Spencer v. City of Milwaukee Police Department et al
Filing
197
ORDER signed by Chief Judge Pamela Pepper on 9/19/2023 GRANTING 193 plaintiff's amended motion for attorney's fees and costs. Under 42 USC §1988, plaintiff AWARDED $137,974.92 in legal fees and costs; under 42 USC §1997(e)(2)(D), plaintiff to pay 25% of judgment ($96,500) toward fee amount, defendants to pay remainder. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JERPAUL D. SPENCER,
Plaintiff,
v.
Case No. 16-cv-662-pp
MICHAEL VAGNINI, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR LEGAL FEES
AND COSTS UNDER 42 U.S.C. §1988 AND MODIFYING AMOUNT AWARDED
(DKT. NO. 193)
______________________________________________________________________________
After a jury trial that ended with the jury awarding the plaintiff $386,000
against two defendants and finding in favor of the other two defendants, the
plaintiff filed a motion seeking $313,973.15 in attorney’s fees and costs under
42 U.S.C. §1988. Dkt. No. 178. On December 27, 2022, the court issued an
order discussing that motion. Dkt. No. 191. The court neither granted nor
denied the motion because there were several issues that the parties had not
addressed in their briefing—issues that the court believed would impact the
court’s determination of the proper fee amount. See generally id.
The court first noted that neither party had discussed the compensation
limits that the Prison Litigation Reform Act (PLRA) sets for fee awards, and the
plaintiff had not calculated a base fee award—the “lodestar”—using the hourly
rate limits that the PLRA mandates. Id. at 6–7. The court explained, “It is not
the court’s responsibility to calculate the lodestar in the first instance; the
plaintiff bears that burden.” Id. at 13–14. The court ordered the plaintiff “to
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amend the motion to calculate the hourly rates for each lawyer based on the
limited rates mandated by the PLRA, because that is ‘the absolute cap’ allowed
under §1997e(d)(3).” Id. at 14.
The court explained in detail several adjustments and exclusions it was
making to the plaintiff’s proposed recoverable hours based on mathematical
errors or unsupported hours in the attorneys’ invoice. Id. at 29–37. The court
required the plaintiff to make the adjustments the court described “or to
provide the court with explanations for the discrepancies/math
errors/typographical errors that would justify including the time.” Id. at 37.
The plaintiff billed an “intern’s” time at $150 an hour; in the amended motion,
he objects to the court’s order reducing that rate to $90 an hour. He also
argues that the court erred in perceiving that one of the plaintiff’s attorneys,
Attorney Nate Cade, had discounted by 1.1 hours the amount of time he spent
preparing the fee petition (the plaintiff asks for the “full 1.7 hours” spent
preparing the fee petition. Id.; Dkt. No. 193 at 2–3. The plaintiff contests the
court’s reasoning in making a third reduction for time counsel spent waiting for
the verdict on the final day of trial but does not seek an adjustment of that
time. Dkt. No. 193 at 3–4. This order addresses each of these contentions.
The court enhanced the plaintiff’s fee award by 5% to reflect “the jury’s
substantial award to the plaintiff (an incarcerated individual and known felon)
on five of his sixteen claims against current and former police officers—an
award nearly one third higher than the [$270,000] settlement the parties
reached for all sixteen claims.” Dkt. No. 191 at 41. The court explained that
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“this enhancement fully compensates plaintiff’s counsel for their efforts and
fairly reflects the significance and value of the result achieved.” Id. In the
amended motion, the plaintiff’s counsel expresses gratitude for the
enhancement but maintains that “such enhancement does not go far enough.”
Dkt. No. 193 at 8. The court will address the parties’ additional arguments
regarding the enhancement of the lodestar amount.
The court also noted that “the biggest issue left unaddressed by the
parties is 42 U.S.C. §1997e(d)(2), and the relevance of the fact that the
plaintiff’s counsel took this case on a contingency fee basis.” Dkt. No. 191 at
42. The court reviewed Seventh Circuit law that stated, perhaps in dicta, that
payment of the fee award must come first from the damages award and then
from the defendant “‘only if 25% of the award is inadequate to compensate
counsel fully.’” Id. at 42–43 (quoting Johnson v. Daley, 339 F.3d 582, 584–85
(7th Cir. 2003)). The court explained that case law after Johnson left unclear
whether the 25% figure was discretionary or mandatory; it was unclear
whether the court had the discretion to order the plaintiff to pay any amount of
the fees—but no more than 25% of the judgment—or whether the plaintiff was
required to pay as much of the judgment as necessary—up to 25%—to satisfy
the fee award. Id. The court also explained that Attorney Cade and the plaintiff
had agreed on a 40% contingency fee and observed that it was not clear what
effect the fee agreement might have on the fee award. Id. at 43. Because the
parties had not addressed any questions related to §1997e(d)(2) or the
plaintiff’s contingency fee agreement, the court required the parties to address
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those issues in the amended motion and the response. Id. at 44–45. The
parties now have addressed those issues, which the court discusses below.
Finally, in the amended motion, the plaintiff’s counsel suggests that the
PLRA should not apply to this lawsuit at all, and that its limitation on
attorney’s fees does not apply to the calculation of attorney’s fees in this case.
Dkt. No. 193 at 14. He says that the plaintiff “should not receive less of
damages [sic] under Section 1988 than he would be entitled to but for being in
prison.” Id. The court also addresses this contention.
I.
Lodestar Calculation Using the PLRA Fee Limits
The plaintiff’s counsel prepared two proposed fee charts—one using the
current PLRA rate for all hours counsel worked on the case and one using the
rates in effect at the time counsel was performing the work. Dkt. No. 193 at 6–
8. The chart using the current PLRA rate allows Attorneys Cade, Annalisa
Pusick and Carlos Pastrana to recover $237 per hour worked, which is 150% of
the PLRA rate during the year 2022. Id. at 6; see Dkt. No. 191 at 5. Using this
rate, the plaintiff calculates a lodestar subtotal (not including costs or any
enhancement) of $117,041.80. Dkt. No. 193 at 6. Using the historical PLRA
rates in effect at the time the work was performed, the plaintiff calculates a
lodestar subtotal of $114,060.01.1 Id. at 7. The plaintiff asserts that the court
should use the PLRA rate in effect at the time the court entered judgment,
which is the $237-per-hour rate reflected in the first chart. Id. at 4, 6. The
The court believes the $0.01 cent is a typographical error, and the proper
cents should be $0.10, which results from adding Attorneys Cade and Pusick’s
totals ($89,586.15 and $19,759.95). Dkt. No. 193 at 7.
