KENNETH JACKSON, Plaintiff, v. HEATH AUSTIN, et al., Defendants.

CIVIL ACTION NO. 99-3363-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

267 F. Supp. 2d 1059; 2003 U.S. Dist.

June 12, 2003, Decided


PRIOR HISTORY: Jackson v. Austin, 241 F. Supp. 2d 1313, 2003 U.S. Dist. LEXIS 863 (D. Kan., 2003)

DISPOSITION: [**1] Plaintiff's Application For Attorneys' Fees SUSTAINED in part.




COUNSEL: For Kenneth Jackson, PLAINTIFF: Anne W Schiavone, Husch & Eppenberger, Springfield, MO USA. Eric E Packel, Husch & Eppenberger, Kansas City, MO USA. Jeffrey R Scurlock, McLeod, Nash & Franciskato, Kansas City, MO USA.

For Charles Simmons, DEFENDANT: Brian R Johnson, The Law Offices of John M Knox, Chartered, Lawrence, KS USA. Scott B Poor, Office of Attorney General, Topeka, KS USA.

For Michael A Nelson, DEFENDANT: Scott B Poor, Office of Attorney General, Topeka, KS USA.

For Health Austin, Mahlon Boyer, Brent Johnson, DEFENDANTS: Julie L St Peter, El Dorado Correctional Facility, El Dorado, KS USA. Loren F Snell, Jr, Office of Attorney General, Topeka, KS USA. Rebecca Ann Weeks, Kansas Attorney General, Topeka, KS USA. Scott B Poor, Office of Attorney General, Topeka, KS USA.

For (Fnu) Moore, Lt, DEFENDANT: Loren F Snell, Jr, Office of Attorney General, Topeka, KS USA. Scott B Poor, Office of Attorney General, Topeka, KS USA.

JUDGES: KATHRYN H. VRATIL, United States District Judge.

OPINIONBY: KATHRYN H. VRATIL

OPINION:
[*1063] NUNC PRO TUNC MEMORANDUM AND ORDER
Plaintiff [**2] brought suit against defendants under 42 U.S.C. § 1983, alleging that they violated his constitutional rights by denying him adequate medical care and through use of excessive force. On January 17, 2003, the Court awarded plaintiff actual damages of $ 15,000 and punitive damages of $ 30,000. This matter comes before the Court on Plaintiff's Application For Attorneys' Fees (Doc. # 157) filed February 27, 2003. Plaintiff seeks fees of $ 69,425.50 and expenses of $ 9,934.26. For reasons stated below, the Court sustains plaintiff's motion in part and awards $ 40,654.75 in fees and $ 1,509.15 in expenses.
A prevailing plaintiff under Section 1983 is entitled to attorneys' fees under 42 U.S.C. § 1988. For purposes of attorneys' fees, plaintiff may be considered the "prevailing party," if he succeeds on any significant issue in litigation which achieves some of the benefit he sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); see Alexander S. v. Boyd, 113 F.3d 1373, 1388 (4th Cir. 1997), cert. denied, 522 U.S. 1090, 139 L. Ed. 2d 869, 118 S. Ct. 880 (1998). [**3] Determining the amount of such an award is committed to the district court's discretion. Carter v. Sedgwick County, 36 F.3d 952, 956 (10th Cir. 1994). The presumptively reasonable attorney's fee is the product of reasonable hours times a reasonable rate. Id. (quotations and citations omitted). This calculation yields a "lodestar" figure which is subject to adjustment. Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). In addition, because plaintiff's fee request is governed by the attorneys' fee provisions of the Prison Litigation Reform Act ("PLRA"), plaintiff must show that the fees were directly and reasonably incurred in proving a violation of his rights and that the fees were proportional to his relief. n1 See 42 U.S.C. § 1997e(d)(1); Clark v. Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997). Plaintiff bears the burden of establishing entitlement [*1064] to an award and documenting the appropriate hours expended and hourly rates. See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998).

n1 42 U.S.C. § 1997e(d) provides:


(1) 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 of this title, such fees shall not be awarded, except to the extent that--

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

(2) 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.
(3) 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 3006A of Title 18, for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney's fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to section 1988 of this title.


[**4]
The Court first considers defendants' request to stay any award of attorneys' fees and expenses until defendants have completed their appeal. Defendants argue that depending upon the outcome of their appeal, plaintiff might not be a prevailing party and would not be entitled to any award. The Court denies defendants' request. By so doing, the Court allows defendants to challenge the fee award as part of their pending appeal. If defendants' appeal alters plaintiff's status as a prevailing party, the fee award can be amended.

I. Reasonable Hourly Rate
In setting the hourly rate, "the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). A reasonable hourly rate comports with rates "prevailing in the community for similar services for lawyers of reasonably competent skill, experience, and reputation." Blum, 465 U.S. at 896 n.11. [**5] A district judge may turn to her own knowledge of prevailing market rates as well as other indicia of a reasonable market rate. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (citation omitted). To determine a reasonable rate, the Court focuses on the rates of "lawyers of comparable skill and experience." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1204 (10th Cir. 1998).
Under the PLRA, "no award of attorney's fees . . . shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S.C. § 3006A] for payment of court-appointed counsel." 42 U.S.C. § 1997e(d)(3). Under 18 U.S.C. § 3006A, the Court can only award "$ 60 per hour for time expended in court . . . and $ 40 per hour for time reasonably expended out of court, unless the Judicial Conference determines that a higher rate . . . is justified for a circuit or for particular districts." For work from April 1, 2001 through April 30, 2002, the Judicial Conference of the Court of Appeals for the Tenth Circuit limits attorneys' fees to $ 75 [**6] per hour for time spent in court and $ 55 per hour for time spent out of court. For work on or after May 1, 2002, the maximum hourly rate is $ 90 per hour for both in court and out-of-court time. Defendants argue that plaintiff should be limited to these rates. n2 Plaintiff seeks $ 125 per hour for Jeff Scurlock and Anne Schiavone [*1065] and $ 185 per hour for Eric Packel. The Court construes plaintiff's request as 150 per cent of the maximum under Section 1997e(d)(3), i.e. $ 82.50 for out-of-court time for Scurlock before May 1, 2002, $ 125 for Scurlock on and after May 1, 2002, $ 125 for Schiavone and $ 135 for Packel. n3

n2 Defendants actually request that the Court apply the rates of $ 65 per hour for in-court time and $ 45 per hour for out-of-court time. The Judicial Conference amended those rates effective January 1, 2000. The Court construes defendants' objection as a request to apply the standard rates adopted by the Tenth Circuit Judicial Conference for the relevant time period.
n3 Scurlock did not bill for any in-court time. Schiavone and Packel did not bill for any work before May 1, 2002.

