LORENZO O. ROMAINE, Plaintiff, -against- BOYCE RAWSON, Defendant.

9:99-CV-603 (LEK/DRH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

2004 U.S. Dist. LEXIS 7998


May 6, 2004, Decided

MEMORANDUM -- DECISION AND ORDER

Plaintiff Lorenzo O. Romaine ("Plaintiff") commenced an action pursuant to 42 U.S.C. § 1983 claiming that Defendant Boyce Rawson ("Defendant") violated his constitutional rights. Presently before the Court is Plaintiff's motion, which seeks attorneys' fees and costs stemming from this litigation and a declaration that the Prison Litigation Reform Act ("PLRA"), which caps the hourly rate for attorneys' fee awards in 42 U.S.C. § 1997e(d)(3), is unconstitutional.

[*2] I. BACKGROUND

(a) Procedural history

Plaintiff filed this action seeking $ 4 million in compensation for injuries he suffered at the hands of Defendant on May 18, 1998, while he was incarcerated at Mount McGregor Correctional Facility. A bench trial was held in November 2001, and the Court rendered a decision on April 17, 2001, finding that Defendant used excessive force in violation of the Eighth Amendment and awarding Plaintiff $ 1000 in compensatory damages and $ 500 in punitive damages. Defendant then appealed this decision to the Second Circuit. In settlement of the appeal, the parties agreed to file a joint motion to vacate this Court's April 17 decision, and Plaintiff agreed to accept $ 1500 plus interest in settlement of all claims. (Dkt. No. 80, Exhibit C: Stipulation of Settlement and Discontinuance at 1, 2). While the bench trial resulted in the Court finding that Defendant had violated Plaintiff's constitutional right to be free from cruel and unusual punishment, the stipulation provided that the agreement shall not "be construed as an acknowledgment of the validity of any of the allegations or claims made in this action." (Dkt. No. 80, Exhibit C: Stipulation [*3] of Settlement and Discontinuance at 3). This Court explained its denial of the motion to vacate:

When the parties in a § 1983 case brought by an inmate do not adequately represent the public's interest in creating a record of prison abuse, the Court must ensure that this interest is not seriously undermined. If defendants are allowed to use the threat of appeal to pressure inmates to accept settlement agreements which effectively exonerate defendants, violations of prisoners' civil rights will go unrecorded. The Court refused to vacate its decision because of the overriding interest in holding responsible the prison guard who violated Romaine's civil rights.

Romaine v. Rawson, No. 99-cv-603, slip op. (N.D.N.Y. November 11, 2003).



However, said stipulation was "so-ordered" by the Second Circuit Court of Appeals' mandate to vacate. The stipulation contained the following provision, which is significant to the present motion:

Plaintiff reserves the right to apply to the District Court for an award of costs and fees, including attorneys' fees as authorized by 42 U.S.C. §§ 1988 and1997e, and defendant acknowledges that plaintiff is qualified [*4] as a "prevailing party" for purposes of an award of attorney's fees under those sections. Plaintiff may file and serve a motion for such fees no later than sixty (60) days after the plaintiff's counsel receives a copy of the so-ordered stipulation. . . .

(Dkt. No. 80, Exhibit C: Stip. of Settlement & Discontinuance at P6).

(b) The present motion

Plaintiff filed this motion for attorneys' fees on December 29, 2003. Therein, he requests $ 73,484.00 which is the total amount due to his attorneys. However, Plaintiff recognizes that 42 U.S.C. § 1997e(d)(3) may be an obstacle to this request:

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.



Plaintiff acknowledges that in this provision, the PLRA caps the hourly rate in prisoner civil rights litigations such as this at $ 112.50, and therefore the recoverable attorneys' fees would be reduced to $ 31,552.88. To avoid this cap, Plaintiff now argues that this provision violates the equal protection clause. He further [*5] contends that excessive force claims should be exempted from the PLRA's limits on attorney's fees.