1
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plaintiff also takes exception to two of the court’s reductions in the lodestar
amount and responds to the court’s reduction in hours for time counsel spent
awaiting the verdict.
A.
Hourly Rate
The court calculated the appropriate hourly rate for each attorney using
the Criminal Justice Act (CJA) rate applicable for counsel in non-capital cases.
Dkt. No. 191 at 4 (citing Johnson, 339 F.3d at 583–84, and 42 U.S.C.
§1997e(d)). The court noted that those rates change periodically, most often by
year. Id. The court calculated a maximum hourly rate for the plaintiff’s
attorneys of between $210 and $237 per hour based on the applicable CJA rate
in effect at the time the work was completed. Id. at 4–5.
The plaintiff argues that this calculation was erroneous and asserts that
the court should apply the hourly rate in effect at the time it entered
judgment—July 2022—to all hours completed in the case, not only to hours
completed in the year 2022. Dkt. No. 193 at 4. The plaintiff quotes Missouri v.
Jenkins by Agyei, 491 U.S. 274, 283–84 (1989), in which the Supreme Court
held that “an appropriate adjustment for delay in payment—whether by the
application of current rather than historic hourly rates or otherwise—is within
the contemplation of the statute [§1988].” Id. at 4–5. The Supreme Court
added, “An adjustment for delay in payment is . . . an appropriate factor in the
determination of what constitutes a reasonable attorney’s fee under § 1988.”
Jenkins, 491 U.S. at 284.
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Relying on the language in Jenkins, the Seventh Circuit has explained
that a district court may use one of “two methods of compensating for the delay
in payment of attorney’s fees.” Smith v. Vill. of Maywood, 17 F.3d 219, 221 (7th
Cir. 1994). The first method “is to calculate the fee award using the attorney’s
current rates.” Id. This is the method for which plaintiff’s counsel advocates by
asking the court to use the 2022 CJA rate for all work the attorneys performed
on the case regardless of the year they completed it. The other method “is to
‘base the award on the rates the lawyers charged when they rendered the
services to the [client] and to add interest on that amount to the present.’” Id.
(quoting Matter of Continental Ill. Sec. Litigation, 962 F.2d 566, 571 (7th Cir.
1992)). A district court “may elect to use either of these two methods—current
rates or past rates with interest—as acceptable compensation for the delay in
payment of fees.” Id. (citing Jenkins, 491 U.S. at 282–84); see also Mathur v.
Bd. of Trustees of S. Ill. Univ., 317 F.3d 738, 745 (7th Cir. 2003) (citing Smith
and approving use of current market rates when calculating lodestar amount
in fee petition). Other courts in this district have used the current market rate
when awarding attorney’s fees “in order to compensate [plaintiff’s] attorneys for
the delay in payment.” King v. Bd. of Regents of Univ. of Wis. Sys., 748 F.
Supp. 686, 690 (E.D. Wis. 1990); see also Natzke v. PACCAR Inc., No. 17-cv637-WCG, 2019 WL 1499725, at *1 (E.D. Wis. Apr. 5, 2019) (citing Jenkins
and Mathur); Clarke v. Ford Motor Co., No. 01-cv-961-LA, 2006 WL 752902, at
*6 n.8 (E.D. Wis. Mar. 21, 2006) (citing Jenkins).
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The defendants oppose the plaintiff’s position and contend that the
historical hourly rates should be used when calculating the lodestar amount.
Dkt. No. 195 at 3. The defendants quote Eirhart v. Libbey-Owens-Ford Co., 774
F. Supp. 454, 456 (N.D. Ill. 1991), which says that “the goal of the fee award
should be to place the lawyer in the same economic position as if the matter
had been billed and paid like any regular component of the lawyer’s practice for
a paying client, rather than having to wait for payment at the end of the
litigation.” Id. The Eirhart court advocated using the historical hourly rates
“rather than employing today’s billing rates.” 774 F. Supp. at 456. But the
court added that “from time to time,” a district court should also apply “the
interest rates used to equate (a) payment today with (b) past payment plus the
use of the money since then.” Id. (citing Lippo v. Mobil Oil Corp., 692 F. Supp.
826, 838–39 (N.D. Ill. 1988)). This appears to be the “past rates with interest”
method that the Seventh Circuit had described three years later in Smith, 17
F.3d at 221. The defendants do not mention Eirhart’s discussion and inclusion
of the interest rates; they quote only the language related to using the
historical rate.2
The court finds that, in accordance with the cases cited above, the
plaintiff’s counsel are entitled to an adjustment in their fee award to account
The Eirhart court also applied a “multiplier” to the award of attorney’s fees,
774 F. Supp. at 458–59, but the Seventh Circuit reversed the application of the
multiplier and remanded with instructions to award fees based on the lodestar
amount only. Eirhart, 996 F.2d at, 852. Although that reversal is immaterial to
the fee-rate question at issue here, defense counsel should have noted in their
response brief the partial reversal and included in that brief a citation to the
Seventh Circuit’s decision.
2
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for the delay in payment from 2018 (when Attorney Cade filed his notice of
appearance) through 2022 (when the court entered judgment). The plaintiff did
not advise the court which interest rate it should use to determine a proper
delay enhancement under the “past rates with interest” method. For that
reason, and because other courts in this district have used the “current market
rates” method of addressing a time delay enhancement rather that awarding
interest, this court will do the same and use the “current market rates” method
to calculate the lodestar for the fee award. That means the maximum plaintiff’s
counsel may receive is $237 per hour (150% of the 2022 $158 CJA hourly
rate). Dkt. No. 191 at 5. Given the difference between this rate and counsels’
usual, non-PLRA hourly rates, the court finds that $237 per hour is an
appropriate hourly rate to apply to all hours worked, regardless of the year,
and will use that rate in calculating the lodestar.
B.
Intern Leah Birch’s Hours
The court determined in its previous order that the plaintiff could not
recover fees for the time intern Leah Birch “spent preparing unfiled and
immaterial pleadings” because they did not affect the plaintiff’s ultimate
success on his claims. Dkt. No. 191 at 20–21. The court reduced Ms. Birch’s
recoverable hours from 43.2 to 8.5 to reflect only the hours she “spent working
with Attorney Cade on her case summary.” Id. at 21.
