Mitchell v. Sheboygan County Detention Center et al

Filing 178

ORDER signed by Judge J.P. Stadtmueller on 6/16/2017: GRANTING 174 Defendants Nurses Brenda, Lisa, Nick, and Tracy's Motion for Attorney's Fees and AWARDING them the sum of $19,172.00 in attorney's fees; and GRANTING 171 Def endant Dr. Karen Butler's Motion for Attorney's Fees and AWARDING her the sum of $16,304.50 in attorney's fees. The agency having custody of Plaintiff to COLLECT from his prison trust account the balance of these fee awards. The Clerk of Court to DISTRIBUTE all payments received for Defendants' attorney's fees to counsel of record for the applicable parties, in amounts proportionate to their respective fee awards. See Order for further details. (cc: all counsel, via mail to Kevin Brian Mitchell and Warden at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEVIN BRIAN MITCHELL,

v.

Plaintiff,

MARK RICHTER, SERGEANT FENN,
CORRECTIONAL OFFICER
HANSEN, CORRECTIONAL
OFFICER JOHNSON,
CORRECTIONAL OFFICER
IVERSON, CORRECTIONAL
OFFICER KRUEGER, DEPUTY
WALTER, DR. KAREN BUTLER,
NURSE TRACY, NURSE BRENDA,
NURSE LISA, NURSE NICK, and
CAPTAIN BRINKMAN,

Case No. 15-CV-1520-JPS

ORDER

Defendants.
On February 27, 2017, the Court granted summary judgment to all
Defendants as to each of Plaintiff’s claims. (Docket #157). After the Court
entered judgment in their favor, several of the Defendants moved for
awards of reasonable attorney’s fees and costs. (Docket #159 and #162). The
Court denied these motions without prejudice because Defendants’
evidentiary submissions did not equip the Court to evaluate the fee
requests. See (Docket #169). Defendants submitted amended motions,
(Docket #171 and #174), and Plaintiff filed a response, (Docket #177).
Defendants have not replied, and the time to do so has expired. See Civ. L.

R. 7(c). For the reasons stated below, the Court will grant Defendants’
motions and award them their reasonable attorney’s fees.1
Attorney’s fees may be sought under 42 U.S.C. § 1988(b), which
provides that a district may award a reasonable fee “as part of the costs” to
a prevailing party in a Section 1983 case. 42 U.S.C. § 1988(b). But to recover
his fees, a defendant must do more than simply prevail. Unity Ventures v.
County of Lake, 894 F.2d 250, 253 (7th Cir. 1990). To avoid chilling
meritorious civil rights litigation, courts require a prevailing defendant to
show that the plaintiff’s action was brought in bad faith or was frivolous.
Hughes v. Rowe, 449 U.S. 5, 15 (1980); Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 422 (1978); Munson v. Milwaukee Bd. of Sch. Dir., 969 F.2d 266,
269 (7th Cir. 1992); see also Khan v. Galitano, 180 F.3d 829, 837 (7th Cir. 1999)
(distinguishing “a weak argument with little chance of success,” which
does not merit fees for a defendant, from “a frivolous argument with no
chance of success,” which does).
This requirement is easily satisfied here, since the Court has already
concluded that Mitchell fabricated his allegations of wrongdoing in a
personal vendetta against Defendant Richter, which was laid bare by the
indisputable video footage of the incident in question. Mitchell v. Richter,
Case No. 15–CV–1520–JPS, 2017 WL 752162, at *14 (E.D. Wis. Feb. 27, 2017).
Consistent with those observations, the Court finds that Mitchell’s claims
were factually frivolous and maintained in bad faith, thereby meriting an
award of fees in Defendants’ favor. See id.; Tierney v. Vahle, 204 F.3d 734, 740

It is the Clerk of the Court who awards costs in cases like this one pursuant
to Federal Rule of Civil Procedure 54(d), based on the prevailing parties’
submission of their bill of costs. See Civ. L. R. 54. Accordingly, the Court will not
award Defendants’ costs in this Order.
1