In addition to rebutting the arguments set forth by Plaintiff, Defendant opposes the present motion by claiming that it is untimely, that the fees sought are grossly disproportionate to the results achieved, and that another PLRA provision, namely 42 U.S.C. § 1997e(d)(2), limits the maximum amount of attorney's fees to not greater than 150 percent of the judgment, here $ 2,250.00.

II. DISCUSSION

(a) Timeliness

In an effort to deny Plaintiff any recovery of fees, Defendant argues that under Federal Rule of Civil Procedure 54(d)(2)(B) the present motion is untimely. Rule 54(d)(2)(B) provides that "unless otherwise provided by statute or order of the court, the motion [for attorney's fee] must be filed no later than 14 days after entry of judgment. . . ."

Defendant now attempts to argue that Plaintiff's filing was beyond the proscribed time for such a motion. Defendant states that the latest time an "entry of judgment" was made was on November 3, 2003 when the Court "so ordered" the Stipulation of Settlement [*6] and Discontinuance. Accordingly, relying solely on the 14 day time limit set forth in the Rule, Defendant argues that when Plaintiff filed the current motion on December 23, 2003, the time for filing had since passed.

However, such an argument is disingenuous, for Defendant ignores the key provision that it agreed to: "Plaintiff may file and serve a motion for [attorney's] fees no later than sixty (60) days after the plaintiff's counsel receives a copy of the so-ordered stipulation." (Dkt. No. 80, Exhibit C: Stip. of Settlement & Discontinuance at P6). The Court signed the stipulation on November 3, 2003. Therefore, Plaintiff's motion on December 23, 2003 was timely.

(b) Constitutionality of 42 U.S.C. § 1997e(d)(3) 1

FOOTNOTES

1 If the Court were to consider the merits of this argument then under 28 U.S.C. § 2403(a), the question would need to have been certified to the Attorney General and the United States would have been permitted to intervene in this action. As the Court will not consider the merits of this argument, no such intervention is necessary.


[*7] Plaintiff first questions the constitutionality of the hourly cap in § 1997e(d)(3). Plaintiff contends that this provision violates the strictures of the equal protection clause by treating successful prisoner civil rights litigants differently from non-prisoner civil rights litigants and by treating successful prisoner civil rights litigants differently from former prisoner civil rights litigants. (Dkt. No. 80: Plaintiff's Memo. of Law at 4).

However, the Court need not decide this issue because the constitutionality of this provision does not alter the amount that the Court will award to Plaintiff's attorneys. Any fee that is awarded must be reasonable. A reasonable fee for Plaintiff's attorneys falls well below both the $ 73,484.00 that they would collect if the statute is deemed unconstitutional or the $ 31,552.88 they would collect if the Court now upholds the provision. 2

FOOTNOTES

2 Although the Court will not address the merits of this argument it is worth noting that when faced with the same constitutional question, a sister court in this circuit did not reach its merits, but recognized that "every Court of Appeals that has addressed the issue of § 1997e(d)(3)'s hourly rate fee cap has upheld its constitutionality." Carbonell v. Acrish, 154 F. Supp.2d 552, 567 (S.D.N.Y. 2001) (citations omitted).


[*8] (c) The limits on attorney's fee awards in 42 U.S.C. § 1997e(d)(2)

Defendant urges the Court to apply 42 U.S.C. § 1997e(d)(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.



Defendant contends that pursuant to this provision, (1) Plaintiff's award of attorney's fees is limited to 150 percent of the $ 1,500 judgment (an amount of $ 2,250.00), and (2) 25 percent of the $ 1,500 awarded to Plaintiff (an amount of $ 375) should be applied towards the attorney's fees award.

However, the Second Circuit has ruled that the limits placed on attorney's fee awards in § 1997e(d)(2) do not apply to a litigation that was resolved by a "so-ordered" stipulation. Torres v. Walker, 356 F.3d 238, 2004 U.S.App. LEXIS 1035 (2d Cir. 2004). With such an agreement between the parties, there was no payment of a "monetary [*9] judgment", which is required. Id. 356 F.3d 238 [LEXIS] at *18-19. The Court explained:

The "so-ordered" stipulation of dismissal in this case does not carry with it a sufficient judicial imprimatur to warrant treatment as a monetary judgment for the purposes of the PLRA. . . . The stipulation here did not contain a provision expressly retaining jurisdiction to monitor compliance with the terms of the parties' settlement. . . . the stipulation here contained no obligations of the court that were beyond the power of the parties to perform and that could be enforced only by the District Court. . . .

