The opinion of the court was delivered by: Harold A. Baker United States District Judge
ORDER ON ATTORNEY FEES AND COSTS
This cause is before the court for consideration of the plaintiff's motion for attorney's fees [d/e 88] and Bill of Costs [d/e 91].
The plaintiff filed her complaint as a pro se litigant pursuant to 42 U.S.C. §1983 claiming that her constitutional rights were violated at Dwight Correctional Center. Shortly after, counsel agreed to represent the plaintiff pro bono. On March 2, 2009, the case proceeded to bench trial on the following claims:
1) Defendant Ray Gubbles violated the plaintiff's Eighth Amendment rights by the use of excessive force on July 9, 2004;
2) Defendant Andrew Grove violated the plaintiff's Eighth Amendment rights when he failed to protect the plaintiff from the attack by Defendant Gubbles on July 9, 2004;
3) Defendant Gubbles violated the plaintiff's First and Fourth Amendment rights based on the handling of the plaintiff's letters on July 9, 2004;
4) Defendant Gubbles committed the state law offense of assault and battery on July 9, 2004; and
5) Defendant Gubbles committed the state law offense of intentional infliction of emotional distress.
At the conclusion of the trial, the court found that Defendant Gubbles had infringed the plaintiff's First, Fourth and Eighth Amendment rights and committed the state law offense of battery. However, the court found that Defendant Groves did not violated the Eighth Amendment, nor did Defendant Gubbles commit the state law offense of intentional infliction of emotional distress.
The court awarded $1,000 in compensatory damages based on Gubbles violation of the Eighth Amendment and the state law offense of battery. The court awarded $500 in compensatory damages for Gubbles violation of the First and Fourth Amendment and $1,000 in punitive damages.
The plaintiff has provided ample documentation of the time her attorneys spent litigating her claims over a three and a half year period. [d/e 89, Ex. A) The plaintiff acknowledges that she is limited to fees equal to 150 percent of the damages award in this case. 42 U.S.C. §1997e(d)(2). The plaintiff also acknowledges that the Prisoner Litigation Reform Act (herein PLRA) requires her to pay some portion of the attorney fees.
Whenever a monetary judgment is awarded in an action...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).
The plaintiff is asking for 150 percent of the damage award or $3,750.00 in attorney fees.*fn1 [d/e 89] The plaintiff also argues that she should pay no more than one percent of the fee award, or $37.50.
The defendant does not dispute that the plaintiff is entitled to attorney fees of $3,750.00 in this case, but he claims the plaintiff should be required to pay a bigger portion of those fees. The defendant argues that the plaintiff should pay 25 percent of the fee, or $625.00. Therefore, the defendant would be responsible for $3125.00 of the damage award.
The defendant points to dicta in the Seventh Circuit opinion of Johnson v Daley, 339 F.3d 582, 584-5 (7th Cir. 2003). The appellate court noted that in regard to PLRA limitations the "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." Id. at 585. However, the court did not calculate the fee award or percentage set-off in this case, but instead "remanded for an award of attorneys' fees that complies with Section 1997e(d)." Id. at 598. The district court applied $200 of the $40,000 judgment toward the fee award (one-half percent). Johnson v. Daley, 98-C-518-C, 2003 WL 23274532 (W.D.Wis.2003).
Other district courts, including the Central District of Illinois, have concluded that §1997e(d)(2) requires some of the fee award to be satisfied from the plaintiff's judgment, but does not require 25% be applied in all cases. See Farella v. Hockaday, 304 F.Supp.2d 1076, 1081 (C.D.Ill.,2004)(" The section's plain language sets forth 25% as the maximum, not the mandatory amount."); see also Livingston v. Lee, 2007 WL 4440933 (N.D.N.Y., Dec 17, 2007)(Although the allocation is mandatory, the percentage to be allocated to attorney's fees is within the discretion of the court). 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 (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 ...