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Lasswell v. City of Johnston City

June 14, 2006


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


This matter is before the Court on Plaintiffs' Motion for Attorney's Fees and Costs pursuant to 42 U.S.C. § 1988 and 28 U.S.C. §1920. (Doc. 38). Plaintiffs have submitted a memorandum in support of their motion (Doc. 39), to which Defendants have responded (Doc. 41) and Plaintiffs have replied (Doc. 42). For the reasons set forth below, the plaintiffs' motion is GRANTED.


I. Facts

On August 15, 2004 Plaintiffs, Neva Janeen Lasswell and James Cody Lasswell, were in the parking lot of the Dairy Queen in Johnston City, Illinois. While there, they observed Officer Tony L. Kendrick, who was in uniform, engaging in what they believed was an abuse of his authority as a police officer for Johnston City. Mrs. Lasswell took a camera out of the Lasswell's vehicle and attempted to take a picture of Officer Kendrick. According to the Lasswells, Officer Kendrick then approached them, demanding to know what they were doing. The Lasswells claim that Officer Kendrick came within inches of them and put his hand on or near his sidearm while demanding they answer his question. The Lasswells told Officer Kendrick that they had taken a picture. Officer Kendrick informed them that it was against the law to take his picture and demanded that the Lasswells turn the camera over to him.

The Lasswells claim that Officer Kendrick threatened to arrest them if they did not turn over the camera. When the Lasswells did not comply, they claim Officer Kendrick shoved his chest against Mr. Lasswell's chest, knocking Mr. Lasswell backwards and injuring his leg. Officer Kendrick then confiscated the camera.

The Lasswells reported their altercation with Officer Kendrick to the chief of police of Johnston City. They also went to the Johnston City Police Department and requested the return of their camera and the pictures on it. Officer Kendrick refused, saying the camera had been destroyed.

II. Procedural History

The Lasswells filed suit under 42 U.S.C. § 1983 against the City of Johnston City and Officer Kendrick for violating their civil rights under color of state law. They also brought state law claims against Officer Kendrick for assault, battery, and false imprisonment. Additionally, the Lasswells brought a state law claim against the City of Johnston City for negligent hiring and retention of Officer Kendrick. They requested an unspecified amount in compensatory and punitive damages. Plaintiffs entered into a written contract with Michael W. Maurizio & Associates setting attorney's fees at forty percent (40%) of the gross amount recovered and one hundred percent (100%) of reasonable attorney's fees and cost recovered. (Doc. 38 Ex. B 1). Maurizio & Associates brought in Rhode and Jackson, P.C. as co-counsel.

On January 31, 2006, pursuant to Federal Rule of Civil Procedure 68, Officer Kendrick and The City of Johnston City offered to allow judgment to be taken against them on all the Lasswells' state and federal claims. The Offer of Judgment included a paragraph stating, "These offers are not to be construed as an admission that defendants are liable in this action or that plaintiffs have suffered any damages." (Doc. 30 Ex. A 1).

Prior to the Offer of Judgment tendered by the defendants, the parties conducted minimal discovery. Officer Kendrick served his initial disclosures as well as interrogatories and requests for production. The Lasswells served their initial disclosures and answers to the interrogatories. Additionally, the Lasswells issued a subpoena to the Herrin and Energy Police Departments for the personnel records for Officer Kendrick.

The underlying claims were disposed of on April 3, 2006 by an Order of Judgment in favor of plaintiffs and against defendants on all state and federal claims pursuant to the Rule 68 offer. (Doc. 46). The Court entered judgment for Neva Lasswell in the amount of $500.00 plus costs accrued up to and including February 10, 2006. The Court entered judgment for James Lasswell in the amount of $1,000.00 plus costs accrued up to and including February 10, 2006.

The Lasswells now request attorney's fees in the amount of $17,265.11 and costs in the amount of $458.09 from defendants pursuant to 42 U.S.C. § 1988. Maurizio & Associates billed 36.14 hours and Rhode and Jackson, P.C. billed 43.90 hours. The hourly fees plaintiffs request are: Michael W. Maurizio - Maurizio & Associates - $250.00 per hour Jonathan R. Oliver - Maurizio & Associates - $200.00 per hour Paralegals - Maurizio & Associates - $150.00 per hour Shari Rhode - Rhode and Jackson, P.C. - $250.00 per hour Kristen Glasford - Rhode and Jackson, P.C. - $150.00 per hour Sarah Ann Finley - Rhode and Jackson, P.C. - $75.00 per hour.


42 U.S.C. § 1988 provides, in relevant part: "In any action or proceeding to enforce a provision of Section . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." Congress' purpose in enacting § 1988 was to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances. City of Riverside v. Rivera, 477 U.S. 561, 578 (1986).

The Lasswells brought their action under 42 U.S.C. § 1983 and were awarded costs in the Order of Judgment. Therefore, the Lasswells claim they are "prevailing parties," and they move for attorney's fees. The City of Johnston City and Officer Kendrick argue: 1) the Lasswells are not "prevailing parties" within the meaning of 42 U.S.C. § 1988, and so are not entitled to recover attorney's fees; 2) the Lasswells' recovery was de minimis and so does not support an award for attorney's fees, and 3) the attorney's fees requested by the Lasswells are unreasonable and excessive.

I. Prevailing Parties Within the Meaning of 42 U.S.C. § 1988

A party need not prevail at trial in order to qualify as a "prevailing party" for purposes of § 1988. "Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Maher v. Gagne, 448 U.S. 122, 129 (1980). Rather, a prevailing party is one who has obtained at least some relief on the merits of his claim by means of an enforceable judgment against the defendant. Farrar v. Hobby, 506 U.S. 103, 111 (1992). Therefore, the fact that the Court entered judgment against the defendants pursuant to a Rule 68 offer does not necessarily mean that the plaintiffs are not "prevailing parties."

The Seventh Circuit has articulated a two-part test for determining when a plaintiff is a "prevailing party." The Court must determine: "1) whether the lawsuit was causally related to the relief obtained, and 2) whether the defendant acted gratuitously, that is, the lawsuit was frivolous, unreasonable or groundless." Gekas v. Att'y Reg. & Disciplinary Comm'n, 793 F.2d 846, 849 ...

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