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 ...