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GREGORY v. WEIGLER

January 23, 1995

JASON SCOTT GREGORY, PLAINTIFF,
v.
SERGEANT RANDY WEIGLER, PATROLMAN STEWART GRAY, AND PATROLMAN BRIAN OSMULSKI, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

  OPINION

Attorneys' fees.

Another "cottage industry."

Based on our analysis, the Court awards Plaintiff $42,319.50 in attorneys' fees and $1,769.54 for costs incurred.

BACKGROUND

On June 20, 1991, Jason Scott Gregory and five of his friends were inside a friend's apartment located at 226 Westminster Street, Jacksonville, Illinois. Gregory and his friends gathered to celebrate his safe return from military service in Operation Desert Storm. At approximately 4:00 a.m., perhaps because Gregory and his friends were becoming too boisterous, police officers Lieutenant Neil Snelling, Sergeant Randy Weigler, Patrolman Brian Coultas, Patrolman Kyle DeFrates, Patrolman Stewart Gray, Patrolman Charles Pritchett, and Patrolman Brian Osmulski entered the apartment. Thereafter, the police officers escorted Gregory and his friends outside where they were subsequently handcuffed and transported to the Jacksonville Police Station.

Once at the police station, Gregory and his friends were guided to the "booking" room. There, after refusing to take a breathalyzer test, Sergeant Weigler commenced to escort Gregory to another area of the station. In the course of the escort, an altercation ensued. Gregory alleged that Patrolman Osmulski grabbed him by his throat and pinned him against the wall. Further, he alleged that Sergeant Weigler, Patrolman DeFrates, and Patrolman Osmulski, without any provocation, assaulted and beat him. As the altercation progressed, Gregory claimed Patrolman Coultas, Patrolman Gray, and Patrolman Pritchett observed the assault but failed to intervene. After the altercation, Lieutenant Snelling summoned paramedics who suggested that Gregory obtain treatment at a local hospital. As a result of the altercation, Gregory allegedly suffered abrasions, contusions, and lacerations, some of which permanently scarred his face.

Gregory was subsequently charged with resisting arrest, consumption of alcohol by a minor, and obstruction of justice. On December 4, 1991, those charges were dismissed.

On June 7, 1993, Plaintiff Gregory filed a lawsuit for excessive force and related claims pursuant to 42 U.S.C. § 1983 against the City of Jacksonville, Lieutenant Snelling, Sergeant Weigler, Patrolman Coultas, Patrolman DeFrates, Patrolman Gray, Patrolman Pritchett, and Patrolman Osmulski. The case proceeded to trial by jury in August of 1994. On August 11, 1994, we entered a directed verdict dismissing the City of Jacksonville and Lieutenant Snelling. Additionally, by oral motion, Plaintiff dismissed Patrolman Coultas and Patrolman Pritchett with prejudice. On August 16, 1994, the jury returned a verdict in favor of Patrolman DeFrates and against Sergeant Weigler, Patrolman Gray, and Patrolman Osmulski. The jury awarded the Plaintiff $3,000.00 in compensatory damages and $12,750.00 in punitive damages ($4,250.00 against each of the three liable Defendants).

DISCUSSION AND ANALYSIS

To be eligible for attorney's fees under § 1988, a plaintiff need only be a prevailing party. Estate of Borst v. O'Brien, 979 F.2d 511, 515 (7th Cir. 1992). In the underlying case, Plaintiff was awarded a total judgment of $15,750.00 ($3,000.00 in compensatory damages and $12,750.00 in punitive damages). Thus, clearly Plaintiff is a prevailing party and entitled to an award of attorneys' fees, Defendants do not argue otherwise.

The starting point for determining the amount of attorneys' fees is the lodestar. Estate of Borst, 979 F.2d at 515. The lodestar is calculated by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate. Id. "The burden is on the party seeking the award to substantiate the hours worked and the rate claimed." Id. Once the party seeking the award satisfies this burden, we may "then review the fee request, and may increase or decrease it in light of the factors adopted by Congress in enacting § 1988, now known as the Hensley [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)] factors."*fn1 Id. Since the "lodestar calculation is presumed to be a reasonable fee award," Eddleman v. Switchcraft, Inc., 927 West Page 1193 F.2d 316, 318 (7th Cir. 1991), an increase or decrease of the lodestar "may not be done arbitrarily, however, and a `concise but clear explanation' should accompany any modification of the submitted lodestar." Estate of Borst, 979 F.2d at 515-16 (citations omitted). Regarding an award for costs incurred, such an award is within the discretion of the district court. Id. at 517.

I

Plaintiff requests attorneys' fees in the amount of $42,319.50,*fn2 and also seeks compensation for costs incurred in the amount of $2,499.54, totaling $44,819.04. In support of Plaintiff's request, he submits a memorandum of law, an itemized statement of legal services performed and costs incurred, and the affidavits of attorneys Michael B. Metnick, Frederick J. Schlosser, George F. Taseff, Howard W. Feldman, Charles J. Gramlich, and D. Peter Wise, and paralegals William R. Clutter and Claire Allen.*fn3 Defendants dispute the reasonableness of several of the component fees comprising the fee request and the costs incurred. Defendants' arguments will be addressed in turn.

A. Hourly Rates of Attorneys Schlosser and Metnick

Defendants argue that Schlosser's fee of $110.00 per hour and Metnick's fee of $150.00 per hour are excessive.*fn4 They argue that the prevailing market rate in Sangamon County for the type and quality of services furnished by Schlosser and Metnick ranges from $65.00 to $100.00 an hour. Unfortunately, Defendants' argument apparently focuses on what they believe to be the average market rate in the Sangamon County area and not on the rate charged by the two attorneys at issue.

As recently noted by the Seventh Circuit, "it is not the function of judges in fee litigation to determine the equivalent of the medieval just price. It is to determine what the lawyer would receive if he were selling his services in the market rather than being paid by court order." In re Continental Illinois Securities Litigation, 962 F.2d 566, 568 (7th Cir. 1992); accord, Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993) ("When the lawyers sell their time in the market, the market provides the starting point: the lawyer's hourly rate. * * * Only an assumption that all lawyers are identical could support the averaging approach, under which all lawyers in a division of the court receive the same hourly fee.") (emphasis added).

Here, Metnick submits an affidavit stating that his "normal" billing rate is $150.00 an hour. Schlosser's affidavit omits his "normal" billing rate, but Metnick, as senior partner, verifies Schlosser's rate of $110.00 per hour. Additionally, Plaintiff submits the affidavits of unaffiliated attorneys Taseff, Feldman, and Gramlich which state that hourly rates of $110.00 and $150.00 are reasonable in the Central District of Illinois for Civil Rights litigation. Thus, based on recent Seventh Circuit precedent, since the hourly rates of $150.00 and $110.00 are the respective rates charged to the market for the services of the attorneys at issue, Plaintiffs attorneys are presumptively entitled to be compensated at this rate.*fn5 Gusman, 986 F.2d at 1149-50 (Attorneys are "presumptively entitled" to their respective rates, "rather than to some rate devised by the court.").

However, although attorneys are presumptively entitled to their respective hourly rates, we may depart from this rate for some reason "other than the ability to identify a different average rate in the community." Gusman, 986 F.2d at 1151. Defendants offer several arguments supporting their contention that the Court should ...


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