Surprenant v . Rivas, et a l . CV-02-391-JD 08/17/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jason Surprenant

v. Civil N o . 02-391 JD Opinion N o .

Cesar Rivas, et a l .

O R D E R

Following the jury’s verdict on June 1 4 , 2004, judgment was

entered in favor of Jason Surprenant on three claims brought

pursuant to

against defendants Cesar Rivas,

Teresa Pendleton, and Superintendent James O’Mara, Jr., in his

official capacity. Rivas, Pendleton, and O’Mara move for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(b). Surprenant moves for an award of attorney’s

fees and costs pursuant to

. The pending motions

are resolved as follows.

I. Defendants’ Motion for Judgment as a Matter of Law

The defendants move for judgment as a matter of law pursuant

to Rule 50(b) on the grounds of insufficient evidence and

qualified immunity. Surprenant objects to the motion on the

grounds that the defendants failed to move for judgment as a

matter of law at the close of all the evidence, as is required

under Rule 50(b), and that the defendants would not be entitled to judgment in any event.

Rule 50(b) allows a movant to renew a motion for judgment as

a matter of law within ten days after the entry of judgment. A

prerequisite to a post-trial motion is that the movant made a

motion under Rule 50(a) “at the close of all the evidence.”

“Failure to file a motion for judgment as a matter of law at the close of all the evidence pretermits the filing of a post-trial

motion for that relief.” Muniz v . Rovira,

, 5 n.2 (1st

Cir. 2004); see also Cantellops v . Alvaro-Chapel,

4 1 ,

743 (1st Cir. 2000); Simon v . Navon,

(1st Cir.

1995).

Counsel for the defendants represents that he made an oral

motion for judgment as a matter of law at the close of the

plaintiff’s case. No written motion was filed at the close of

all the evidence. The court reviewed the pertinent part of the trial transcript and found that no oral motion was made at the

close of the evidence. After the jury instructions were

complete, the defendants’ counsel argued that he disagreed with

the instruction on Surprenant’s claim that O’Mara violated the

Fourteenth Amendment by failing to give him credit for time

served in the restricted housing unit because there was no

evidence to support claim. Counsel said “my motion on that basis

is really on the directed verdict grounds.” The court understood

2 counsel’s remarks as objections to the jury instructions, not as

a motion for a judgment as a matter of law. In any event, the

jury found in O’Mara’s favor on that claim.

Therefore, because the defendants failed to comply with the

requirements of Rule 50(b), their motion is denied.

II. Motion for Attorney’s Fees

The Fees Act,

, gives courts discretion to

award reasonable attorney’s fees to a prevailing party who brings

suit under § 1983. A mixed result in a civil rights suit, in

which the plaintiff achieves success on some but not all of his

claims, does not preclude an award of attorneys’ fees under §

1988. Diaz-Rivera v . Rivera-Rodriguez,

(1st Cir. Aug. 3 , 2004). An award of only nominal damages also

does not preclude prevailing party status.

Instead,

“‘[o]nce civil rights litigation materially alters the legal

relationship between the parties, the degree of the plaintiff’s

overall success goes to the reasonableness of a fee award under

Hensley v . Eckerhart,

2 4 , [ ] (1983).’” Id. at *5

(quoting Farrar v . Hobby,

(1992)) (additional

internal quotation marks omitted).

Surprenant is a prevailing party for purposes of § 1988,

having succeeded on his claims against defendants Cesar Rivas and

3 Teresa Pendleton and on one of his claims against Superintendent

James O’Mara, Jr., in his official capacity. The jury found that

Rivas violated Surprenant’s Fourteenth Amendment rights by making

a false accusation against him, that Pendleton violated

Surprenant’s Fourteenth Amendment rights in the course of the

disciplinary proceeding brought against him, and that O’Mara, in his official capacity, violated Surprenant’s Fourteenth Amendment

rights because of the conditions in the restricted housing unit

in the jail. The jury awarded nominal and punitive damages to

Surprenant on his claims against Rivas and Pendleton and nominal

damages on his claim against O’Mara. Judgment was entered in

favor of defendants Ryan LaVierge and John LeBlanc on

Surprenant’s excessive force claim and in favor of O’Mara on

Surprenant’s claim based on O’Mara’s failure to give him credit

for the time he spent in the restricted housing unit. The Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. §

