Duckworth v. Whisenant

United States Court of Appeals,

Eleventh Circuit.

No. 95-9341.

Timothy P. DUCKWORTH, Plaintiff-Appellee,

v.

Michael E. WHISENANT, James Patrick, Lionel G. Higdon, Stuart
Jackson, Individually and in their official capacities as Deputy
Sheriffs of DeKalb County, Georgia, Pat Jarvis, Sheriff of DeKalb
County, Georgia, Defendants,

DeKalb County, Georgia, Defendant-Appellant.

Oct. 21, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:89-CV-1102-JOF), J. Owen Forrester,
District Judge.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit
Judges.

PER CURIAM:

DeKalb County, Georgia appeals the district court's award of

attorneys' fees in this civil rights case. The County contends

that the court abused its discretion in awarding plaintiff's

counsel $162,209 in fees when plaintiff sought no injunctive relief

and the fees awarded are disproportionate to the $500 recovered

from the County.

We have considered the arguments the County advances and

conclude that there is no abuse of discretion in this case. The

district court meticulously applied the controlling legal precedent

to a set of facts fully supported by the record in arriving at the

fees awarded. Accordingly, we affirm on the basis of the Order

dated September 25, 1995, attached as an appendix and hereby

incorporated into and made a part of this opinion.
 AFFIRMED.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA ATLANTA DIVISION

Timothy P. Duckworth, Plaintiff,

vs.

Michael E. Whisenant, et al., Defendants.

Civil Action No. 1:89-CV-1102-JOF.

ORDER

The matter before the court is Plaintiff's motion for

reconsideration of an order denying an award of costs and

attorney's fees [134-1]. The court explained its denial as based

upon its inability to assess reasonable costs or attorney's fees

because Plaintiff's exhibits in support of its motion had not been

filed with the court. After full consideration of the matter, the

court erred in that determination and thereby GRANTS Plaintiff's

motion for reconsideration. Thus, the order entered on January 31,

1995, [133-1] is VACATED.

I. STATEMENT OF THE CASE

Plaintiff sued for injuries that he sustained as a result of

excessive force used by deputies of DeKalb County Sheriff's Office

while being processed into jail as a pretrial detainee. Following

a non-jury trial, the court determined that Plaintiff failed to

carry his burden of proof with regard to individual officers with

the exception of Officer James Patrick, who conceded that he had

kicked Plaintiff in the groin area when Plaintiff was handcuffed.

In regard to Defendant DeKalb County, however, the court criticized

its failure to discipline severely officers who filed false reports
concerning excessive force, who engaged in the use of excessive

force, or who testified falsely regarding the use of excessive

force. The court concluded that had the officers been on notice

that DeKalb County would not tolerate such conduct, the excessive

force that violated Plaintiff's constitutional rights would not

have occurred. Based upon these determinations, the court entered

judgment for Plaintiff and awarded Plaintiff $500 in compensatory

damages against DeKalb County and Officer Patrick, and $10,000 in

punitive damages against Officer Patrick individually [122-1].1

Plaintiff filed a motion for award of costs and attorney's

fees with a brief and exhibits in support on April 18, 1994 [124-

1]. In support of its motion, Plaintiff presented evidence

indicating that attorney's fees and costs should include

compensation: for 519.95 hours of work performed by Donald B.

Howe, Jr., for 715.5 hours of work performed by Michael N.

Weathersby, and for 27.50 hours of work performed by Mr.

Weathersby's paralegals, as well as out-of-pocket costs paid by Mr.

Howe's firm in the amount of $6,248.74, and those paid by Mr.

Weathersby's firm in the amount of $8,791.75. Plaintiff submitted

affidavits from eleven attorneys practicing in Georgia that showed

a prevailing market rate for Atlanta ranging from $100 to $300 per

hour depending upon the nature of the case and skill and experience

of the attorney.