[**7]
Defendants argue that plaintiff's counsel is not shown to be sufficiently experienced to justify the 150 per cent enhancement. The PLRA does not provide a scheme, however, for differentiating between the hourly rate charged by attorneys of varying experience levels. Roberson v. Brassell, 29 F. Supp.2d 346, 351 (S.D. Tex. 1998); Chatin v. State of New York, 1998 U.S. Dist. LEXIS 8351, No. 96 Civ. 420(DLC), 1998 WL 293992, at *2 (S.D.N.Y. June 4, 1998). Other courts have mechanically granted the 150 per cent maximum with little or no consideration of experience. See Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998); Alexander S., 113 F.3d at 1388; Roberson, 29 F. Supp.2d at 351; Rodriguez v. Zavaras, 22 F. Supp.2d 1196, 1202 (D. Colo. 1998); Chatin, 1998 U.S. Dist. LEXIS 8351, [WL] at *2. In the Court's view, the experience of counsel is important in determining the appropriate award, but for work before May 1, 2002, the maximum allowable rate under Section 1997e(d)(3) is so low -- relative to market rates -- that counsel could hardly be so inexperienced as to not deserve the maximum rate. n4 Indeed the enhanced [**8] hourly PLRA rate for out-of-court time before May 1, 2002 -- $ 82.50 -- is only slightly higher than the prevailing market rate for legal assistants in the Kansas City area. See Boilermaker-Blacksmith, 2002 U.S. Dist. LEXIS 3993, [WL] at *2 ($ 75); Lappin v. Gwartney, 2000 U.S. Dist. LEXIS 22277, 2000 WL 1532765, at *11 (D. Kan. Sept. 18, 2000) ($ 80 for 2000; $ 70 for 1999); Aquilino, 109 F. Supp. 2d at 1325 ($ 65); Outdoor Sys., 2000 U.S. Dist. LEXIS 6639, [WL] at *4-5 ($ 70). Although plaintiff did not provide information as to Scurlock's experience, he was admitted to the bar in Missouri in 1997 and to the District of Kansas in 1998. Scurlock prepared the case for trial until he withdrew in May of 2002. Scurlock successfully opposed defendants' motion for reconsideration of the Court's summary judgment ruling and defendants' second summary judgment motion. The Court therefore applies an $ 82.50 hourly rate for Scurlock's work before May 1, 2002.

n4 This Court has found that the prevailing market rate for lead counsel in a variety of cases ranges from $ 120 per hour to $ 225 per hour, depending on counsel's experience in the field. Robbins v. Chronister, 2002 U.S. Dist. LEXIS 3835, No. 97-3489-DJW, 2002 WL 356331, at *13 (D. Kan. Mar. 1, 2002) (prevailing market rate for lead counsel in civil rights litigation between $ 120 and $ 225 per hour); see also Erickson v. City of Topeka, Kan., 239 F. Supp.2d 1202, 1211 (D. Kan. 2002) ($ 175 per hour); Sheldon v. Vermonty, 237 F. Supp. 2d 1270, 1279 (D. Kan. 2002) ($ 155 per hour); Boilermaker-Blacksmith Nat'l Pension Fund v. ACE Polyethylene Bag Co., 2002 U.S. Dist. LEXIS 3993, 2002 WL 372868, *2 (D. Kan. Mar. 7, 2002) ($ 150 per hour); Wilder-Davis v. Bd. of County Comm'rs, 2000 U.S. Dist. LEXIS 22187, Civ. A. No. 98-2363-GTV, 2000 WL 1466691, *5 (D. Kan. Aug. 8, 2000) ($ 165 per hour); Aquilino v. Univ. of Kan., 109 F. Supp.2d 1319, 1325 (D. Kan. 2000) ($ 155 per hour); Lintz v. Am. Gen. Fin., Inc., 87 F. Supp.2d 1161, 1171 (D. Kan. 2000) ($ 155 per hour); Outdoor Sys., Inc. v. City of Merriam, Kan., 2000 U.S. Dist. LEXIS 6639, 2000 WL 575023 at *4-5 (D. Kan. Feb. 25, 2000) ($ 165 and $ 155 per hour); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 592 (D. Kan. 1999) ($ 155 per hour for lead counsel, $ 120 per hour for other attorneys).

[**9]
As to Scurlock's work on and after May 1, 2002 and as to Packel and Schiavone, plaintiff provides sufficient evidence of counsel's experience to justify an enhancement of the standard hourly rates which the Tenth Circuit Judicial Conference has [*1066] adopted. Given the limited information provided by counsel, however, the Court awards an hourly rate of $ 120 for Scurlock, Packel and Schiavone for work on and after May 1, 2002. The Court has outlined Scurlock's qualifications. Packel is a member of Husch & Eppenberger law firm and has worked in private practice for ten years. Schiavone graduated from law school in 1999 and has worked as a litigation associate in private practice for four years. All three attorneys performed admirably and Packel and Schiavone obtained excellent results at trial. Given the Court's knowledge of market rates in the community and the fact that this case did not involve complex legal and factual issues, $ 120 is a reasonable hourly rate. n5

n5 This rate is consistent with the low end of hourly rates recently approved in the District of Kansas. See supra note 5.

[**10]
Defendants object to the hourly rates charged for legal assistants, investigators and law clerks. Plaintiff requests hourly rates of $ 95.00 for legal assistant N. Cline, $ 85.00 for legal assistants H. Long and L. McWhorter, and $ 85.00 for investigator J. Schwarz. Plaintiff requests hourly rates of $ 95 for Heather McNeely and $ 90 for G. Nicole Hininger and David C. DeGraeff, but does not identify their positions. Based on the description of work and their proposed rates, the Court assumes that these individuals are legal assistants or law clerks. Plaintiff does not provide evidence of the prevailing market rates, however, and the requested rates do not reflect a reduction in light of the restrictions in Section 1997e(d)(3). Based on the market rate and the reduction contemplated by Section 1997e(d)(3), the Court awards $ 40 per hour for legal assistants, investigators, law clerks and individuals otherwise unidentified in the record. See Searles v. Van Bebber, 64 F. Supp.2d 1033, 1037 (D. Kan. 1999) ($ 30 per hour for legal assistant and $ 45 per hour for law clerk); Roberson, 29 F. Supp.2d at 353 (in light of attorneys' reduced rates under PLRA, [**11] awarding $ 30 per hour for legal assistant).

II. Number of Hours
Attorneys normally do not bill all hours expended in litigation to a client, and "an applicant should exercise 'billing judgment' with respect to a claim of the number of hours worked." Ellis, 163 F.3d at 1202 (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (further quotations and citations omitted)). To show billing judgment, "'counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary' . . . [and the] district court has a corresponding obligation to exclude hours not 'reasonably expended' from the calculation." Id.
Defendants first argue that because the Court dismissed plaintiff's claim relating to tight handcuffs, the Court should deny fees associated with that claim. Defendants fail to note that at trial, plaintiff prevailed on a claim which relied in part on defendants' use of handcuffs. n6 The [*1067] Court cannot precisely determine how much time counsel spent on the dismissed claim against Leonard Moore, but that claim was closely intertwined with plaintiff's [**12] other claims. Also, it required very little additional briefing and the Court dismissed it shortly after the Court appointed counsel for plaintiff. Accordingly, the Court finds that only a slight reduction of two hours is justified.

n6 The Court dismissed plaintiff's claim that Leonard Moore refused to immediately loosen the handcuffs, see Jackson v. Simmons, 2001 U.S. Dist. LEXIS 18879, 2001 WL 1456859, at *6 (D. Kan. 2001), but the Court considered the tightness of the handcuffs as part of the totality of the officers' response to plaintiff's alleged conduct. See Jackson v. Austin, 241 F. Supp.2d 1313, 1317 (D. Kan. 2003) (finding handcuffs were excessively tight, officers had pulled up on handcuffs, and handcuffs were cutting into plaintiff's skin); see also Jackson v. Simmons, 2001 U.S. Dist. LEXIS 18879, [WL] at *4 (D. Kan. Nov. 2, 2001) (injury to plaintiff's wrists may be insufficient by itself to constitute Eighth Amendment violation, but reasonable fact finder could conclude that plaintiff's injuries taken together were more than de minimis).

