The opinion of the court was delivered by: Reagan, District Judge
After a trial in which Plaintiff contended that Defendant police officers used excessive force in arresting him on February 7, 2005, a jury awarded Plaintiff $820 in damages against Thomas Boyd. Boyd was one of five named Defendants in this case, pursued under 42 U.S.C. § 1983. Plaintiff now seeks to recover $36,037.50 in attorney's fees under Federal Rule of Civil Procedure 54 and 42 U.S.C. § 1988 from Defendant Boyd, who rigorously objects.
By Order entered February 1, 2007 (Doc. 81), the Court declined to order payment of costs, claimed by each side as "prevailing parties"*fn1 and so close in amount as to offset each another. For the reasons stated below, the Court declines Plaintiff's counsel's request for fees.
A. Background and Introduction
On September 22, 2005, Jeffrey Reid filed suit in this Court against five Defendants: Thomas Boyd, Kevin McGinnis, Brian Stephens, Bruce Fleshren and the City of Mascoutah, Illinois. Reid alleged that his substantive due process rights under Amendments V and XIV of the U.S. Constitution were violated (Counts I and III), that he was unlawfully seized in violation of Amendment IV of the U.S. Constitution (Counts II and IV) and that he was subjected to cruel and unusual punishment in violation of Amendment VIII of the U.S. Constitution (Counts V and IX). He also stated common law claims for false imprisonment (Count VI), battery (Count VII) and intentional infliction of emotional distress (Count VIII). Officers Boyd, McGinnis, and Stephens were the actual arresting officers. Reid proposed to hold Police Chief Fleshren and the City of Mascoutah vicariously liable for the alleged actions of the arresting officers (Counts III and IV).
On June 12, 2006, Counts II, IV, V, VI and IX were dismissed with prejudice on Defendants' motion. On October 4, 2006, the Court granted Defendants' motion for summary judgment as to the City of Mascoutah and Chief of Police Bruce Fleshren (Count III). Plaintiff voluntarily dismissed Counts VII and VIII on October 26, 2006, leaving Count I as the only viable remaining theory.
The case proceeded to trial on November 27, 2006 on Plaintiff's sole remaining legal theory - excessive force - against Defendants Boyd, McGinnis and Stephens. Two days later, the jury returned a verdict in favor of Plaintiff and against Defendant Boyd in the sum of $820. The jury found against Plaintiff and in favor of Defendants McGinnis and Stephens.
The claim Plaintiff prevailed against Boyd on was premised on Boyd's excessive use of force, the details of which are not particularly important at this juncture. Suffice it to say that Boyd struck Plaintiff in the face with a cell phone and used his baton to strike Plaintiff's legs and buttocks. There was no permanent damage; his complaints of pain and swelling cleared within two weeks and his total medical expenses, from one medical visit, were $820 - the amount the jury awarded him.
Using the lodestar*fn2 method of calculating fees (reasonable hourly rate multiplied by time reasonably necessary for proper representation) Plaintiff's counsel, who has ". . .considerable experience and expertise in the litigation of Civil Rights cases, including those alleging excessive force by Police Officers" (see Doc. 67-1, ¶ 3), requests remuneration for 144.15 hours at the rate of $250.00 per hour. The reasonableness of this hourly rate is supported by an affidavit of another experienced civil rights litigator in this geographical area. Defendant contends that a fee award of $36,037.50 in light of an $820 verdict - that is, fees that are 44 times greater than the damage award - cannot withstand Seventh Circuit muster. Plaintiff counters with a public policy argument that awarding attorney's fees in a §1983 action encourages competent counsel to pursue what would otherwise be a financially unfeasible action.
Section 1988(b) of Title 42 states that in an action to enforce the provisions of § 1981 or § 1983, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." The Seventh Circuit has remarked: "[D]istrict courts entertain a 'modest presumption' that prevailing parties are entitled to a reasonable attorneys' fee," but this presumption is rebuttable. Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 585 (7th Cir. 2000), citing Harris Trust & Savings Bank v. Provident Life & Acc. Ins. Co., 57 F.3d 608, 617 (7th Cir. 1995).
There is nothing particularly troubling about the hourly rate Plaintiff's counsel charges. Similarly, the individual line items of time charged and the total time expended do not appear unreasonable. But reasonable rates and time expended do not automatically translate into a fee award for a prevailing plaintiff. While the prevailing party in a federal civil rights case is entitled to an award of attorney's fees, 42 U.S.C. § 1988, the fees must be reasonable, and the reasonable fee is sometimes zero. Farrar v. Hobby, 506 U.S. 103, 115 (1992); Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir. 1996); Maul v. Constan, 23 F.3d 143, 147 (7th Cir. 1994); Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993); Willis v. City of Chicago, 999 F.2d 284, 290 (7th Cir. 1993).
Once the lodestar is calculated - $36,037.50 by Plaintiff's calculations in the instant case - the Court may adjust the amount up or down to take into account various factors regarding the litigation. These factors include: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 645 (7th Cir. 1995). See also Hensley, 461 U.S. at 430 n. 3; Mathur v. Board of Trustees of Southern Illinois University,317 F.3d 738, 742 (7th Cir. 2003).
However, when dealing with a situation such as this, where the prevailing party receives only nominal or minimal damages, Briggs v. Marshall, 93 F. 3d 355, 361 (7th Cir. 1996), teaches that applying the three-part test from Justice O'Connor's concurrence in Farrar, 506 U.S. at 120-21,is appropriate. The three factors are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which plaintiff prevailed; and (3) the public purpose of the ...