United States District Court, Southern District of New York
January 18, 1990
LEROY WILLIAMS, PLAINTIFF,
THE CITY OF NEW YORK, DEFENDANT.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
Plaintiff applies pursuant to 42 U.S.C. § 1988 for $99,075.00
in attorneys' fees and for $5,381.75 in costs, based on his
having received a jury award of damages of $100,000 which was
subsequently reduced to $10,000 by remittitur, to which
On December 3, 1981, plaintiff filed this Section 1983 action
pro se while he was a pretrial detainee at the Rikers Island
Facility of the New York City Department of Corrections. The
named defendants were two corrections officers, two captains
and an assistant deputy warden at the Rikers Island Facility.
The original complaint alleged: (1) Corrections Officer Stinger
(Stinger) discriminated against plaintiff in the practice of
his religion by denying plaintiff a kosher meal; (2) Stinger
assaulted the plaintiff; (3) an unnamed corrections officer
also assaulted plaintiff; and (4) the other defendants observed
the assault and did nothing to stop it.
On March 24, 1983, the firm of Schnapp and Cordover notified
the Court of their retention by plaintiff. On January 26, 1984,
Schnapp and Cordover moved to amend the complaint. The Court
granted the motion despite "the dilatory manner in which
plaintiff's counsel has proceeded in this case." The amended
complaint filed February 3, 1984 alleged the following claims:
(1) against Stinger for assaulting plaintiff and
refusing to serve plaintiff a kosher meal in
violation of the First, Fifth, Fourteenth and
Eighth Amendments to the United States
Constitution and Article One of the New York
State Constitution. ¶¶ 22-25.
(2) against Stinger and Corrections Officer Joseph
Calabrese (Calabrese) for assaulting plaintiff
in violation of the Fifth and Fourteenth
Amendments to the United States Constitution
and Article One of the New York State
Constitution. ¶¶ 26-28a.
(3) against Captain Thomas O'Shea (O'Shea),
Captain John Ogden (Ogden) and Deputy Warden
James Rosa (Rosa) for witnessing and failing
to supervise the acts of Stinger, in violation
of the First, Fifth, Fourteenth and Eighth
Amendments to the United States Constitution
and Article One of the New York State
Constitution. ¶¶ 29-30.
(4) against Stinger, Rosa and O'Shea for
subjecting the plaintiff to disciplinary
charges, failing to advise him of his rights
to present testimony and call witnesses, and
placing him in punitive segregation, in
violation of the Fifth and Fourteenth
Amendments to the United States Constitution.
(5) against the City of New York (the City) for
failing to promulgate written rules by which
kosher meals for inmates would be dispensed
"thereby permitting its agents, servants
and/or employees to invidiously discriminate
against individuals who exercise their freedom
of religion and observance." ¶ 34.
A trial commenced on March 20, 1985 and lasted until March
29, 1985. During the trial, the City relied on the regulations
of the City Department of Corrections to validate the manner in
which defendants conducted the disciplinary hearing. The judge
then permitted the pleadings to be amended to conform to the
proof and organized the case thereby providing for an
appropriate charge for the jury and a simplified verdict sheet.
Before the case went to the jury, the Court dismissed the
allegations against defendant Ogden and directed a verdict
against the City on a single Section 1983 claim premised on a
violation of procedural due process. See Carey v. Piphus,
435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1977). The judge
delivered the directed verdict after reviewing the regulations
of the City Department of Corrections pertaining to
disciplinary hearings and deciding that the City's
regulations do violate due process and equal
protection rights of a pretrial detainee, and in
this case the pretrial detainee's liberty interest
to stay in the general population . . . was
diminished because . . . the hearing that was
afforded him does not comport with constitutional
Tr. at 1085.
The case went to the jury on the issue of damages on the
directed verdict claim and on the issues of liability and
damages on all the other claims. The jury found for defendants
on all issues of liability and awarded plaintiff damages of
against the City for its denial of due process in the conduct
of the disciplinary hearing.
