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January 16, 2004.


The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge


A jury trial was held March 17, 2003, on Plaintiff's claim that the defendants used excessive force against him in violation of his Eighth Amendment rights, during his incarceration at Logan Correctional Center. On March 19, 2003, the jury returned a verdict in favor of Defendant Hockaday and against Defendant Skelton in the amount of $1,000. This court denied Defendant Skelton's Renewed Motion for Judgment as a Matter of Law, or in the Alternative for New Trial on April 23, 2003 (#116), and the case is now on appeal.

  Before the court is Plaintiff's Revised Bill of Costs and Application for Attorneys' Fees (#132), Defendant Skelton's Objections (#134), and Plaintiff's Response to Defendant's Objections (#139). Though an appeal on the merits is pending, the court retains jurisdiction to rule on ancillary matters, such as attorneys' fees and costs. Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995); Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir. 1980)(district court should rule on attorneys' fees motion while appeal pending; ruling may then be appealed and consolidated with appeal on merits). Page 2

  After careful consideration of the parties' arguments, this court awards $1,500 in attorneys' fees and $1,599.88 in costs to Plaintiff's attorneys. This court further applies $100 of the plaintiff's judgment to satisfy the fee award.


  Plaintiff initially sought $29,823.95 in fees and costs (#117, 118), but reduced the request to $3,235.88, in light of the Seventh Circuit's intervening opinion in Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003), petition for cert. filed, 72 USLW 3373 (U.S. Nov. 17, 2003)(No. 03-732). Johnson upheld, on equal protection grounds, a cap on fee awards in civil rights cases filed by prisoners to 150% of the judgment. 42 U.S.C. § 1997e(d)(2).

  42 U.S.C. § 1988(b) permits the court to allow reasonable attorneys' fees to a prevailing party in a civil rights action under 42 U.S.C. § 1983. However, the Prison Litigation Reform Act of 1995 ("PLRA") establishes additional limitations on those fees in cases brought by prisoners. The fee must be "directly and reasonably incurred in proving an actual violation of the plaintiff's rights," 42 U.S.C. § 1997(d)(1)(A), and "the amount of the fee [must be] proportionately related to the court ordered relief for the violation," 42 U.S.C. § 1997(d)(1)(B)(i). The hourly rate is capped at 150 percent of the rate for court-appointed counsel under 18 U.S.C. § 3006A, and attorneys fees are effectively capped at 150% of the judgment. Page 3 42 U.S.C. § 1997(d)(3)*fn1; 42 U.S.C. § 1997e(d)(2).*fn2 Additionally, "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." 42 U.S.C. § 1997e(d)(2). Compensatory damage awards must also be "paid directly to satisfy any outstanding restitution orders pending against the prisoner" before the plaintiff receives the balance. Prison Litigation Reform Act of 1995, Section 807 (statutory note to 18 U.S.C.A Section 3626).

  Plaintiff concedes that the Seventh Circuit's decision in Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003), upholding the constitutionality of the fee cap, precludes his argument otherwise, at least until Johnson is reversed or revisited. (Plaintiff's Revised Bill of Costs, #132, p. 3, n. 4). The maximum fees this court may award is therefore $1,500.

  Defendant Skelton argues that $1,500 in fees is not proportionately related to the judgment. He maintains that the jury's award of $1,000.00 shows that "they [the jury] apparently believed the violation was insignificant." (Def. Memorandum, #135, p. 5). He asserts that an award of $750.00 would be proportional.

  The court disagrees that a jury award of $1,000 in a prisoner civil rights case is insignificant. Rare is the prisoner who succeeds in winning a case at all, much less winning more than nominal damages. "Proportionately related" does not mean the fee award must be less than the judgment. Page 4 In fact, 42 U.S.C. § 1997e(d)(2) contemplates that up to 150% of the judgment may be awarded as fees, and has been according to this court's research. See, e.g., Lawrence v. Bowersox, 297 F.3d 727 (8th Cir. 2002); Spruytte v. Hoffner, 197 F. Supp.2d 931 (W.D. Mich. 2001); Carbonell v. Acrish, 154 F. Supp.2d 552 (S.D.N.Y. 2001). The Eighth Amendment right at issue here, the right to be free from excessive force, is one of a prisoner's most important rights. This court concludes that $1,500 in attorneys fees is proportionately related to the jury award of $1,000.

  Defendant Skelton also asserts that no fees attributable to Plaintiff's claim against Defendant Hockaday should be awarded, since Plaintiff did not prevail against Defendant Hockaday. Defendant Skelton, however, does not detail which fees he believes were incurred primarily on Defendant Hockaday's behalf. Such parsing would be impossible, since both Hockaday and Skelton were accused of excessive force in the same incident. The court agrees with Plaintiff that the claims against both "involve[d] a common core of facts," that is, what happened in Plaintiff's cell on February 25, 1998. See Gregory v. Wigler, 873 F. Supp. 1189, 1194 (C.D. Ill. 1995), citing Wallace v. Mulholland, 957 F.2d 333, 339 (7th Cir. 1992) (quoting Hensley v. Eckerhart, 461 U.S. 424 (1983). Defendant Hockaday's testimony at trial would have been central even if he had not been named as a defendant, since he was a participant and an eyewitness. In any event, attempting to separate time spent on Plaintiff's case against Defendant Hockaday is a useless endeavor, given the $1,500 cap. The applicable hourly rate of $135 amounts to about eleven hours of one attorney's time, in light of the cap ($1,500 divided by 135). Eleven hours does not even cover one attorney's time for the jury selection and trial.*fn3 Page 5

  Defendant Skelton presses to apply 25% of the Plaintiff's judgment to the fee award. 42 U.S.C. § 1997e(d)(2) directs that "[w]henever 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."

  The Seventh Circuit's majority opinion in Johnson v. Daley, 339 F.3d 582, 585 (7th Cir. 2003) states in dicta that, "[a]s we read subsection (2), attorneys' compensation comes first from the damages, as in ordinary tort litigation, and only if 25% of the award is inadequate to compensate counsel fully may defendant be ordered to pay more under Section 1988."*fn4 (Emphasis in original). In support, the majority in Johnson cited Gisbrecht v. Barnhart, 535 U.S. 789 (2002), but that case involved whether attorney fee limitations in the Social Security Act displaced contingent-fee agreements. Additionally, Johnson did not specifically calculate the fee award or percentage set-off, but instead "remanded for an award of attorneys' fees that complies with Section 1997e(d)." 339 F.3d at 598.*fn5 This court does not believe the statement in Johnson answers unequivocally whether 25% is mandatory, since the question was not directly presented there.

  Some courts read Section 1997e(d)(2) as giving them the discretion to set the percentage at less than 25%. See e.g., Lawrence v. Bowersox, 297 F.3d 727, 735 (8th Cir. 2002)(remanding for set off not exceeding 25%; on remand, $50 of the $15,000 award was applied to fees); Carbonell v. Acrish, 154 F. Supp.2d 552 (S.D.N.Y. 2001)(no set-off, per agreement of parties); Sutton v. Smith, 2001 WL 743201 (S.D. Md. 2001)($1.00 set off from $19,000.00 judgment); Morrison v. Davis, Page 6 88 F. Supp.2d 799, 811 (S.D. Ohio 2000) ($1.00 of $15,000.00 judgment applied as set-off for fees); Collins v. Algarin, 1998 WL 10234 at *10 (E.D. Pa. 1998)(noting that a minimum percentage was not required, but not ...

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