[**13]
Defendant next objects that entry 10780 and entry 11012 are identicaland reflect duplicative work. Entry 10780 reflects 1.8 hours for counsel's initial review of the court file for copying. Entry 11012 reflects 3.2 hours for counsel's review of the court file copies. Because the file was fairly large when the Court appointed counsel for plaintiff, these entries are reasonable and do not reflect duplicative work.
Defendants object that an investigator spent 31.5 hours to interview Herbert Proffitt, an inmate in El Dorado, Kansas, and prepare a one-page affidavit for Proffitt. Plaintiff filed the Proffitt affidavit in response to the Court's order to show cause why his claims against Boyer should not be dismissed. The investigator charged for three trips to El Dorado -- the first two trips to interview Proffitt and the third trip to have Proffitt execute the affidavit. On July 17, 2000, before the Court appointed counsel, plaintiff submitted a detailed, two-page affidavit by Proffitt which included his recollection of the brief altercation between plaintiff and defendants. The one-page affidavit which the investigator obtained in November of 2001 supplemented Proffitt's previous affidavit [**14] as to Boyer's specific involvement in plaintiff's takedown. Given the distance between Kansas City and El Dorado (approximately 170 miles), the investigator should have coordinated his efforts with plaintiff's counsel so that the investigator only had to travel twice to El Dorado. The Court finds that the investigator reasonably incurred 12.0 hours to travel and 5.0 hours to interview Proffitt, discuss the interview with counsel and obtain a short affidavit from Proffitt. n7

n7 Because counsel only requested expenses for two of the three trips, the Court does not reduce the investigator's travel expenses.

Defendants object to entry 16718, which reflects that counsel spent 1.2 hours preparing expense reimbursement explanation forms. Plaintiff provides no explanation for this entry and the Court therefore excludes 1.2 hours from the attorney time requested by plaintiff.
Defendants next object that because only one entry for 1.3 hours reflects that counsel did not charge for the work, counsel did not ensure that [**15] the requested fees are reasonable. The Court disagrees. Although plaintiff's application for fees does not clearly reflect that counsel has attempted to eliminate all duplicative billings and to exclude time that is not compensable, the record does not suggest broad-scale excessive billing by counsel. To the extent that particular entries are excessive, the Court has addressed them elsewhere in this order. In short, the Court is satisfied that except as noted in this order, plaintiff's application for attorneys' fees does not reflect duplicative, unnecessary, excessive or noncompensable time.
Defendant challenges time which counsel spent to prepare an application for a writ of habeas corpus ad testificandum for inmate Elmore Marks, who did not testify at trial. Plaintiff does not explain the background for the application, and the Court cannot determine whether his appearance was necessary. Because plaintiff [*1068] bears the burden of showing that the time requested is compensable, Ellis, 163 F.3d at 1203, the Court strikes a total of 4.1 hours. n8

n8 The Court strikes .5 hours from entry 4970003, 1.0 hours from entry 18619, 1.5 hours from entry 18906 and 1.1 hours from entry 18750.

[**16]
Defendants object to 4.2 hours related to Scurlock's withdrawal as counsel and file review with new counsel. The Court finds that such time was reasonable and helped new counsel to prepare more efficiently for trial, which was scheduled less than two months after Scurlock withdrew.
Defendants also object to 8.0 hours related to Packel's introduction to the case, claiming that such efforts were only necessary because plaintiff switched attorneys shortly before trial. The Court disagrees. Plaintiff did not voluntarily switch attorneys. He was required to do so because in May of 2002, Scurlock accepted a position with The Honorable Thomas Newton of the Missouri Court of Appeals and left private practice. Moreover, Packel spent a limited amount of time familiarizing himself with the case and Scurlock likely would have required general review time if he had taken the case to trial.
Defendants challenge several entries which do not reflect whether certain individuals were legal assistants, secretaries, law clerks or partners. Defendants also maintain that their work appears to be duplicative. The Court has reviewed every challenged entry and the evidence shows that in most cases, when [**17] one person was involved, the person merely worked on particular tasks at different times. Similarly, when two or more people were involved, one person prepared work for review by others, or two persons worked on different parts of related tasks. As to the lack of individual identification, the Court has used the $ 40 hourly rate for all individuals who are not sufficiently identified.
Defendants challenge all work by Schiavone because the Court only appointed Packel after Scurlock withdrew. This objection is frivolous. The Court originally appointed Scurlock, who represented plaintiff until May of 2002 -- when Schiavone and Packel entered their appearances as replacement counsel. The Court did not specifically appoint replacement counsel because Scurlock volunteered to find replacement counsel who could try the case on short notice. Trial was scheduled for less than two months after Schiavone and Packel entered their appearances, and the decision to employ two attorneys to take the case to trial was not unreasonable. n9

n9 The Court does exclude the time spent by Paul Seyferth, who consulted with Packel 1.0 hours the day before trial and spent 1.5 hours listening to Packel's opening statement and discussing strategy during trial. Plaintiff has not shown that a third attorney was necessary at trial.

[**18]
Defendants assert that Schiavone duplicated Packel's work and plaintiff does not specifically indicate that the time sheets were reviewed to exclude duplication of effort. Plaintiff bears the burden of making a "good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. The Court recognizes that zealous representation resulted in some limited duplication of effort on plaintiff's behalf. For example, only one attorney needed to travel to El Dorado, tour the correctional facility and interview Profitt as a potential trial witness. Because both Packel and Schiavone billed 10.8 hours for these tasks, the Court excludes 10.8 hours of attorney time. n10 In addition, only one attorney had to travel to Lansing shortly before trial to [*1069] interview plaintiff and Elmore Marks. Because both Packel and Schiavone billed 6.0 hours for these tasks, the Court excludes 6.0 hours of attorney time. Finally, the Court recognizes some limited duplication of effort in trial preparation. The Court therefore excludes a total of ten additional hours. As to the other challenged entries, the tasks are separable and the [**19] entries suggest that Packel and Schiavone were working on different parts of the same task. n11 Accordingly, the Court declines to further reduce the hours of Packel or Schiavone.

n10 The Court likewise excludes the travel expenses of one of the attorneys ($ 190.27).
n11 Defendants also employed two attorneys at trial.



III. Lodestar Calculation
Based on the above discussion, the Court calculates the lodestar as follows:

________________________________________________________________________________

Hours Rate Total
McLeod Law Firm 205.9 $ 82.50 $ 16,986.75
(attorney before 5-1-02)

McLeod Law Firm 21.1 $ 120.00 $ 2,532.00
(attorney on/after 5-1-02)

McLeod Law Firm: 46 $ 40.00 $ 1,840.00
Legal Asst., Law Clerk,
Investigator

Packel 77.8 $ 120.00 $ 9,336.00

Schiavone 75.2 $ 120.00 $ 9,024.00

Husch & Eppenberger: 23.4 $ 40.00 $ 936.00
Legal Asst., Law Clerk,

TOTAL: $ 40,654.75
________________________________________________________________________________

Once a court has determined the lodestar amount, "there remain other considerations that may lead the district court to adjust the [**20] fee upward or downward." Hensley, 461 U.S. at 434. Neither party seeks a change in the lodestar, and the Court sees no reason to alter the fee award. In addition, given the limits set forth in Section 1997e(d)(3), the Court likely could not grant plaintiff an increase.

