Lewis v. Kendrick

BREYER, Chief Judge

(concurring and dissenting in part).

I agree with the majority and with its reasoning, with one minor exception. I would permit the district court to award a token attorneys’ fee, say, $1,000, for a token victory.

*957ON REHEARING

Plaintiff seeks rehearing and we respond, prompted more, perhaps, by the misconception evidenced by certain amici.1 First, some lesser matters.

Duplicate Damages

Objecting to our consolidating damages for the federal claim entitled false arrest, and the state claim entitled false imprisonment, plaintiff says that the two $1,000 findings against the police officers might have been for different injuries, and thus be cumulative. This overlooks the fact that the court instructed the jury that false arrest was false imprisonment, and that the federal and state causes coincided. This was legally correct. See Hall v. Ochs, 817 F.2d 920, 926 (1st Cir.1987) (state claim for false imprisonment and § 1983 claim for false arrest “completely overlapping”). We repeat that the $2,000 judgment, joint and several, was error.

Interest

To a question not in terms limited to any damage finding the jury answered rejecting prejudgment interest, and the original judgment entered included none. The court amended this judgment by adding $608.56 as prejudgment interest on the $1,000 state recovery. We struck it in light of the jury’s special answer. However, it appears that the court had instructed the jury that its question was intended to relate only to the federal finding. We restore this amount.

Attorney’s Fees

Principally, plaintiff complains of our denying attorneys’ fees, saying that we paid only lip service to the line of cases that we cited. We believe we made it clear that we were not departing from the recognized principle that the fee is not limited by the size of the recovery, but may, in appropriate instances, greatly exceed it. No other result could comport with the principle that plaintiffs should have an unrestricted opportunity to vindicate their civil rights. Instead, we found “special circumstances,” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67 (1989) (prevailing party ordinarily to recover attorneys’ fees “unless special circumstances would render such an award unjust,” (citing Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)), in the conduct of counsel. Petitioner, and, perhaps, especially, the amici, do not appear to see any basis for this finding. We repeat, however, that plaintiff started by filing a complaint alleging cruel and unusual punishment, use of excessive force, and intentional infliction of emotional harm, for which her only evidence, beyond the arrest without adequate inquiry and brief detention, was that her handcuffs were too tight — which the jury did not accept — adding totally unsupported charges of intentionally false police reports, and malicious prosecution, all “malicious, wanton and willful acts” calling for punitive damages. Then, after a lengthy trial,2 strikingly unsuccessful, not merely did counsel make no “good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary,” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983),3 but they made no reduction for claims against the officers that the jury did not accept, nor for the claim against the *958City that was of no concern to the officers — the only fee payers. It is simply not so that the substantial portion of the trial devoted to the City’s alleged constitutionally defective training of its police was inseparable from the officers’ alleged lack of probable cause. That the officers arrested without probable cause might cast light on the City’s lack of training, but this lack, which was vigorously pursued, had no relation to the factual question of whether the officers had probable cause. Nor would it affect plaintiff’s damages caused thereby.

Quite apart from all this, even if it could be thought impossible to separate plaintiff’s individual charges,4 plaintiff was totally unmindful of Hensley’s prime requirement: “the most critical factor is the degree of success obtained.” Id. at 436, 103 S.Ct. at 1941. We found it almost unbelievable that plaintiff’s original brief failed even to recognize this frequently expressed principle. Even in the petition for rehearing the only reference is to the district court's bare finding, “A downward adjustment in the lodestar figure is not warranted by plaintiff’s low damages award in this case, but, conversely, an upward adjustment is not warranted either.” $300,000 to $5,000; important claims lost altogether; with all deference to the district court it would be difficult to think of a finding more clearly contrary to the Court’s directions. E.g., Texas Teachers Ass’n v. Garland School Dist., 489 U.S. 782, 793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). We find it very hard to think that counsel should believe that the court’s conclusory statement, once rejected, warranted rehearing. We call our Local Rule 35.1 to counsel’s attention.

There is, however, an important matter: our ruling denying fees altogether. Here the amici state their concern. “The panel’s decision reflects an improper determination that the right to be free from an arrest in violation of the fourth amendment is not an important societal value worthy of vindication by an individual plaintiff, unless monetary damages are significant.” We have no such thought. We agree with the court in Zabkowicz v. West Bend Co., 789 F.2d 540, 549-50 (7th Cir.1986), reversing the district court’s denial of all fees for the mere reason that too many hours had been spent. On the other hand, there must come a point where what is sought is plainly improper. We therefore agree with that circuit's complete denial of fees in Brown v. Stackler, 612 F.2d 1057 (7th Cir.1980), even though there was a recovery. There the court said,

[Ajppellant’s counsel submitted a claim which was so intolerably inflated that the District Court was warranted in departing from the usual practice and reacting vigorously to prevent such abuse of the court’s authority to award reasonable compensation to counsel.
If, as appellant argues, the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place.

612 F.2d at 1059. This is strong medicine, but for this blow-up of a routine street arrest on a citizen’s call, and inexcusable reaching for fees — to the burden of the court — we believe it entirely appropriate. A request for attorney’s fees is required to be in good faith and in reasonable compliance with judicial pronouncements, and not an opening gambit in negotiations to reach an ultimate result. The statute gives us discretion, 42 U.S.C. § 1988, and the departure here was too extreme to be tolerated. Except for the matter of interest, the petition for rehearing is denied.

The 'petition for rehearing is denied except as to the matter of prejudgment interest which is to be awarded on the $1,000 state claim recovery.

. Brief of amici curiae filed for the Massachusetts Civil Liberties Union Foundation, the New Hampshire Civil Liberties Union Foundation, the Massachusetts chapter of the National Conference of Black Lawyers, the Gay and Lesbian Advocates and Defenders, and the Massachusetts chapter of the National Lawyers Guild, by Howard Friedman and Sarah Wunsch.

. Plaintiff now complains that defendants’ cross-examination contributed to the length of trial. On the assumption that plaintiff’s counsel respected Fed.R.Civ.P. ll’s requirement of good faith in their allegations, and for which they sought $250,000 in actual damages, and $50,000 punitive, it is hardly suitable for plaintiff to complain of resistance.

.The petition openly concedes that the court’s reduction from $132,788 to $49,686, "eliminated ... compensation altogether for some of her attorneys, denied compensation for certain categories of work, and eliminated a large number of hours to account for duplication where more than one attorney had worked on the case.”

. Plaintiff’s fee details, excluding costs, occupied 140 pages. It would seem clearly possible. in at least some instances, to find which claims the work went for.