Case 6:09-cv-06283-FPG-JWF Document 111 Filed 09/29/17 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`SULTAN MALIK,
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` DECISION AND ORDER
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` Case # 09-CV-6283-FPG
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`Plaintiff,
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`vs.
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`TIMOTHY HABLE and
`SEAN DAVIS,
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`Defendants.
`____________________________________________
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`After a four day trial, the Jury returned a verdict in favor of Plaintiff Sultan Malik, finding
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`that Defendants Timothy Hable and Sean Davis utilized excessive force against him on July 2,
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`2008 in violation of Plaintiff’s Eighth Amendment rights. The jury awarded Plaintiff $100,000 in
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`compensatory damages, $150,000 in punitive damages against Defendant Hable, and $150,000 in
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`punitive damages against Defendant Davis, for a total verdict of $400,000.
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`Plaintiff’s counsel originally sought an award of $160,807 in attorney fees under 42 U.S.C.
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`§ 1988 plus $6,595.50 in costs under Fed. R. Civ. P. 54(d). See ECF No. 102. Defendants filed a
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`lengthy memo in opposition, ECF No. 107, and as part of Plaintiff’s reply memorandum, counsel
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`seeks an additional $8,606.70 for preparing that filing. ECF No. 108.
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`For the following reasons, Plaintiff’s applications are GRANTED IN PART. Plaintiff’s
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`counsel is awarded $124,904.30 in attorney fees, $2,638.56 in costs, and pursuant to 42 U.S.C. §
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`1997e(d)(2), Plaintiff shall utilize 1% of the jury verdict amount, or $4,000, towards satisfaction
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`of the attorney fee award. The remaining balance of $120,904.30 in attorney fees is payable by
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`Defendants, and is due to Plaintiff’s counsel immediately.
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`DISCUSSION
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`42 U.S.C. § 1988(b) provides that a “prevailing party” may recover reasonable attorney’s
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`Case 6:09-cv-06283-FPG-JWF Document 111 Filed 09/29/17 Page 2 of 7
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`fees for a successful action under Section 1983. “[T]he fee applicant bears the burden of
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`establishing entitlement to an award and documenting the appropriate hours expended and hourly
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`rates,” Cruz v. Local Union No. 3 of Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir.
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`1994).
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`In general, district courts have broad discretion to determine the reasonableness of
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`requested attorney fees. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000). In
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`examining the reasonableness of claimed hours and rates, “the district court does not play the role
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`of an uninformed arbiter but may look to its own familiarity with the case and its experience
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`generally as well as to the evidentiary submissions and arguments of the parties.” Finch v. N.Y.
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`State Office of Children & Family Servs., 861 F. Supp. 2d 145, 150 (S.D.N.Y. 2012).
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`However, the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, significantly
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`limits the attorney fee award in this case. Under Section 1997e(d)(3), an award covered by the
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`PLRA may not be “based on an hourly rate greater than 150 percent of the hourly rate established”
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`for counsel appointed under the Criminal Justice Act (“CJA”). In addition, Section 1997e(d)(2)
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`limits the amount the defendant must pay in attorney fees to a maximum of 150% of the judgment.
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`See Shepherd v. Goord, 662 F.3d 603, 607 (2d Cir. 2011). The PLRA requirements apply to “any
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`action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in
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`which attorney's fees are authorized under section 1988.” 42 U.S.C. §§ 1997e(d)(1)-(3). In
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`addition, the PLRA requires that “[w]henever a monetary judgment is awarded in” certain actions,
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`“a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of
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`attorney's fees awarded against the defendant.” See 42 U.S.C. § 1997e(d)(2).
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`After reviewing the parties’ submissions, the Court makes the following determinations
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`regarding the requested attorney fees and costs.
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`First, Defendants argue that Plaintiff has used the wrong hourly rate under the PLRA.
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`Plaintiff requests an hourly rate of $219 for attorney time based on 150% of $146, which is the
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`maximum rate authorized under the CJA. Defendants counter that the CJA rate of $129 in effect
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`in the Western District of New York up to May 4, 2017 should be used, yielding a rate of $193.50
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`(150% of $129). The Second Circuit has not determined whether the maximum rate under the
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`statute, or whether the rate in use (the “implemented” rate) should be used for this calculation. The
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`vast majority of cases in this circuit use the implemented rate, and the Court finds the implemented
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`rate to be the appropriate figure. See, e.g., Hightower v. Nassau Cty. Sheriff's Dep’t, 343 F. Supp.