IV. Expenses
In addition to attorneys' fees, the prevailing party is entitled to recover reasonable expenses that are usually itemized and billed separately, as long as the expenses are reasonable. See Sussman v. Patterson, 108 F.3d 1206, 1213 (10th Cir. 1997). As an initial matter, plaintiff seeks $ 3,146.26 for copies, $ 2,269.25 for deposition costs, $ 266.15 in witness fees and $ 90.00 in service fees. These expenses are considered "costs" which are taxed by the clerk against the losing party. See 28 U.S.C. § 1920; Lappin, 2000 U.S. DIst. LEXIS 22277, [WL] at *12. Pursuant to Rule 54(d)(1), costs other than attorneys' fees are allowed as a matter of course to the prevailing party unless the Court directs otherwise. D. Kan. Rule 54.1(a) provides that the party entitled to recover costs shall file a bill of costs with the clerk within 30 days [**21] after the time for appeal has expired or receipt by the clerk of an order terminating the action on appeal. Therefore the Court will not assess costs at this time.
a. Long Distance Telephone Calls
Plaintiff seeks $ 384.60 in long-distance calls. Defendant argues that this expense is covered by counsel's hourly rates. The Court disagrees. The PLRA requires a significantly reduced hourly rate that does not include long-distance phone calls. n12 Furthermore, long-distance [*1070] telephone calls are typically billed as expenses in addition to hourly fees. See Barvick v. Cisneros, 1997 U.S. Dist. LEXIS 10904, No. 95-2326-GLR, 1997 WL 417994, *16 (D. Kan. July 18, 1997); Dutton v. Johnson County Bd. of Comm'rs, 1995 U.S. Dist. LEXIS 7658, No. 93-2184-JWL, 1995 WL 337588, at *4 (D. Kan. May 26, 1995).

n12 Scurlock incurred most of the long distance telephone charges before May 1, 2002 when the maximum hourly rate was $ 82.50.

Defendants next argue that plaintiff provides no telephone log. Plaintiff's application does not show the purpose [**22] of every long-distance call. The total long-distance expense falls well within the bounds of reason, however, and reasonable timekeeping practices do not require counsel to itemize the purpose of each telephone call. Plaintiff's counsel was located in Kansas City, plaintiff was located in El Dorado and Lansing, and defense counsel was located in Topeka. Long-distance calls were therefore necessary and the Court awards $ 384.60.
b. Fax Expenses
Plaintiff seeks $ 77.00 for 167 pages of faxed materials. While plaintiff seeks $ 0.50 per page, defendant argues that this amount is excessive. The Court finds that $ 0.50 per page is not excessive. See Searles, 64 F. Supp. 2d at 1040. Defendant also argues that plaintiff does not show that the faxes were necessary. Because plaintiff has not explained why such expenses were necessary, the Court excludes them.
c. Online Research Charges
Plaintiff seeks $ 225.33 for online computerized research. Defendant argues that this request is excessive because counsel could have done the same work manually. Again, the Court disagrees. Computerized research typically saves a significant amount of manual research time, and [**23] the Court finds that an award of $ 225.33 is reasonable.
d. Delivery Expenses
Plaintiff seeks to recover $ 576.37 for localand express delivery expenses. Defendants object that plaintiff has not shown the need for such deliveries. Plaintiff provides no explanation for these expenses. On review of plaintiff's application, the Court awards $ 8.00 for delivery of the court file to Scurlock when the Court originally appointed him. Except as to that entry, the Court cannot determine that the local and express delivery charges were necessary. The Court therefore excludes the remaining $ 568.37 of delivery expenses.
e. Postage Expenses
Plaintiff seeks $ 68.70 for postage expenses. Defendants argue that postage expenses are incidental costs which are ordinarily covered by counsel's hourly rates. The Court disagrees. The PLRA's significantly reduced hourly rate does not contemplate that postage expenses are included. n13 The Court awards $ 68.70 for postage expenses.

n13 Again, Scurlock incurred most of these charges before May 1, 2002 when the maximum hourly rate was $ 82.50.

[**24]
f. Travel, Lodging and Meals
Plaintiff seeks $ 1,001.29 for travel, lodging and meals. The Court has already excluded $ 190.27 of these expenses. See supra note 10. Defendants object that a portion of the investigator's expenses include tips and movies. Counsel apparently erroneously included these items in the billing statement, but the total expenses of the investigator for two overnight trips to El Dorado are reasonable. n14 Defendants [*1071] do not object to the remaining travel, lodging and meals expenses. Plaintiff's entries regarding travel, lodging and meals are reasonable, especially given the travel required for counsel to visit plaintiff in El Dorado and Lansing and to take depositions in El Dorado. The Court therefore awards $ 811.02 in travel, meals and lodging.

n14 The investigator spent on average $ 142.01 per trip which is less than the expenses charged by the three attorneys who billed for comparable trips. See Entry dated July 9, 2002 (attorney billed $ 190 for overnight trip to Wichita/El Dorado); Entry dated July 19, 2002 (attorney billed $ 189 for overnight trip to Wichita/El Dorado); see also Entry 16507 (attorney billed $ 134.68 for mileage and tolls on trip to El Dorado).

[**25]
g. Medical Records And Research
Defendants object to several entries related to "medical records and research" which total $ 1,388.22. In addition, plaintiff has listed additional entries for "medical records and research" which total $ 337.34. Plaintiff provides no explanation for the expenses. The Court therefore excludes them.
h. Other Expenses
Defendants do not object to various other expenses (parking and a witness social security number search) which total $ 11.50. The Court finds that these expenses are reasonable.
In sum, the Court awards $ 1,509.15 in expenses.

V. Section 1997e(d)(2)
Based on the above discussion, the Court determines that $ 40,374.75 is a reasonable fee and $ 1,509.15 is reasonable award for plaintiff's expenses. In addition, the Court finds that said fees and expenses were directly and reasonably incurred in proving an actual violation of plaintiff's rights. See 42 U.S.C. § 1997e(d)(1); Clark, 965 F. Supp. at 331. Likewise, the Court finds that the fee award is sufficiently proportional to plaintiff's relief. 42 U.S.C. § 1997e(d)(1).
Normally, these findings [**26] would end the Court's analysis. Because plaintiff is an inmate, however, Section 1997e places yet another limit on his recovery. Under Section 1997e(d)(2),


Whenever a monetary judgment is awarded . . . a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorneys' fees awarded against the defendant. If the award of attorneys' fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.