Attorney Cade first clarifies that Ms. Birch, and all non-attorney interns
in his office, were paid; he asserts that he uses the terms “interns” and
“summer associates” interchangeably. Dkt. No. 194 at ¶2. The plaintiff
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contends that it is “non-sensical” for the defendants to argue that Ms. Birch’s
hours for time she spent on filings or research “‘not directed towards the
successful claims’” should be discounted. Dkt. No. 196 at 6 (quoting Dkt. No.
195 (Def’t’s Resp. Br.) at 5). The court explained in its previous order that
although a court “‘should not award attorneys’ fees for work on an
unsuccessful claim “that is distinct in all respects from [the plaintiff’s]
successful claim,”’ it also should not “exclude fees for work on a lawsuit that
‘consists of related claims.’” Dkt. No. 191 at 26 (quoting Vega v. Chi. Park Dist.,
12 F.4th 696, 703 (7th Cir. 2021)). So while it is not “non-sensical” to argue for
reducing a lawyer’s or intern’s hours based on time spent on unsuccessful
claims, in some cases it may be impractical and inappropriate to do so.
This, however, is not one of those cases. Ms. Birch’s invoice provides a
detailed explanation for her work covering the 43.2 hours, including the 34.7
hours that the court concluded were not compensable. Dkt. No. 179-2 at 5.
The court detailed in its order which of the 43.2 hours corresponded to
preparation of a sur-reply to the defendants’ motion for summary judgment
and a Rule 11 motion, neither of which the plaintiff filed. Dkt. No. 191 at 2021. The court recounted that it had granted the defendants’ motion for partial
summary judgment, which included a concession that there were genuine
issues of material fact precluding summary judgment on the claims against
defendants Vagnini, Knight, Valuch and Garland—against whom the plaintiff
proceeded to trial and was partially successful. Id. (citing Dkt. No. 134 at 8).
The plaintiff never filed nor asked to file a sur-reply, so—as the court explained
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in the earlier order—Ms. Birch’s work on that filing “had no effect on the
plaintiff’s ultimate success.” Id. at 20–21.
The court also noted that the plaintiff had provided no evidence of what
effect, if any, the unfiled Rule 11 motion had on his ultimate success. Id. at 21.
The court speculated that the plaintiff may have given “former defendant Flynn
notice of the motion and that caused the defendant to act, or refrain from
acting, in some way that benefitted the plaintiff, but the plaintiff has not
provided any evidence of that.” Id. The court explained that it “would be
excessive” to award the plaintiff for all hours Ms. Birch spent working on these
documents that were unnecessary to the success of the plaintiff’s case and
were not filed. Id. at 21.
In his amended motion, the plaintiff asserts that Attorney Cade “had
email communications” with former defense counsel about her motion for
summary judgment for defendant Flynn. Dkt. No. 193 at 2. He attached copies
of emails exchanged with former counsel about defendant Flynn and about the
Rule 11 motion. Dkt. No. 194-1 at 2–3. These emails show that on May 11,
2020, Attorney Cade asked former defense counsel to withdraw her “summary
judgment motion in the Jerpaul Spencer [sic], at least as it pertains to Chief
Flynn.” Id. at 2. Attorney Cade stipulated to the dismissal of defendant
Busshardt and noted that he would “send a formal Rule 11 request,” if defense
counsel requested one. Id. Defense counsel responded on May 13, 2020,
requesting Attorney Cade’s “basis for [his] request for withdraw on Flynn.” Id.
Defense counsel noted that Attorney Cade already had provided “decisions that
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[he] pointed to in [his] response” to the defendants’ motion for summary
judgment. Id. Attorney Cade responded the same day that those cases “would
be enough.” Id. He added:
While you may not have knowledge of the facts of those cases as
they were before your time in the office, the fact remains that Flynn
knew or likely knew, as [Judge] Stadtmueller pointed out. It also is
telling that you did not have Flynn prepare a new declaration, but
relied on one from a different case.
Please advise by Friday.
Id. The exhibit does not include any email exchanged after May 13, 2020.3
The plaintiff says he did not file a Rule 11 motion because “counsel
believed that the issue should be decided by the Court as opposed to a motion
for sanctions.” Dkt. No. 193 at 2. On March 24, 2021—nearly a year after the
May 2020 email exchanges—the court decided the defendants’ motion for
summary judgment and dismissed defendant Flynn, among others. Dkt. No.
134. The plaintiff asserts that the court should not exclude the time Ms. Birch
spent working on the unfiled Rule 11 motion because the court already has
discounted her hourly rate, which is significantly lower than the rate allowed
for Attorney Cade and the other attorneys. Dkt. No. 193 at 2.
The invoice included with the plaintiff’s initial motion for fees includes an
entry from Attorney Cade on July 8, 2020 for contacting defense counsel about
the Rule 11 motion regarding defendant Flynn and his “lack of knowledge
about strip searches.” Dkt. No. 179-2 at 6. (In the previous order, the court
incorrectly listed this entry as occurring on July 9, 2020. Dkt. No. 191 at 20.)
The plaintiff did not attach to the amended motion any email from July 2020,
and the invoice does not include an entry for the May 11 and 13, 2020,
exchanges. Dkt. No. 179-2 at 5. The court surmises that the July 8, 2020 entry
corresponds to the emails exchanged on May 11 and 13, 2020.
3
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The emails that the plaintiff attached to the amended motion may
explain the basis for the Rule 11 motion, but they do not demonstrate that the
motion influenced defense counsel’s actions in any way that affected the
plaintiff’s ultimate success. If anything, the emails show that the threat of a
Rule 11 motion had no effect on defense counsel. Defense counsel did not
withdraw or move to amend the motion for summary judgment as to defendant
Flynn, and the court granted the defendants’ motion and dismissed Flynn
nearly a year later. The plaintiff was not successful on that claim. It would be
excessive to allow the plaintiff to recover fees for the 34.7 hours Ms. Birch
spent working on a sur-reply and researching a Rule 11 motion that were not
filed and had no discernible effect on defense counsel’s decisions or the
plaintiff’s success. The plaintiff may recover only the 8.5 hours that Ms. Birch
billed for time spent working with Attorney Cade on her case summary, as the
court explained in the previous order. Dkt. No. 191 at 21.
C.
