Berrian v. City of New York et al

Filing 61

OPINION & ORDER....Plaintiff's March 25, 2014 motion for an award of attorneys' fees and costs is granted. Plaintiff is awarded $44,175.50 in attorneys' fees and $3,253.77 in costs; $1 of this award is to be taken from Plaintiff's $65,000 damages in this action. (Signed by Judge Denise L. Cote on 11/21/2014) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
STAFFORD BERRIAN,
:
Plaintiff,
:
:
-v:
:
CITY OF NEW YORK; Commissioner DORA B. :
SCHRIRO; Chief of Department MICHAEL
:
HOURIHANE; Deputy Commissioner
:
FLORENCE L. FINKLE; Warden LUIS
:
RIVERA; Captain “JANE” COUNCIL;
:
Captain “JOHN” MEDINA; Officer “JOHN” :
PEPE; Officer “JOHN” DEJESUS; and
:
Officer “JOHN” ELLIS,
:
:
Defendants.
:
:
-------------------------------------- X
APPEARANCES:
For plaintiff Stafford Berrian:
Debra L. Greenberger
Alison Frick
EMERY CELLI BRINCKERHOFF & ABADY LLP
600 Fifth Ave., 10th Fl.
New York, NY 10020
Jonathan S. Chasan
Mary Lynne Werlwas
THE LEGAL AID SOCIETY PRISONERS’ RIGHTS PROJECT
199 Water St., 6th Fl.
New York, NY 10038
For defendant City of New York:
Arthur G. Larkin
Odile M. Farrell
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church St., Rm. 3-210
New York, NY 10007

13cv1719 (DLC)
OPINION & ORDER

DENISE COTE, District Judge:
Following settlement of this action alleging assault by New
York City Department of Correction (“DOC”) officers on plaintiff
Stafford Berrian (“Berrian” or “Plaintiff”), Plaintiff moved for
an award of attorneys’ fees and costs.

The motion was referred

to Magistrate Judge Freeman, who filed a Report and
Recommendation (the “Report”) on July 28, 2014 recommending that
Plaintiff be awarded attorneys’ fees in the amount of
$44,175.50, plus costs in the amount of $3,253.77.

The City of

New York (the “City”) filed timely objections on August 8 (the
“Objections”), which were fully submitted on September 26.
Having reviewed the City’s Objections and having conducted a de
novo assessment of the issues they raise, the Report’s
recommendation is adopted in part for the reasons that follow.
BACKGROUND
Berrian, an inmate at Rikers Island, brought suit for
damages against the City of New York and others (“Defendants”)
on March 14, 2013 pursuant to 42 U.S.C. § 1983 and New York
common law, alleging assault by DOC officers in retaliation for
reporting a prior assault to the Legal Aid Society, as well as
their pursuit of sham disciplinary proceedings against him in
retaliation for the Plaintiff preparing to file the instant
suit.

Berrian was represented by attorneys at Emery Celli
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Brinckerhoff & Abady LLP (“Emery Celli”) and the Legal Aid
Society’s Prisoners’ Rights Project.
With respect to the retaliatory beating, Berrian alleged as
follows.

On August 1, 2012, thirty minutes after Berrian

reported a prior assault by DOC officers to an attorney from the
Legal Aid Society, three DOC officers and their captain
approached his cell while he was on the toilet.

One officer

entered Berrian’s cell and punched him in the face with force
sufficient to knock him onto the ground.

The two other officers

followed, one kicking Berrian in the ribs and in the face while
the other held his legs.

The officers then handcuffed him,

forced him to his knees, and punched him in the face multiple
times.

An X-ray taken that evening showed that Berrian’s jaw

was broken.

Berrian underwent surgery for the injury to his

jaw, and a metal plate was installed to close the fracture.
Following the surgery, Berrian developed an infection in his
mouth.

Berrian alleged severe and continuing pain, as well as

difficulty chewing and continued numbness.
The initial pretrial conference was held on October 11,
2013.