Some courts have concluded that Section 1997e(d)(2) gives the district court discretion to determine what constitutes a proper portion -- up to 25 per cent. See Sutton v. Smith, 2001 U.S. Dist. LEXIS 9011, 2001 WL 743201, at *2 (D. Md. June 26, 2001) (PLRA does not impose minimum percentage that must apply toward fees); Johnson v. Daley, 117 F. Supp.2d 889, 905 (W.D. Wisc. 2000) (same); Morrison v. Davis, 88 F. Supp.2d 799, 811 (S.D. Ohio 2000) (same); Collins v. Algarin, 1998 U.S. Dist. LEXIS 83, 1998 WL 10234, at *10 (E.D. Pa. Jan. 9, 1998) (same). The statute is not a model of clarity, but the more plausible interpretation -- especially given the other limits that Section 1997e places on [**27] both prisoners and the courts -- is that the Court must automatically apply plaintiff's fee award against his damages to the extent that it does not exceed 25 per cent of the damages. See Spruytte v. Hoffner, 197 F. Supp.2d 931, 934 (W.D. Mich. 2001) (reduced damages by 25 per cent); Searles, 64 F. Supp.2d at 1042 (damages must be reduced by amount of fee award up to 25 per cent of total damages); Beckford v. Irvin, 60 F. Supp.2d 85, 89-90 (W.D.N.Y. 1999) (same); Roberson, 29 F. Supp. 2d at 355 (same); see also Walker v. Bain, 257 F.3d 660, 669 (6th Cir. 2000) (in dicta, noting that Section 1997e(d)(2) requires 25 per cent of fee award to be paid from plaintiff's recovery).
Plaintiff does not dispute that under Section 1997e, he is responsible for his [*1072] own attorneys' fees, up to 25 per cent of his total damages. The total fee award is $ 40,654.75. Plaintiff's damages total $ 45,000, and 25 per cent of this amount is $ 11,250. Because plaintiff's award of attorneys' fees is not greater than 150 per cent of the judgment, plaintiff must pay $ 11,250 of the fee award. See Roberson, 29 F. Supp.2d at 355. [**28] Accordingly, defendants must pay plaintiff the remaining fee balance which is $ 29,404.75.
IT IS THEREFORE ORDERED that Plaintiff's Application For Attorneys' Fees (Doc. # 157) filed February 27, 2003 be and hereby is SUSTAINED in part. The Court awards $ 40,654.75 in fees and $ 1,509.15 in expenses. Pursuant to 42 U.S.C. § 1997e(d)(2), plaintiff shall pay his attorneys $ 11,250.00 of the fee award from the proceeds of the monetary judgment against defendants. Defendants must pay plaintiff $ 29,404.75 in fees and $ 1,509.15 in expenses.
Dated this 12th day of June, 2003 at Kansas City, Kansas.
KATHRYN H. VRATIL
United States District Judge

KENNETH JACKSON, Plaintiff, v. HEATH AUSTIN, et al., Defendants.

CIVIL ACTION NO. 99-3363-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

241 F. Supp. 2d 1313; 2003 U.S. Dist.

January 17, 2003, Decided


SUBSEQUENT HISTORY: Costs and fees proceeding at, Application granted by, in part Jackson v. Austin, 2003 U.S. Dist. LEXIS 10139 (D. Kan., June 12, 2003)

PRIOR HISTORY: Jackson v. Austin, 2002 U.S. Dist. LEXIS 8473 (D. Kan., Apr. 29, 2002)

DISPOSITION: Judgment entered in favor of plaintiff.



COUNSEL: [**1] For Kenneth Jackson, PLAINTIFF: Eric E Packel, Husch & Eppenberger, Kansas City, MO USA. Anne W Schiavone, Husch & Eppenberger, Kansas City, MO USA.

For Heath Austin, Mahlon Boyer, Brent Johnson, DEFENDANTS: Loren F Snell, Jr, Office of Attorney General, Topeka, KS USA. Scott B Poor, Office of Attorney General, Topeka, KS USA. Rebecca Ann Weeks, Kansas Attorney General, Topeka, KS USA. Julie L St Peter, El Dorado Correctional Facility, El Dorado, KS USA.

JUDGES: KATHRYN H. VRATIL, United States District Judge.

OPINIONBY: KATHRYN H. VRATIL

OPINION:
[*1315] MEMORANDUM AND ORDER

Kenneth Jackson brings suit against Heath Austin, Brent Johnson, Mahlon Boyer, Charles Simmons, Michael Nelson and Leonard Moore, employees of the Kansas Department of Corrections ("KDOC"), alleging that defendants violated his constitutional rights by denying him adequate medical care and through use of excessive force. Plaintiff also asserts a state law claim for assault and battery. On July 23, 2002, plaintiff's claims were [*1316] tried to the Court. Having considered the evidence submitted at trial, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil [**2] Procedure.
Findings Of Fact Plaintiff is a former inmate at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas, which is part of the Kansas Department of Corrections ("KDOC"). The KDOC employed Brent Johnson, Heath Austin and Mahlon Boyer as correctional officers at EDCF.

On June 22, 1999, while plaintiff was at a KDOC facility in Lansing, Kansas, the medical staff at that facility gave plaintiff a written medical restriction which stated "bottom bunk, 1st floor, no prolonged standing." Trial Exhibit FF. Later in June of 1999, the KDOC transferred plaintiff to EDCF.

In 1999, plaintiff was taking prescription medication for knee pain which he obtained from the clinic at EDCF. Throughout the time that the KDOC incarcerated plaintiff at EDCF, until August 5, 1999, prison staff allowed plaintiff to sit in the clinic waiting room - instead of standing in the medication line - until only a few inmates remained in line.

On the morning of August 5, plaintiff went to the clinic to get his pain medication. The medication line was backed up all the way out the clinic area, so plaintiff sat down in the clinic waiting room. n1 Given plaintiff's medical restrictions, [**3] he should not have been required to stand for more than ten minutes. At that time, EDCF commonly allowed an inmate to sit in the clinic waiting room if the line was long and the inmate had a medical restriction which excused him from prolonged standing. n2

n1 Boyer testified that approximately 20 to 50 inmates were in the pill line.
n2 On several occasions before August 5, Boyer and other officers had permitted plaintiff to sit in the waiting room while waiting to receive medication. On one occasion before August 5, a KDOC officer asked plaintiff why he was sitting in the clinic area. Plaintiff showed the officer his written medical restriction and the officer said that it was OK for plaintiff to sit there while he waited. Jennifer Drake, the nurse on duty on August 5, had seen plaintiff sit in the clinic area while waiting for medication on three or four prior occasions. Drake had also seen other inmates with similar medical restrictions sitting in the clinic waiting area while waiting to get medication.

[**4]

Plaintiff had been sitting in the clinic waiting area for approximately 15 minutes when Boyer approached him and told him to stand in the medication line or leave. Plaintiff refused to do so, explaining that he had a written medical restriction to avoid prolonged standing. Plaintiff showed the medical restriction to Boyer, but Boyer called the captain's office for assistance and Johnson and Austin responded to his request. Johnson approached plaintiff and repeated Boyer's order to stand in line or leave. Plaintiff said that as soon as he had his medication, he would leave. Plaintiff explained that he had a medical slip which restricted him from "prolonged standing" and that he could not stand in the medication line because of his bad knee. Plaintiff stood up and tried to show Johnson the note which documented his medical restriction, but Johnson bumped plaintiff in the chest and grabbed him, and both individuals fell to the floor. Johnson refused to examine plaintiff's medical restriction, and he did not ask anyone about its validity.