Id. 356 F.3d 238 [LEXIS] at *18 (citations omitted).



Hence, in the present case, the $ 1500 payment that Defendant must make in compliance with the stipulation is not to be considered a "monetary judgment" within the meaning of § 1997e(d)(2). Therefore, the caps therein, namely (1) that the attorney's fee award can be no more than 150 percent of the judgment, and (2) that 25% of the judgment should be used to satisfy the award of attorney's fees, do not apply to the present motion.

(d) Award of attorney's fees

Under the stipulation that resolved the present case, the parties agreed that Plaintiff [*10] may apply to the district court for an award of attorney's fees pursuant to 42 U.S.C. §§ 1988 and1997e and for purposes of the award will be deemed "prevailing party". (Dkt. No. 80, Exhibit C: Stip. of Settlement & Discontinuance at P6). Both statutes require that the fee be "reasonable". Additionally, in awarding attorney's fees, "district courts are afforded discretion and should not 'become enmeshed in a meticulous analysis of every detailed facet of the professional relationship.'" Clark v. Phillips, 965 F. Supp. 331, 335 (N.D.N.Y 1997) (quoting Seigal v. Merrick, 619 F.2d 160, 164, n. 8 (2d Cir. 1980).

In the present case, Plaintiff, with the assistance of his attorneys, proved that Defendant exerted excessive force which offended our Constitution, and Defendant was ordered to pay Plaintiff $ 1,500. But, at the insistence of those same attorneys, that finding of liability was vacated. When the case was appealed to the Second Circuit, to settle that appeal, the parties asked this Court to vacate its judgment, and substitute a stipulation. The stipulation required payment of $ 1,500, an amount equal to that of the judgment [*11] initially entered by the Court. However, the stipulation also included a provision stating that the settlement payment was not to be construed as an admission of guilt as to any of Plaintiff's allegations of excessive force. (Dkt. No. 80, Exhibit C: Stip. of Settlement & Discontinuance at P7). This Court declined to sign the stipulation because while Defendant was to pay the same amount, it allowed him to vacate the Court's finding of his liability merely by appealing the sentence and using that appeal as a bargaining tool. The Court then vacated its findings only when ordered to do so by the Second Circuit.

The Supreme Court has instructed that the most important factor in determining the reasonableness of the fee is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 114, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992) (refusing an award of attorney's fees in its entirety where plaintiff recovered only $ 1 in nominal damages). Plaintiff's attorneys in the present case must recognize that by agreeing to vacate the Court's judgment in settlement of the appeal, they dismissed the finding of liability that they had won for their client. The result is that their initial achievement [*12] is diminished. On a $ 4 million complaint for relief, they obtained a $ 1500 settlement with no admission nor finding of liability. Moreover, the PLRA requires that the fee was "directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute. . . ." § 1997e(d)(1)(A). In the present case, the proof of an actual violation was lost when Plaintiff and his attorneys asked this Court to vacate its findings. Their requests for $ 73,484.00 and even $ 31,552.88 are therefore completely unreasonable. See Clark v. Phillips, 965 F. Supp. 331, 334, n. 4 (N.D.N.Y.) (McCurn S.J.) (recognizing that plaintiff's fee award of 79% of the judgment was reasonable under the PLRA).

There is also a requirement that the award of attorney's fees be "proportionate". § 1997e(d)(1)(B). Although the 150 percent fee cap does not directly apply to the present case, as explained above, there is evidence that this amount constitutes a reasonable and proportionate fee in PLRA actions. In Clark v. Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997), the 150 percent cap under § 1997e(d)(2) was not directly implicated. However, Judge McCurn [*13] relied on this cap to determine the amount that was "proportional" to the judgment under § 1997e(d)(1)(B). Therefore, as in Clark, an award of 150 percent, here $ 2250.00, would be a proportional award of attorney's fees 3, while the requested awards of over $ 30,000.00 would indeed be disproportionate.

