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CAPOZZI v. CITY OF ALBANY

June 3, 1983

Louis J. CAPOZZI, Plaintiff,
v.
The CITY OF ALBANY, Peter Krasher, Officer A, Officer B, Officer C, Lieutenant D, Officer E, Officer F, Officer X, Officer Y and Officer Z, the foregoing names being fictitious, the real names of the defendants being unknown to plaintiff, said fictitious names being intended to designate members of the Police Department of the City of Albany, New York, Defendants



The opinion of the court was delivered by: FOLEY

MEMORANDUM -- DECISION and ORDER

 JAMES T. FOLEY, Senior District Judge.

 On March 10, 1983 after three days of trial before me, the jury returned a special verdict in this civil rights action with favorable answers for the plaintiff on several claims against defendant Krasher. These claims were: civil rights violation pursuant to 42 U.S.C. § 1983; false arrest and false imprisonment; and abuse of process. The jury awarded money damages on these claims in the amount of $25,000. Negative answers were made to questions on two of his claims: battery and malicious prosecution. A judgment was directed to be entered on March 10, 1983 against defendant Krasher and defendant City of Albany due to the City's liability on the state law claims on the basis of respondeat superior. At the close of the evidence, the City of Albany's motion for a directed verdict on the civil rights claim under § 1983 was granted on the ground that plaintiff failed to allege or prove by a preponderance of evidence an official policy or custom which is necessary to the claim. See Monell v. Dep't of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). Plaintiff's request for punitive damages against the individual police officer, Krasher, was voluntarily withdrawn by his attorney at the close of the evidence. A notice of appeal from the judgment in this action was filed by the defendants on March 31, 1983.

 Now before the court is plaintiff's motion for an award of attorneys' fees pursuant to 42 U.S.C. § 1988 for the services of William A. Sekellick, his associates and law clerk.

 Title 42 U.S.C. § 1988 provides as follows:

 
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

 It is clear that § 1988 vests discretionary authority in the district court to consider whether attorney's fees should be awarded, Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); McCann v. Coughlin, 698 F.2d 112, 128 (2d Cir.1983); Kerr v. Quinn, 692 F.2d 875 (2d Cir.1982). However, "the latitude afforded trial courts in exercising that discretion is narrowed by a presumption that successful civil rights litigants should recover an attorney's fees unless special circumstances would render an award unjust." Kerr v. Quinn, supra, 692 F.2d at 877, citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968). In a case where local counsel would recognize that the merits of a case were obviously strong and that there was a probability of a high damage award, a district court has the discretion to deny an application for counsel fees. Id.

 In the present circumstances, in my judgment plaintiff is entitled to an award of attorney's fees. Although the merits of the case were in plaintiff's favor, the case was heavily dependent upon a favorable credibility determination by the jury. For this reason and the fact that defendants do not contest plaintiff's entitlement to attorney's fees, the court's discretion will be exercised in favor of an award of fees as to be presumed ordinarily for a prevailing plaintiff. The only response from defendants to the motion is a letter dated April 4, 1983 which states that they feel "that the fee requested is exhorbitant under all of the circumstances and [that defendants] rely upon the discretion of the Court in establishing the amount of the fee to be awarded."

 In fixing the amount of an attorney's fee award, it has been stressed that the courts need to view such awards with an "eye to moderation" so as to avoid even the appearance of windfall fees. Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir.1982), citing Beazer v. New York City Transit Auth., 558 F.2d 97, 101 (2d Cir.1977), rev'd on other grounds, 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979); City of Detroit v. Grinnell Corp., 495 F.2d 448, 469-70 (2d Cir.1974) (Grinnell I). The factors to be considered in setting a reasonable fee were set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The Johnson factors were recently relied upon by the Supreme Court in Hensley. These factors are:

 
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases.

 Hensley v. Eckerhart, supra, U.S. at , 103, S. Ct. at 1937, n. 3, citing Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 717-719.

 A two-step procedure is followed in calculating an award of attorney's fees. The "most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, supra, U.S. at , 103 S. Ct. at 1939. The Court of Appeals, Second Circuit, consistently refers to this step as fixing the "lodestar" amount. See Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496 (2d Cir.1980), citing City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977) (Grinnell II).

 In the second step, the court may adjust the lodestar figure upward or downward. The adjustment may be made to reflect subjective factors such as "the risk and complexity of the litigation and the quality of the representation", Cohen v. West Haven Board of Police Commissioners, supra, 638 F.2d at 505, and the "results obtained" by the plaintiff, Hensley v. Eckerhart, supra, U.S. at , 103 S. Ct. at 1940.

 In fixing the rate of compensation to be awarded it is important to note that the court is not bound by the rate which a lawyer charges his other clients. McCann v. Coughlin, supra, 698 F.2d at 130. The reasonableness of the rate should be measured according to the normal rate in the legal community for substantially similar work by competent practitioners. Id.; Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d at 718. A different hourly rate may be set ...


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