Defendants oppose Plaintiff's motion for costs and fees on the

1
In the same order, the court dismissed claims against
Defendants Michael E. Whisenant and Lionel G. Higdon, and awarded
$1,000 in compensatory damages and $5,000 in punitive damages to
Officer Whisenant in his assault counterclaim against Plaintiff.
grounds that Plaintiff is seeking an excessive sum based upon the

amount of recovery and initially request the court to deny the

motion in its entirety [127-1]. Defendants further dispute whether

Plaintiff has properly calculated attorney fees and costs. First,

they contest whether the evidence of "prevailing market rates" has

provided this court with a proper range of rates for civil rights

litigation as conducted by Plaintiff's counsel. Second, Defendants

argue that the request does not include any deduction for

unsuccessful claims or excessive, unnecessary, or redundant hours,

and demonstrates poor "billing judgment." After outlining their

objections to Plaintiff's evidence of fees, Defendants have

suggested that their tally of "reasonable" hours for Plaintiff's

counsel not surpass 904.2 hours, as compared with the 1,262.5 hours

set forth by Plaintiff. Finally, after comparing the monetary

awards to Plaintiff with the monetary relief sought, Defendants

urge this court either to deny all fees requested or to adjust the

lodestar to a minimal fee.

II. DISCUSSION

A. Attorney's Fees

Norman v. Housing Authority of City of Montgomery, 836 F.2d

1292 (11th Cir.1988), prescribes the law in our circuit for

determining the appropriate award of attorney's fees. The court

must multiply the number of hours reasonably expended by a

reasonable hourly rate. Id. at 1299, 1302. The party who applies

for attorney's fees is responsible for submitting satisfactory

evidence to establish both that the requested rate is in accord

with the prevailing market rate and that the hours are reasonable.
Id. at 1303. After determining the lodestar, the court may adjust

the amount depending upon a number of factors, including the

quality of the results and representation of the litigation. Id.

at 1302.

1. Reasonable Hourly Rate

The first step is to ascertain a rate to charge for the

attorney's representation. Plaintiff has requested $175 per hour

for both attorneys and argues that the relevant range based upon

the affidavits submitted is from $135 to $300 per hour. Defendants

protest on the basis that Plaintiff provided the court with only

one affidavit establishing actual rates for § 1983 civil rights

cases. Furthermore, Defendants assert that this affiant inflated

the estimate of his hourly rate in light of the affiant's

unsuccessful § 1983 cases for which he would receive no payment.

Also contested by Defendants is the skill that Plaintiff's

attorneys exhibited based upon the valuation of the claims, the

legal theories pursued and the fact that this was Mr. Weathersby's

first § 1983 case.

"A reasonable hourly rate is the prevailing market rate in the

relevant legal community for similar services by lawyers of

reasonably comparable skills, experience, and reputation." Norman,

836 F.2d at 1299. Contrary to Defendant's supposition, this

circuit has recognized that a movant may meet his burden by

producing either direct evidence of rates charged under similar

circumstances or opinion evidence of reasonable rates. Id. at

1299. Furthermore, a civil rights case involving a single

plaintiff may require analogies to other areas of representation
with the absence of "ongoing relationship between the attorney and

the client." Id. at 1300. While the court is cognizant that some

opinion evidence may be afforded less weight due to differences

such as the affiant's type of casework or experience, Defendant's

attack upon the affidavits submitted is not availing.

Based upon a practice in securities and experience with civil

rights and securities cases involving attorney's fees, Robert D.

Feagin estimated that a prevailing market rate ranged from $125 to

$300 per hour. Ralph S. Goldberg assessed the range as between

$125 and $250 per hour depending upon the experience of the

attorney. Richard W. Hendrix stated that he charges and receives

$190 per hour for civil rights cases. 2 Plaintiff clearly has met

his burden in providing evidence by which this court may assess the

prevailing market rate. Plaintiff's attorneys have requested $175

per hour, the amount that they charge their clients in their

respective practices.