Attorney Cade’s Hours
The court stated in the previous order that although the invoice reflected
a total of 1.7 hours for time Attorney Cade spent drafting and reviewing the
initial fee petition, it sought payment for only 0.6 hours. Dkt. No. 191 at 37;
see Dkt. No. 179-2 at 10 (entry of July 22, 2022). The court explained that it
would “assume that Attorney Cade discounted the total amount of time spent
preparing the fee petition, unless he indicates otherwise in the amended
motion.” Id. In his amended motion, Attorney Cade clarifies that he seeks the
full 1.7 hours listed for time spent preparing the fee petition. Dkt. No. 193 at 3.
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Because the invoice supports the full 1.7 hours, the court will include these
hours in the calculation of the lodestar amount for time Attorney Cade spent
preparing the fee petition.
D.
Time Spent Waiting for the Verdict
The court determined in the previous order that the plaintiff could not
“recover the full amount of time [counsel] spent waiting for the jury to return
its verdict” on the final day of trial. Dkt. No. 191 at 24. The court allowed the
plaintiff to recover approximately half (3.9 hours) of the 7.7 hours counsel
waited for the verdict, to reflect the attorneys’ time responding to the court’s
requests and the jury’s questions and to acknowledge the likely difficult task of
turning their attention to other matters after a long and difficult trial. Id. at 24–
25.
The plaintiff does not contest this reduction per se; but counsel “raise[s]
an issue with the Court with regards to the purported ‘down time’ while waiting
for the jury verdict.” Dkt. No. 193 at 3. The plaintiff asserts that the attorneys
“had nowhere to go” while waiting for the verdict because their firm has no
brick-and-mortar office and “operates as a ‘virtual firm,’” meaning that to
return to their “offices,” counsel would have had to travel to their homes. Id.
The plaintiff says that once the courthouse doors locked at 5:00 p.m., counsel
were unable to freely leave and reenter the building and had to “wait to be
escorted or allowed to go upstairs.” Id. at 4. He says “it is unfair to suggest that
counsel” could or should “‘go somewhere’” to conduct other business during
the final evening of the week of trial, when it was “after hours generally (hence
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no other client business can be conducted).” Id. The plaintiff describes the
court’s position as “stating that counsel should be making phone calls from
5:00 to 8:30 p.m. on Friday, July 15 and bill other clients. That is unfair.” Id.
The court understands counsel’s position with respect to the reduced
hours for the time spent awaiting the jury’s verdict. But the court will not
adjust this reduction. As the court explained in the previous order, “Counsel
could have (and may have) conducted other business during the periods
between jury questions and issues, for which the court requested their
presence in the courtroom.” Dkt. No. 191 at 24 (emphasis added). The court
did not state that counsel should have been “making phone calls from 5:00 to
8:30 p.m. on Friday, July 15;” that it would have been “simple for counsel to
‘go somewhere’” else to conduct business; or that counsel should have gone
elsewhere “after 5pm on a Friday and bill another client.” Dkt. No. 193 at 4.
The court observed only that counsel had the ability to perform other work
during a portion of the time while awaiting the jury’s verdict that justified a
reduction in the 7.7 hours billed for that time. The possible work need not have
included phone calls to other clients but could have included other tasks
typically performed by lawyers in private practice, such as responding to
emails, reviewing discovery, reading case filings, conducting research, drafting
or finalizing pleadings or motions, scheduling meetings and so on. Counsel had
the ability to perform such tasks while stationed in the courtroom—with their
work computers—while awaiting the verdict. That is why the court reduced the
hours by approximately half rather than entirely discounting them.
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At some point over the time the undersigned has known Attorney Cade,
he likely told the undersigned that he did not have brick-and-mortar office
space. The court has checked the docket and sees that Attorney Cade lists a
post office box as his mailing address. But even if the court had recalled, or
known, that at the time they were working on this case Attorneys Cade and
Pusich did not occupy a brick-and-mortar office, that would not have been a
reason for the court allow the plaintiff to recover the entire 7.7 hours waiting
for the return of the verdict. Some lawyers travel from other states or cities to
try cases; some office in Madison or Green Bay or cities more than an hour
away. The issue is not whether lawyers have somewhere nearby to go; the issue
is whether they have the ability to utilize the waiting time regardless of where
they are while they are waiting.
The court reduced counsel’s billed hours by only half to reflect both the
fact that being in the courtroom likely limited what work counsel could perform
and the likely difficulty for counsel in turning their attention to other matters.
Id. at 23–25 (“Attorneys Cade and Pusick remained at the courthouse for all or
nearly all the jury’s deliberations, mostly sitting in the courtroom. The court
knows this because court staff observed or spoke with plaintiff’s counsel
several times during the afternoon and evening. . . . The court also recognizes
the physical and mental exhaustion the attorneys likely experienced during the
final afternoon of an emotional, five-day trial. The court does not expect that
counsel had a super-human ability to compartmentalize the preceding four
days and to immediately turn their full attention to other matters.”). The court
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took these factors into account in reducing the billed hours for the time
counsel spent awaiting the verdict. Its conclusion has not changed.
II.
Enhancement of the Lodestar
The court did not ask or invite the parties to include additional
information about a proper enhancement to the fee award. The plaintiff begins
the amended motion by stating that he “will not reargue th[e] portion of the
prior motion” seeking a 33.33% enhancement fee, rather than the 5% that the
court awarded in its previous order. Dkt. No. 193 at 1. But the motion contains
new arguments in support of increasing the enhancement the court previously
said it would award. The plaintiff asserts that the PLRA and §1988 intend to
adequately enforce federal rights and attract attorneys “‘to undertake the
representation of a meritorious [prisoner] civil rights case.’” Id. at 8 (quoting
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010)). He contends that if
a lodestar calculation using the PLRA rates is “insufficient to induce competent
counsel to accept appointments in meritorious civil rights cases, by definition it
is not a reasonable fee for counsel.” Id.
The plaintiff asks the court to reconsider the 5% enhancement, taking
into account the contingent-fee agreement with his counsel, the undesirability
of the case and awards in other, similar cases. Id. at 9 (citing Hensley v.
Eckerhart, 461 U.S. 424, 437 n.3 (1983)). He reiterates that the plaintiff was
incarcerated when he filed his complaint, was representing himself and had no
witnesses to the alleged misconduct. Id. The plaintiff insists that few members
of the bar “would have taken on” this kind of “fairly undesirable case.” Id.