Boyer and Austin assisted Johnson in restraining plaintiff. After Johnson grabbed plaintiff, Austin grabbed plaintiff's bad leg, folded it [**5] over his right leg [*1317] and leaned his weight on it - causing excruciating pain. Johnson then put plaintiff in handcuffs which were excessively tight and caused severe pain. The altercation on the floor between Johnson, Austin and plaintiff lasted approximately one minute - until Johnson handcuffed plaintiff. Plaintiff did not resist restraint, become agitated or aggressive in response to Johnson's orders, push Johnson or raise his arm to him.

Before they used force, Boyer, Johnson and Austin knew that plaintiff had problems standing for prolonged periods of time because of his knee injury. That day, another inmate tried to tell Boyer that plaintiff always sat in the waiting room until the line was shorter. Boyer told the inmate to shut up.

Johnson and Austin dragged plaintiff by his arms about 50 yards to the captain's office. All the while, plaintiff complained of knee pain and attempted to slow down or stop. Plaintiff could not support his weight because of pain in his knees. Each time he tried to stand up, Johnson and Austin pulled up on him and the handcuffs, causing him severe pain in his shoulders.

Approximately five minutes after the attack, Jennifer Drake, the nurse [**6] on duty at the clinic, examined plaintiff. Plaintiff's wrists had swollen around the handcuffs. Drake noted that the handcuffs were tight on plaintiff's wrists and were cutting into his skin, but that the skin was still intact. Drake also noted that plaintiff had a contusion on his left cheek and swelling on his left knee. Drake gave plaintiff pain medication and ice for his injuries.

In connection with the altercation, Johnson prepared a disciplinary report, Boyer prepared a narrative report and Austin prepared administrative segregation and use of force reports. In his report, Boyer stated that plaintiff had pushed Johnson before force was employed, but Johnson and Austin did not include any such information in their reports. In his reports, Austin stated that force was necessary because plaintiff stood up in an aggressive manner and was in a fighting position, but he did not claim that plaintiff had initiated any physical contact, tried to attack Johnson or resisted restraint. Similarly in his report, Johnson did not claim that plaintiff had initiated physical contact or physically resisted restraint.

Four days after the altercation, on August 9, 1999, plaintiff visited [**7] Drake at the clinic, complaining of severe shoulder pain. On August 13, 1999, plaintiff returned to the clinic, complaining of left knee pain and shoulder pain because of the altercation. Medical personnel evaluated plaintiff's left shoulder and noted that it was painful over the bicipital tendon and that the pain increased with rotation. Medical personnel diagnosed plaintiff with bicipital tendinitis and chronic left knee pain. Medical personnel told plaintiff to continue to apply ice to his knee and shoulder and to take naprosyn as prescribed. Because of his knee and shoulder pain, Prison Health Services issued plaintiff a one month medical work restriction. Throughout August, September and October of 1999, plaintiff continued to complain of shoulder and knee pain.

On August 11, 1999, the EDCF disciplinary board held a hearing on the alleged attack. The board found plaintiff guilty of refusing two direct orders and sentenced him to 21 days of disciplinary segregation.

On November 19, 1999, plaintiff filed suit to recover damages for the attack. Plaintiff alleged that by denying him adequate medical care and using excessive force, defendants violated his rights under the [**8] Eighth Amendment to be free from cruel and unusual punishment. [*1318] See 42 U.S.C. § 1983. Plaintiff also asserted a state law claim for assault and battery.

On July 27, 2001, the Court sustained defendants' motion for summary judgment in part. See Memorandum And Order (Doc. # 52). Specifically, the Court sustained defendants' motion on all of plaintiff's claims against Charles Simmons and Michael Nelson, on plaintiff's claims for deliberate indifference to his medical needs, and all claims against all defendants in their official capacities. The Court overruled defendants' motion as to plaintiff's claims of excessive force and assault and battery. On November 2, 2001, the Court found that Leonard Moore was entitled to qualified immunity on plaintiff's excessive force claim. See Memorandum And Order (Doc. # 65). On May 3, 2002, the Court overruled defendants' second motion for summary judgment. See Memorandum And Order (Doc. # 128). Consequently, the only issues presented for trial were plaintiff's excessive force claim against Austin, Johnson and Boyer, plaintiff's claim that Boyer failed to intervene to prevent the use of excessive force by [**9] Austin and Johnson, and plaintiff's assault and battery claim against Austin, Johnson and Boyer.
Conclusions Of Law

I. Excessive Force - Eighth Amendment

Plaintiff contends that in tackling, cuffing and dragging him, Johnson, Austin and Boyer used excessive force in violation of his right to freedom from cruel and unusual punishment. On an excessive use of force claim by an inmate, the core judicial inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992); see Mitchell v. Maynard, 80 F.3d 1433, 1440(10th Cir. 1996). To determine whether defendants could plausibly have thought that their use of force was necessary, the Court must consider the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. See id.

Initially, the Court notes that Boyer did not need to call for assistance when plaintiff [**10] gave him a written medical restriction which was subject to immediate verification - if necessary - with a nearby nurse. And once Austin and Johnson arrived, defendants did not need to employ force at all. Plaintiff, a 60-year old man, was outnumbered three to one, and two defendants were significantly larger than he was. Moreover, plaintiff was simply explaining why he was sitting in the clinic waiting area, as he had done the previous six weeks at EDCF, consistent with common practice at that institution. Before they used force, Johnson and Austin knew that plaintiff had problems standing for prolonged periods because of his knee injury. In fact, on several occasions before August 5, Boyer and other officers had permitted plaintiff to sit in the waiting room while waiting to receive medication and as noted, on August 5, it was common practice to let inmates with prolonged standing restrictions sit in the clinic while waiting for medicine. Despite defendants' knowledge of these facts, they refused to look at plaintiff's written medical restriction and when plaintiff stood up to show his medical restriction to Johnson, Johnson started bumping plaintiff with his chest, then grabbed [**11] plaintiff as he stepped back. Plaintiff did not resist being restrained and he did not become agitated or aggressive in response to orders from Johnson. In sum, the use of force by Johnson and Austin was unprovoked and unnecessary, [*1319] and not done in a good faith effort to maintain or restore discipline. The Court recognizes that plaintiff refused a direct order. He attempted to show Johnson and Austin his written medical excuse, however, to explain his noncompliance, and officers do not have carte blanche authority to punish inmates for refusing to obey orders.

If defendants perceived any threat to institutional security, it had to be one which they themselves created, with their aggressive attitudes and absolute refusal to honor (or even look at) a valid KDOC medical restriction. Furthermore, defendants made no attempt to temper the severity of their forceful response, and Johnson and Austin applied force "maliciously and sadistically" for the purpose of causing harm to plaintiff. n3 See Hudson, 503 U.S. at 9; Fry v. Simmons, 1997 U.S. Dist. LEXIS 1161 at 13, 1997 WL 51376(D. Kan. Jan. 9, 1997); see also Evans v. Hennessy, 934 F. Supp. 127, 133(D. Del. 1996) [**12] (even though inmate tried to incite officers and defendant testified that he felt threatened, use of force against inmate violated Eighth Amendment rights because he was backed against wall and surrounded by three correctional officers); cf. Miller v. Glanz, 948 F.2d 1562, 1567(10th Cir. 1991)(because plaintiff admitted that he wrestled with officer, his allegations were insufficient to show that officer acted "maliciously and sadistically with the very purpose of causing harm").

n3 The Court recognizes that an inmate cannot refuse to obey an order simply because he does not believe that it is reasonable. At the same time, not all inmate responses which fall short of instant, unquestioning obedience will justify the use of force.



