage awards against the clear weight of the evidence;

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4. Error in jury instructions; and

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5. Erroneous admission of prejudicial prior bad act evidence

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In the alternative, Defendants ask for remittitur.

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For the reasons stated below, the Court GRANTS in part and DENIES in part Defendants’

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Motion (ECF No. 221).

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The Court also addresses Plaintiff’s Motion for Attorney Fees. ECF No. 200. For the

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reasons stated below, the Court GRANTS the Motion for Attorney Fees at the rate capped by the

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Prison Litigation Reform Act (“PLRA”).

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II.

DEFENDANTS’ MOTION FOR NEW TRIAL, ECF No. 200
A. Legal Standard

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Pursuant to Fed. R. Civ. P. 59(a), a new trial may be granted in an action in which there

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has been a trial by jury “for any reason for which a new trial has heretofore been granted in an

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action at law in federal court.” “The grant of a new trial is ‘confided almost entirely to the exercise

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of discretion on the part of the trial court.’” Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th

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Cir. 1990) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)).

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Because “Rule 59 does not specify the grounds on which a motion for a new trial may be

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granted . . . .[courts] are thus bound by those grounds that have been historically recognized.”

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Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Such historical grounds

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include claims “that the verdict is against the weight of the evidence, that the damages are

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excessive, or that, for other reasons, the trial was not fair to the party moving[.]” Montgomery

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Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940); see also Passantino v. Johnson & Johnson

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Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir. 2000). “[E]rroneous jury instructions, as well

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as the failure to give adequate instructions, are also bases for a new trial.” Murphy, 914 F.2d at

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187.

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The trial court “is not limited to the grounds a party asserts to justify a new trial, but may

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sua sponte raise its own concerns about the . . . verdict. Ultimately, the district court can grant a

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new trial under Rule 59 on any ground necessary to prevent a miscarriage of justice.” Experience

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Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014) (citations

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omitted).

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B. Remittitur

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“If the amount of damages awarded [by a jury] is excessive, it is the duty of the trial judge

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to require a remittitur or a new trial.” Linn v. United Plant Guard Workers, 383 U.S. 53, 65–66

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(1966). “A remittitur must reflect the maximum amount sustainable by the proof.” Oracle Corp.

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v. SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014) (quotation omitted).

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“When the court, after viewing the evidence concerning damages in a light most favorable

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to the prevailing party, determines that the damages award is excessive, it has two alternatives. It

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may grant defendant’s motion for a new trial or deny the motion conditional upon the prevailing

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party accepting a remittitur. The prevailing party is given the option of either submitting to a new

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trial or of accepting a reduced amount of damage which the court considers justified. If the

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prevailing party does not consent to the reduced amount, a new trial must be granted. If the

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prevailing party accepts the remittitur, judgment must be entered in the lesser amount.” Fenner v.

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Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir. 1983).

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C. Discussion
a. Prejudicial Statements By Opposing Counsel

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First, Defendants argue that a new trial is warranted because the verdict was unfairly

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influenced by counsel’s multiple improper statements made during closing argument. “The trial

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court has broad discretion in the control of closing arguments, and this court will not reverse a

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judgment because of statements made in the arguments of counsel unless they were so prejudicial

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that a failure to declare a mistrial was an abuse of discretion.” People of the Territory of Guam v.

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Ignacio, 852 F.2d 459, 462 (9th Cir. 1988) (citation omitted). For misconduct in closing arguments

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to warrant reversal, it must “so permeate[ ] the trial as to the lead to the conclusion that the jury

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was necessarily influenced by passion and prejudice in reaching its verdict.” Cooper v. Firestone

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Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (citation omitted). Whether or not the

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comments were objected to, and whether or not opposing counsel moved for a mistrial, are relevant

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to the determination of prejudice. See Id. (“The trial court, which is in a far better position to gauge

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the prejudicial effect of improper comments . . . found it was not [so prejudicial as to merit a new

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trial] . . . . Most of counsel’s comments were not objected to at trial and appellants did not move

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for a mistrial at the end of the argument.”).

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1. “Golden Rule” Violation

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Defendants argue that Plaintiff’s counsel violated the “Golden Rule” by asking the jurors

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to put themselves in Plaintiff’s position when he stated “I doubt that any of you have been

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challenged the way that Mr. Howard has been challenged to protect himself.” (Tr. at 20, Nov. 4,

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2015.)

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The “Golden Rule” to which Defendants refer is used primarily in the context of criminal

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trials, where prosecutors request a juror to think of themselves in the place of the victim. See Fields

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v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002) as amended, 315 F.3d 1062 (9th Cir. 2002)

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(quoting Drayden v. White, 232 F.3d 704, 712–13 (9th Cir.2000)) (“In his closing argument, the

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prosecutor asked the jury to ‘think of yourself as Rosemary Janet Cobb’ and described the crimes

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committed against her from her perspective. In doing so ‘[he] inappropriately obscured the fact

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that his role is to vindicate the public’s interest in punishing crime, not to exact revenge on behalf

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of an individual victim.’”).

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Defendants objected to counsel’s statement and the Court sustained the objection.

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However, the Defendants did not at that time nor at any time after seeking an instruction or move

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for a mistrial.

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Plaintiff responds by arguing that the statement was meant to contextualize the actions

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Plaintiff complained of. Plaintiff argues that Mr. Barrick was merely expressing his doubt that the

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jurors had ever been in Mr. Howard’s position; he was not asking them to place themselves in it

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and sympathize with Plaintiff. He appears to have only been emphasizing to jurors that their own

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life experiences may not be the appropriate frame of reference for evaluating Mr. Howard’s actions

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or credibility. Moreover, the lack of prejudicial impact is reflected by the fact that the jury did not

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enter judgment against Defendants Lewis and Jones despite Mr. Barrick’s statements.