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The plaintiff next points to fees awarded in what he asserts are similar
cases from this district. Id. at 9–10. He cites Harris v. City of Milwaukee, Case
No. 14-cv-1002, in which the court awarded $270,103.77 in fees on a
$1,675,188 jury verdict and in which the plaintiff “did not have a criminal
record and was not the frequent target of the police.” Id. at 10. The plaintiff
cites Collins v. City of Milwaukee, et al., Case No. 17-cv-234, in which he says
the City agreed to settle class action lawsuits involving illegal strip searches
and “stipulated to a damage award of legal fees and costs and damages [sic] of
$1,900,000.” Id. Counsel cites Ashford, et al. v. City of Milwaukee, et al., Case
No. 13-cv-771, in which he says the City settled with seventy-four plaintiffs for
$5 million total. Id. He says the plaintiffs received $2.7 million, “while the
plaintiffs’ lawyers received $2,300,000,” including fees and costs. Id. The
plaintiff adds in a footnote that in Newman v. Vagnini, Case No. 15-cv-1363,
the parties settled for $410,000—which included fees and costs—well below the
jury’s initial award of $1.95 million that the court reduced due to concerns
about a juror. Id. at 11, n.5.
The plaintiff asserts that the defendants proceeded to trial despite
“[k]nowing full well that the City had lost two other strip search cases that had
proceeded to trial.” Id. at 10–11. He says a “significantly greater upward
adjustment of the legal fees is warranted” to account for the City’s failure to
settle this case for the amount the attorneys initially agreed upon. Id. at 11; see
Dkt. No. 191 at 7–8 (recounting the parties’ settlement attempts before trial).
The plaintiff contends that whether the fee amount is calculated using the
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historical or the current CJA rate, it “is still less than what was payable under
the contingency fee agreement.” Dkt. No. 193 at 11. He proposes a total fee
award of $193,000—half of the total judgment the jury awarded plus the
undisputed $4,779.82 in costs. Id. Using either fee chart the plaintiff proposes,
that amounts to an enhancement of approximately 19–20% of the judgment
(approximately $76,000 to $79,000) on top of the lodestar calculation. Id. at 6–
7.
The defendants wisely retreat from their previous position requesting a
66.67% downward adjustment to the lodestar based on the damages award,
dkt. no. 195 at 4, which they earlier had described as a “fraction of the amount
requested” at trial, see Dkt. No. 191 at 11, 38. The defendants agree that the
plaintiff likely had difficulty obtaining counsel. Dkt. No. 195 at 4. But they
disagree that the case was undesirable, noting that “one of the Defendants had
an impeachable past and had engaged in misconduct in office with a litany of
lawsuits against him.” Id. They assert that Attorney Cade “benefit[s] from
handling cases such as this one.” Id. The defendants attempt to distinguish the
cases the plaintiff cites, noting that the cases settled or stipulated to a fee
award and that the district court did not apply an enhancement. Id. at 5.
The plaintiff cites an additional, more recent case in his reply brief. Dkt.
No. 196 at 4–5 and n.2 (citing Evans v. Hansen, Case No. 22-cv-606). The
plaintiff says that the Evans case proceeded to trial, and the jury awarded the
plaintiff $150,000 in compensatory damages against a police officer who shot
the plaintiff after mistakenly believing that the plaintiff “had a gun and was
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sneaking up on another police officer.” Id. at 4–5. The plaintiff compares the
outcome of that case to the outcome of this one, in which the jury awarded the
plaintiff $386,000—$168,500 of which was punitive damages. Id. at 5. He
notes that the jury did not hear about defendant Vagnini’s “impeachable past”
or the “litany of lawsuits” against him and heard only that Vagnini had been
convicted of felony misconduct in office. Id. The plaintiff reiterates the
undesirability of this case and asserts that the “City (and the Court) should
give counsel a bit more credit than a 5% enhancement based on the Jury’s
understanding and determinations based on the evidence.” Id. at 6.
In its previous order, the court explained the relevant considerations
when determining whether an enhancement to the fee award is appropriate
and recapped the “factors weighing in favor of both parties’ positions” for and
against an enhancement. Dkt. No. 191 at 38–41. Among the factors were the
history of settlement negotiations between the parties, the “significant and
important conclusion for the City and for the public” of the jury’s verdict and
the amount—nearly $400,000—awarded “to an incarcerated person whom the
jury knew had been convicted of multiple felonies.” Id. at 39–40. The court
concluded that the 5% enhancement of $19,300 “fully compensates plaintiff’s
counsel for their efforts and fairly reflects the significance and value of the
result achieved.” Id. at 41.
In his initial fee motion, the plaintiff discussed factors that he believed
warranted a 33.33% enhancement, including the size of the jury award, the
alleged “bad faith” of the City during settlement negotiations and the difficulty
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or undesirability of the case. Dkt. No. 178 at 13–16. He cited Hensley, which
lists “awards in similar cases” among the factors a court should consider when
determining a reasonable fee award. Id. at 5 (citing Hensley, 461 U.S. at 430
n.3). But in the original motion, the plaintiff did not cite the cases he cites in
the amended motion, or discuss the fee awards from those cases as reason for
the court to enhance the fee award. Aside from the Evans case—in which
judgment was entered in March 2023, only six months ago—the cases the
plaintiff’s counsel cites in his amended motion were available to him at the
time he filed his original motion. Indeed, Attorney Cade represented the
plaintiff in one of the cases he now cites. See Harris, Case No. 14-cv-1002, Dkt.
No. 50 (Attorney Cade’s Notice of Appearance). Counsel does not explain why
he did not mention any of the allegedly similar cases in the original fee motion,
or why he cited them only after the court already had determined an
appropriate enhancement to the fee award.