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`2d 191, 193 (E.D.N.Y. 2004) (Spatt, J.) (“In the Eastern District of New York, C.J.A. attorneys
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`are paid a rate of $90 a hour, which, when multiplied by 150%, computes to an hourly rate of
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`$135.). As such, the Court will award attorney fees at the rate of $193.50 per hour.
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`Next, Defendants argue that counsel’s hourly rate should be adjusted from year to year, to
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`correspond to the yearly changes in the CJA rate. The Court disagrees. As the Second Circuit
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`stated, “it is within the discretion of the district court to make an appropriate adjustment for delay
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`in payment—whether by the application of current rather than historic hourly rates or otherwise…..
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`In protracted litigation, therefore, a district court has the latitude to …calculate all hours at
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`whatever rate is necessary to compensate counsel for delay.” Grant v. Martinez, 973 F.2d 96, 100
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`(2d Cir. 1992). Here, this case was litigated over the course of 8 years, and the bulk of the hours
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`requested correspond to the trial, which occurred in 2017. The Court finds that applying the May
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`2017 Western District of New York rate ($129, taken at 150%, which equates to $193.50) to all
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`hours in the case is appropriate.
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`Defendants argue that the attorney rates sought ($219, which the Court has now determined
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`to be $193.50) by counsel are excessive and inappropriate. The Court easily rejects this argument.
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`There are countless cases in this district approving attorney fees in excess of $200 for attorneys
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`with similar experience to those in this case, and the Court finds $193.50 a reasonable hourly rate
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`(in fact, if not limited by the PLRA, the reasonable rate would be higher) for the attorneys involved
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`in this case.
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`Similarly, Defendants argument that Plaintiff overstaffed the case by having two attorneys
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`and a paralegal present for trial is also without merit. Staffing a trial with two attorneys and a
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`paralegal is not uncommon, and indeed, Defendants staffed the case with two attorneys
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`themselves. In addition, an attorney from DOCCS counsels office was present in the gallery for
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`the trial. Indeed, the presence of two attorneys on behalf of Plaintiffs permitted counsel to focus
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`on trying the case while also obtaining photographs from DOCCS – pictures that were curiously
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`missing and withheld until mid-trial, although they had been requested long before that. There is
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`no doubt that the photos that were produced by DOCCS mid-trial presented the clearest depiction
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`of the injuries that Plaintiff testified to. As Defense counsel knows, the photos they previously
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`produced to Plaintiff (which were copies) did not clearly depict the injuries. The difference
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`between the copies produced by Defendants pre-trial and the digitial images obtained during trial
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`(which occurred only after the Court ordered defense counsel and DOCCS counsel to produce the
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`original pictures) was nothing short of staggering. Counsel’s argument that Plaintiff overstaffed
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`the case is flatly rejected.
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`Regarding the appropriate rate for paralegal time billed by Akeem Williams, the Court
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`agrees that Plaintiff’s requested rate of $150 per hour is excessive. Defendants suggest that $75 is
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`an appropriate rate, but the Court finds $100 to be appropriate for this district. As such, Mr.
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`Williams’ hours will be awarded at the rate of $100 per hour.
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`Defendants also argue that the present fee application fails to account for the fact that
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`Plaintiff did not win on all of his causes of action or against all Defendants. While that statement
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`about the verdict is true, it does not follow that a fee reduction is warranted. It is well settled that
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`“[a]ttorney’s fees may be awarded for unsuccessful claims as well as successful ones ... where they
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`are inextricably intertwined and involve a common core of facts or are based on related legal
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`theories.” See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). That was the case
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`here. Plaintiff’s unsuccessful Eighth Amendment claims were based on his contention that
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`Defendant Skelly assaulted him in prison, and then while Plaintiff was being transported to another
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`facility, Defendants Hable and Davis assaulted Plaintiff because Plaintiff complained about
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`Skelly’s prior acts. Under these circumstances, the claims are related, and the Court will not reduce
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`counsel’s fees on the ground that some time was dedicated to claims as to which Plaintiff did not
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`prevail on at trial.
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`Further, the Court finds counsel’s hours to be properly supported, including those spent in
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`filing their reply memorandum, and further finds that the few undated entries in the original
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`submission have now been properly substantiated by Plaintiff’s reply submission.
