United States District Court, E.D. New York
November 1, 2004.
ENNIS HIGHTOWER, Plaintiff,
NASSAU COUNTY SHERIFF'S DEPARTMENT, C.O. JOHN KENNEDY, C.O. RONALD HARTUNG, C.O. MATTHEW ANDERSON, C.O. JOHN LAGORMARSINO, CPL. GARY McGUINNESS, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The defendants, Nassau County Sheriff's Department and five
correction officers (collectively, the "Defendants"), move for
reconsideration and reargument of this Court's July 19, 2004
Memorandum of Decision and Order ("Order") that reduced the
Jury's verdict to a total of $165,000 and determined the
attorneys' fees of the plaintiff, Ennis Hightower ("Hightower" or
the "Plaintiff"). On July 23, 2004, the Plaintiff filed an
acceptance of the remittitur. Pursuant to Local Rule 6.3, the
Defendants seek reconsideration of the portion of the Order that
determined the attorneys' fees, claiming that the Court
overlooked the attorney's fee limitations contained in the Prison
Litigation Reform Act (PLRA). The Court assumes that the parties
are familiar with the background of this case, as set forth in
the Court's July 19, 2004 Order.
It is within the sound discretion of a district court judge to
grant or deny a motion for reconsideration. Virgin Atlantic
Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992); Davidson v. Scully, 172 F. Supp. 2d 458, 462
(S.D.N.Y. 2001). Under Local Rule 6.3, a party may move for
reconsideration and reargument by presenting "controlling
decisions or data that the court overlooked matters, in other
words, that might reasonably be expected to alter the conclusions
reached by the court." Shrader v. CSX Transp., Inc.,
70 F.3d 255, 256-57 (2d Cir. 1995); see also Range Road Music, Inc. v.
Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000). "The
major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice."
U.S. v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (quoting Doe v.
New York City Dept. of Soc. Servs., 709 F.2d 782, 789 (2d Cir.
1983)); accord Virgin Atlantic, 956 F.2d at 1255.
In this case, the Defendants contend that the Court overlooked
certain pertinent provisions of the PLRA when it determined the
award of the Plaintiff's attorneys' fees, and that this omission
was a "clear error of law." The PLRA governs the course of
litigation when the plaintiff is incarcerated in a jail, prison,
or correctional facility. 42 U.S.C. § 1997e(a) (2004). The Act
prescribes procedural rules, contains jurisdictional provisions,
and imposes limits on a plaintiff's recovery and attorney's fees
in cases brought by prisoners. See 42 U.S.C. § 1997e(a)-(g);
see, e.g., Porter v. Nussle, 534 U.S. 516, 524,
122 S. Ct. 983; 152 L. Ed. 2d 12 (2002) (describing the mandatory nature of
the PLRA's administrative exhaustion provision). In regard to
attorney's fees, there are several provisions in the PLRA that
limit the attorney's fee that may be awarded under the terms of
42 U.S.C. § 1988. The Court will now review these terms.
First, the PLRA authorizes fees to be awarded only "to the
extent that the fee was directly and reasonably incurred in
proving an actual violation of the plaintiff's rights. . . ."
Id. § 1997e(d)(1). Second, fees are capped at an hourly rate of
no more than 150% of the hourly rate established under
18 U.S.C. § 3006A. Id. § 1997e(d)(3).
Finally, the statute directs that a portion of the plaintiff's
judgment, not to exceed 25%, "be applied to satisfy the amount of
attorney's fees awarded against the defendant." Id. §
The Plaintiff argues that the Court should not reconsider the
determination of attorneys' fees because neither party raised the
issue of the PLRA on the initial motion. However, a court has
discretion to reconsider an issue not initially raised in order
to "correct a clear error or prevent manifest injustice." See
Tenzer, 213 F.3d at 39. Here, with reasonable certainty, the
failure to apply the attorney's fee provisions of the PLRA would
be considered an abuse of discretion. See Johnson v. Breeden,
280 F.3d 1308, 1327 (11th Cir. 2002) (holding that a district
court abused its discretion when it awarded attorney's fees and
expenses without applying the PLRA).
In addition, the Plaintiff argues that the PLRA should not be
considered because the Plaintiff succeeded in a New York State
common law battery cause of action as well as the civil rights
cause of action. Plaintiff's argument is misplaced. Pursuant to
42 U.S.C. § 1988, the Plaintiff was entitled to attorneys' fees
for prevailing only on the federal section 1983 claim. There
would be no attorneys' fee on the New York State cause of action.