Even if counsel had discussed the previous cases in the original fee
motion, they are not as similar as the plaintiff contends. The cases have some
similarities—lawsuits against the City of Milwaukee and/or its current or
former employees for their alleged misconduct—but as the defendants note,
there are significant differences. In Harris, the jury award was significantly
larger ($1.675 million compared to the $386,000 award in this case), and the
parties stipulated to the fee award. See Case No. 14-cv-1002, Dkt. Nos. 149
(Jury Verdict), 158 (Parties’ Stipulation re Attorney’s Fees). The eight plaintiffs
in Collins also stipulated with the defendants to the fee award, although that
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case did not go to trial. See Case No. 17-cv-234, Dkt. No. 135. Ashford was a
class action case brought on behalf of seventy-four plaintiffs who received a
total of $2.7 million. Dkt. No. 194-3. The plaintiffs’ attorneys received $2.3
million, but litigating on behalf of seventy-four plaintiffs is quantitatively
different than litigating on behalf of one, regardless of how “undesirable” the
case may be, and again, the plaintiff cites to settlement documents showing
that the defendants proposed the $2.3 million in fees and costs as part of the
settlement. Id.; https://www.cbs58.com/news/milwaukee-common-council-toconsider-5-million-settlement-in-illegal-strip-search-lawsuit. The parties in
Newman settled after the court reduced a nearly $2 million jury verdict
because of juror concerns. Case No. 15-cv-1363, Dkt. Nos. 62 (Special Verdict),
112 (Stipulation Vacating Jury Verdict and Dismissing); see Dkt. No. 194-4.
Here, the defendants are not stipulating to the enhancement the plaintiff
requests; they vigorously oppose it. In the face of such a dispute, the court
relies on its prior analysis of the factors discussed above. The court believes
that analysis remains sound.
The court understands the parties’ additional positions in favor of and
against a more significant enhancement. Those arguments do not convince the
court that its original conclusion was unreasonable, given the facts and
circumstances of this case. The court will not modify the enhancement it
previously awarded to the plaintiff. It will increase the plaintiff’s fee award by
$19,300—5% of the total damages award.
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III.
Section 1997e(d)(2) and Contingency Fees
A.
Section 1997e(d)(2)
The plaintiff asserted in the amended motion that “the Court has
discretion to decide the amount of Plaintiff’s judgment that is to be applied
towards legal fees.” Dkt. No. 193 at 13. In his reply brief, however, the plaintiff
withdrew that position and agreed with the defendants’ position outlined in
their response, which is that the court must order the plaintiff to pay the full
25% of the judgment toward the fee award under Murphy v. Smith, ___ U.S.
___, 138 S. Ct. 784 (2018). Dkt. No. 195 at 6–7; Dkt. No. 196 at 7.
In Murphy, the Supreme Court framed the question before it this way:
When a prisoner wins a civil rights suit and the district court awards
fees to the prisoner’s attorney, a federal statute says that “a portion
of the [prisoner’s] 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.”
42 U.S.C. § 1997e(d)(2). . . . But how much is enough? Does the first
sentence allow the district court discretion to take any amount it
wishes from the plaintiff’s judgment to pay the attorney, from 25%
down to a penny? Or does the first sentence instead mean that the
court must pay the attorney’s entire fee award from the plaintiff’s
judgment until it reaches the 25% cap and only then turn to the
defendant?
Murphy, 138 S. Ct. at 786.
The Court determined that the use of the word “shall” created a mandate:
“the court (1) must apply judgment funds toward the fee award (2) with the
purpose of (3) fully discharging the fee award.” Id. at 787. In other words,
§1997e(d)(2) “instruct[s] the judge about the purpose [s]he must pursue—to
discharge the fee award using judgment funds to the extent possible, subject to
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the 25% cap.” Id. at 788; see also id. at 790 (holding “that district courts must
apply as much of the judgment as necessary, up to 25%, to satisfy an award of
attorney’s fees).
The court agrees with the parties that Murphy guides the application of
§1997e(d)(2) to the plaintiff’s fee award. In compliance with that decision, the
court will order the plaintiff to pay 25% of the judgment—$96,500—toward the
total award of attorney’s fees. The defendants must pay the balance of the fee
award.
B.
Contingency Fee
The court explained in the previous order that the Supreme Court has
“held that the existence of a contingency fee was one of the facts the court
could consider in calculating a reasonable award of attorney’s fees, but held
that ‘a contingent-fee contract does not impose an automatic ceiling on an
award of attorney’s fees, and to hold otherwise would be inconsistent with the
statute and its policy and purpose.’” Dkt. No. 191 at 43 (quoting Blanchard v.
Bergeron, 489 U.S. 87, 94 (1989)). The court required the parties to “address
the existence of the contingency fee as a factor for the court to consider in
adjusting the lodestar.” Id. at 44.
The plaintiff says he “could not locate any cases that specify a court can
award a plaintiff his actual contingency fees” and suggests that “the opposite
likely is true based on Judge Easterbrook’s opinion in Johnson v. Daley, 339
F.3d 582, 585 and n.4 (7th Cir. 2003).” Dkt. No. 193 at 11. The plaintiff notes
that the court has the discretion to award the plaintiff up to 150% of the
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$386,000 judgment under Johnson and §1997e(d). Id. at 11–12. He asserts
that under the lodestar formula explained in Hensley, 461 U.S. at 433, “the
Court can consider whether the matter is a fixed or contingent fee.” Id.
The defendants note that the plaintiff and his counsel agreed on a 40%
contingency fee4 and suggest that the fee agreement “more than compensates
for the legal services provided to Jerpaul Spencer, such that a statutory award
is not necessary.” Dkt. No. 195 at 2. The defendants cite Wheatley v. Ford, 679
F.2d 1037, 1041 (2d Cir. 1982), in which counsel had a 40% contingency fee
agreement with the plaintiff, who was successful at trial. Id. The Second Circuit
noted that the fact that counsel had a contingency contract with his client
“[was] not sufficient reason to deny an award under section 1988,” but the
Court retained a “supervisory power” to ensure that counsel did not receive a
windfall recovery under the agreement. Id. The court concluded that “to the
extent counsel receives payment of the section 1988 statutory award, his claim
for services rendered under his contingency fee arrangement with his client
shall be deemed paid and satisfied.” Id. But the court also modified what it
considered to be an excessive damages award, which resulted in the approved
request for statutory fees under §1988 being above the damages amount. Id. at
1040–41; see Sanchez v. Schwartz, 688 F.2d 503, 505 n.8 (7th Cir. 1982)
(discussing Wheatley). In other words, counsel’s contingency fee was satisfied
because the fee award he received under §1988 was more than 40% of the
4
Forty percent of the jury’s award would be $154,400.
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damages that the contingency contract provided. Even using the plaintiff’s
proposed fee awards, that will not be the case here. See Dkt. No. 193 at 6–8.