As to Boyer, the Court finds that his involvement in the use of force against plaintiff was too tangential to support a finding of direct liability. Boyer did help restrain plaintiff while Johnson handcuffed him, but Boyer personally did not use unnecessary force. [**13] As explained below, however, Boyer is liable because he failed to intervene to stop the use of excessive force Johnson and Austin. See infra text part II.

Defendants argue that because of the minor nature of plaintiff's injuries, the force which they used was necessarily de minimis. Plaintiff, however, suffered a contusion on his left cheek, swelling of his left knee, and pain in his left knee, n4 shoulder and wrists. Taken together, plaintiff's injuries were more than de minimis. See Hudson, 503 U.S. 1, 9-10, 117 L. Ed. 2d 156, 112 S. Ct. 995(blows which caused bruises, swelling, loosened teeth and cracked dental plate not de minimis under Eighth Amendment); Mitchell, 80 F.3d at 1440(plaintiff sustained cuts, bruises, swollen hand and possible broken fingers from beating by guards). In addition, the nature of plaintiff's injuries is only one factor in the determination whether the use of force constituted an Eighth Amendment violation. See Hudson, 503 U.S. at 9-11. The Supreme Court has noted:

When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always [**14] are violated. See Whitley [v. Albers], supra, 475 U.S. [312], 327, 106 S. Ct. [1078], 1088, 89 L. Ed. 2d 251[(1986)]. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result [*1320] would have been as unacceptable to the drafters of the Eighth Amendment as it is today.

n4 Plaintiff had some pain in his left knee before the altercation, but the attack significantly increased his level of pain at least through October 1999.



503 U.S. at 9-10. Because the pain inflicted on plaintiff was both "unnecessary and wanton," plaintiff need not show "significant and lasting injuries." DeSpain v. Uphoff, 264 F.3d 965, 978(10th Cir. 2001); see Northington v. Jackson, 973 F.2d 1518, 1523(10th Cir. 1992)(significant physical injury not required because constitutional inquiry focuses on whether infliction of pain [**15] was unnecessary and wanton).

Defendants also claim that absent expert testimony, plaintiff cannot establish that their conduct was malicious or wanton. In Hopkins v. State, 237 Kan. 601, 702 P.2d 311(1985), the Kansas Supreme Court stated:

In an action against a law enforcement officer, expert testimony is ordinarily required to establish that the officer acted maliciously or wantonly while the officer was engaged in his duties. There is a common knowledge exception to the rule requiring expert testimony in an action against a law enforcement officer. The common knowledge exception applies if what is alleged to have occurred in the officer's conduct is so obviously lacking in reasonable care and conduct and the conduct is so negligent that the malicious or wanton conduct causing the injury would be apparent to and within the common knowledge and experience of the public generally.

237 Kan. at 611, 702 P.2d at 319. In Hopkins, officers attempted to remove an intruder from plaintiff's home and in the process caused extensive property damage from the exchange of gunfire. The Kansas Supreme Court held that plaintiff was required to present [**16] expert testimony to establish his negligence claim based on the manner in which law enforcement officers apprehended the intruder. See 237 Kan. at 609-11, 702 P.2d at 318-20.

Defendants have cited no cases which require expert testimony in an excessive force case. Perhaps unfortunately, the average citizen has ample knowledge and experience regarding such issues, and without expert testimony can adequately judge whether an individual has acted with malice in an altercation. Moreover, in the excessive force context, the Supreme Court has specifically noted that fact finders may drawn inferences from various factors (such as the need for application of force, the relationship between need and amount of force used and extent of injury inflicted) to determine whether the use of force "evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley v. Albers, 475 U.S. 312, 321, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986); see 475 U.S. at 322(unless evidence supports "reasonable inference of wantonness in the infliction of pain," case should not go to jury); Madrid v. Gomez, 889 F. Supp. 1146, 1247(N.D. Cal. 1995) [**17] (to determine whether maliciousness standard has been met in excessive force case, fact finder may draw inferences from circumstances surrounding challenged conduct).

Defendants again assert the defense of qualified immunity. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727(1982). The affirmative defense of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Gross v. Pirtle, 245 F.3d 1151, 1155(10th Cir. 2001) [*1321] (quoting Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092(1986)). Once the defense has been raised, plaintiff has the burden to establish both that defendant's actions violated a constitutional or statutory right and that the right was "clearly established" at the time of the relevant conduct. See Medina v. Cram, 252 F.3d 1124, 1128(10th Cir. 2001). Ordinarily, [**18] in order for plaintiff to demonstrate that a law is clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City & County of Denver, 960 F.2d 1493, 1498(10th Cir. 1992); see Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034(1987)(right is clearly established if the contours of right are sufficiently clear so that reasonable official would understand that what he is doing violates that right). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 194-95, 150 L. Ed. 2d 272, 121 S. Ct. 2151(2001). If plaintiff satisfies this two-part burden, defendant must then demonstrate that his actions were objectively reasonable in light of the law and the information he possessed at the time. See Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405(10th Cir. 1990). [**19]

In the excessive force context, the qualified immunity defense protects officers from "reasonable mistakes as to the legality of their actions." Saucier, 533 U.S. at 206. The Supreme Court has noted:

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.

Id. at 205.

In three previous orders, the Court rejected defendants' assertion of qualified immunity. See Memorandum And Order (Doc. # 128) at 11-14; Memorandum And Order (Doc. # 65) at 8-11; Memorandum And Order (Doc. # 52) at 12. Defendants again argue that based on the discretionary nature of the decision whether to [**20] use force, and how much force actually was used, they did not violate plaintiff's clearly established rights. For the reasons set forth above, however, the Court has found that defendants violated plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. See Sheth v. Webster, 145 F.3d 1231, 1238(11th Cir. 1998)(qualified immunity denied on excessive force claim under Fourth Amendment; plaintiff alleged that officer pushed her against soda machine, handcuffed her and dragged her to police car; no evidence that plaintiff posed danger). At the time of the incident, based on Whitley v. Albers, 475 U.S. 312, 89 L. Ed. 2d 251, 106 S. Ct. 1078(1986), the law was clearly established that an officer could not attack a prisoner simply because he or she attempted to show a written medical excuse in an effort to explain non-compliance with the officer's order (here, an order which was contrary to established practice at the prison). A reasonable officer would have [*1322] understood that such conduct violates an inmate's rights under the Eighth Amendment. See Hill v. Shelander, 992 F.2d 714(7th Cir. 1993). n5 None of the defendants [**21] have shown that their actions were objectively reasonable in light of the law and the information which they possessed at the time. See Martin, 909 F.2d at 405. Accordingly, the Court rejects their assertion of qualified immunity.

n5 In Hill, an inmate refused to clear his belongings from a nearby bunk so that another inmate could co-occupy the cell. See 992 F.2d at 715. The prison guard left the area and returned with another guard, William Shelander, to transport plaintiff to a disciplinary cell. See id. Shelander ordered plaintiff to step out of his cell, but plaintiff stopped in the doorway and questioned why he should have to leave. See id. Plaintiff alleged that Shelander responded by attacking him. On the other hand, Shelander stated that the use of force was necessary to ensure order and that he did not use force until plaintiff swung his arms to break Shelander's grip on his shoulder. See id. at 717. The Seventh Circuit held that the district court properly denied Shelander's motion for summary judgment based on qualified immunity. The Seventh Circuit stated that based on Hill's version of events, a reasonable fact finder could conclude that Shelander had acted maliciously and sadistically to cause harm. See id. at 717-18.