This court has also been given ample opportunity to assess the

lawyering of this case for the Plaintiff. Both attorneys are

experienced litigators who ably represented their client. Since

his admission to the bar in 1961, Donald B. Howe, Jr., has handled

over a dozen civil rights cases through trial and at least twenty

cases that settled before trial, with the occasion to represent

both plaintiffs and defendants. An hourly rate of $200

appropriately represents the efforts of Mr. Howe. His co-counsel,

Michael N. Weathersby, has been practicing in Atlanta for over a

2
Attorneys Feagin, Goldberg and Hendrix have been practicing
law in Georgia since 1963, 1975, and 1979, respectively.
decade with a pronounced emphasis upon the areas of products

liability and commercial litigation. Because the case at bar was

Mr. Weathersby's first § 1983 excessive force case, this court

deems the rate of $150 per hour as a reasonable basis for

calculating his fees.

2. Reasonable Hours Expended

The second step requires a determination as to the number of

reasonable hours expended by counsel. While exercising proper

"billing judgment," the party should have excluded those hours that

would be unreasonable to bill a client or opposing counsel without

reference to skill, reputation or experience. Norman, 836 F.2d at

1301. The court will therefore deduct unnecessary or redundant

hours and time spent upon "discrete and unsuccessful claims" from

the calculations. Id. at 1301-02.

Because reducing the hours claimed requires the court's

precision, the law in this circuit commands that both the proof of

the hours spent in litigation and any corresponding objections

posed be voiced with a similar exactitude. Norman, 836 F.2d at

1301. Plaintiffs have enumerated 519.95 hours spent by Mr. Howe

and 715.5 hours spent by Mr. Weathersby. Defendants have specific

objections to an estimated 358.4 of the 1,262.6 hours requested.

Although Plaintiff asserts that ninety percent of the time spent by

counsel was directed toward Plaintiff's successful claim against

DeKalb County and that no duplication of efforts of counsel

occurred, this court cannot agree with that assessment.

In searching for a principled way to make reductions for

unsuccessful claims and redundant work, the court declines to adopt
the approach of subtracting five or ten percent from the sum

requested, as advocated by Plaintiffs. Rather, finding the bulk of

Defendant's specific objections and arguments to the amounts

claimed to be convincing, the court adopts Defendant's calculations

of reasonable hours as modified below.3 Consequently, the court's

calculations, which arrive at 942 "reasonable hours" of work,

should provide a more generous return for Plaintiff's efforts.
i) Unsuccessful Claims4

3
The court is cognizant that the law does not permit award
of fees under § 1988 based upon a pure proportion of the amount
of the civil rights plaintiff's recovery. See City of Riverside
v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d
466 (1986). Neither would such a calculation be appropriate in
light of the importance of Plaintiff's perseverance in this
litigation, which may be credited with forcing a needed
examination of the disciplinary process in the DeKalb County
Sheriff's Office. Yet, by contesting only 358.4 hours, DeKalb
County was in no danger of either straining the court's tolerance
for contesting the hours claimed or adopting a penurious
approach, which one could construe as diminishing unfairly the
return due to Plaintiff's counsel.
4
The court recognizes the difficult task left to Defendant
in challenging over 1200 hours claimed and determining how to
allocate the time between activities combined within a single
time entry. While agreeing with the heart of their objections,
the court did heed Defendants' warning that Defendants' sum of
the objectionable hours was slightly askew because some entries
contained multiple unsuccessful claims or duplicated activities.
The court therefore made adjustments accordingly.

In the absence of evidence to the contrary, this court
has assumed that the portion of time spent on unspecified
activity in a combined entry was directed toward the
unsuccessful claim or issue set forth in the same entry.
For example, Mr. Howe spent 2.5 hours on 5/16/89
"researching malicious prosecution and preparing the
complaint." The court concluded that counsel was preparing
the malicious prosecution aspect of the complaint.

Where the entries specified activities directed toward
both an unsuccessful claim and a successful claim within a
single entry, such as the failure to train with inadequate
discipline, allocation of "reasonable hours" spent became
even more complicated. Exercising its discretion, the court
 Following the trial, the court concluded that Plaintiff's own

testimony contradicted objective evidence concerning many of his

injuries; the court also voiced reservations about the credibility

of Plaintiff's treating psychologist and expert on post traumatic

stress disorder. Thus, the compensatory damages of $500 awarded to

Plaintiff were based largely upon the injury, pain and suffering

from Officer Patrick's kick to Plaintiff's groin. Consequently,

the court agrees that hours spent on other aspects of Plaintiff's

damage claims should be deducted from the lodestar where possible.