The court found several cases providing guidance on how a contingency
fee agreement should affect the prevailing party’s fee award. The Supreme
Court has held that §1988 “does not interfere with the enforceability of a
contingent-fee contract,” Venegas v. Mitchell, 495 U.S. 82, 90 (1990), which
means a plaintiff may be obligated under a contingency fee agreement to pay
his attorney significantly more than the court awards. The Seventh Circuit has
explained that “a court cannot adjust an hourly rate based on the existence of
a contingent fee agreement.” Pickett v. Sheridan Health Care Ctr., 664 F.3d
632, 645 (7th Cir. 2011) (discussing City of Burlington v. Dague, 505 U.S. 557,
566 (1992)). In a case before another district court in this circuit, the prevailing
party had “agreed to pay a fee to” her attorneys “on a contingent basis,” which
would result in “a $50,000.00 fee.” Wolf v. Planned Prop. Mgmt., 735 F. Supp.
882, 886 (N.D. Ill. 1990). The court found that the fee “says little about
whether the lodestar is a reasonable amount for the work [the plaintiff’s]
lawyers performed.” Id. at 886–87. The court ultimately awarded the plaintiff
$90,535.50 in attorney’s fees based on the hourly rates at the time and what
the court determined was “a reasonable claim” of hours. Id. at 886–87.
These cases illuminate the following rules regarding how the court
should consider or incorporate a contingency fee agreement into its
calculations of a reasonable attorney’s fee:
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•
•
•
The court cannot adjust the hourly rate used to calculate the lodestar
merely because the judgment is subject to the contingency fee;
Section 1988 does not itself affect the agreement or what the plaintiff
owes his attorneys under the agreement; and
the “contingency-fee factor is simply that, a factor.”
Blanchard, 489 U.S. at 93.
The court discussed above the hourly rates it will use to calculate the
lodestar based on the attorneys’ current rates, the PLRA’s limitations and the
CJA rates in effect in 2022. The court cannot, and will not, alter those hourly
rates because of the existence of the contingency contract. The court will
consider the contingency agreement as a factor in determining the total,
reasonable fee amount under Blanchard and Hensley.
IV.
Application of the PLRA
The plaintiff now asserts that the PLRA’s fee limits should not apply and,
more broadly, that the PLRA should not apply to this case in any respect. Dkt.
No. 193 at 14. The plaintiff did not raise this argument in his initial fee motion
and previously has not suggested that the court should not have reviewed and
analyzed his lawsuit or the determination of a reasonable fee award under the
PLRA.
The plaintiff asserts that “the Third Circuit has taken the position that
the PLRA does not apply to prisoners who file suit over matters that occurred
prior to incarceration and have no relation for the reason that they are in
prison (i.e. not prison condition suits).” Id. He says the Seventh Circuit has
“not decided” this question. Id. But counsel does not cite Third Circuit
decisions in support of this assertion; he cites two cases from the Eastern
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District of Pennsylvania. Id. (citing Hatchett v. Cty. of Philadelphia, No. CIV.A.
09-1708, 2010 WL 4054285 (E.D. Pa. Oct. 15, 2010); and Hall v. Galie, No.
CIV.A. 05-975, 2009 WL 722278 (E.D. Pa. Mar. 17, 2009)). Although the
Eastern District of Pennsylvania is in the Third Circuit, courts in that district
do not speak on behalf of the Court of Appeals. One of those cases even notes,
“The Third Circuit Court of Appeals has not directly addressed whether PLRA
limits on attorneys’ fees apply to any civil rights case of any sort filed by an
incarcerated person or apply only to cases expressly challenging ‘prison
conditions.’” Hall, 2009 WL 722278, at *4 (emphasis added).5 And decisions by
sister district courts are not binding on this court.
The PLRA defines a “prisoner” as “any person incarcerated or detained in
any facility who is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 42 U.S.C. §1997e(h). The
Seventh Circuit repeatedly has said that to determine whether a plaintiff is a
“prisoner” as the PLRA defines it, the court “must look to the status of the
plaintiff at the time he brings his suit.” Witzke v. Femal, 376 F.3d 744, 750
(7th Cir. 2004) (citing Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998);
Ahmed v. Dragovich, 297 F.3d 201, 210 n.10 (3d Cir. 2002)); and others). This
court previously noted that it had “explained years ago in the screening order”
In his reply brief, the plaintiff relies on a third unpublished, out-of-circuit
district court decision, which cites neither Hall nor Hatchett. Dkt. No. 196 at
2–3 (citing Donastorg v. City of Ontario, Case No. EDCV18992JGBSPX, 2021
WL 6103545, at *5 (C.D. Cal. Sept. 23, 2021)).
5
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that the PLRA “applies to this case because the plaintiff was a prisoner when
he filed his complaint.” Dkt. No. 191 at 4 (citing Dkt. No. 13 at 1). The parties
do not dispute that conclusion. The PLRA generally applies to this case.
But the plaintiff may be correct that the Seventh Circuit has not directly
addressed the specific question of whether the PLRA’s attorney’s fee provision—
§1997e(d)—applies to incarcerated plaintiffs who file civil rights cases based on
events that occurred prior to their incarceration. The court was unable to
locate any Seventh Circuit case that directly addresses that issue. But
Supreme Court and other circuit court precedent provide guidance on the
matter.
In Porter v. Nussle, 534 U.S. 516, 529 (2002), the Supreme Court noted
that the exhaustion provision of the PLRA, 42 U.S.C. §1997e(a), specifies that it
applies only to lawsuits “brought with respect to prison conditions.” The Court
surmised that it was “plausible . . . that Congress inserted ‘prison conditions’
into the exhaustion provision simply to make it clear that preincarceration
claims fall outside § 1997e(a).” Id. Subsections 1997e(c) and (f) similarly limit
their application to lawsuits “brought with respect to prison conditions.” Id.; 42
U.S.C. §§1997e(c)(1), (f)(1). But no similar limiting language appears in
§1997e(d), which governs attorney’s fees. That section applies to “any action
brought by a prisoner who is confined to any jail, prison, or other correctional
facility, in which attorney’s fees are authorized under section 1988.” Id.
§1997e(d)(1) (emphasis added). “[W]here Congress includes particular language
in one section of a statue but omits it in another section of the same Act, it is
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generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23
(1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972)). That these subsections appear in the same statute suggests that
Congress intended some subsections of §1997e to apply only to claims
“brought with respect to prison conditions” but intended the limitation on
attorney’s fees to apply to “any action brought by a prisoner,” whether involving
preincarceration conduct or prison conditions.