The City then moved for a judgment notwithstanding the
verdict, or in the alternative for either a new trial or a
remittitur. Plaintiff cross-moved for a judgment
notwithstanding the verdict on his First Amendment claim and
for a new trial on damages. By Order filed November 10, 1987,
the Court granted the City's motion for a new trial on the
issue of the amount of damages to be awarded for the
deprivation of plaintiff's right to due process in connection
with the disciplinary hearing. The Order reasoned that a new
trial on damages was necessary because the Court had neglected
to charge the jury that nominal damages could be awarded for a
procedural due process violation. By the same Order, it also
granted plaintiff the right to file an amended complaint.
On January 12, 1988, plaintiff filed an amended complaint,
alleging a claim against the City based on the
unconstitutionality of its disciplinary hearing regulations.
The amended complaint also re-alleged, in a modified form,
those claims for which the jury had exonerated defendants.
After the Court found the inclusion of the unsuccessful claims
in the amended complaint to be unauthorized, plaintiff filed a
second amended complaint alleging only that the City's
disciplinary hearings infringed upon procedural due process.
On July 6, 1989, the Court vacated the Order of November 10,
without prejudice to the renewal of the motions
unless the plaintiff files within ten days after
the entry of this order a remittitur accepting
judgment against the defendant City of New York in
the amount of $10,000 plus attorneys' fees and
expenses to be determined by the Court after
appropriate submissions by the attorneys for both
parties. . . .
Plaintiff filed an acceptance of the remittitur on July 20,
1989 and made the required submission for attorneys' fees and
expenses on September 25, 1989. Although issues of fact are
raised, neither party has requested a hearing on the
The City asks the Court to reduce plaintiff's claims for
$99,075.00 in attorneys fees and for $5,381.75 in costs.
The submitted time records and affidavits are sufficient for
the Court to find that the charged hours are accurate.
Williamsburg Fair Housing Comm. v. Ross-Rodney Housing,
599 F. Supp. 509, 516-517 (S.D.N.Y. 1984) (citing Hensley v.
Eckerhart, 461 U.S. 424, 437 n. 12, 103 S.Ct. 1933, 1941 n. 12,
76 L.Ed.2d 40 (1983)). The City, however, questions whether
reimbursement for certain services and expenses are appropriate
as a matter of law.
First, the City contends that plaintiff is not entitled to
recovery of fees for time spent by plaintiff's attorney
Elizabeth Koob preparing for the retrial ordered by Judge Lowe
on November 10, 1987. According to the City, the decision to
accept the remittitur judgment, pursuant to the Order of July
5, 1989, rendered Ms. Koob's services "excessive, redundant or
otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S.Ct. at
The preparation for a new trial, in light of the Order of
November 10, 1987, was reasonable and related to the ultimate
recovery. However, the decision to use two senior attorneys,
the original trial attorney and Ms. Koob, on the preparation
for a retrial was unnecessarily excessive, particularly when
Ms. Koob had not previously worked on the case and had to spend
time familiarizing herself with the case. See Hinkle v.
Christenson, 548 F. Supp. 630, 633 (D.S.D. 1982) (no
reimbursement for time spent by new attorney familiarizing
himself with case because those services are redundant);
Hickman v. Valley School District Board of Education,
513 F. Supp. 659 (S.D. Ohio 1981) (same). Therefore, attorney Koob's
time will be charged as an assisting attorney of lesser
experience at $100 per hour. In addition, the fees for the 4.35
hours specifically spent by attorney Koob in preparation for an
appeal to the Second Circuit are not recoverable at all.
Accordingly, the total
hours expended by Ms. Koob is 78.80 hours at a rate of $100 per
hour, resulting in $7,880 in fees.
With respect to the other attorneys involved in the
litigation, the Court finds that the requested rates are too
high. Under Chambless v. Masters, Mates & Pilots Pension Plan,
885 F.2d 1053, 1058-59 (2d Cir. 1989) (citing Blum v.
Stevenson, 465 U.S. 886, 895-896 & n. 11, 104 S.Ct. 1541,
1547-48 & n. 11, 79 L.Ed.2d 891 (1984)), attorneys from a small
firm, like that used by plaintiff, are not entitled to the same
rate as those attorneys from large firms, where a variety of
extra costs must be covered. Mr. Richard Gross is a senior
trial attorney who worked on this case during the periods
1984-1985 and 1988-1989 on a contingency basis. An hourly rate
of $200 is in line with rates charged by senior trial attorneys
in small to medium size firms in New York, during the time Mr.