Because Plaintiff did not prevail on the malicious prosecution

issue, the time that Mr. Howe included for researching and

preparing for summary judgment on this issue should be excluded.

Similarly, the entries that include activities in pursuit of

Plaintiff's First Amendment claims must also be deducted. The

court estimates that 6.25 hours claimed by Mr. Howe were dedicated

to these unsuccessful First Amendment claims. In regard to claims

based upon DeKalb County's failure to train its officers, the court

estimates that counsel has improperly included 33.8 hours, nine of

which were attributable to Mr. Howe.
ii) Redundant and Unnecessary Billing:

Defendant has highlighted 86.90 hours claimed that reveal

redundant billing for overlapping efforts in deposing witnesses and

parties by the two attorneys. Of these hours, 19.7 hours have

already been struck because counsel had spent the time on

unsuccessful damages claims. Plaintiff has asserted that only one

opted not to exclude the entire combined entry and attempted
to apportion time in an evenhanded manner between the
activities.
attorney prepared and conducted depositions of parties and

witnesses, while both attorneys attended all of the depositions.

Because a comparison of the two sets of time entries largely

attests to this explanation, the court has subtracted half of each

attorney's hours spent for mere attendance of depositions. This

amounts to a reduction of 16.25 hours for Mr. Howe, and 12 hours

for Mr. Weathersby. The court does not find the remaining 10.7

hours calculated by Defendants to be redundant.

In addition, Defendant has raised issue with the myriad of

telephone conferences for which Plaintiff has requested fees. The

court agrees with this objection and is therefore including a

reduction of 35 hours split between the two attorneys equally.

Similarly, the court has adopted the 3.25 reduction in hours for

counsel's requests and reviews of leave of absences, the 5.55

reduction in hours for non-legal services, and a reduction of 6.55

hours for miscellaneous charges that Plaintiff admitted should not

be included in its request. The court is therefore deducting these

excessive hours in the amount of 1.25 hours from Mr. Howe's time

and 14.1 hours from Mr. Weathersby's time.

3. Paralegal Hours

Defendants have challenged a portion of the hours spent by

the paralegals to procure medical research for the unsuccessful

damage claims. As the court discussed above, those hours should

therefore be excluded. Defendants have not raised issue with the

remaining 22.1 hours of paralegal work claimed by Plaintiff.

Because there is no evidence regarding the paralegals' expertise in

a civil rights case, the court finds that compensation at the
lowest rate for paralegals outlined by Mr. Weathersby, $45 per

hour, is an appropriate fee.

In sum, the court finds that Mr. Howe is entitled to

attorney's fees for 398.3 hours worth of work at the rate of $200

per hour. His co-counsel, Mr. Weathersby, is entitled to 543.7

hours worth of compensation at the rate of $150 per hour for his

time and to 22.1 hours worth of compensation at the rate of $45 per

hour for the paralegals. A rough sketch of the court's

calculations is included below.

4. Adjustments to the Lodestar

After determining the lodestar amount as above, the court is

entitled to adjust the amount of final fees awarded in light of the

results obtained through the litigation. Hensley v. Eckerhart, 461

U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983);

Norman, 836 F.2d at 1302. Defendants urge the court to exercise

its discretion by either denying fees altogether or by reducing

fees awarded to a minimum. In support of this request, Defendants

point to the fact that the ultimate net recovery of Plaintiff is

far below the mark of the damages sought. Defendants remind the

court that Plaintiff did not seek injunctive relief from Defendants

and even suggest that this court was responsible for providing the

legal theory of liability upon which Plaintiff prevailed. The most

arresting argument advanced by Defendant is the assertion that the

benefits of any supervisory policies instituted as a result of this

litigation are "marginal" when compared to the net worth of the

fees Plaintiff has requested. This court, however, will not

endorse Defendants' efforts to undermine the significance of this
litigation.