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`The final matter regarding attorney fees is Defendants argument that the PLRA requires
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`25% of the judgment to be applied to any attorney fee award. The Court disagrees.
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`42 U.S.C. § 1997e(d)(2), provides that “a portion of the judgment (not to exceed 25
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`percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.”
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`The Second Circuit has observed that Section 1997e(d)(2) “requires that up to 25 percent of the
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`plaintiff’s judgment be used to pay the fee awarded against the defendant.” Blissett v. Casey, 147
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`F.3d 218, 220 (2d Cir. 1998) (emphasis added); Shepherd v. Goord, 662 F.3d 603, 604 n. 1 (2d
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`Cir. 2011) (affirming district court’s allocation of 10% of his $1.00 monetary judgment to satisfy
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`attorney’s fees).
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`There is a wide variety of percentages and amounts that have been applied in cases across
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`the circuit, which range from $1 to the full 25%. See Berrian v. City of New York, No.
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`13CV1719(DLC), 2014 WL 6604641, at *4 (S.D.N.Y. Nov. 21, 2014) ($1 out of a $65,000
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`judgment); Hernandez v. Goord, No. 01-CV-9585(SHS), 2014 WL 4058662, at *13 (S.D.N.Y.
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`Aug. 14, 2014) (5%); Shepherd v. Wenderlich, 746 F. Supp. 2d 430, 433 (N.D.N.Y. 2010) (10%
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`of a $1 judgment), aff’d, 662 F.3d 603 (2d Cir. 2011); Baez v. Harris, No. 9:01-CV-0807(NPM),
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`2007 WL 4556911, at *1 (N.D.N.Y. Dec. 20, 2007) (25%); Livingston v. Lee, No. 9:04-CV-00607-
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`JKS, 2007 WL 4440933, at *2 (N.D.N.Y. Dec. 17, 2007) (15%); Beckford v. Irvin, 60 F. Supp. 2d
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`85, 89–90 (W.D.N.Y. 1999) (25%); Clark v. Phillips, 965 F. Supp. 331, 338 (N.D.N.Y. 1997)
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`(25%).
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`Here, the Court finds that 1% of the judgment, which is $4,000, is the appropriate amount
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`to be used by Plaintiff to satisfy a portion of the attorney fee award. That amount “will satisfy the
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`PLRA’s requirement that [Plaintiff] personally bear some portion of the fee award, and is
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`sufficiently small that it will neither detract from the jury’s decision to punish defendants by
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`awarding punitive damages, nor deter prisoners from bringing meritorious claims in the future.”
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`Hernandez v. Goord, No. 01-CV-9585 SHS, 2014 WL 4058662, at *13 (S.D.N.Y. Aug. 14, 2014).
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`The final issue is Plaintiff’s request for costs. As a general matter, “costs – other than
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`attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). However,
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`the ability to tax costs is not unlimited, and district courts are limited in awarding costs to those
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`specifically authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 438
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`(1987).
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`Here, the Court finds that Plaintiff’s request for $3,956.94 in travel expenses for counsel
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`and Plaintiff are not properly taxed. See Anello v. Anderson, 191 F. Supp. 3d 262, 286 (W.D.N.Y.
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`2016) (finding travel expenses not taxable as costs). The remainder of Plaintiff’s costs are properly
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`taxed against Defendants, and Plaintiff is awarded $2,638.56 in costs.
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`Case 6:09-cv-06283-FPG-JWF Document 111 Filed 09/29/17 Page 7 of 7
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`CONCLUSION
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`For the following reasons, Plaintiff’s attorney fee and costs applications (ECF No. 108) are
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`GRANTED IN PART. Plaintiff’s counsel is awarded $124,904.30 in attorney fees (645.5 attorney
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`hours at $193.50 per hour plus 187 paralegal hours at $100 per hour), $2,638.56 in costs, and
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`pursuant to 42 U.S.C. § 1997e(d)(2), Plaintiff shall utilize 1% of the jury verdict amount, or $4,000,
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`towards satisfaction of the attorney fee award. The remaining balance of $120,904.30 in attorney
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`fees is payable by Defendants, and is due to Plaintiff’s counsel immediately.
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` IT IS SO ORDERED.
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`Dated: September 29, 2017
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`Rochester, New York
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`______________________________________
`HON. FRANK P. GERACI, JR.
`Chief Judge
`United States District Court
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