United States District Court, D. Massachusetts
ORDER ON FEES AND INTEREST
Sorokin, United States District Judge.
to 42 U.S.C. § 1988 and Rule 54 of the Federal Rules of
Civil Procedure, Plaintiffs seek attorneys’ fees and
costs in the amount of $201, 981.00, plus post-judgment
interest. Doc. 215. Plaintiffs also move for
pre-judgment interest. Doc. 214. For the following reasons
Plaintiffs’ Renewed Motion for Attorneys’ Fees
and Costs, Doc. 215, is ALLOWED IN PART. Plaintiffs’
Motion for Prejudgment Interest, Doc. 214, is DENIED.
won this case at trial. The view of the facts that prevailed
vindicated a substantial constitutional interest -- the right
of an incarcerated inmate to practice his religion and to do
so free from the threat of the imposition of burdens or
punishment for doing so. That the jury found in favor of
Plaintiffs is unsurprising. Among other points,
Plaintiffs’ testimony and the evidence plainly
established that: (1) Plaintiffs requested in writing the
ability to smudge; (2) Plaintiffs later filed grievances
seeking the right to smudge; (3) smudging is a permitted and
recognized religious practice under DOC rules as well as a
matter of federal constitutional law; (4) Defendant
possessed, but never provided the smudging materials to
Plaintiffs; and (5) no DOC official (i.e., neither defendant
nor anyone else) ever informed Plaintiffs of the
unidentified, unmarked, but apparently designated location
for smudging. The jury awarded $50, 001.00 in favor of Mr.
Giorgio and $50, 000.00 in favor of Mr. Traver, for
compensatory damages and $500, 000.00 as punitive damages to
be shared by Mr. Giorgio and Mr. Traver. The Court entered
Judgment in these amounts. Doc. 111. Thereafter, and
subsequent to the filing of additional motions and mediation,
the parties requested that the Court vacate that part of the
judgment awarding punitive damages ($500, 000), Doc. 208,
which the Court did. Accordingly, an Amended Judgment was
entered on March 23, 2016. Doc. 209. Now before the Court is
Plaintiffs’ renewed Motion for Attorneys’ Fees,
as well as Plaintiffs’ Motion Awarding Pre-Judgment
Interest. Docs. 21 and 215.
threshold matter, the Court notes that Defendant has not
opposed the fee request. The Department of Correction
(“DOC”) is not a party to this litigation and has
not sought to intervene, but has filed an opposition. Doc.
219. Although DOC is a non-party in all respects, the Court
has reviewed DOC’s opposition. The Court has undertaken
its own independent review of the fee request to ensure it is
“reasonable, ” including consideration of the
“lodestar method, ” Matalon v. Hynnes,
806 F.3d 627, 638 (1st Cir. 2015).
Court finds the following pertinent as it relates to the
Plaintiffs are not entitled to pre-judgment interest where
they did not submit the question of pre-judgment interest to
the jury. Cordero v. De Jesus-Mendez, 922 F.2d 11,
14 (1st Cir. 1990) (“The substantive obstacle to an
award of prejudgment interest is insurmountable. Plaintiffs
did not, in either trial, request that the question of
prejudgment interest be submitted to the jury; nor did they
ask for a jury instruction on it.”).
Plaintiffs request $145, 541.00 in attorney fees and costs
incurred up to entry of the original judgment in this case.
Doc. 215 at 2. The time records submitted by counsel in this
case, albeit a bit sparse, are nonetheless sufficient to
support the requests in terms of allowing the Court to
analyze the reasonableness of the fee request.
the rate for counsel is determined by reference to the rates
“prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886,
896 (1984); Torres-Rivera v. O’Neill-Cancel,
524 F.3d 331, 336 (1st Cir. 2008). Counsel has supported his
application with affidavits from two attorneys, a detailed
affidavit from an attorney experienced in defending civil
rights cases and a brief affidavit from a plaintiffs’
attorney stating that the hourly rate of $400 is acceptable
given the experience and level of skill demonstrated by
Plaintiffs’ counsel, citing this Court’s decision
in Matalon, 806 F.3d at 638 ($400 an hour approved).
The Court finds that the appropriate rate is $350 per hour.