The Pretrial Scheduling Order of October 15 provided for

the close of fact discovery by April 25, 2014 and a jury trial
to commence on September 8, 2014.

The first deposition in this

action was scheduled for February 19, 2014; depositions of the
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DOC officers and captain were scheduled for early March 2014.
Less than a week before the first scheduled deposition, on
February 14, the City offered judgment, pursuant to Rule 68,
Fed. R. Civ. Pro., (the “Rule 68 Offer”)
for the total sum of Sixty-Five Thousand ($65,000.00)
Dollars, plus reasonable attorneys’ fees, expenses and
costs to the extent, and only to the extent, that
recovery of attorneys’ fees, expenses and costs is
permitted by the Prison Litigation Reform Act (“PLRA”)
42 U.S.C. § 1997e, to the date of this offer for
plaintiff’s federal claims.
Plaintiff accepted the Rule 68 Offer on February 18. 1

On March

6, judgment was entered for Plaintiff (the “Judgment”)
for the sum total of Sixty-Five Thousand ($65,000)
Dollars, plus reasonable attorneys’ fees, expenses,
and costs to the extent, and only to the extent, that
recovery of attorneys’ fees, expenses and costs is
permitted by the [PLRA], to the date of service of
defendants’ offer, February 18, 2014.
On March 25, Plaintiff moved for attorneys’ fees and costs,
submitting in support a memorandum of law, two attorney
declarations, and exhibits including contemporaneous time
records.

Plaintiff sought $49,511.33; he later reduced his

request to $48,536.74.
Plaintiff requested attorneys’ fees for 231 attorney hours
(after a voluntary reduction of 25.8 hours) multiplied by an

On March 5, the City made a second offer of judgment of $35,000
to satisfy Plaintiff’s attorneys’ fees and costs. Plaintiff
rejected this offer.
1

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hourly rate of $187.50 for work done between August 2012 and
August 31, 2013 and $165 per hour for work thereafter (with
travel billed at 50% of these rates), plus 44.6 paralegal hours
at an hourly rate of $100.

Plaintiff’s four attorneys’ hourly

rates for paying clients range from $350 to $600.

The majority

of counsel’s time -- 155.5 hours -- was billed by the most
junior attorney, Jennifer Keighley (“Keighley”).

Plaintiff also

requested $3,792.49 in costs.
Plaintiff’s attorney hours include 45 hours spent on
factual investigation, legal research, drafting, editing, and
revising the complaint.

Counsel’s factual investigation

included meeting twice with Plaintiff at Rikers Island;
reviewing medical records related to the assault; and reviewing
related prison disciplinary records.

Plaintiff notes that the

disciplinary proceedings were held in the midst of counsel’s
drafting of the complaint, and that legal research was required
to plead the “novel claim” of retaliation via sham disciplinary
charges.
Plaintiff’s counsel’s time records also include, by
Defendants’ estimate, approximately 41 hours of time spent
conferring with co-counsel or paralegals regarding the case.
These conferences addressed, among other things, discovery
issues, review of Plaintiff’s medical records, Plaintiff’s
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damages expert, and settlement.

In many cases, Keighley

conferred with or updated more senior attorneys regarding work
she had performed.

Many of the conferences were short --

between six and eighteen minutes -- and, with few exceptions,
billing entries for conferences longer than twenty-four minutes
are subdivided, noting the time spent discussing distinct
issues.
Plaintiff also requests fees for approximately 3.7 hours of
attorney time (almost entirely Keighley’s) and 10.7 hours of
paralegal time spent obtaining medical releases and medical
records.

Plaintiff’s counsel sent multiple releases, including

mental health releases, specialized releases for X-ray films,
follow-up releases with respect to updated records, and releases
for records under an alternate name.

Plaintiff’s counsel notes

that they faced “extreme delay” in receiving these records,
which were voluminous -- they comprised the majority of the
almost 3,000 pages produced by Plaintiff in discovery.
On July 28, Magistrate Judge Freeman filed the Report,
recommending that Plaintiff be awarded $47,429.27, including an
award of attorneys’ fees in the amount of $44,175.50.

