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DILLENBECK v. HAYES

September 16, 1993

ROGER DILLENBECK, Plaintiff,
v.
JOHN HAYES, DEPUTY FOR MONTGOMERY COUNTY SHERIFF'S DEPT., WILLIAM LEVINDOWSKI, DESK SERGEANT, SHERIFF EMERY (RONALD), and MONTGOMERY COUNTY, Defendants.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION.

 Presently before this court is plaintiff's application for attorneys' fees pursuant to 42 U.S.C. § 1988. The application is made on behalf of the plaintiff by his attorneys. Attorney Richard L. Baumgarten has requested $ 14,910.00 in fees; attorney Eugene Z. Grenz has requested $ 13,573.00 in fees, plus $ 618.50 in expenses. The total request for attorneys' fees and expenses is $ 29,101.50. This is based upon 147 hours for attorney Baumgarten, and 90.5 hours for attorney Grenz; for a total of 237.5 hours at a rate of between $ 75.00 to $ 150.00 per hour.

 II. BACKGROUND.

 The plaintiff filed his complaint on July 6, 1990, pursuant to 42 U.S.C. § 1983 alleging that the defendant violated his rights under the Eighth and Fourteenth Amendments. Specifically, the plaintiff claims that while he was at the Montgomery County Jail pursuant to a parole violation warrant, he was subjected to cruel and unusual punishment when deputy sheriffs allowed a K-9 patrol dog to attack him. The plaintiff requested compensatory damages in the sum of $ 900,000. His complaint did not seek punitive damages against any of the defendants.

 Attorney Baumgarten was retained by the defendant on November 20, 1990. On March 29, 1992, he retained attorney Grenz as trial counsel.

 The case was tried before a jury in Albany, New York, on July 21, and 22, 1993. Prior to selection of the jury, the action was dismissed by motion as against the defendants Ronald Emery, Montgomery County Sheriff, and the County of Montgomery. The jury returned a verdict in favor of the defendant, Deputy John Hayes, and against the defendant, Sergeant William Levindowski. The jury awarded nominal damages in the sum of One Dollar ($ 1.00). No motions or appeal followed the verdict.

 III. DISCUSSION.

 The threshold determination which must be made is whether plaintiff is a "prevailing party". Plaintiffs may be considered a "prevailing party" for attorney fee purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The Second Circuit has recently stated that "success may be assessed by examining whether [plaintiff] can point to a resolution of the dispute which changes the legal relationship between [him] and the defendant." Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) (citing Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 793, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989)). In its most recent pronouncement on the issue of attorney's fees under § 1988, the Supreme Court held that a party who recovers $ 1.00 in nominal damages is considered a "prevailing party". Farrar v. Hobby, U.S. , 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). Therefore, plaintiff is a "prevailing party" under § 1988.

 However, the court in Hensley, 461 U.S. at 433, stated that a finding that a plaintiff is a "prevailing party" simply brings the plaintiff "across the statutory threshold." The applicable statute, 42 U.S.C. § 1988, provides that the court "may" award "reasonable attorney's fees" to the "prevailing party". Once the statutory threshold is crossed, the court must then consider the reasonableness of a fee award. The determination of what constitutes a reasonable fee depends upon an analysis of twelve different factors bearing on the reasonableness of the number of hours expended and the reasonableness of the attorney's hourly rate. See City of Riverside v. Rivera, 477 U.S. 561, 568, n. 3, 91 L. Ed. 2d 466, 106 S. Ct. 2686 (1986). However, the court in Farrar held that a "court may lawfully award low fees or no fees without reciting the twelve factors bearing on reasonableness . . . or multiplying the number of hours reasonably expended by a reasonable hourly rate." Farrar, U.S. at , 113 S. Ct. at 575.

 The fact that plaintiff recovers only nominal damages does not, in and of itself, justify awarding low fees or no fees at all. "Every nominal damage award has as its basis of finding of liability, but obviously many such victories are pyrrhic ones. *fn1" . . ." Id. at , 113 S. Ct. at 578 (O'Connor J., Concurring) (quoting Lawrence v. Hinton, 20 Fed. R. Serv. 934, 937 (4th Cir. 1991)). Section 1988 "is a tool that insures the vindication of important rights, even when large sums of money are not at stake, making attorney fees available under a private attorney general theory." Id. In making a determination of the appropriate fee, the key comparison is between the relief sought and the relief recovered. Id. at , 113 S. Ct. at 574 (quoting Hensley, 461 U.S. at 436) ("'The most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.'") In Farrar, the Court held that since the plaintiff sought Seventeen Million Dollars in compensatory damages and recovered only $ 1.00 in nominal damages, the appropriate fee was no fee at all.

 In this case, the court is of the opinion that an award of no fee would be inappropriate because the plaintiff's attorneys have expended time and effort which achieved a result that changed the legal relationship between the parties. Moreover, the result of the suit established that it is unconstitutional under normal jail conditions for the K-9 patrol to be called in to assist in controlling one inmate who fails to get off of a telephone. However, because of a number of other factors which are set forth below, the court must only award a ...


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