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The Court finds that counsel’s statement did not clearly violate the Golden Rule. The Court

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does not find that the portion of the closing argument referenced sought to have the jurors consider

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a perspective or information that was improper. In fact, the argument here appears to be exactly

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the opposite to the Golden Rule. The argument appears to merely have pointed out to the jury that

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the prison setting is different than a real world setting in the context of the disputes at issue. This

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is not an empathy or sympathy argument, rather it is a factual argument about the nature of the

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circumstances in which the disputed acts occurred. In the context of the entire closing argument

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by Plaintiff, the Court understood this reference to be asking the jury to remember the prison

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setting and not rely just upon their common sense applied to a non-prison setting. Indeed, the

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Defendants themselves often referred, during questioning and closing arguments, to the nature of

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the prison setting to argue to the jury why the Defendants may have taken the actions they did.

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In addition, the Court finds that the jury’s split verdict—granting one Eighth amendment

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claim and denying the other—further undermines Defendants’ argument that the statement had a

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prejudicial effect. See United States v. Drummondo-Farias, 622 F. App’x 616, 618 n.4 (9th Cir.

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2015) (citations omitted) (“That the jury in fact rendered a split verdict shows that the jury followed

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the trial court’s instructions.”) cert. denied, No. 15-7305, 2016 WL 207387 (U.S. Jan. 19, 2016);

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see also United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987) (“The best evidence of the

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jury’s ability to compartmentalize the evidence is its failure to convict all defendants on all

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counts.”) (citation omitted), cert. denied, 488 U.S. 974 (1988).

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This finding is consistent with Ninth Circuit declining to find violations from ambiguous

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characterizations of the jury. The Ninth Circuit has declined to find a violation where counsel

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stated, “but here you are, this is your lot in life; you are on this particular jury, and you must make

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some very difficult determinations . . . I have enjoyed representing these people; but my burden .

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. . is done, almost. And the burden will now shift to you.” See Minato v. Scenic Airlines, Inc., 908

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F.2d 977, 1990 WL 98855 at *5 (9th Cir. 1990) (unpublished disposition) (“The statement in

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question did not ask the jurors to step into the shoes of the plaintiffs. Moreover, contrary to

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Scenic’s argument, it is not clear that the statement even suggests that the jurors step into the shoes

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of the plaintiffs’ attorney.”).

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Additionally, although Defendants’ counsel objected, they did not ask for a mistrial. Failure

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to seek a mistrial is weighs against a determination of prejudice. See Cooper v. Firestone Tire and

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Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991). The Defendants’ failure to seek an instruction

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or request (at the close of the argument) a mistrial speaks to the minimal level of prejudice of a

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possible misinterpretation of the statements. In other instances, the Defendants did seek limiting

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instructions as to evidence or arguments, so the Court notes their failure to seek such relief in

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response to this one allegedly improper sentence in Plaintiff’s closing argument. The Court does

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not find that even a misinterpretation of this sentence by the jury created a sufficient prejudice to

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justify the ordering of a new trial.
2. “Send a Message” Statement

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Second, Defendants argue that Plaintiff’s counsel improperly told the jury to “send a

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message” to Defendants when he said: “[Y]ou can decide for yourself whether his denial of

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witnesses was in good faith or somehow to save the institution money . . . . And, you know, it was

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wrong. It still is wrong. And it will continue to be wrong, unless you decide to tell him it’s wrong

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and send a message.” (Tr. at 8-9, Nov. 4, 2015).

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Defendants objected to counsel’s use of the phrase “send a message” and the Court

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sustained the objection. Defendants did not seek a limiting instruction or request a mistrial at the

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close of the argument.

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Plaintiff argues that punitive damages are designed to defer future conduct by a defendant,

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to, in fact, “send a message,” and this was essentially how the Jury was instructed with respect to

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punitive damages.

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The Court notes that “[r]eminding the jury that they have the capacity to deter defendants

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and others similarly situated is certainly legitimate where punitive damages are at stake.”

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Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 519 (9th Cir. 2004). The Ninth Circuit’s model

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jury instructions includes the following language with respect to punitive damages: “The purposes

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of punitive damages are to punish a defendant and to deter similar acts in the future.” Instruction

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5.5, Ninth Circuit Manual of Model Jury Instructions (2007). “A closing argument that tracks the

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jury instructions cannot possibly be misconduct.” Settlegoode, 371 F.3d at 519; see also Cooper

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v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (holding that counsel's

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actions did not rise to the level of misconduct where his closing argument called for “punishment”

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and to “make sure . . . [defendants] never forget about [the accident]”).

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The Court does not find that the language used in this argument unfairly prejudiced the

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Defendants. While the Court did not find and does not find the language to be clearly contrary to

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the instructions regarding punitive damages, the language could have been confusing to the jury

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about the appropriate standard.

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defendant’s objection, and immediately clarified that to the extent the comments could be

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considered, they could be considered for consideration of punitive damages: “That’s correct. There

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are certain considerations for the damages, and I’ll refer you to what you can consider for damages.

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And, certainly, punitive damages can be awarded in the context of deterring certain types of

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conduct. And so I will just instruct you to follow those instructions.” (Tr. at 9, Nov. 4, 2015). As

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the phrase was only used once and then the Court explicitly rejected and corrected it as to the

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standard, the Court does not find that prejudice resulted and certainly not to the extent to warrant

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a new trial.

Because of this possible confusion, the Court sustained

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The Court also notes that this issue arose in the context of argument regarding punitive

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damages. The Defendants were presented with an opportunity to bifurcate the trial for purposes

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of punitive damages. They opposed such a bifurcation.

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Finally, the Court notes again that, after the Court’s instruction, the Defendants did not

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seek a mistrial based upon the one-time use of this phrase. Given all of these circumstances, the

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Court does not find that the Defendants were prejudiced by this phrase and that, even if there was

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slight confusion, it was addressed by the Court’s clarification.

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3. Facts Not in Evidence
Defendants argue that counsel improperly invited the jury to consider facts not in evidence.

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In their Reply, Defendants withdraw this argument, finding that the record does indicate that the

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facts relied upon were in evidence. (Reply at 4).
4. Reference to Hygiene Items

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Defendants claim that Plaintiff’s counsel improperly referred to the alleged denial of

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hygiene items after the Court granted a directed verdict as to the conditions of confinement claim.

