Argued Jan. 15, 2014.
Brendan Shiller, Attorney, Shiller Preyar, Chicago, IL, for Plaintiff-Appellant.
David Decelles, Attorney, City of Chicago Law Department, James E. Thompson, Attorney, Chicago, IL, for Defendants-Appellees.
Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.
While off duty from his job as a police officer, Darrin Macon argued with Andrew Richardson about Macon's former girlfriend. Macon fired his gun at Richardson but missed. When on-duty police officers arrived, Macon said that Richardson had struck him with a baseball bat. Richardson was arrested and charged with assault and battery. After the charges were dismissed, Richardson filed this suit making 39 claims under 42 U.S.C. § 1983 and state law against Chicago, Macon, the arresting officers, and others.
Chicago prevailed before trial because municipalities are not vicariously liable under § 1983, and the district judge found that none of the City's own policies (including its training regimens) is constitutionally deficient.
See Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The other claims went to trial, and all defendants other than Macon won. The jury decided in Richardson's favor on one claim, concerning the shot Macon fired, and awarded $1 in nominal damages plus $3,000 in punitive damages. Macon did not appeal— nor did Chicago, which under Illinois law must indemnify Macon for the $1 but not the punitive award— but the main event of the case lay ahead: a request for attorneys' fees under 42 U.S.C. § 1988.
Richardson asked for more than $675,000 in fees. The district judge ultimately awarded about $123,000. 2013 U.S. Dist. LEXIS 78677 (N.D. Ill. June 5, 2013). First she excluded time that counsel had devoted to unsuccessful motions (or the unsuccessful response to Chicago's motion for summary judgment under Monell ). The judge then observed that Richardson's lawyers had not kept time sheets in away that allow the identification of hours spent pursuing claims against the defendants who won at trial, or indeed to unsuccessful claims against Macon. Because non-compensable time could not be separated out, the district judge decided that the lodestar (the number of hours times the market rate for each hour) should be cut across the board. But what was the right reduction? The judge noted that Richardson had asked for $500,000 in settlement and rejected a generous offer, then asked the jury for $200,000, yet recovered only $3,001. That result was a flop, the judge reckoned, even though it technically makes Richardson a " prevailing" party.
See Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
If the jury had stopped with the $1 in nominal damages, then under Farrar an award of attorneys' fees would be un-warranted. But the $3,000 in punitive damages was enough, in the judge's view, to justify some attorneys' fees. The judge thought that a roughly 80% reduction from the lodestar appropriate in light of the modest success counsel had achieved for Richardson. The district court ordered Macon personally— but not the City of Chicago— to pay Richardson $123,165.24 under § 1988. The court also ordered Richardson to reimburse Chicago's costs under Fed.R.Civ.P. 54(d)(1).
Macon did not file a notice of appeal. But in response to Richardson's appeal, Macon (in his role as appellee) maintains that the award should have been against Chicago rather than against him personally. His decision not to appeal means, however, that we cannot alter the judgment to make it more favorable to him. See, e.g., Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008);
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999).
Richardson, like Macon, wants Chicago added as a judgment debtor on the award of attorneys' fees (though Richardson does not want Macon's liability ended). Yet Chicago's only substantive obligation is to indemnify Macon for the nominal award. That obligation rests on state law, but we put to one side the fact that § 1988 deals with parties who have prevailed on federal claims. Cf. Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir.1990) (discussing the possibility, not raised by Richardson's briefs, that a state indemnification statute may include attorneys' fees independent of § 1988). We also bypass Richardson's failure to object to a magistrate judge's recommendation that Macon alone be liable for attorneys' fees.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir.1986). It is enough to rely on Farrar, which holds that establishing an entitlement to nominal damages does not ...