FOOTNOTES

3 In Carbonell v. Acrish, 154 F. Supp.2d 552 (S.D.N.Y. 2001), the plaintiff brought a similar action alleging Eighth Amendment violations during his imprisonment. The court declared a mistrial, and, after negotiations, the parties settled for $ 15,000. The court awarded attorney's fees in the action, but limited the award to 150 percent of the $ 15,000 pursuant to § 1997e(d)(2). When the Second Circuit decided Torres, the Court wrote that the application of the 150 percent cap to the settlement offer was "assumed without being decided" in Carbonell.2004 U.S. App. LEXIS 1035, *12, n. 5. However, the Second Circuit did not go on to say that such an amount was an unreasonable or disproportionate award.


[*14] Given the limited success in Plaintiff's action, the Court awards Plaintiff his attorney's fees in the amount of $ 40 per hour, which will yield both a reasonable fee and a proportionate one for the limited success achieved. Plaintiff submits records to memorialize his attorneys' service of 280.47 hours. (Dkt. No. 80, Exhibit D). Defendant does not contest that the number of attorneys (three) or the total amount of time spent was reasonable for this action. Therefore, having reviewed the records submitted, the Court will accept this figure with a slight modification. The attorneys in this case erroneously included travel time in their total hours of service. Travel time is billed at half of the hourly fee. In the present case, the total travel time is 18 hours 4, and Plaintiffs attorneys are awarded $ 20 for this time, at a total fee of $ 360. For the remaining 262.47 hours, Plaintiffs attorneys are awarded $ 40, at a total fee of $ 10,498.80. The total of $ 10,858.80 is reasonable in light of the limited success and, although slightly high, still sufficiently proportionate to the settlement.

FOOTNOTES

4 This number is the sum of several entries. From the time sheets of Paul A. Shneyer: 3.0 hours on 7/20/00; 2.5 hours on 10/29/00; 2.5 hours on 11/03/00. From the time sheets of S. Tito Sinha: 2.5 hours on 10/29/00; 2.5 hours on 11/3/00. From the time sheets of Lawrence D. Goldberg: 2.5 hours on 12/13/99; 2.5 hours on 12/14/99. (Dkt. No. 80, Exhibit D: Time entries for Attorneys Shneyer, Tito, and Goldberg).


[*15] (e) Costs

Defendant first contends that the filing of costs by Plaintiff as part of the present motion was untimely. However, Local Rule 54.1(a) in the Northern District of New York allows a party to file for costs within thirty days of judgment, or, in a post-trial motion, if there has been "an order extending the time" to file for costs. In the present case, the Stipulation of Settlement allowed Plaintiff 60 days after the Court's ordering of said stipulation to file for costs. (Dkt. No. 80, Exhibit C: Stipulation of Settlement and Discontinuance at 3). The motion for costs is therefore timely.

Defendant argues that the only costs allowable would be those enumerated in 28 U.S.C. § 1920 and outlined in the "Taxation of Costs by the Clerk". (Dkt. No. 56, Exhibit D). However, under Federal Rule of Civil Procedure 54, this document is not binding upon the Court and states as much in the first paragraph of the document. (Dkt. No. 56, Exhibit D: "Taxation of Costs by the Clerk" at 1). The Court has discretion, within the confines of 28 U.S.C. § 1920 and the Federal Rules in awarding costs [*16] to the prevailing party. Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001). 28 U.S.C. § 1920 reads:

A judge or clerk of any court of the United States may tax as costs the following:



(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.



A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.