Judge

Freeman recommended reducing the hours of attorney Jonathan
Chasan (“Chasan”) by 10%, given a lack of clarity in his time
entries.

Otherwise, Judge Freeman found the requested
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attorneys’ fees reasonable.

Judge Freeman also recommended that

the costs requested by Plaintiff be reduced to $3,253.77, after
removing certain charges for service and research.
Judge Freeman construed the Rule 68 Offer to expressly
provide that no part of the award for attorneys’ fees and costs
be allocated from the $65,000 award to Plaintiff.

Accordingly,

she recommended that attorneys’ fees and costs be paid by
Defendants, in addition to the $65,000 award.
On August 8, the City filed Objections on three grounds:
(1) the Report misconstrued the Rule 68 Offer, and 15% of
Plaintiff’s judgment should be allocated to partially satisfy
the fee award; (2) a 40% across-the-board reduction should be
applied to the fee request; and (3) Plaintiff should be
prohibited from seeking attorneys’ fees in connection with the
instant fee application if the Court awards less than $35,000 in
fees and costs.

Plaintiff responded to the City’s Objections on

September 15, and the City replied on September 26.
DISCUSSION
I.

Legal Standards
When considering a magistrate judge’s report, a district

court “may accept, reject, or modify the recommended
disposition.”

Fed. R. Civ. Pro. 72(b)(3); cf. Fed. R. Civ. Pro.

54(d)(2)(D) (noting motion for attorneys’ fees is a
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“dispositive” matter).

A district court “must determine de novo

any part of the magistrate judge’s disposition that is properly
objected to.”

Fed. R. Civ. Pro. 72(b)(3).

To accept those

portions of the report to which no timely objection has been
made, “a district court need only satisfy itself that there is
no clear error on the face of the record.”

Alexis v. Griffin,

11cv5010 (DLC), 2014 WL 5324320, at *3 (S.D.N.Y. Oct. 20, 2014).
Pursuant to 42 U.S.C. § 1988, the “prevailing party” in
certain civil rights actions, including Section 1983 actions,
may recover “a reasonable attorney’s fee as part of the costs.”
In order to be considered a “prevailing party” for purposes of a
federal fee-shifting statute, a plaintiff must achieve a
“material alteration of the legal relationship of the parties”
that is “judicially sanctioned.”

Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 60405 (2001) (citation omitted); accord Carter v. Incorporated
Village of Ocean Beach, 759 F.3d 159, 165 (2d Cir. 2014).

A

court-ordered settlement or consent decree may support an award
of attorneys' fees.

Buckhannon, 532 U.S. at 604; Roberson v.

Giuliani, 346 F.3d 75, 82 (2d Cir. 2003).
“In calculating attorney’s fees, the district court must
first determine the lodestar -- the product of a reasonable
hourly rate and the reasonable number of hours required by the
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case -- which creates a presumptively reasonable fee.”

Stanczyk

v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (citation
omitted) (Section 1983 action).

It is well-established that

plaintiffs should receive compensation for hours “reasonably
expended.”

See, e.g., Townsend v. Benjamin Enters., Inc., 679

F.3d 41, 58 (2d Cir. 2012).

“Applications for fee awards should

generally be documented by contemporaneously created time
records that specify for each attorney, the date, the hours
expended, and the nature of the work done.”

Matusick v. Erie

Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (citation
omitted).

The court should “take[] account of claimed hours

that it views as excessive, redundant, or otherwise
unnecessary,” and “may look to its own familiarity with the case
and its experience generally as well as to the evidentiary
submissions and arguments of the parties.”

Bliven v. Hunt, 579

F.3d 204, 213 (2d Cir. 2009) (citation omitted).
A court may adjust the lodestar, in “rare circumstances,”
when it “does not adequately take into account a factor that may
properly be considered in determining a reasonable fee.”

Millea

v. Metro-North R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011) (FMLA
action) (quoting Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542,
554 (2010)).

