Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 C 1468 -- Abraham L. Marovitz, Judge .
Before Pell, Circuit Judge, Markey, Chief Judge,*fn* and Wood, Circuit Judge.
The defendants appeal from an amended order of the district court which substantially increased the amount of attorneys' fees originally granted to the plaintiff pursuant to 42 U.S.C. § 1988. Plaintiff Alonzo Bonner, a state inmate, argues that the amended award was appropriate, or alternatively, that the district judge should have awarded an even higher amount. He also contests the district court's grant of judgment notwithstanding the verdict (JNOV) to one of the defendants.
This litigation has followed a troubled course protracted beyond that justified by the relatively pellucid underlying grievance. On November 28, 1972, after completing a work assignment, Bonner returned to his cell to discover the door ajar, his cell in complete disarray, and the transcript from his state court trial missing. The defendants admitted that two prison guards, defendants Rumley and Robinson, had conducted a "shakedown" of Bonner's cell pursuant to a prison regulation authorizing periodic surprise searches.*fn1 That regulation, however, expressly prohibited damaging or confiscating an inmate's permitted personal property.
Bonner's appeal from his state court conviction was pending at the time of the search. Although the original transcript was never returned to Bonner, he was represented by counsel who did have a copy of the transcript and the common law record. Shortly after his murder conviction was affirmed by the Illinois Appellate Court, the plaintiff commenced a federal civil rights action seeking declaratory and injunctive relief and monetary damages for his loss.*fn2 Approximately six months later, Bonner was given a substitute copy of his transcript. On March 22, 1974, the district court granted the defendants' motion for summary judgment. On appeal, this court, addressing the plaintiff's legal theories of recovery, ruled that Bonner had stated a claim regarding the seizure of his transcript (1) as an unreasonable search under the Fourth Amendment, and (2) as an interference with Bonner's right of access to Illinois courts under the Fourteenth Amendment. Accordingly, the judgment was vacated and the case remanded. This court however, held that Bonner failed to state an alternative negligence claim under 42 U.S.C. § 1983. In the subsequent en banc rehearing, a majority of this court reaffirmed that no cause of action for negligence could lie under § 1983.
Bonner had alleged that prison guards seized the transcript in violation of the plaintiff's constitutional rights, or alternatively, that their negligence in leaving the cell door ajar allowed some other unauthorized individual to remove the transcript. In the panel opinion, Bonner I, the court declined to decide whether mere negligence was ever cognizable under § 1983, and instead disposed of the claim by ruling that, under the circumstances of the case, "the availability of an adequate state remedy for a simple property damage claim avoids any constitutional violation." 517 F.2d at 1319 (footnote omitted).
On rehearing, Bonner II, this court squarely rejected Bonner's contention that the alleged negligence was actionable under § 1983. The court additionally noted that "(i)n view of Monroe v. Pape, (365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492) we do not hold that Section 1983 is inapplicable on the ground that plaintiff has an adequate remedy in the Illinois courts."*fn3 545 F.2d at 568 n.7.
Bonner's trial on remand commenced on March 28, 1979, and lasted for two days. The jury awarded the plaintiff $100 in compensatory damages for the loss of his transcript.
On June 21, 1979, the trial judge entered an order granting defendant Robinson a JNOV and awarding the plaintiff costs and $6,000 in attorneys' fees although Bonner had sought over $40,000. The judge refused to apply a multiplier and determined that the issue before the en banc court had been resolved against the plaintiff. He characterized this lawsuit as a "simple, one issue case" which "was not particularly complex" and found that the hours claimed were excessive.
The court granted the plaintiff's subsequent motion to amend the fee award, however, on July 15, 1980. The original award of $6,000 was increased to $24,985. Without explaining the motivation for his sudden change in position, the judge concluded that the plaintiff had prevailed on the issue which initiated the en banc rehearing, determined that the amount of time spent on the case was reasonable, and applied a multiplier to the award for hours expended at the appellate level. The record indicates that the amended award was not based on any new information submitted to the district judge other than a breakdown of the hours billed for time subsequent to remand more detailed than that originally submitted.
In determining a fee award under § 1988, a trial court should of course consider the hours spent on the case and the billing rate requested. Various factors in setting fees have been recognized by different courts. This court has recognized as appropriate the factors set forth in the Code of Professional Responsibility adopted by the American Bar Association:*fn4
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to ...