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Counsel then withdrew this line of argument.

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Plaintiff argues that the Defendant failed to object to this at the trial and did not request

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that the Court strike any portion of Mr. Howard’s testimony regarding the deprivation of both his

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hygiene and religious supplies during his stay in the segregation unit—statements given with

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regards to the 8th amendment claim. Further, Plaintiff argues that the references to denial of

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hygiene items was in the context of the excessive force claim.

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Defendants fail to cite to any binding authority in the Ninth Circuit or Supreme Court that

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supports its argument. The Eleventh Circuit case Defendants cite is distinguishable. In that case

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the court granted a new trial after granting qualified immunity to the defendants: “Especially in

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the light of the district court’s preexisting immunity order granting Defendants partial summary

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judgment, we believe Plaintiff’s counsel’s closing argument about liability for conduct other than

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an intentional blow to the head warrants, by itself, a new trial.” Christopher v. Florida, 449 F.3d

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1360, 1367 (11th Cir. 2006). The Court finds that statements at issue here are insufficient to rise

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to the Eleventh Circuit’s holding that “Plaintiff's counsel’s improper closing argument prejudiced

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the substantial rights of Defendants by taking away from Defendants the benefits of the partial

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summary judgment they had won before trial and by incorrectly expanding the grounds for liability

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at trial to include grounds ruled out by the court.” Christopher v. Florida, 449 F.3d 1360, 1367

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(11th Cir. 2006)

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Here, counsel’s statements did not expand liability. Rather, they provided context—

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perhaps unnecessarily, but not detrimentally—as to why the force used against Plaintiff in the

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remaining 8th Amendment claim, was particularly unnecessary: “But put it in the context of why

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he was there. He was there to be punished by Lewis, right, for complaining. So he’s in the hole 12

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days. He testifies, I didn’t have soap, toilet paper, towel, change of clothes, any of these things. He

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says he’s in the same clothes 12 days, right? He says he got toothpaste from another inmate, but

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not a toothbrush. I digress. Withdraw that line of argument, your Honor.” (Tr. at 11, Nov. 4, 2015).

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Even if the comments were entirely irrelevant, here again they are not sufficiently

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prejudicial as to warrant undoing the jury’s judgment. It weighs against a finding of prejudice that

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defendant’s counsel did not object, that Plaintiff unilaterally stated that he withdrew the line of

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argument, and that Defendants’ counsel did not move for a mistrial. See Cooper, 945 F.2d at 1107.
5. Cumulative Effect

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Because the Court does not find that any of the aforementioned arguments regarding

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counsel’s closing arguments rise to the level of necessitating a new trial, the Court does not find

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any cumulative effect.
b. Cumulative Verdicts

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Next, Defendants argue that a new trial is warranted due to cumulative verdicts, because

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the Plaintiff was able to recover under alternative legal theories. Specifically, Defendants argue

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that as to Count V, the jury returned verdicts against Defendants Calderin and Connett, and

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assessed identical compensatory and punitive damages on each of two theories of liability: free

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exercise and equal protection. In support of this argument, Defendants cite to Greenwood Ranches,

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Inc. v. Skie Const. Co., Inc., 629 F.2d 518, 521 (8th Cir. 1980), standing for the proposition that a

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plaintiff is not entitled to separate damage awards for each legal theory. Instead, he is entitled only

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to one damage award if liability is found on any or all of the theories involved. Id.

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The Court rejects this argument. Greenwood holds that a plaintiff may not recover for the

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same harm arising from the same facts under multiple alternative theories. See 629 F.2d at 521

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(“Greenwood sought to recover damages flowing essentially from the same transaction . . . for loss

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and for money expended on the system”). In this instance, Plaintiff alleged two separate causes of

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action: a First Amendment Free Exercise claim and a Fourteenth Amendment Equal Protection

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claim. These causes of action have different legal standards requiring different legal elements;

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have different injuries; and are related to different facts. Plaintiff’s First Amendment claim relates

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to his ability to practice his religion, by restricting Plaintiff’s access to Nation of Islam services.

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Plaintiff’s Fourteenth Amendment claim relates to his treatment as a Muslim, as compared to other

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prisoners belonging to other religious groups.

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The jury instructions further illustrate the different legal elements required for each cause

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of action. Regarding the First Amendment claim, the parties agreed upon, and the Court provided,

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the following: “To implicate the Free Exercise Clause of the First Amendment, the plaintiff must

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show that 1) the prison’s regulation substantially burdened a belief that is sincerely held and

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religious in nature; and 2) that the regulation is not reasonably related to legitimate penological

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interests.” See Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008). Regarding the Fourteenth

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Amendment claim, the parties agreed upon, and the Court provided, the following: “To state a

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claim under section 1983 for a violation of the Equal Protection Clause of the Fourteenth

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Amendment a plaintiff must show that: 1) The defendants acted with an intent or purpose to

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discriminate against the plaintiff 2) based upon membership in a protected class, in this case, a

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religious group.” See Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).

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Finding that Plaintiff’s First and Fourteenth Amendment claims are distinct constitutional

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claims based upon different theories and different factual determinations, the Court rejects

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Defendants’ argument that the claims were essentially alternative theories of recovery and

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therefore cumulative.

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c. Punitive Damages Not Supported By Clear Weight of the Evidence

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A plaintiff seeking punitive damages under Section 1983 must present evidence of an “evil

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motive or . . . reckless indifference to the rights of others.” Smith v. Wade, 461 U.S. 30, 46-47

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(1983) (citation omitted). The parties did not, nor do they object to the model jury instruction given

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stating that “[y]ou may award punitive damages only if you find that the defendant’s conduct that

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harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights.”

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Instruction 5.5, Ninth Circuit Manual of Model Jury Instructions (2007).

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Defendants argue that a new trial is warranted because the jury’s awards of punitive

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damages were contrary to the clear weight of the evidence with respect to several defendants.

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Those arguments are addressed in turn.