Not all nominal damage awards produce purely pyrrhic

victories. See Farrar v. Hobby, 506 U.S. 103, 120-22, 113 S.Ct.

566, 578, 121 L.Ed.2d 494 (1992) (O'Connor, J., concurring). As

this writer has recognized, "[w]hen a constitutional right is

vindicated, ... the fact that the monetary result was small may not

always control. This is particularly the case where the outcome

promotes some public purpose." Cullens v. Georgia Dept. of

Transp., 827 F.Supp. 756, 762 (M.D.Ga.1993) (citations omitted).

The case at bar illustrates that principle.

The record bears witness to a de facto policy of the DeKalb

County Sheriff's Department imposing minimal disciplinary sanctions

for officers who used excessive force, who filed false reports

concerning excessive force, or who perjured themselves regarding

excessive force. As the court noted, the initial complaints of

Plaintiff's family and prior attorney to the Department were not

sufficient to trigger an internal investigation of Officer

Patrick's use of excessive force. The pursuit of this litigation,

however, has revealed both the unconstitutional act of Officer

Patrick and the tacit condonation of such excessive force by DeKalb

County. The acknowledgement of this practice and pattern can only

inure to the benefit of those involved when redressing an officer's

abuse of discretion which violates a person's constitutional

rights. This court therefore declines to exercise its discretion

to reduce the lodestar amount.

B. Costs

Plaintiff is seeking to recover expenses incurred during
litigation, which include: $6,248.74 by the firm of Mr. Howe and

$8,791.75 by the firm of Mr. Weathersby. Defendants have not

articulated any objections to the out-of-pocket costs claimed in

Plaintiff's affidavits. The court, however, has observed that the

total of these amounts exceeds the sum that Plaintiff requested in

its bill of costs [125-1] by almost $10,000.

Upon further inspection, Plaintiff's affidavits appear to

include costs such as general copying, computerized legal research,

postage, courthouse parking fees and expert witness fees, which are

clearly nonrecoverable. See 28 U.S.C. § 1920; see e.g., Kivi v.

Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir.1983)

("additional amounts paid as compensation, or fees, to expert

witnesses cannot be allowed or taxed as costs in federal courts.");

Cullens v. Georgia Dept. of Transp., 827 F.Supp. 756, 766

(M.D.Ga.1993). In contrast to the affidavits submitted, the court

finds that the itemized amounts originally set forth in Plaintiff's

Bill of Costs [125-1] only request costs that are clearly awardable

under 28 U.S.C. § 1920. The court therefore AWARDS Plaintiffs

costs in the amount of $5,730.48.
CALCULATION OF ATTORNEY'S FEES & COSTS

Weathersby

Total Hours Claimed: 715.50

Reductions
Damages 103.4
Training 24.8
Duplication/Depositions 12.0
Duplication/Telephone Conf. 17.5
Excessive/Unnecessary Hours 14.1
_______
 Total Hours Deducted 171.80

Total Reasonable Hours: 543.70 @ $150/hour

WEATHERSBY FEES: $81,555

Paralegal Hours Claimed: 27.50
Total Hours Deducted 5.40
_______
Total Reasonable Hours: 22.10 @ $ 45/hour

Paralegal Costs: $ 994.50

FEES AWARDED FOR WEATHERSBY: $82,549.50

Howe

Total Hours Claimed: 519.95

Reductions
Damages 67.4
Malicious Prosecution 4.0
First Amendment 6.25
Training 9.0
Duplication of Effort 16.25
Duplication/Telephone Conf. 17.5
Excessive/Unnecessary Hours 1.25
_______
Total Hours Deducted 121.65

Total Reasonable Hours: 398.30 @ $200/hour

FEES AWARDED FOR HOWE: $ 79,660

TOTAL COSTS AWARDED: $ 5,730.48

—————

III. CONCLUSION

This court hereby AWARDS Mr. Howe $79,660 in attorney's fees,

Mr. Weathersby $82,549.50 in attorney's fees, and $5,730.48 in

costs.
SO ORDERED, this 25th day of September, 1995.

/s/ J. Owen Forrester
J. OWEN FORRESTER

United States District Judge