United States District Court, C.D. Illinois
January 16, 2004.
FRANK FARELLA, Plaintiff,
DENNIS HOCKADAY and RICKEY SKELTON, Defendants
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).
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.
1. PLAINTIFF'S ATTORNEYS FEES
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
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
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
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,
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 determining the percentage at that time); Clark v.
Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997)(noting that less than 25%
could be applied, but applying 25% since party did not object).
Other courts have concluded that 25% is not a ceiling, but an automatic
percentage applied in every case. Jackson v. Austin,
267 F. Supp.2d 1059, 1071 (D. Kan. 2003); Searles v. Van Bebber,
64 F. Supp.2d 1033, 1042 (D. Kan. 1999), vacated and remanded on other
grounds, 251 F.3d 869 (10th Cir. 2001). As already stated, the
Seventh Circuit appears to have taken this position in dicta in
Johnson, as well as the Sixth Circuit in Walker v.
Bain, 257 F.3d 660, 669 (6th Cir. 2001).
Still other courts have applied 25%, without directly answering whether
that percentage is automatically required. See Beckford v.
Irvin, 60 F. Supp.2d 85 (W.D.N.Y. 1999); Spruytte v.
Hoffner, 197 F. Supp.2d 931 (W.D. Mich. 2001).
It is clear that Section 1997e(d)(2) requires some of the fee award to
be satisfied from the plaintiff's judgment. This is consistent the
section's other limits on fee shifting, and consistent in the overall
context of the PLRA, which requires prisoners to bear a portion of the
cost of their litigation, whether successful or not. See, e.g.,
28 U.S.C. § 1915(b)(1)(requiring prison proceeding in forma
pauperis to pay full filing/appellate fee in installments). However,
this court concludes that Section 1997e(d)(2) does not require 25% be
applied in all cases. The section's plain language sets forth 25% as the
maximum, not the mandatory amount. See Smith v.
Zachary, 255 F.3d 446, 448 (7th Cir. 2001)("plain meaning rule is
applicable when the statutory language is clear, unambiguous, and not
controlled by other parts of the act or other acts on the same subject").
It clearly contemplates that less than 25% may be applied "a
portion of the judgment (not to exceed 25%) . . ."
42 U.S.C. § 1997e(d)(2)(emphasis supplied). Giving the courts this discretion
is consistent with the courts' discretion in other parts of Section
1997e(d): for example, the discretion to determine what is
"proportionately related," and the discretion to award less than the
maximum hourlyrate. 42 U.S.C. § 1997e(d)(1)(B)(i);
42 U.S.C. § 1997e(d)(3): see Searles v. Van Bebber,
64 F. Supp.2d at 1036 (D. Kan. 1999)(stating that attorney experience
was important fact in determining hourly rate, but admitting that the
maximum rates were so low that most attorneys will deserve maximum
rate)(vacated on other grounds, 251 F.3d 869). That discretion
makes the court's job more difficult, as no further statutory guidance
is given, but not impossible. As with other discretionary decisions,
the court must consider the facts and circumstances of each case
individually and support its decision with sound reasoning.
Having carefully considered this case, this court determines that 10
percent, or $100, of the plaintiff's judgment should be applied against
the attorneys' fees awarded. Ten percent is more than a de minimus amount
(particularly to a pro se plaintiff), honoring Section 1997e(d)(2)'s
intent to hold the plaintiff responsible for a portion of the attorneys'
fees awarded. The amount is sufficiently high to recognize that the
plaintiff did not succeed in his claim against defendant Hockaday and did
not recover punitive damages. The amount is sufficiently low to recognize
the Plaintiff's pro se status, the fact that counsel was appointed by the
court pro bono, and the seriousness of the constitutional violation.
Plaintiff submitted sufficient evidence for the jury to find that
Defendant Skelton initiated the incident maliciously, to harm Plaintiff
for not cooperating as his "stool pigeon." (Trial Tr., p. 17, L. 10-18).
The plaintiff wound up with numerous stitches in his ear as a result, not
an insignificant injury.
2. PLAINTIFF'S COSTS
Plaintiff originally sought over $5,300 in costs. (Plaintiff's Addendum
to Bill of Costs, #118). He has since reduced his request by more than
$3,600. (Plaintiff's Revised Bill, #132).