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1. Defendant Rabourn and the Free Exercise Claim in Count III
Defendant Rabourn, a correctional officer, acknowledged that he was present at the

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classification hearing that transferred Plaintiff from one cell to another, but emphasized that he

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had no control over Plaintiff’s personal property or the return of his religious items, and that the

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control of inmate property was generally outside his job duties. In addition, the Court notes that

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on cross examination, Defendant Rabourn maintained he did not recall dealing with Plaintiff and

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his property concerns despite records indicating that he responded to Plaintiff’s grievances filed

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on February 7, 2011. (Tr. at 123-124, Oct. 29, 2015).

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Mr. Howard testified that Defendant Rabourn was in a position to help him recover his

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religious items but did nothing to aid him in their recovery. Specifically, Plaintiff testified that he

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told Defendant Rabourn about his religious items at the classification hearing, that it had been 72

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hours, that he hadn’t received his property, and that Defendant Rabourn sent no one to retrieve his

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items. (Tr. at 224-225, Oct. 27, 2015).

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Defendants reply that if the jury believed that Defendant Rabourn had control over his
possessions, his declining to aid Plaintiff was, at best, negligent.

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At oral argument regarding the Motion for New Trial, Plaintiff’s counsel conceded that

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this particular award of punitive damages was supported by the least evidence and that it was a

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“close call.”

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“If the amount of damages awarded [by a jury] is excessive, it is the duty of the trial judge

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to require a remittitur or a new trial.” Linn v. United Plant Guard Workers, 383 U.S. 53, 65–66

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(1966). The Court finds that the clear weight of the evidence does not support the award of punitive

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damages in the amount of $1,000. While Defendant Rabourn may have been in a position to aid

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Plaintiff in the recovery of his religious items, he was not required to do so. Defendant Rabourn’s

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single interaction with Plaintiff in which he declined to help in the retrieval of religious items, at

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best, barely established “reckless or callous disregard” as required by law. See Smith v. Wade, 461

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U.S. 30, 51 (1983). The Court finds that the fact that the jury awarded punitive damages for

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Rabourn on only one count further demonstrates their perception of his actions, in comparison to

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the other defendants.

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Therefore the Court remits the amount of punitive damages against Defendant Rabourn
from $1,000 to $10.

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2. Defendant Calderin and the Free Exercise and Equal

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Protection Claims Presented in Count V

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Defendants argue that even if the jury believed that Plaintiff notified Defendant Chaplain

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Calderin, the spiritual adviser at HDSP who oversaw religious services, that he was missing

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services and that Defendant Calderin failed to address the problem, this evidence establishes at

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best negligence. The jury could not have determined that Plaintiff had established by clear and

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convincing evidence that Defendant Calderin’s failure to add Howard to the “call-out list”—the

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list that enables prisoners to attend services—was malicious, oppressive, or in reckless disregard

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of Howard’s rights.

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Mr. Howard testified that he submitted several requests to be placed on the list to attend

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Islamic services and that he personally handed a written request to Defendant Calderin, the

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religious supervisor. (Tr. at 27, Oct. 28, 2015; Ex. 30 “Inmate Request Form 4-5-11”; Ex. 45

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“Inmate Grievance History”). In addition, Plaintiff testified that Defendant Calderin was on notice

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of his religious deprivation and was in a position to rectify it but did nothing. Specifically, Calderin

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came every other week to conduct services but Plaintiff was not being released to attend services

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because his name was not listed on the call-out list the unit officers used to determine who was

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allowed to attend these services. (Tr. At 27, Oct. 28, 2015). In addition, the Nation of Islam clerk

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repeatedly informed Mr. Calderin that one of the members was not allowed to come. (Tr. at 70,

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Oct. 27, 2015). Nonetheless Defendant Calderin refused to have Plaintiff released. (Tr. at 38-39,

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Oct. 28, 2015).

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Defendant Calderin himself testified that if he knew an inmate was complaining about not

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making it to services, he “could do something about it.” (Tr. at 76, Nov. 4, 2015). While Defendant

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Calderin maintained that he never knew about Plaintiff’s grievances, he was presented with a

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document (Ex. 45) of Plaintiff’s grievances where multiple grievances regarding religious services

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were specifically directed to Calderin. (Tr. at 88-89, Nov. 4, 2015).

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Last, Plaintiff’s counsel produced Ex. 46 to Defendant Calderin. The exhibit clearly

27

indicates that he denied Plaintiff’s grievance regarding religious services. (Tr. at 90-91, Nov. 4,

28

2015). In this report dated April 4, 2011, Defendant Calderin stated “inmate has attended Humah

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1

for the last four weeks and has not been denied access to the chapel.” (Ex. 46). Defendant Calderin

2

then admitted at the trial that he had “no records upon which to base [his] answer.” (Tr. at 90-91,

3

Nov. 4, 2015). In other words, Defendant Calderin recklessly yet unequivocally lied in an official

4

grievance report that Plaintiff had not been denied access to religious services despite lacking any

5

information to suggest that this was true. Defendant Calderin admitted on the stand to fabricating

6

statements during the grievance process. “Q: So when you signed this document (Ex. 46, Def.’s

7

declining of Pl.’s grievance), you had no records upon which to base your answer, right? . . . A:

8

No.” (Tr. at 90-91, Nov. 4, 2015). The Court therefore finds that the jury could draw the inference

9

that he fabricated this statement, and did so out of malice or with obvious reckless disregard to

10

known violations of Mr. Howard’s rights.

11

The Court finds that the clear weight of the evidence indicated a basis for punitive damages

12

against Defendant Calderin. Given his position as a spiritual adviser in the prison, his refusal to

13

acknowledge his role in Plaintiff’s access to religious services, and knowing misrepresentations

14

made in the grievance process which resulted in the denial of Plaintiff’s access to religious service,

15

the Court finds that there was a clear basis for finding that Defendant Calderin acted in a malicious,

16

oppressive, or reckless disregard of Plaintiff’s religious rights. All of this evidence from the trial

17

supports the jury’s verdict that Calderin personally and oppressively participated in the deprivation

18

of Howard’s rights.