As a bill of costs, Plaintiff has submitted the affidavits from two attorneys, each of which provide lists of costs but which differs slightly from the other. (Dkt. No. 80: Affidavit of Paul A. Shneyer at P21; Affidavit of Lawrence A. Goldberg at P11). The requested fees include:

Filing fees $ 150.00

Service [*17] of process by the Sheriff of Saratoga County $ 16.44

Service of process by the Sheriff of Warren County $ 12.30

Trial Subpoena [Inspector General] $ 35.00 (Shneyer Aff. at P21)

Trial transcripts used for post-trial brief $ 780.00, $ 186.20 (Shneyer Aff. at P21)

Plaintiff's transportation between Buffalo - Albany for deposition and medical exam while in custody of Corrections Department $ 80.00 (Goldberg Aff. at P11).

Hotel and meal expenses for Plaintiff's attorney while in Albany for depositions and medical exam $ 170.94 (Goldberg Aff. at P11).

Copies of medical records $ 22.83 (Goldberg Aff. at P11).



Filing fees are costs under § 1920, and therefore the fee of $ 150.00 is recoverable by Plaintiff. Nuera v. Telron, 2002 U.S. Dist. LEXIS 26249, *11 (S.D.N.Y. 2002). Service of process by a marshal is similarly allowed as a cost, and therefore $ 28.74 (the sum of $ 16.44 and $ 12.30) is taxable as costs. Sim v. New York Mailers' Union No. 6, 1999 U.S.Dist. LEXIS 13256, *11 (S.D.N.Y. 1999). Service fees for a trial subpoena will be taxable as a cost only when the witness actually testified at trial, and hence the $ 35.00 Plaintiff attempts [*18] to recover will not be allowed. Trial transcripts are similarly taxable as costs under § 1920 when they are "necessarily obtained for use in a case". § 1920; Id. 1999 U.S. Dist. LEXIS 13256 at *4. Plaintiff's attorneys have used the trial transcripts to draft their post-trial brief. As such, they were necessary to their trying the case, and, therefore, $ 966.20 will be taxable as costs. 5 Transportation expenses incurred by Plaintiff himself are not recoverable under § 1920, and therefore the Court will not tax as costs the $ 80 claimed by Plaintiff. Bridges v. Eastman Kodak, Co., 1996 U.S.Dist. LEXIS 809, *43 (S.D.N.Y. 1996). Id. Plaintiff's attorney Lawrence Goldberg attempts to recover as costs $ 170.94 in lodging and meals when he came to Albany to take a deposition and be present for Plaintiff's medical exam. While the expense may be a reasonable sum, there is no evidence that his overnight stay was necessary, nor does he further detail the expenses beyond the lump sum he requests, hindering the Court's assessment of the cost. Hence, the cost will not be allowed. Finally, the Affidavit of Lawrence Goldberg lists fees for medical records amounting to $ 22.83 but does not explain [*19] why those records were necessary for use in the case 6, and therefore the cost will not be allowed.

FOOTNOTES

5 Defendants assert that fees incurred to create a post-trial brief are not recoverable in the instant motion because the district court lacks jurisdiction over this cost as it was an "appellate cost" and therefore only recoverable when ordered by an appellate court. (Dkt. No. 81, Defendant's Memo. of Law at 15). However, Defendant overlooks the fact that the trial was a bench trial, and to assist the Court in rendering a decision, parties submitted post-trial briefs to this Court. (Dkt. No. 39: Plaintiff's Post-trial Brief). This prayer for costs is related to a cost incurred in the litigation in district court and is properly within the jurisdiction of this Court.

6 Although it is likely that the medical records were used as part of the proof in Plaintiff's excessive force claims, Plaintiff has not provided an explanation as to what medical records were obtained, and the Court therefore cannot determine whether the records were necessary for use at trial.


[*20] III. CONCLUSION

For the reasons set forth above, it is hereby

ORDERED that Plaintiff's motion for attorney's fees is GRANTED in the amount of $ 10,858.80; and it is further

ORDERED that Plaintiff's motion for costs is GRANTED in the amount of $ 1144.94; and it is further

ORDERED that Defendant pay Plaintiff a total of $ 12,003.74; and it is further

ORDERED that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

Dated: May 6, 2004

HONORABLE LAWRENCE E. KAHN

United States District Judge