Plaintiff now seeks $1,735.88 in costs for deposition and witness fees:
Court Reporter and Transcript Fees $1,456.88
Fees for Service of Summons and Subpoena 279.00
Under Federal Rule of Civil Procedure 54(d), "costs other than
attorney's fees shall be allowed as of course to the prevailing party
unless the court otherwise directs." The costs recoverable under
Rule 54(d) are listed in 28 U.S.C. § 1920. See Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437
, 441 (1987). These
(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
(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
28 U.S.C. § 1920. Deposition costs and transcripts are included
as costs under 28 U.S.C. § 1920(2). Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997).
Defendant Skelton maintains that Plaintiff's counsel failed to submit
an affidavit with the Revised Bill, rendering his documentation
inadequate. He asserts that counsel's declaration (on the
form required by the Central District) that the costs were actually
and necessarily performed is too conclusory to support an award.
Defendant Skelton invites this court to deny the costs in total, or to
"carefully scrutinize the Revised Bill of Costs and Attorneys Fees and
reduce any award accordingly . . ." (Def. Memorandum, # 134, pp. 2-3).
The court finds no merit in Defendant Skelton's argument. Plaintiff's
averment is on the form required by this District, and his attachments
show clearly the nature and amount of each charge. The purpose of each
charge is obvious and requires no further explanation: each charge
relates to the depositions of Defendant Skelton, Defendant Hockaday, John
Schonauer (who investigated the incident), and Dr. Elyea (who was
prepared to testify about the nature and extent of the Plaintiff's
As with the fees, Defendant Skelton argues that Plaintiff cannot
recover costs associated with his case against Defendant Hockaday. For
example, he posits that "[t]he jury specifically found that Defendant
Hockaday did not bite Plaintiff's ear. As such, Plaintiff is not entitled
to recover costs associated with Defendant Hockaday and the allegations
concerning Plaintiff's ear." (Def. Memorandum, # 135, p. 7). Defendant
Skelton argues the same for costs associated with Defendant Hockaday's
alleged squeezing of Plaintiff's throat and genitalia. Id.
Defendant Skelton concludes that the following costs should not be
allowed: Defendant Hockaday's deposition; mini-scripts of all
depositions; and witness, subpoena and deposition fees for Dr. Elyea.
Defendant Skelton's focus on the plaintiff's specific allegations
against defendant Hockaday is misplaced. As stated earlier, defendant
Hockaday was also an eyewitness to the excessive force, as well as an
alleged participant and defendant. Even if Defendant Hockaday had not
been a defendant, his deposition would have been reasonable and necessary
in preparation for trial against
Defendant Skelton, and his presence at the trial would have been
essential for both sides.
As for Dr. Elyea, the defendants sought to call Dr. Elyea as a witness,
making his deposition reasonable and necessary from Plaintiff's
perspective. (Final Pretrial Order, #75, Exhibit D). Plaintiff deposed
Dr. Elyea to learn the nature of his testimony, which led to a successful
motion in limine to exclude Dr. Elyea's testimony. (Plaintiff's Motion in
Limine, #73; 3/12/03 Court Order, #94). That some of Dr. Elyea's
testimony related to the cause of the Plaintiff's ear injury did not
render him unnecessary to depose. See Majeske v. City of
Chicago, 218 F.3d 816, 825 (7th Cir. 2000)("introduction of
testimony from a transcript is not a prerequisite for finding that it was
necessary"). Similarly, the deposition of John Schonauer, who
investigated the incident, was reasonable and necessary in preparation
However, the court will reduce the costs allowed by the charges for the
diskettes and the "mini-scripts" produced of the depositions, as these
were more for convenience rather than necessity. See
Williams v. Valtierra, 2002 WL 424634 (N.D. Ill. 2002)(reducing
costs requested by amount for "extras such as reduced-type extra copies
of depositions and ASCII disks"). These costs amount to $136.00 ($160
total, less 15% discount given to counsel's firm). Defendant Skelton
makes no other specific objections to Plaintiff's Revised Bill of Costs,
and the court determines from its review that those costs were reasonably
and necessarily incurred.
IT IS THEREFORE ORDERED THAT Plaintiff's Revised Bill of Costs and
Application for Attorneys' Fees is Allowed in Part (#132). Plaintiff's
attorneys are awarded $1,500.00 in attorneys' fees and $1,599.88 in
costs. This court further applies $100.00 ofthe Plaintiff's $1,000.00
judgment to satisfy the attorneys' fee award, effectively reducing
Skelton's liability for attorneys' fees to $1,400.00.