19

Further, the Court finds that Defendant Calderin’s demeanor when he took the stand to

20

further support an award of punitive damages. His nonchalance about lying in an official report,

21

his apparent indifference to his actions, and his anger for having to respond to Plaintiff’s claims

22

could have provided an additional basis for finding that his behavior in repeatedly denying

23

Plaintiff’s requests was malicious, oppressive, or in reckless disregard of Plaintiff’s religious

24

rights.

25
26
27
28

The Court therefore declines to vacate or remit the punitive damages against Defendant
Calderin.
3. Defendant Connett, and the Free Exercise and Equal
Protection Claims Presented in Count V

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1

Defendants argue that the evidence does not establish that Defendant Connett, a deputy

2

director at the prison, was responsible for Plaintiff’s inability to attend Nation of Islam services,

3

or that he denied Plaintiff access to the services out of ill will or complete indifference to Plaintiff’s

4

rights. (Tr. at 30-31, Oct. 28, 2015). Further, Defendants argue that Plaintiff’s exhibits confirm

5

that it was Deputy Director Foster, not Defendant Connett, who provided a second-level response

6

to Plaintiff’s grievance related to the Nation of Islam services. (Tr. at 25, Oct. 28, 2015).

7

Plaintiff argues that Mr. Howard testified that he submitted grievances that were responded

8

to by Defendant Connett regarding deprivation of religious services. (Tr. at 30-31, Oct. 28, 2015).

9

Accordingly, Defendant Connett was on notice of his religious deprivation and was in a position

10

to rectify it. (Tr. at 39, Oct. 28, 2015). In addition, Defendant Connett testified that he received

11

and reviewed multiple grievances from Plaintiff during the period of time that he reviewed

12

grievances. (Tr. at 37, 39-50, Nov. 4, 2015). These grievances included complaints associated with

13

Plaintiff’s inability to access services. (Tr. at 37, 39-50, Nov. 4, 2015). However, although

14

Defendant Connett had the ability and the authority to investigate these grievances, he did not do

15

so. (Tr. at 48-50, Nov. 4, 2015). Connett also did not even inquire as to whether or not the issues

16

or grievances were in fact ever investigated or resolved.

17

The Court has reviewed the transcript and Ex. 45, “Inmate Grievance History,” and finds

18

that Plaintiff’s grievance filed on July 18, 2011 was specifically assigned to Brian Connett. The

19

comments related to this grievance note: “I was not allow to attend Friday prayer for the week of

20

July 1st and July ‘th [sic], 2011.’ This has became a continue [sic] practice from May 27, 2011

21

and June 3, 2011. But other Muslims are been allowed.” (Ex. 45). Based on the testimony noted

22

above and a review of this Exhibit, the Court finds that there was testimony to support Connett’s

23

review of Howard’s grievances regarding his inability to worship and access to religious services.

24

Thus, there was evidence to support Connett’s ratification of the deprivation of rights of Howard.

25

This evidence supports the jury’s punitive damages award as to the Free Exercise claim. The Court

26

also notes again Connett’s apparent demeanor of indifference even at trial as to Howard’s rights

27

further supports this award. Connett’s demeanor could easily have led the jury to understand that

28

he was disdainful of having to respond to an inmate and offended at having to appear at trial to

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1

defend his actions.

2

However, the Court does find the punitive damages award against Connett for the Equal

3

Protection claim in Count V to be excessive. There was not as substantial or significant evidence

4

presented of Connett’s knowledge about a varied or different treatment of Howard based upon his

5

membership in a religious group. While there was clear evidence of the issue of Howard not being

6

able to worship as a Muslim presented to and ignored by Connett, there was not similarly clear

7

evidence with respect to the issue of discriminatory or different treatment of Howard due to his

8

religion. Therefore, the Court remits the punitive damages award on the equal protection claim in

9

Count V from $2,200 to $50.

10
11
12

4. Defendant Jaeger and the Due Process Claim in Count II and
the Free Exercise Claim in Count III
a. Count II

13

As to Count II, the Court had previously ruled in favor of Plaintiff on summary judgment.

14

Therefore the only question was the damages to be awarded. Defendants argue that Plaintiff

15

testified only that Defendant Jaeger denied his request to call Officer Lewis at the disciplinary

16

hearing because Defendant Jaeger had already decided to reduce the charges. Therefore, there was

17

no indication of ill will or indifference to Plaintiff’s rights.

18

Plaintiff argues that, on the contrary, Defendant Jaeger denied Plaintiff’s ability to call

19

witnesses at his disciplinary hearing merely because he had the authority to do so. (Tr. at 112:5-

20

19, Oct. 28, 2015). The Court agrees, and finds that Defendant Jaeger testified to this belief that

21

he was given great discretion by the disciplinary manual to determine which witnesses were

22

permitted to testify. Specifically, Jaeger’s testimony reflects his belief that he had the authority,

23

and in turn exercised it, to deny prisoners such as Plaintiff their right to call witnesses merely

24

because he believed in some instances that it would be unnecessary or duplicative of their prior

25

statements to do so. (Tr. at 112-13, Oct. 28, 2015). A: “I find [my decision not to allow Plaintiff

26

to call a witness] fair because I’m given that authority by our -- AR 707.1 in the disciplinary

27

manual gives me the authority to determine what witnesses and what statements I should take.”

28

(Id. at 112:16-19). In fact, at sidebar immediately following his testimony, the Court and parties

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1

discussed the potential ramifications of Jaeger’s testimony, including a limiting instruction: “THE

2

COURT: … what he said is actually not true legally. He cannot—he doesn’t have the authority

3

under any regulation to deny someone their constitutional rights.” (Tr. at 119, Oct. 28, 2015).

4

Therefore the Court finds that the clear weight of the evidence provided the basis for a

5

reasonable jury to find that, at a minimum, Jaeger acted with reckless disregard for plaintiff’s due

6

process rights, and therefore lawfully awarded punitive damages as to Count II against Defendant

7

Jaeger.