The Second Circuit has “repeatedly rejected the

notion that a fee may be reduced merely because the fee would be
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disproportionate to the financial interest at stake in the
litigation.”

Barbour v. City of White Plains, 700 F.3d 631, 635

(2d Cir. 2012) (citation omitted) (Section 1983 action); accord
Millea, 658 F.3d at 168 (“Absent a purely technical victory in
an otherwise frivolous suit, litigation outcomes are only
relevant to fee award calculations when they are a direct result
of the quality of the attorney’s performance.”).

A court has

discretion “to reduce the lodestar,” including where the
lodestar does not properly “reflect the [limited] degree of
success achieved at trial.”

Stanczyk, 752 F.3d at 284-85

(affirming reduction where attorney’s “poor representation
negatively impacted [plaintiff]’s success at trial”).
The PLRA provides, in relevant part, as follows:
(d) Attorney's fees
[. . .]
(2) Whenever a monetary judgment is awarded in an
action [governed by the PLRA], 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.
(3) No award of attorney’s fees in [such] an
action . . . shall be based on an hourly rate
greater than 150 percent of the hourly rate
established under section 3006A of Title 18 for
payment of court-appointed counsel.
42 U.S.C. § 1997e.
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II.

Application
A.

Allocation of Fees from Plaintiff’s $65,000 Award

The Judgment provides that, per the Rule 68 Offer the City
made to Plaintiff and that Plaintiff accepted, the City is to
pay Plaintiff $65,000, “plus reasonable attorneys’ fees,
expenses and costs to the extent . . . permitted by the [PLRA].”
(Emphasis added.)

The PLRA only requires that “a portion of

[Plaintiff’s] judgment (not to exceed 25 percent) shall be
applied to satisfy the amount of attorney’s fees awarded against
the defendant.”

42 U.S.C. § 1997e; see also Shepherd v. Goord,

662 F.3d 603, 607 (2d Cir. 2011) (PLRA “requires the district
court to apply some part of the monetary judgment awarded to
plaintiff . . . against any fee award.”)

Thus, the PLRA permits

all but a nominal sum to be paid by the City.

Because the City

agreed to pay reasonable attorneys’ fees in addition to the
amount it paid the Plaintiff, $1 of Plaintiff’s $65,000 award
shall be allocated to satisfy the attorneys’ fees and costs
awarded below.

The remainder shall be paid by the City.

The City argues that 15% of Plaintiff’s award -- $9,750 -should be allocated toward attorneys’ fees, suggesting that
Plaintiff’s action was one of the “meritless lawsuits” Congress
meant to curtail through the PLRA.
607 F.3d 18, 23 (2d Cir. 2010).

Harris v. City of New York,

In support of this argument,
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the City states that Plaintiff’s initial demand was a good deal
higher than the $65,000 Plaintiff ultimately accepted
($400,000); Plaintiff has been “engaged in goal-oriented,
manipulative behavior” -- specifically, Plaintiff has been
“preoccupied with the litigious aspects of his incidents with
DOC and appeared to be enjoying these interactions for secondary
gain,” boasting that he would recover a substantial sum in this
lawsuit and threatening to sue medical staff if they refused to
move him to the housing area of his choice; and Plaintiff was
incarcerated for second-degree robbery under an alias.

None of

this suggests that Plaintiff’s action was meritless, or that 15%
of Plaintiff’s award should be allocated to fees, despite the
fact that the City agreed with Plaintiff that attorneys’ fees
would be paid in addition to the $65,000 award and that the
Judgment orders the same.

The crime for which Plaintiff was

incarcerated has no relevance to whether his claim of ill
treatment while incarcerated has merit.

Manipulative behavior

in prison that is unrelated to the claims pleaded here is also
irrelevant.

While an unrealistic initial demand may have an

impact on whether the number of hours claimed were reasonably
expended where it needlessly prolongs litigation, there is no
evidence that the initial demand needlessly prolonged this
litigation.

After all, the Plaintiff’s claims had sufficient
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merit to prompt the City to pay the Plaintiff a substantial sum
in addition to fees and costs.
B.

