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Earl S. Davis v. Timothy Budz

March 31, 2011

EARL S. DAVIS, PLAINTIFF,
v.
TIMOTHY BUDZ, FORMER FACILITY DIRECTOR OF THE SEXUALLY VIOLENT PERSONS UNIT, IN HIS INDIVIDUAL CAPACITY, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

(Davis fees)

Plaintiff Earl Davis is a civilly-committed mental health patient in the custody of the Illinois Department of Human Services ("DHS"). Since 1998, he has been housed in the DHS's Treatment and Detention Facility ("TDF") pursuant to the Sexually Violent Persons Commitment Act. In this action, Davis claimed that the conditions of his confinement violate his constitutional rights to equal protection of the laws and substantive due process. Named as Defendants at trial were Timothy Budz, the former director of the TDF; Thomas Monahan, the TDF's current director; and Howard Peters, III, the former Secretary of DHS. Following a lengthy bench trial, the court dismissed all claims against all Defendants except Mr. Davis's claims against Defendant Budz, relating to certain harsh security measures. As to those claims, the court found in favor of Mr. Davis and entered a modest damages award. See Davis v. Peters, 566 F. Supp. 2d 790 (N.D. Ill. 2008). After some negotiations, Defendant's appeal from that award was withdrawn.

Plaintiff's appointed attorneys now move for an award of fees and expenses. (Plaintiff Earl Davis' Petition For Attorneys' Fees and Expenses [96] [hereinafter, "Plaintiff's Petition"]). For the reasons set forth here, the motion is granted in part and denied in part.

DISCUSSION

I. Plaintiff is the Prevailing Party

The prevailing plaintiff in a § 1983 civil rights case is presumptively entitled to an award of attorneys' fees pursuant to 42 U.S.C. § 1988. Plaintiff is deemed a prevailing party so long as he "succeed[ed] on any significant issue in the litigation which achieves some of the benefit" he sought in filing the case. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). His status as a prevailing party "does not turn on the magnitude of the relief obtained." Farrar v. Hobby, 506 U.S. 103, 114 (1992).

As Defendants emphasize, Plaintiff raised a host of claims arising from his confinement and sued a number of Defendants. Some of those claims and Defendants were ultimately dismissed voluntarily, and the court dismissed others on summary judgment or after the trial. Plaintiff Davis did, however, prevail on two claims: the court concluded that Defendant Budz violated the Constitution by maintaining a universal strip-and body-cavity-search policy for all detainees at the Sheridan TDF. From March 2000 through September 2004, all detainees were strip-searched and body-cavity-searched before and after any contact with individuals outside the TDF, including their attorneys and family members-a policy that, according to Defendant's own expert witness, is not used at any other detention facility. The court concluded that during the period of time that the TDF was maintained at Joliet, strip searches prior to visits were excessive.

Mr. Davis also prevailed on his claim that his substantive due process rights were violated by Defendant's use of the "black box" restraint for all detainees being transported to and from the TDF from October 2000 until January 2002. As to this policy, as well, Defendant's own expert was unaware of any other institution that imposed these restraint on all detainees, regardless of the threat they posed. The court recognized that Mr. Budz exercised professional judgment in adopting the black box policy for a brief period after an attempted escape, but concluded that imposing the policy universally for an additional nine months was excessive.

As Plaintiff acknowledges, the court's award of damages was very modest: Mr. Davis was awarded $30 for each hour that he was subject to wearing the black box, a total of $1,102, and $100 for each of eight strip-searches. The total award is $1,902.50. Prevailing party status does not turn on the size of the award, however, and the court is satisfied that Plaintiff Davis is entitled to an award of fees.

II. Calculating the Appropriate Fee: the Lodestar Analysis

The reasonableness of an award of attorneys' fees is determined using the lodestar method, starting by multiplying the number of hours reasonably expended by counsel's reasonable hourly rate. Hensley, 461 U.S. at 433. Hours that are excessive, redundant or otherwise unnecessary are not "reasonably expended" and should therefore be excluded from this calculation. Id. at 434. The district court is also expected to consider other factors such as the degree of success obtained by the prevailing party's counsel, the novelty and difficulty of the questions presented, the skill required by the particular case, the customary fee, whether the fee is fixed or contingent, the experience of the attorneys, and awards in similar cases. Id. at 430 n.3. After weighing these considerations, the court exercises its discretion to render an appropriate award without being constrained by any precise formula. Id. at 436-37.

A. Hourly Rate

A reasonable hourly rate for attorneys' fees under Section 1988 is calculated according to the "prevailing market rates in the relevant community." Wis. v. Hotline Indus., Inc., 236 F.3d 363, 366 (7th Cir. 2000) (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). The rate at which an attorney actually bills paying clients for similar work is "presumptively appropriate" for calculating the market rate. Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003) (citation omitted). Plaintiff's counsel seeks fees at their law firm's standard attorney billing rates, ranging from $270 to $700 per hour. As these attorneys have demonstrated that the claimed hourly rates are the rates they charge to fee-paying clients, the burden shifts to Defendants to establish that a lower rate is appropriate. See People Who Care v. Rockford Bd. Of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996). Defendant has asserted two principal challenges to Plaintiff's claimed rates: (1) that the claimed rate is not a true average and instead reflects a premium in that some clients negotiate discounts, and others fail to pay their bills; and (2) billing at the current billing rate for all of counsel's time over the ten-year period this case was pending results in a windfall. (Budz's Objections to Plaintiff's Motion for Attorneys' Fees [107] [hereinafter, "Defendant's Objections"] at 9, 11.)

Plaintiff's response to these objections is not completely satisfying. He asserts that as a "single plaintiff," Mr. Davis would be unable to negotiate the discounted rates available to large-volume clients. (Reply Mem. [113] at 6.) Respectfully, the court finds it hard to believe that a substantial institutional client is generally charged a lower fee than an individual of more modest means. And there is a certain irony in this analysis, in light of the fact that the entity that will in this case be paying the bill-the State of Illinois-is unquestionably a substantial institution that could presumably negotiate a discount for legal services.

With respect to the current rates/windfall concern, Plaintiff correctly notes that use of current rates for all hours devoted to the litigation is one method of compensating for the delay in payment of fees pursuant to fee-shifting statutes. See Matter of Continental Illinois Securities Litigation, 962 F.2d 566, 571 (7th Cir. 1992). And the court would expect an attorney's hourly rate to rise gradually over time, both to address the rising cost of living and the attorney's increasing skills as he/she gains experience. That said, the increase in hourly rates over time here is very substantial, as it was a function not only of these predictable developments but also results from the promotion of associate attorneys to partner. For example, the hourly rate charged for the work of lead counsel, Everett J. Cygal, rose from $224 to $585 over the course of ten years. Plaintiff argues that this sharp increase is irrelevant unless Defendant establishes that the increase is not consistent in the Chicago law community. The court acknowledges that Defendant has not done so but notes, as well, that the increase in counsel's billing rates runs substantially higher than the rise in the consumer price index.

Under the circumstances here, the court believes it is most appropriate to use the rates the lawyers charged when they rendered services and then add interest on that amount. The court offers the same direction with respect to the ...


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