8

b. Count III

9

As to Count III, Defendants argue that Plaintiff acknowledged receiving his religious items

10

within days and provided no evidence indicating that his health or safety was at risk due to the

11

short delay associated with the return of his personal property.

12

Defendants appear to have confused the legal standard associated with a First Amendment

13

free exercise claim. Proving such a claim does not require that a plaintiff show that his health or

14

safety was at risk. See, e.g., Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008) (To implicate

15

the Free Exercise Clause of the First Amendment, the plaintiff must show that 1) the prison’s

16

regulation substantially burdened a belief that is sincerely held and religious in nature; and 2) that

17

the regulation is not reasonably related to legitimate penological interests.).

18

Plaintiff testified that he was not permitted to have his Qur’an and other religious books

19

for twelve days. (Tr. 215-16, Oct. 27, 2015). He testified that he told Jaeger personally that he was

20

missing the Qu’ran and other religious texts; that he filed an emergency grievance with regard to

21

his items; and that Jaeger responded in writing that the grievance was not an emergency, without

22

providing any further explanation. (Tr. At 218, Oct. 27, 2015); (Pl’s Ex. 17). His explanation stated

23

that Plaintiff should “utilize the proper grievance procedures.” (Id.) Plaintiff testified that the

24

alternative procedure, a “regular grievance” could take 30 to 45 days to receive a response. (Tr. At

25

220, Oct. 27, 2015). Plaintiff thus provided evidence that his sincerely held religious belief was

26

substantially burdened by confiscation of his faith’s holy book and other religious texts, and

27

presented evidence that Jaeger would have knowingly allowed that burden to persist for thirty days

28

or more. Defendants did not present evidence that the twelve-day confiscation was reasonably

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1

related to a legitimate penological interest. The Court finds that the clear weight of the evidence

2

provided a basis for the jury to decide that Jaeger acted with deliberate or reckless disregard for

3

Plaintiff’s free exercise rights. Therefore the Court rejects Defendants’ argument that there was no

4

reasonable basis for punitive damages against Defendant Jaeger as to Count III.
The Court therefore declines to vacate or remit the punitive damages against Defendant

5
6
7
8
9

Jaeger.
d. Instructional Error
Defendants argue that the removal of the deference language from the excessive force
instruction was error and prejudiced Defendants.

10

The instruction reads as follows: “you should give deference to prison officials in the

11

adoption and execution of policies and practices that in their judgment are needed to preserve

12

discipline and to maintain internal security in a prison.”

13

Defendants argue that given that the parties presented fundamentally different versions of

14

the April 2011 confrontation and that Defendant Galvan presented evidence of Plaintiff’s

15

threatening behavior, the evidence strongly indicates that Defendants were prejudiced by the

16

removal of the deference language from the excessive force instruction. Defendants cite Wood v.

17

Beauclair, 692 F.3d 1041, 1049-50 (9th Cir. 2012) to allege a “requirement to accord deference to

18

prison officials when using force.” Def.’s Mot. for a New Trial at 15.

19

Plaintiff argues that because the Jury found in favor of Defendants Lewis and Jones on the

20

first Excessive Force claim, the Defendants’ arguments lack merit. Further, regarding the Wood

21

decision, the rationale for such deference arises only where there is a “need to maintain or restore

22

discipline inside the prison.” Wood v. Beauclair, 692 F.3d 1049 (9th Cir. 2012) (citation omitted).

23

Here, Defendant Galvan testified that he felt no physical threat. He further testified that he felt no

24

particular threat at all. (Tr. at 85:18 - 87:15, Oct. 29, 2015). Thus, there was no “need to maintain

25

or restore order.” Defendant Galvan did not testify that he was not implementing any NDOC policy

26

and the jury was entitled to consider whether he acted “maliciously and with the intent to inflict

27

harm” without granting him any deference at all.

28

As an initial matter, the Court finds that the instruction Defendants requested was in fact

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1

read aloud to the jury before the Court considered Plaintiff’s motion to remove the deferential

2

language in the jury instruction. This is to say that the oral instruction to the jury included the

3

deference language but the written instructions sent back to them did not include this language.

4

Further, having reviewed the instruction, the Court finds that the instruction does not apply

5

in this case. The deferential instruction by its terms applies where the Defendants are arguing that

6

their behavior was justified by the adoption or execution of a policy or practice. Galvan did not

7

testify that he was implementing a particular policy or following a specific protocol. He was acting

8

on his discretion and judgment. As stated in Wood, “[w]here there is no legitimate penological

9

purpose for a prison official’s conduct, courts have presume[ed] malicious and sadistic intent.”

10

692 F.3d at 1050 (alteration in original) (citation omitted). Throughout the entirety of this action,

11

Defendants have never argued with respect to the Eighth Amendment causes of action that they

12

acted pursuant to a particular prison policy or protocol. To the extent Defendants are arguing this,

13

the Court finds that the Defendants would have been required to present this specific defense well

14

before the issuance of jury instructions, so that the Plaintiff could have notice of such a defense

15

and the opportunity to rebut this defense by arguing, for example, that the policy itself was

16

unconstitutional. Rather, Defendants appear to suggest that their individual judgment, including

17

the use of force, should be given de facto deference without reference to a penological interest.

18

However, by this logic, all uses of force would need to be deferred to, regardless of penological

19

interest. The Ninth Circuit has rejected such blanket deference. See Wood, 692 F.3d at 1050. In

20

order for deference to apply, the prison officials must connect their actions to a policy or

21

penological interest which could then be challenged by the Plaintiff.

22

The Court further finds that the jury’s split verdict, in granting for the Plaintiff on one

23

excessive force claim and for the Defendants on another, undermines Defendants’ argument that

24

the instruction was prejudicial to them. See United States v. Drummondo-Farias, 622 F. App’x

25

616, 618 n.4 (9th Cir. 2015) (citations omitted) (“We note also that the district court instructed the

26

jury to consider the charges separately, diminishing the risk of prejudice. . . . That the jury in fact

27

rendered a split verdict shows that the jury followed the trial court's instructions.”) cert. denied,

28

No. 15-7305, 2016 WL 207387 (U.S. Jan. 19, 2016); see also United States v. Unruh, 855 F.2d

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1

1363, 1374 (9th Cir. 1987) (“The best evidence of the jury’s ability to compartmentalize the

2

evidence is its failure to convict all defendants on all counts.”), cert. denied, 488 U.S. 974 (1988).