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(7th Cir. 2002) (affirming award of fees to defendant where plaintiff’s claim
was frivolous).
As noted in its recent order, to calculate a reasonable attorney’s fee,
the district court first computes a “lodestar”: the product of the hours
reasonably expended on the case multiplied by a reasonable hourly rate.
Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). A reasonable hourly
rate for lodestar purposes is the attorney’s “market rate,” or “the rate that
lawyers of similar ability and experience in their community normally
charge their paying clients for the type of work in question.” Spegon v.
Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999) (quotations and
citations omitted). Although the lodestar yields a presumptively reasonable
fee, the court may adjust the fee based on factors not included in the
computation. Montanez, 755 F.3d at 553.
As part of their amended motions, consistent with the Court’s
instructions, Defendants submitted affidavits from their counsel, who
provided their billing rates and testified that those rates are in line with the
market rates in the community. Defendants also provided their detailed
time records for the Court’s review and averred that the time spent on this
case was both reasonable and necessary to its successful defense. See
(Docket #172, #173, and #175).
The Court, having reviewed the declarations and the attached time
records, finds that the rates charged and the hours expended on this matter
are reasonable. Plaintiff’s one-page opposition challenges none of the
claimed hours or rates. (Docket #177). His only arguments are (1) that there
was a 400% increase in the fees requested and (2) that his in forma pauperis
status should shield him from having to pay any fee award. Id. at 1. The

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first assertion is simply incorrect, as Defendants’ initial requests were only
a few thousand dollars lower than their current requests.
As for Plaintiff’s poverty, he offers no more than a single conclusory,
unsworn sentence that he lacks sufficient funds to pay the fees and costs,
which is clearly short of his burden to provide evidence that he cannot now
or in the future pay these amounts. See Rivera v. City of Chicago, 469 F.3d 631,
636 (7th Cir. 2006). Further, even if he had this evidence, the Court is not
required to waive costs and fees simply because of Plaintiff’s in forma
pauperis status. McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). Imposing
fees and costs on a prisoner, even though indigent, serves the important
goal of forcing him to consider the merits of his suit before filing it and
exposing himself to such expenditures. Id. at 460. In this case, Plaintiff
undoubtedly failed to do this, so the Court has little sympathy that he must
now pay the requisite costs of that decision.
As a result, in the absence of a valid objection and after careful
review, the Court adopts Defendants’ proposed fee awards as the lodestar:
$16,304.50 for Defendant Dr. Karen Butler and $19,172.00 for the Nurse
Defendants—Tracy Lund, Lisa Korslin, Nicholas Larkin, and Brenda
Lemberger. Because Plaintiff has raised no valid reasons to further adjust
the lodestar, and the Court independently detects none, these shall be the
fee awards in this case. Pursuant to the dictates of the Prison Litigation
Reform Act, 28 U.S.C. § 1915(f)(2)(A), the Court must order that these fee
awards, which under Section 1988 are considered part of the “costs” in the
case, be collected over time from Plaintiff’s prison trust account as provided
in Section 1915(b)(2). See Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir.
2016).

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Accordingly,
IT IS ORDERED that Defendants nurses Brenda, Lisa, Nick, and
Tracy’s motion for attorney’s fees (Docket #174) be and the same is hereby
GRANTED. These Defendants be and the same are hereby awarded the
sum of $19,172.00 in attorney’s fees;
IT IS FURTHER ORDERED that Defendant Dr. Karen Butler’s
motion for attorney’s fees (Docket #171) be and the same is hereby
GRANTED. This Defendant be and the same is hereby awarded the sum of
$16,304.50 in attorney’s fees;
IT IS FURTHER ORDERED that the agency having custody of the
prisoner shall collect from his institution trust account the balance of the fee
awards listed above by collecting monthly payments from Plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income
credited to the prisoner’s trust account and forwarding payments to the
Clerk of the Court each time the amount in the account exceeds $10 in
accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly
identified by the case name and number assigned to this action. If Plaintiff
is transferred to another institution, the transferring institution shall
forward a copy of this Order along with Plaintiff’s remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that the Clerk of the Court shall
distribute all payments received for Defendants’ attorney’s fees to counsel
of record for the applicable parties, in amounts proportionate to their
respective fee awards; and
IT IS FURTHER ORDERED that copies of this order be sent to the
officer in charge of the agency where the inmate is confined.

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Dated at Milwaukee, Wisconsin, this 16th day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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