Reasonableness of Plaintiff’s Counsel’s Billing

The City requests a 40% across-the-board reduction to
Plaintiff’s attorneys’ fee award, because (1) the time spent (a)
investigating and drafting the complaint, (b) conferring with
co-counsel, and (c) obtaining medical records were excessive,
and (2) Plaintiff’s success was “limited,” as compared against
Plaintiff’s initial demand for $400,000. 2

The City’s request is

denied.
First, the 45 hours spent investigating, researching, and
drafting the complaint were reasonable.

The required factual

investigation alone was substantial here: Counsel had to twice
travel to meet with Plaintiff, who is incarcerated at Rikers
Island; review thousands of pages of medical records; review
prison disciplinary records; and then revise the compliant, in
the midst of drafting, as Plaintiff was brought up on
disciplinary charges that became the source of an additional set
of claims.

While an allegation of retaliatory, sham

disciplinary proceedings is neither novel nor unusual, the
underlying facts required investigation by counsel before they

By letter of October 27, the City withdrew its objection to the
number of hours billed by Chasan.
2

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could be properly pleaded.
Second, the 41 hours of time spent conferring with cocounsel or paralegals were reasonable.

Many of these

conferences were extremely short -- six to eighteen minutes -and counsel’s time entries are detailed, breaking down most of
the longer conferences to identify the length of time each
distinct issue was discussed.

Defendants do not suggest that

any particular conference was unnecessary or overlong.

Indeed,

as noted by Judge Freeman, a substantial portion of the
conferencing appears to be the result of allocating the majority
of work to the most junior attorney -- a generally efficient
practice.

Others concerned factually or tactically complex

issues like Plaintiff’s damages expert and settlement.

On this

record, there is no reason to believe that Plaintiff’s counsel
were attempting to run up costs, and the time reported appears
reasonable.
Finally, the City objects that the 14.4 hours spent
obtaining medical releases and medical records -- 10.7 hours of
those hours spent by paralegals -- were unreasonable.

As noted

above, Plaintiff’s counsel sent a number of releases, including
specialized releases, faced delay, and compiled thousands of
pages of records, which it then produced to the City.

The claim

which prompted this lawsuit was the assertion that Corrections
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officers used excessive force against the Plaintiff and injured
his jaw.

The hours expended here were not unreasonable.

As the

City has raised no other objection concerning the proper
calculation of the lodestar figure, and the Court perceives no
error on the face of the record, the Court adopts the Report’s
lodestar calculation of $44,175.50.
More generally, the City complains that the lodestar figure
should be adjusted downward because of Plaintiff’s “limited”
success.

This argument would have greater weight if it were

combined with a showing that Plaintiff unreasonably extended the
litigation by means of an excessive demand.
argument is presented here.

But, no such

A judgment in Plaintiff’s favor for

$65,000 plus attorneys’ fees and costs, less than one year after
Plaintiff filed his complaint, constitutes quite substantial
success and no unreasonable delay.

While the City argues that

this is a small proportion of the Plaintiff’s initial demand for
$400,000, settlement figures are frequently substantially
smaller than initial demands.

A negative lodestar adjustment

based solely on a comparison of the original demand and final
settlement figure is not warranted here. 3
The City has not objected to the remainder of the Report’s
The City’s final objection is moot, as Plaintiff is being
awarded more than the $35,000 second Rule 68 offer of judgment
concerning attorneys’ fees.
3

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recommendations, including the recommendation to award $3,253.77
in costs.

Finding no clear error on the face of the record,

those recommendations are adopted.
CONCLUSION
Plaintiff’s March 25, 2014 motion for an award of
attorneys’ fees and costs is granted.

Plaintiff is awarded

$44,175.50 in attorneys’ fees and $3,253.77 in costs; $1 of this
award is to be taken from Plaintiff’s $65,000 damages award in
this action.
SO ORDERED:
Dated:

New York, New York
November 21, 2014
____________________________
DENISE COTE
United States District Judge

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