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Gabriel v. Hamlin

March 4, 2009

AMILCAR GABRIEL, PLAINTIFF,
v.
JIM HAMLIN, ET AL., DEFENDANTS.



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

MEMORANDUM & ORDER

Before the Court is plaintiff's motion for attorney's fees (Doc. 168), to which defendant Dr. Ruiz has filed a response (Doc. 169), and plaintiff a reply (Doc. 173).

A. ATTORNEY'S FEES

Plaintiff filed suit against defendant under 42 U.S.C. § 1983 for alleged violations of his Eighth Amendment right to be free from cruel and unusual punishment for defendant Ruiz's deliberate indifference to plaintiff's medical needs.

The jury returned a verdict in favor of plaintiff and against defendant Dr. Ruiz, awarding plaintiff $50,000.00. Plaintiff seeks $76,906.00 in attorney's fees and expert fees in the amount of $4,578.16, for a total amount of $81,484.16 against the defendant Dr. Ruiz. The defendant objects to plaintiff's motion on the grounds that: a) plaintiff seeks payment at the rate of $250.00 per hour for work and $60.00 for travel time, and, although the defendant does not object to the travel time charges he does object to: the hourly rate being higher than $141 per hour; that the amount of the fee should not exceed 150 percent of the award, therefore, it cannot exceed $75,000.00; and that not all of the fees sought are recoverable in this case.

1. Effect of the Prison Litigation Reform Act

Plaintiff acknowledges that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d)(2), limits attorney's fees to 150% of the amount recovered, but argues that this limitation should not apply because the case was extended and more complex than other cases in which the Court would appoint counsel. Plaintiff further asserts that a higher hourly rate is appropriate to fully compensate counsel and that the requested rate of $250.00 is within the prevailing hourly rate for attorneys with similar experience.*fn1 Plaintiff, essentially, seeks the Court to apply a lodestar analysis to the determination of fees in this case.*fn2

The PLRA has capped the hourly rate and totals, and the Court FINDS that the cap applies to this litigation. See, Johnson v. Daley, 339 F.3d 582, 589 (7th Cir. 2003). Therefore, the Court will assess reasonable fees at the rate of $141.00 per hour, not the $250 per hour requested by plaintiff's counsel.

2. Determining Reasonable Fees

It is well settled that 42 U.S.C. § 1997e(d)(1)(A) prohibits the Court from awarding attorney's fees, except those that the plaintiff's attorney "directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded." Id. (emphasis added). Upon review of the record, the Court FINDS that the plaintiff has failed to demonstrate that his attorney "directly and reasonably incurred" the fees detailed in the following billing entries as they were either excessive, redundant or otherwise unnecessary.

In particular, the Court FINDS that the following listed fees are more secretarial in nature than those which would ordinarily be performed by an attorney, and will not allow those fees to be recovered. Included in these fees are mailing and filing charges, and preparation of subpoenas, and the Court SUSTAINS defendant Ruiz's objections and will not allow these fees to be recovered:

6/17/02.4 hours 7/5/02.2 hours 8/7/02.15 hours 8/20/02.3 hours 9/16/02.35 hours 10/6/04.3 hours 9/29/08.5 hours TOTAL:2.2 hours

The following charges are either related to defendants other than Dr. Ruiz or were for ...


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