1997e, cabins the courts’ discretion in awarding fees when an

incarcerated prisoner is a prevailing party under § 1988. See

Boivin v . Black,

6 , 39-42 (1st Cir. 2000) (discussing

PLRA fee cap and holding it to be constitutional). When a

monetary judgment is awarded in a prisoner case, “a portion of

the judgment (not to exceed 25 percent) shall be applied to

satisfy the amount of attorney’s fees awarded against the

4 defendant. If the award of attorney’s fees is not greater than

150 percent of the judgment, the excess shall be paid by the

defendant.” § 1997e(d)(2). In addition, the hourly rate used to

calculate fees is limited to 150 percent of the hourly rate

established under 18 U.S.C. § 3006A for payment of court-

appointed counsel. § 1997e(d)(3). Jason Surprenant seeks an award of $46,858.50 in attorney’s

fees and $3,897.72 in costs. He also seeks an additional award

of $1,404.00 for 10.4 hours his attorney spent preparing his

response to the defendants’ Rule 50(b) motion. The defendants

object to Surprenant’s requests for fees, contending that the

amount of any fees awarded is subject to the restrictions of

§ 1997e(d) and must reflect Surprenant’s limited success in the

case.

A. Calculation of Fees

In calculating the amount of an award of fees under the Fees

Act, the court first finds the lodestar amount by determining

“‘the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.’” Gay Officers Action

League v . Puerto Rico,

8 8 , 295 (1st Cir. 2001). The

hourly rate of $135.00 used in the request for fees comports with

the requirements of § 1997e, and the defendants do not contest

5 the rate.1

Surprenant’s attorney, Michael Sheehan, provides his affidavit and records of the time he spent on Surprenant’s case. Surprenant, proceeding pro s e , filed suit on August 2 2 , 2002. Sheehan’s time records for the case begin on October 2 3 , 2002, with a notation of a half hour used to review correspondence from Surprenant and the court docket. Sheehan filed his appearance on December 6, 2002.

The records show time for conferring with other prisoners involved in the events that lead to Surprenant’s complaint, most of whom were witnesses in this case. Sheehan represents several of those prisoners in related litigation and unsuccessfully attempted to add several of them as plaintiffs in this case. To the extent Sheehan’s records suggest time spent on behalf of other clients, in anticipation of adding them as additional plaintiffs in this case or otherwise, that time is not compensable here.2 Therefore, fourteen hours are deducted from

1 When the market rate is used to calculate an award of fees, more mundane work such as record-keeping activities are awarded at a lower hourly rate than core activities associated with representation. See Brewster v . Dukakis,

8 8 , 494 (1st Cir. 1993). 2 The court has carefully reviewed the time records and has found a total of fourteen hours that appear to have been used in the unsuccessful effort to include other prisoners in this case between November 4 , 2002, and January 2 1 , 2003.

6 the total hours claimed, making the revised total 333.10 hours.

The degree of the plaintiff’s success must be considered in

calculating an award of attorney’s fees. Hensley, 461 U.S. at

436-37. Where, as here, the successful and unsuccessful claims

are interrelated, the court may identify and deduct the time

spent on unsuccessful claims or it “‘may simply reduce the award

to account for the limited success.’”3 Diaz-Rivera,

(quoting Andrade v . Jamestown Hous. Auth.,

, 1191 (1st Cir. 1996)). The court is to “award only that

amount of fees that is reasonable in relation to the results

obtained.” Andrade, 82 F.3d at 1191. The term “results

obtained” is best understood to mean a combination of “the

plaintiff’s success claim by claim, . . . the relief actually

achieved, [and] the societal importance of the right which has

been vindicated.” Coutin v . Young & Rubicam P.R., Inc.,

(1st Cir. 1997). Because Surprenant’s claims are factually intertwined and do

not permit parsing Sheehan’s time among them, the court chooses

instead to reduce the award as may be necessary to account for

his limited success. Surprenant reduced the number of his claims

3 The court agrees with Surprenant that the witnesses at trial largely overlapped as to the successful and unsuccessful claims and finds no basis to attempt to divide counsel’s time between those claims

7 and voluntarily dismissed some of the defendants before trial.