3
4

Therefore the Court denies the motion on this ground.
e. Prejudicial Bad Act Evidence

5

The Court allowed Plaintiff to recall Defendant Jaeger over Defendants’ objection and

6

examine him with respect to other instances in which Defendant Jaeger had denied inmate requests

7

for witnesses at disciplinary hearings in his role as a hearing officer. (Tr. at 146, Nov. 4, 2015).

8

Then, the Court denied Defendants’ request that the limiting instruction be provided to the jury in

9

written form. (Tr. at 42-43, 74, Nov. 5, 2015).

10

The Defendants argue that a new trial is warranted due to the admission of prejudicial

11

testimony of Defendant Jaeger regarding prior instances with other inmates in which he denied

12

requests for witnesses in his capacity as a hearing officer. The Defendants further argue that the

13

jury did not have the benefit of a trial transcript, and that the Court’s statement that “it is a violation

14

of due process for Mr. Howard to have been denied witnesses at the proceeding at all,” and “there

15

is nothing that this witness can say that would in any way and can in any way change that finding”

16

confused the jury and led it to place undue weight on the bad act evidence.

17

The Court rejects this argument. Relevant evidence may be excluded if its probative value

18

is substantially outweighed by a danger of unfair prejudice. Fed. R. of Evid. 403. “Unfairly

19

prejudicial evidence is that having “an undue tendency to suggest decision on an improper basis,

20

commonly, though not necessarily, an emotional one.” U.S. v. Gonzalez-Florez, 418 F.3d 1093,

21

1098 (9th Cir. 2005) (citation omitted). A district “court’s evidentiary rulings are reviewed for

22

abuse of discretion and will not be reversed absent prejudice to the party whose evidence was

23

excluded.” Glover v. BIC Corp., 6 F.3d 1318, 1328 (9th Cir. 1993).

24

As a preliminary matter, the Court does not find that the Court’s statements had or

25

compounded any prejudicial effect. The first allegedly prejudicial statement made by the Court is

26

the summary of the legal standard for due process claims relevant to Defendant Jaeger. The second

27

statement was appropriate where summary judgment has already been found for Defendant Jaeger.

28

The Court finds that rather than confusing the jury, these instructions were necessary to clarify

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1

Defendant Jaeger’s actions and the impact the Court’s prior ruling had on the proceedings going

2

forward. In fact, this possibility was expressly discussed at sidebar during Jaeger’s testimony

3

because Jaeger had in fact misstated the law and his culpability. As previously discussed, the Court

4

and parties discussed the potential ramifications of Jaeger’s testimony, including a limiting

5

instruction: “THE COURT: … what he said is actually not true legally. He cannot—he doesn’t

6

have the authority under any regulation to deny someone their constitutional rights.” (Tr. at 119,

7

Oct. 28, 2015). Therefore, the instruction was necessary to mitigate any effect Jaeger’s erroneous

8

testimony justifying his actions may have had on the jury’s consideration of punitive damages for

9

the due process violation.

10

Defendants also argue that the evidence regarding Defendant Jaeger’s prior actions was

11

not disclosed during discovery and placed Plaintiff at an unfair advantage at trial, since the Court

12

ordered Defendants produce it only after the trial began. Defendants argue that this required

13

Defendants to respond to a discovery request during trial, resulting in a significant burden and

14

distraction during the critical phase of trial.

15

The Defendants cite to no legal authority that damaging evidence revealed during the trial

16

should be categorically precluded. Further, Defendants cite to no authority suggesting that the

17

inconvenience of complying with a Court order—in this case, a discovery-related order—unduly

18

prejudices the opposing side such that the evidence produced should be excluded. The Court

19

requested the documents in question to be filed under seal on the first day of the trial. (Tr. at 10-

20

11, Oct. 26, 2015). At no point did Defendants request a continuance in order to produce these

21

documents. In fact, Defendants in their Motion for New Trial fail to explain what if any action

22

they would have taken or done differently, had they had more time to do so.

23

As to the prejudicial effect of the evidence itself, Plaintiff also points out that in order to

24

recover punitive damages, the §1983 plaintiff must show defendant’s “evil motive or . . . reckless

25

indifference to the rights of others.” Smith v. Wade, 461 U.S. 30, 46-47 (1983). Accordingly, one

26

way for Mr. Howard to recover punitive damages against Defendant Jaeger was to introduce the

27

pattern of conduct evidence that the Court allowed.

28

The Court finds that the information regarding Defendant Jaeger’s prior bad acts associated

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1

with his refusal to allow prisoners to bring witnesses in their proceedings was not unduly

2

prejudicial but rather crucial in the Plaintiff’s ability to prove punitive damages on his Fourteenth

3

Amendment cause of action. While the information required to do so was disclosed perhaps later

4

than the Defendants, and indeed the Plaintiff, may have preferred, neither its introduction nor the

5

requirement that Defendants produce the information was unduly prejudicial.

6

Furthermore, the parties specifically addressed the possibility of bifurcating the trial at the

7

outset as to punitive damages, given the prior bad acts alleged by Defendants. While Plaintiff’s

8

counsel requested bifurcation, Defendants expressly opposed it.

9
10

“THE COURT: So I guess my first question is this then. Are you moving to bifurcate this
trial as it relates to punitive damages?

11

MR. BARRICK: Yes, Your Honor.

12

THE COURT: Okay. Ms. Menendez? Mr. Frost?

13

MS. MENENDEZ: Obviously, we disagree with it because we want to go forward.”
(Tr. at 10, Oct. 26, 2015).