Thus, the Court finds that it was clear error to overlook the
terms of the PLRA in determining the award of attorneys fees.
Accordingly, the Court will reconsider only that portion of the
Under the PLRA, the court determines whether fees were directly
and reasonably incurred in proving a violation of the Plaintiff's
rights and then applies a rate not greater than 150% of the
current rate paid to C.J.A. attorneys. 42 U.S.C. § 1997e(d)(1).
The Court's Order did address the issue of whether the hours were
reasonably incurred and related to the successful litigation.
(See Order at 20). Thus, the Court needs only to recalculate
the maximum rate that may be awarded to the Plaintiff's
attorneys. In the Eastern District of New York, C.J.A. attorneys
are paid a rate of $90 a hour, which, when multiplied by 150%,
computes to an hourly rate of $135.
In addition, the PLRA requires that a portion of a plaintiff's
judgment, "not to exceed 25 percent, shall be applied to satisfy
the amount of attorney's fees awarded against the defendant."
42 U.S.C. § 1997e(d)(2); see Jackson v. Austin,
267 F. Supp. 2d 1059, 1071
(D. Kan. 2003). Consequently, the Court directs that
25 percent of the attorneys' fees awarded be paid from the
proceeds of the Plaintiff's $165,000 judgment.
The Court now recalculates the fees to be awarded to all three
of the Plaintiffs' counsel and also calculates the 25% portion
that the Plaintiff is required to pay:
Anthony Ofodile 393.60 hours @ $135 per hour = $ 53,136.00
Travel 78 hours @ $67.50 per hour = 5,265.00
Total $ 58,401.00
Less 20% reduction 11,680.20
Net Fee $ 46,720.80
Chidi Eze 138.04 hours @ $125 per hour = $ 17,255.00
Travel 49 hours @ $62.50 per hour = 3,062.50
Less 20% reduction 4,063.50
Net Fee $ 16,254.00
William S. Robedee 14.25 hours @ $135 per hour = $ 1,923.75
Less 20% reduction 384.75
Net Fee $ 1,539.00
Total Attorneys' Fees $ 64,513.80
Plaintiff's 25% Portion $ 16,124.95
With regard to the Plaintiff's prior acceptance of the
remittitur of damages, because the Court finds that 25% of the
Plaintiff's judgment shall be applied to satisfy a portion of the
amount of attorneys' fees awarded against the Defendants, the
Plaintiff's previous acceptance of the remittitur is vacated. The
Plaintiff is requested to again decide whether to accept this
revised remittitur. The Plaintiff is entitled to a new trial on
the issue of damages, unless he agrees to the reduction of
damages to a total of $165,000 less the sum of $16,124.95 that
will be applied to the award of attorneys' fees.
Based on the foregoing it is hereby
ORDERED, that the section of the Court's July 19, 2004
Memorandum of Decision and Order that determined the Plaintiff's
attorneys fees is VACATED; and it is further
ORDERED, that the Clerk is directed to enter an amended
judgment in favor of the plaintiff Ennis Hightower against the
defendants Correction Officer Matthew Anderson, Correction
Officer John Lagormarsino and Cpl. Gary McGuinness for
compensatory damages in the sum of $100,000, and for punitive
damages against the defendant Matthew Anderson in the sum of
$15,000, for punitive damages against the defendant John
Lagormarsino in the sum of $15,000, for punitive damages against
the defendant Gary McGuinness in the sum of $35,000, for a total
sum $165,000, together with the balance of attorneys fees of
$48,388.85 and total costs in the sum of $2,934.31; and it is
ORDERED, that $16,124.95 of the Plaintiff's recovery in the
amount of $165,000, be applied to satisfy that portion of the
amount of attorneys' fees awarded against the Defendants; and it
ORDERED, that the Defendants pay the balance of the
Plaintiff's attorneys' fees in the amount of $48,388.85, as
ORDERED, that the Plaintiff may file with the Clerk of the
Court on or before November 22, 2004, an acceptance of the
remittitur of $165,000 less the sum of $16,124.95, representing
his share of the attorneys' fees, leaving a net amount of
$148,875.05 for the Plaintiff. In the event that the Plaintiff
does not file an acceptance of the remittitur on or before
November 22, 2004, a new trial solely on the issue of
compensatory damages will commence on a date to be set by the
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