Under the circumstances, the dismissal of those claims should not

be considered in the analysis of the results he obtained. The

three claims on which Surprenant prevailed are highly

significant. Society expects prisoners to be treated humanely,

to be provided with a fair disciplinary process when charges are brought against them arising out of alleged misconduct while

incarcerated, and to be free from false accusations by prison

staff. The verdict in this case should act as a catalyst for

change in certain practices at the Hillsborough County Department

of Corrections. Surprenant’s claims were not frivolous.

The excessive force claims against LaVierge and LeBlanc

arose from the circumstances created by Rivas’s false accusation

against Surprenant. The claim against LeBlanc, who was a

supervisory officer, was derivative of the claim against LaVierge. These claims were an important aspect of the trial and

consumed a significant amount of time. However, many and perhaps

most of the witnesses also testified about Rivas’s false

accusation. The unsuccessful claim that O’Mara unconstitu-

tionally withheld credit for the time Surprenant was held in the

restricted housing unit was a less important issue at trial.

Although Surprenant was awarded only nominal damages on his

successful claim against O’Mara, punitive damages were not

8 available because the claim was brought against O’Mara in his

official capacity.

Therefore, some reduction of the lodestar amount is

necessary to reflect Surprenant’s less-than-complete success. It

would not be reasonable or equitable, however, to reduce the

award by a significant amount. The lodestar amount is 333.10 hours multiplied by $135.00, which totals $44,968.50. To reflect

Surprenant’s somewhat limited success, the amount is reduced by

$10,000.00 to $34,968.50.

B. Cap Pursuant to § 1997e(d)(2)

Section 1997e(d)(2) caps an attorney’s fee award at 150

percent of the monetary judgment. In contrast, when an

incarcerated plaintiff is successful in achieving relief other

than money damages, § 1997e(d)(1) requires that an award of fees

be “directly and reasonably incurred in proving an actual

violation of the plaintiff’s rights,” and “proportionately

related to the court ordered relief for the violation” or

“directly and reasonably incurred in enforcing the relief ordered

for the violation,” without a cap on the amount to be awarded.

The First Circuit has suggested that the cap imposed by

§ 1997e(d)(2) on fees generated in cases seeking money damages

would not apply in a hybrid case “in which the court orders non-

9 monetary redress (say, an injunction) along with a monetary

judgment.” Boivin,

1 , n.4. Other circuits have

followed that suggestion. See, e.g., Dannenberg v . Valadez,

(9th Cir. 2003); Walker v . Bain,

6 0 ,

667 n.2 (6th Cir. 2001).

In his first amended complaint, Surprenant requested both declaratory and monetary relief. However, the only verdict in

this case was rendered by the jury on Surprenant’s claims for

monetary relief. Declaratory relief, as an equitable remedy, is

granted by the court, not the jury.

; Beacon

Theatres, Inc. v . Westover,

0 0 , 510 (1959). Therefore,

the jury’s verdict, finding violations of Surprenant’s

constitutional rights, did not grant declaratory relief.

Surprenant did not ask the court to grant his claim for

declaratory relief and no such relief was ordered by the court. The judgment entered on June 1 5 , 2004, does not include

declaratory relief. Surprenant did not move to amend the

judgment to include declaratory relief. Therefore, because the

court did not order non-monetary relief in this case, the §

1997e(d)(2) cap applies, and any award of fees is limited to 150

percent of the amount of damages awarded.

Surprenant was awarded a total of $20,503.00 in nominal and

punitive damages. 150 percent of that amount is $30,754.50.

10 Therefore, Surprenant’s request for fees must be capped at that

amount.