The Court recognizes it awarded a higher rate in
Matalon, however, that case presented legal and
factual issues of substantially greater complexity than the
instant case. Nothing about the Court’s determination
reflects adversely on Plaintiff’s counsel who litigated
the case vigorously but with focus, skill and parsimony,
especially at the trial.
in preparation for the filing of the Complaint, the time
records submitted show an entry which states: “Legal
Research Relative To Civil Rights Actions and Validity of
Causes of Action Regarding Native American Religious Services
v. Security Concerns, Requests etc.” Doc. 215-2. This
same entry was listed for eleven different days, for a total
of 42.5 hours. The entries are repetitive and do nothing to
inform the Court of the specific nature of the research or
need for this amount of research in order to draft a
complaint on a relatively narrow issue. Moreover, the need to
research at this stage of the litigation is at least partly
to ensure that the claims, if brought, would be able to
withstand a motion to dismiss. Defendants brought a Motion to
Dismiss and counsel spent an additional 26 hours preparing
the opposition. The Court dismissed four out of the six named
defendants. These hours (42.5 and 26), which both related to
the sufficiency of the Complaint, are excessive given the
level of success of Defendants’ motion. In light of the
foregoing considerations, a reduction of 33% (22.61 hours) is
appropriate. See Andrade v. Jamestown Housing Auth.,
82 F.3d 1179, 1191 (1st Cir. 1996) (reduction of lodestar
based on level of success). Thus, counsel should be awarded
for 45.89 hours and not for the 68.5 hours requested (a
reduction of 22.61 hours). Finally, counsel spent 3.5 hours
amending the Complaint to add a Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claim
that failed as a matter of law at the summary judgment stage.
See Doc. 215-2 at 5. This amount should not be
on summary judgment, the Court rejected Plaintiffs’
claims as they related to “prayer feathers, ”
“off-site pow-wows, ” and “sweat lodge
ceremonies, ” as well as their claim for violation of
RLUIPA. Doc. 90. The remaining claim related only to
Plaintiffs’ denial of their right to smudge. The Court
then denied Plaintiffs’ Cross Motion for Summary
Judgment, which related only to the smudging issue, finding
that the issue presented disputed issues of fact. Doc. 90.
The time records reflect that counsel spent 62 hours in
connection with work on the summary judgment motions. Doc.
215-2 at 8-10. Most of counsel’s summary judgment
briefing was unsuccessful. Thus the Court finds that a 50%
reduction in the 62 hours claimed is appropriate. See
Andrade, 82 F.3d at 1191. Accordingly, Plaintiffs may
recover for 31 hours rather than the 62 hours requested in
connection with the motions for summary judgment (a reduction
of 31 hours).
the Court considers the issue of counsel’s failure to
distinguish between core and non-core work. This distinction
is not required under the case law, Matalon, 806
F.3d at 638, and it is neither necessary nor reasonable in
this case. The administrative or non-core work was fairly
limited as this was not a “paper” case involving
large amounts of non-core work. And, Plaintiffs’
counsel represents that he excluded entirely from his fee
request “time spent on telephone calls, ” Doc.
215-1 at 4, and included “little to no administrative
work.” Doc. 223 at 4.
there were substantial post-verdict motions filed by the
Defendant, Docs. 128 and 154, work for which Plaintiffs seek
$56, 440 (i.e., 141.1 hours at the proposed rate of $400 per
hour). Doc. 215-3 at 5. At first blush, this amount might
seem excessive in relation to the amount of fees up to and
through the verdict. However, the record demonstrates that
substantial work was required in response to significant
issues raised in the Defendant’s initial post-verdict
motion, and his supplemental post-verdict motion (raising
different issues and filed by different counsel), which
included challenges based upon asserted jury misconduct,
qualified immunity, and remittitur. Notably, the supplemental
post-verdict motion, Doc. 154, was necessary because DOC
legal counsel (provided to the Defendant), withdrew from the
case citing the appearance of a conflict of interest. Doc.
151. This in turn raised significant issues for new counsel
as to whether the Defendant was represented fairly-to which
Plaintiffs were required to respond or risk having the
judgment vacated. Under these circumstances, it is expected
that counsel would spend considerable time and effort
opposing the two sets of post-verdict filings.
Plaintiffs prevailed on these motions. The post-trial motions
also challenged the punitive damage award, which the parties
(i.e., the Defendant and Plaintiffs) ultimately resolved by
agreement, resulting in a ...