Richard Gross worked on this case, when the work is done on a
contingency basis and the recovery is similar to that in this
case. Accordingly, Mr. Gross's hourly rate is set at $200 and
his fee for 186 hours equals $37,200. In light of scrutiny of
each of the other attorney's credentials, experience, and role
in the trial, the Court further concludes that, at the time of
the work rendered, the hourly rate for each of plaintiff's
other attorneys is reasonable when set at the following level:
Stanley Schnapp $150.00 per hour x 7.5 hours = $1,050
Earl Weprin $100.00 per hour x 240 hours = $24,000
Jean Jones $60.00 per hour x 18 hours = $1,080
Lynn Herskovitz $75.00 per hour x 2.33 hours = $174.75
Edward Kahn $60.00 per hour x 30.5 hours = $1,830
The City's most substantial objection to the attorneys' fees
application is that plaintiff was not victorious on most of the
claims. Again, the City's position is that no fees should be
awarded. As the City points out, plaintiff's only successful
claim was against the City for a violation of procedural due
process and the jury exonerated defendants on all of those
counts alleged in the February 3, 1984 complaint. A review of
the transcript reveals that it was the judge who initially was
responsible for focusing the case on the City's liability for
the due process deprivation. Since the successful claim against
the City was neither alleged in the complaint nor a major
aspect of the pretrial preparation, defendant argues that
plaintiff is entitled to recover neither for pretrial expenses
nor for most expenses during the trial.
Although a plaintiff is not allowed to recover for
unsuccessful claims, one may recover for work done on claims
related to successful claims. City of Riverside v. Rivera,
477 U.S. 561, 568-69, 106 S.Ct. 2686, 2691-92, 91 L.Ed.2d 466
(1986). The due process claim against the City is related to
the claim in the complaint against individual defendants for
failure to provide sufficient procedural safeguards before the
imposition of the sentence of solitary confinement. See, supra
(describing ¶¶ 31-33 of Feb. 3, 1984 complaint). The same core
of facts and similar legal theories were involved in that claim
stated in the complaint and in the successful claim against the
City. See Id. (quoting Hensley, 461 U.S. at 435, 103 S.Ct.
at 1940). Furthermore, an attorneys' fees award is appropriate
because if not for the efforts of plaintiff's counsel in
pursuing the matter through trial, it is unlikely that there
would have been any recovery.
Based on a review of the pleadings, transcripts and records
submitted by plaintiff, the Court judges that one-third of
plaintiff's counsels' services was related to the successful
results obtained.*fn1 Accordingly the recovery allowed is
one-third of $73,134.75: $24,378.25.
The City's only other objection is to the amount of costs
requested to compensate plaintiff's expert witnesses on
psychiatry. These witnesses were necessary because injuries for
pain and suffering are recoverable for procedural due process
violations. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55
L.Ed.2d 252 (1977). Although Section 1988 authorizes recovery
of costs for experts required for effective representation, the
City contends that the Supreme Court held in Crawford Fitting
v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d
385 (1987), that fees for experts are only recoverable at a
rate of $30 per day. That opinion involved a case for fees
brought under an antitrust statutory scheme, 28 U.S.C. § 1821
and 1920, which explicitly provides for a $30 per day limit.
Crawford never mentions Section 1988. See 107 S.Ct. at 2499
(Blackmun, J., concurring); Id. at 2500 n. 1 (Marshall, J.,
dissenting). The Court is persuaded by a number of opinions in
lower courts refusing to apply Crawford's $30 per day limit to
Section 1988. See, e.g., Friedrich v. City of Chicago,
888 F.2d 511, 518-19 (7th Cir. 1989); Sapanajin v. Gunter,
857 F.2d 463, 465 (8th Cir. 1988); Hillburn v. Commissioner, Connecticut
Department of Income Maintenance, 683 F. Supp. 23, 27 (D.Conn.
1987), aff'd, 847 F.2d 835 (2d Cir. 1988); United States v.
Yonkers Board of Education, 118 F.R.D. 326, 330 (S.D.N Y
1987). Plaintiff is entitled to reimbursement for expert
witness fees without a $30 per day ceiling. Accordingly,
plaintiff's application for costs of $5,381.75 is granted.
Pursuant to Section 1988, plaintiff's application is granted
to the extent of $24,378.25 in attorneys' fees and $5,381.75 in