C. Supplemental Request for Fees

Surprenant moves for a supplemental award of attorney’s fees

for the time his attorney spent responding to the defendants’

Rule 50(b) motion.4 Sheehan represents that he spent 10.4 hours

on his objection to the motion and requests an award of $1,404.00

in fees. Because Surprenant’s request for fees already exceeds

the cap allowed under § 1997e(d)(2), however, it is not necessary

to consider whether or in what amount the supplemental request

might be granted. See Volk v . Gonzalez,

2 8 , 535-36

(5th Cir. 2001) (discussing application of § 1997e to post-trial

motion for fees). Therefore, the request is denied.

D. Payment from Monetary Judgment

Section 1997(d)(2) also requires that a portion of the

monetary judgment, but not more than twenty-five percent, be

applied to pay any award of attorneys’ fees. As courts have

noted, § 1997(d)(2) is poorly worded, which has resulted in

4 Surprenant did not request additional fees for the time his attorney spent preparing the fee motions.

11 courts interpreting the statute differently. See, e.g., Farella

v . Hockaday,

(C.D. Ill. 2004)

(noting confusion and citing cases). In the absence of guidance

from the Supreme Court or the First Circuit, this court concludes

that the better interpretation of § 1997e(d)(2) is to allow the

court discretion to determine what percent, up to twenty-five percent, of the monetary judgment to apply to an award of fees.

See, e.g., Lawrence v . Bowersox,

2 7 , 735 (8th Cir.

2002); Farella, 304 F.3d at 1081.

Twenty-five percent of the judgment is $5125.75, which is

the maximum amount of the fee award that could be ordered to be

satisfied from the judgment. In this case, the court concludes

that $1000 is an appropriate amount. Therefore, the defendants

are required to pay the excess: $29,754.50

E. Request for Costs

Reasonable out-of-pocket expenses, which were incurred in

the course of representation and which would ordinarily be

charged to the client, may be reimbursed as costs under § 1988.

See Poy v . Boutselis,

(1st Cir. 2003); R.I.

Med. Soc’y v . Whitehouse, ___ F. Supp. 2d ___, C.A. N o . 97-416L

(D.R.I. June 2 3 , 2004) (publication pages not available).

Surprenant requests reimbursement for $3,897.72 in costs incurred

12 primarily for transportation fees paid to the Hillsborough County

Sheriff for transporting witnesses. Sheehan represents that he

did not ask for other costs incurred in order to keep the request

within a reasonable amount. The request is broken down into

separate items with the amounts listed for each and is supported

by the Sheehan’s affidavit although copies of invoices or bills were not submitted.

The defendants mention Surprenant’s request for costs in a

footnote in their memorandum in support of their objection to his

motion. They state that they would not contest the amount for

the Sheriff’s transportation services if invoices were provided.

They challenge several other requests without any citation to

authority or developed argument. The defendants’ demand for

invoices for the costs of transportation by the Hillsborough

County Sheriff is unnecessary as the County has been a defendant in this case and should be able to access its own records.

More importantly, the defendants raise the issue of costs

only briefly in a footnote. The First Circuit has “repeatedly

held that arguments raised only in a footnote or in a perfunctory

manner are waived.” Nat’l Foreign Trade Council v . Natsios,

8 , 61 n.17 (1st Cir. 1999). The court finds that the

request for costs in the amount of $3,897.72 is reasonable under

§ 1988.

13 F. Amount of Award

The defendants, Cesar Rivas, Theresa Pendleton, and

Superintendent O’Mara, in his official capacity, shall pay

$29,754.50 in attorney’s fees and $3,897.72 in costs.

Conclusion

For the foregoing reasons, the defendants’ motion to extend

the deadline (document n o . 92) is granted. The defendants’

motion for judgment as a matter of law (document n o . 91) is

denied. The plaintiff’s motion for an award of attorney’s fees

(document n o . 88) is granted to the extent that defendants Cesar

Rivas, Theresa Pendleton, and Superintendent O’Mara, in his

official capacity, shall pay $29,754.50 in attorney’s fees and

$3,897.72 in costs. The plaintiff’s supplemental motion

(document n o . 98) is terminated.

The clerk of court shall enter a supplemental judgment

accordingly and close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge August 1 7 , 2004

cc: John A . Curran, Esquire Michael J. Sheehan, Esquire

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