14
15

Therefore, the Defendants had the possibility of bifurcating the trial—an option that

16

opposing counsel requested and supported—for the purpose of isolating the prior bad acts as

17

evidence in support of punitive damages, but they specifically opposed bifurcation from the

18

beginning. A district “court’s evidentiary rulings are reviewed for abuse of discretion and will not

19

be reversed absent prejudice to the party whose evidence was excluded.” Glover v. BIC Corp., 6

20

F.3d 1318, 1328 (9th Cir. 1993). Just as failure to move for a mistrial weighs against a

21

determination of prejudicial effect of statements in closing argument, see Cooper, 945 F.2d at

22

1107, opposition to the mitigating procedure of bifurcation may weigh against declining to find

23

sufficient prejudice to merit undoing the jury’s judgment on grounds of prejudicial evidence. Yet

24

even if Defendants had not opposed bifurcation, the Court finds that the prejudicial effect of the

25

evidence did not substantially outweigh its probative value, and thus it was properly admitted.

26
27

The Court therefore declines to grant a motion for new trial based on the prior bad act
evidence admitted.

28

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III.

MOTION FOR ATTORNEY FEES, ECF NO. 200

42 U.S.C. §1997e(d)(2)-(3) of the PLRA provides: “Whenever a monetary judgment is
awarded in an action described in paragraph (1), 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 judgment, the excess shall be
paid by the defendant. No award of attorney’s fees in an action described in paragraph (1) shall be
based on an hourly rate greater than 150 percent of the hourly rate established under section
20006A of Title 18, United States Code, for payment of court-appointed counsel.” The Ninth
Circuit has found that the PLRA caps on attorney’s fees are constitutional. Madrid v. Gomez, 190
F.3d 990, 995-996 (9th Cir. 1999). The current Criminal Justice Act’s (“CJA”) maximum
compensation rate is $127. This means the maximum hourly rate Plaintiff’s counsel can claim is
$190.50 (which is 150% of $127.00).
The Ninth Circuit has defined the contours of the PLRA and the cap on attorney fees as
follows: “[T]he cap in § (d)(2) does not apply to fees incurred on appeal by a prisoner who
successfully defends the verdict that he obtained in the district court. In other words, the § (d)(2)
cap applies only to fees incurred in securing the judgment in the district court and not to fees
incurred in defending the judgment on appeal.” Woods v. Carey, 722 F.3d 1177, 1179 (9th Cir.
2013) (emphasis added).
The parties agree that the PLRA cap applies to fees incurred to this point, where judgment
has not been entered and the Defendants have not yet appealed the judgment. The Court therefore
finds that the maximum hourly rate for Plaintiff’s counsel is $190.50.
Turning to the specific fees incurred, the Court also finds that Plaintiff’s fees for both
counsel and his legal assistant are not duplicative, because the nature of the work done by counsel
and legal assistants is distinct. The Court incorporates its reasoning laid out in the hearing on
December, 14, 2015, and elaborates below, addressing the individual objections at this time
regarding billing for Plaintiff’s counsel.
A. 11/6/2015 – 9.20 Hours

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1

The parties were told to report to Court by 9:00 a.m. on November 6, 2015. (Tr. at 94-95,

2

Nov. 4, 2015). Counsel was excused by the court by 2:10p.m.; thereby making the maximum time

3

at court related to the case approximately 5 hours.

4
5

Plaintiff argues that the entry for 9.20 hours accounts not only for being in trial but also for
debriefing with Plaintiff’s legal assistant and a volunteer from Legal Aid.

6

Defendants argue that any conversations could have easily taken place while waiting for

7

the jury to deliberate and that amount should be cut to the time actually spent in court, taking into

8

account traveling back and forth. The Court should award no more than 7 hours for this entry.

9
10

Having verified the time of adjournment on November 6, 2015, The Court grants reduction
of the hours to 6.2 hours.

11

B. 11/3/2015 – 4.40 Hours

12

Defendant argues that Plaintiff billed over four hours for a response, which was a four page

13

document regurgitating his previous motion. (See Doc. 175). As such, the court should award no

14

more than 2 hours for the drafting of this document. The Court denies reduction of this entry. The

15

Court finds the billing to appropriate for the work done.

16

C. 10/19/15 – 3.30 Hours

17

Defendants argue that Plaintiff’s counsel’s entry includes “getting white board for trial.”

18

However, Defendant ignores that this time also includes travel to attend an interview of Tyrone

19

Hutchins. The Court denies reduction of this entry.

20

D. Any Entries Related to Conferences with Sabree (Phillip Lyons)

21

Defendants argue that there are various entries related to conferences with Sabree Lyons,

22

which is indicative of double billing. For the reasons stated above, the Court denies reduction of

23

this entry, finding that Plaintiff’s counsel is entitled to recover fees for work done in collaboration

24

with his legal assistant.

25
26

E. Billing Entries Made Before Appointment of Counsel 4/22/15 to 4/28/15 – 1.8
Hours

27

The Court denies reduction of this entry.

28

F. Total Fees Granted

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1

Subtracting three hours for the November 6 entry, and applying the PLRA cap, the Court

2

grants Plaintiff’s Motion in the amount of $46,819.

3

This results from the following calculation:

4

--Travis N. Barrick: 178.4 hours x PLRA maximum rate of $190.5/hour = $33,985

5

--Mr. Lyons: 127.5 hours x $100/hour =

$12,750

6

--Gallian, Welker, & Beckstrom, LC: (postage & trial exhibit)

$84
Total: $46,819

7
8
9

IV.

CONCLUSION

10

Based on the reasons stated above, the Court GRANTS in part and DENIES in part

11

Defendants’ motion for new trial. (ECF No. 221). The Court GRANTS remittitur of punitive

12

damages against Defendant Rabourn from $1,000 to $50. The Court GRANTS the remittitur of

13

punitive damages against Defendant Connett as to the Equal Protection Claim in Count V from

14

$2,200 to $50. The Court DENIES the remainder of the motion.

15
16

The Court further GRANTS in part and DENIES in part Plaintiff’s motion for attorney fees
consistent with its findings stated above. (ECF No. 200).

17
18

DATED this 17th day of October, 2017.

19
___________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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