The court found decisions on this limited issue from only two circuit
courts of appeal. The Tenth and Eleventh Circuits both have concluded in
published opinions that the PLRA’s limitation on attorney’s fees applies to all
suits brought by incarcerated persons “regardless of the subject matter of the
claim, whether it be prison conditions or preincarceration conduct.” Robbins v.
Chronister, 435 F.3d 1238, 1244 (10th Cir. 2006) (en banc); see Jackson v.
State Bd. of Pardons & Paroles, 331 F.3d 790, 796 (11th Cir. 2003) (concluding
that “§ 1997e(d)’s phrase ‘any action brought by a prisoner’ means all lawsuits
that are filed by a prisoner and is not restricted to lawsuits challenging ‘prison
conditions’ that are filed by a prisoner”).
The court found support for the plaintiff’s position in some unpublished,
district court decisions. See Sutton v. City of Yonkers, No. 13CIV801GBDGWG,
2017 WL 1180918, at *3–*4 (S.D.N.Y. Mar. 29, 2017) (adopting in part and
rejecting in part the magistrate judge’s report and recommendation limiting the
plaintiff’s fee award under the PLRA); Donastorg v. City of Ontario, No. EDCV
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18-992 JGB (SPx), 2021 WL 6103545, at *5 (C.D. Cal. Sept. 23, 2021) (“The
PLRA governs civil rights violations that occur in jail, prison, or other
correctional facility.”). But courts in other districts disagree and have followed
the Tenth and Eleventh Circuits’ approach in holding that §1997e(d) applies to
all lawsuits filed by incarcerated persons. See, e.g., Wyatt v. Owens, No. 7:14CV-492, 2018 WL 10613184, at *3–7 (W.D. Va. Jan. 23, 2018); Sutton v. City
of Yonkers, No. 13CIV801GBDGWG, 2017 WL 105022, at *4 (S.D.N.Y. Jan. 11,
2017) (magistrate judge’s report and recommendation, reversed in part by
district judge). The first Sutton decision also notes that the analysis in Hall “is
flawed because it relied in part on the Tenth Circuit’s panel decision in Robbins
[v. Chronister, 402 F.3d 1047 (10th Cir. 2005)], which had been reversed three
years earlier” after rehearing en banc in the opinion cited above. Sutton, 2017
WL 105022, at *4.
Section 1997e(d) governs attorney’s fees in “any action brought by a
prisoner who is confined to any jail, prison, or other correctional facility, in
which attorney’s fees are authorized under section 1988 . . . .” (Emphasis
added.) It does so in contrast to §§1997e(a) and (c), both of which confine their
applicability to §1983 suits brought by incarcerated persons “with respect to
prison conditions.” The only circuit courts of appeal to consider the issue agree
that the attorney’s fee limits of §1997e(d) apply to any suit brought by an
incarcerated person, whether it involves preincarceration events or prison
conditions. The unpublished, out-of-circuit cases that the plaintiff cites are not
persuasive and rely on the analysis from the reversed panel decision in
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Robbins. Until the Seventh Circuit (or the Supreme Court) addresses this issue
and comes to a different conclusion than the Tenth and Eleventh Circuits, the
Tenth and Eleventh Circuit decisions, combined with construction of the
statute, are the most persuasive authority.
The PLRA applies because the plaintiff filed the complaint that initiated
this lawsuit while he was incarcerated, and §1997e(d)’s limitation on attorney’s
fees applies even though the complaint did not challenge “prison conditions”
and involved events that occurred before the plaintiff was an incarcerated
person.
V.
Final Fee Calculation
The chart below summarizes and calculates the lodestar amount in light
of the plaintiff’s amended fee petition. The “Requested Hours” are those the
plaintiff lists in his amended fee chart, which incorporates most of the court’s
adjustments from the previous order. Dkt. No. 193 at 6. The court has reviewed
the previous order, including the hours the plaintiff initially requested for each
attorney or staff member and the court’s adjustments to the requested hours.
The court also incorporated the additional adjustment noted in this order—
awarding Attorney Cade the full 1.7 hours he spent preparing the initial fee
petition rather than the 0.6 hours listed in the invoice. Dkt. No. 179-2 at 10.
The court’s totals for each attorney or staff member differ slightly from those
the plaintiff proposes. The court’s final totals are represented in the “Awarded
Hours” column.
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The court will take into consideration the relative success of the
plaintiff’s case, his pro se status when he brought it and other relevant factors
including the contingency fee agreement the plaintiff has with his attorneys.
The court will enhance the fee award by $19,300—5% of the total damages
award—for the reasons described above and in the previous order, and will
award the full, uncontested $4,779.82 in costs. Dkt. No. 191 at 41.
Attorney or
Staff
Nate Cade
Annalisa
Pusick
Carlos
Pastrana
Melissa
Richer
Madison
Bedder
Mohammad
Ahmad
Leah
Birch
Subtotal Fees
Enhancement
Costs
TOTAL
(Fees and
Costs)
Requested Court’s
Awarded Allowed
Hours
Adjustments Hours
Hourly
Rate
390.5
-0.2
390.3
$237.00
83.4
+0.1
83.5
$237.00
Lodestar
Amount
$92,501.10
$19,789.50
1.5
--
1.5
$237.00 $355.50
0.2
--
0.2
$170.00 $34.00
2.0
--
2.0
$90.00
$180.00
3.0
--
3.0
$90.00
$270.00
43.2
-34.7
8.5
$90.00
$765.00
$113,895.10
$19,300.00
$4,779.82
$137,974.92
The court exercises its discretion to grant the plaintiff’s motion for
attorney’s fees and costs in the amount of $137,974.92 for work performed by
his counsel. The court determines that $137,974.92 is a reasonable amount
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under the circumstances of this case and will deny the motion as to any
amount in excess of $137,974.92.
VI.
Conclusion
The court GRANTS the plaintiff’s amended motion for attorney’s fees and
costs but MODIFIES the amount awarded as described above. Dkt. No. 193.
The court AWARDS the plaintiff $137,974.92 in legal fees and costs
under 42 U.S.C. §1988. In accordance with §1997e(d)(2), the plaintiff must pay
25% of the judgment—$96,500—toward this fee amount. The defendants must
pay the remainder.
Dated in Milwaukee, Wisconsin this 19th day of September, 2023.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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