[**22]

By their excessive use of force, Johnson and Austin violated plaintiff's Eight Amendment right to be free from cruel and unusual punishment.

II. Boyer - Failure To Intervene Theory

Plaintiff contends that in failing to stop the use of excessive force by Johnson and Austin, Boyer violated his right to be free from cruel and unusual punishment. "A corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to do so." Smith v. Mensinger, 293 F.3d 641, 650(3d Cir. 2002); see Skrtich v. Thornton, 280 F.3d 1295, 1301(11th Cir. 2002); see also Curry v. Scott, 249 F.3d 493, 506 n.5(6th Cir.2001)(prison officials liable for exposing prisoners to excessive force at hands of other prison employees under same deliberate indifference standard that Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970(1994), employs for prison officials who fail to protect inmates from violence by others). Plaintiff must show that based on the circumstances, [**23] the prison official knew of but disregarded an excessive risk to his health or safety. See Gailor v. Armstrong, 187 F. Supp.2d 729, 736-37(W.D. Ky. 2001).

Defendants argue that Boyer cannot be liable for failure to intervene because the brief nature of the altercation did not give him an opportunity to do so. The Court disagrees. Boyer instigated the dispute by calling Johnson and Austin in the first instance. Although the altercation on the floor lasted only one minute, Boyer had a realistic opportunity to intervene either at that time, see Pretrial Order (Doc. # 112) § 4.3(mm) (Boyer assisted Johnson in restraining plaintiff) or while Johnson and Austin dragged plaintiff nearly 50 yards to the captain's office. See Mick v. Brewer, 76 F.3d 1127, 1136(10th Cir. 1996)(in Fourth Amendment context, officer may be liable under Section 1983 for failure to prevent fellow officer's use of excessive force if he had opportunity to intervene but failed to do so); Sasa v. Zavaras, 1998 U.S. App. LEXIS 31001 at 11, 1998 WL 849764,(10th Cir. Dec. 9, 1998) (allegation that other officers stood around and watched beating take place sufficient). [**24]

Boyer also argues that he cannot be liable under a failure to intervene theory because he was not deliberately indifferent [*1323] to plaintiff's safety. Boyer, however, had actual knowledge of the risk of severe injury to plaintiff yet he failed to intervene. Accordingly, the deliberate indifference requirement is satisfied as to Boyer. See Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994)(reasonable jury could find officer was deliberately indifferent when he failed to intervene after corrections officers held plaintiff down and began choking him); Gailor, 187 F. Supp.2d at 736-37.

The Court therefore finds that Boyer is liable for his failure to intervene and stop the use of excessive force by Johnson and Austin. n6

n6 Boyer is not entitled to qualified immunity. By failing to intervene, Boyer violated plaintiff's right to be free from cruel and unusual punishment. At the time of the incident, based on Mick v. Brewer, 76 F.3d 1127(10th Cir. 1996), and the weight of authority from other circuit courts, the law was clearly established that an officer could not simply stand and watch another officer employ excessive force on an inmate. See Mick, 76 F.3d at 1136(Tenth Circuit precedent clearly established before 1992 that law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under Section 1983).

[**25]

III. Assault And Battery Claim

Plaintiff also asserts a state law claim for assault and battery. In Kansas "assault is defined as an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary." Taiwo v. Vu, 249 Kan. 585, 822 P.2d 1024, 1027(1991). "The elements of battery include touching or striking another person with the intent of bringing about either a contact, or an apprehension of contact that is harmful and offensive." Wilson v. Meeks, 98 F.3d 1247, 1253(10th Cir. 1996)(citing Williams v. Kearbey, 13 Kan. App.2d 564, 775 P.2d 670, 674(1989)).

On plaintiff's assault claim, plaintiff has shown that Johnson and Austin attempted to harm him, that they had an apparent ability to do so based on their size and aggressiveness and that he had an immediate apprehension of bodily harm. Based on the above factual findings, plaintiff has also proved battery by Johnson and Austin. As to Boyer, plaintiff has not proven direct involvement in any assault or battery.

IV. Damages

Plaintiff [**26] incurred injuries which required medical treatment, and severe and excruciating pain. The Court finds that plaintiff is entitled to a total of $ 15,000 in compensatory damages. Because the injuries defendants inflicted on plaintiff are indivisible, Austin, Johnson and Boyer are each jointly and severally liable for the entire amount of compensatory damages. See Watts v. Laurent, 774 F.2d 168, 179(7th Cir. 1985) (applying federal common law principles in Section 1983 action).

In a Section 1983 action, a finding of punitive damages requires that defendants' conduct "is shown to be motivated by evil motive or intent," or "involves reckless or callous indifference to the federally protected rights of others." Nieto v. Kapoor, 268 F.3d 1208, 1222(10th Cir. 2001)(quoting Smith v. Wade, 461 U.S. 30, 56, 75 L. Ed. 2d 632, 103 S. Ct. 1625(1983)). As explained above, Johnson and Austin applied force "maliciously and sadistically" for the very purpose of causing harm to plaintiff and Boyer initiated the altercation and failed to intervene after Johnson and Austin began to apply force. Accordingly, an award of punitive damages is appropriate. [**27] The Court finds that plaintiff is entitled to a total of $ 30,000 in punitive damages - [*1324] $ 10,000 each from Johnson, Austin and Boyer.

The Court in its discretion may allow the prevailing party to recover attorneys' fees in any action or proceeding to enforce 42 U.S.C. § 1983. See 42 U.S.C. § 1988. The Court finds that an award of attorneys' fees is appropriate in this case. The procedure set forth in D. Kan. Rule 54.2 shall apply to this issue, except that the time deadlines shall be as follows. On or before February 18, 2003, plaintiff shall file a fee application which itemizes all fees and costs for which he seeks reimbursement. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before March 20, 2003. If they are unable to agree, plaintiff on or before March 21, 2003 shall file the required statement of consultation and supporting memorandum. Defendant may respond on or before April 7, 2003 and plaintiff may reply on or before April 21, 2003.

IT IS THEREFORE ORDERED that plaintiff shall recover on its excessive force and assault [**28] and battery claims against Johnson, Austin and Boyer. The Clerk is directed to enter judgment in favor of plaintiff on these claims. Austin, Johnson and Boyer are each jointly and severally liable for plaintiff's compensatory damages in the amount of $ 15,000. Austin, Johnson and Boyer also shall each pay plaintiff $ 10,000 in punitive damages.

IT IS FURTHER ORDERED that on or before February 18, 2003, plaintiff shall file a fee application which itemizes all fees and costs for which he seeks reimbursement. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before March 20, 2003. If they are unable to agree, plaintiff on or before March 21, 2003 shall file the required statement of consultation and supporting memorandum. Defendant may respond on or before April 7, 2003 and plaintiff may reply on or before April 21, 2003.

Dated this 17th day of January, 2003 at Kansas City, Kansas.

KATHRYN H. VRATIL

United States District Judge