United States District Court, S.D. New York
November 9, 2004.
BEATRICE MORRIS, Plaintiff,
GILBERT EVERSLEY, Defendant.
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this case, plaintiff Beatrice Morris was sexually assaulted
by defendant Gilbert Eversley in April 1999, when she was an
inmate and he was a corrections officer at the Bayview
Correctional Facility ("Bayview"), a women's prison. One night,
while Morris was sleeping, Eversley entered her cell and
attempted to rape her.
A few weeks before she was released from prison, Morris brought
this action for damages pro se under 42 U.S.C. § 1983 and
state law against Eversley and other corrections officials. She
eventually obtained counsel, and all claims but the § 1983 claim
against Eversley were dismissed. The remaining claim against Eversley was tried twice. In the
first trial, the jury found that Eversley had violated Morris's
rights by subjecting her to cruel and unusual punishment, but
awarded her only $500 in compensatory damages and $7,500 in
punitive damages. In the second trial, which was limited solely
to the amount of damages, the jury a different jury awarded
Morris only $1,000 in compensatory damages and $15,000 in
Morris moves for attorneys' fees and costs, seeking an award of
$295,818.00 in fees and $58,228.23 in costs.
Eversley opposes the application. First, raising an issue of
first impression, he argues that any fee award is subject to the
Prisoner Litigation Reform Act (the "PLRA"), which caps
attorneys' fees in "any action brought by a prisoner who is
confined to any jail, prison, or other correctional facility" to
150% of the recovery. 42 U.S.C. § 1997e(d). Eversley argues that
the cap applies even though Morris was released from prison
two-and-a-half weeks after filing suit. Under this theory,
Morris's fees would be limited to $24,000 150% of her recovery
of $16,000. Second, he argues that even if the PLRA cap does not
apply and the Court applies the traditional lodestar method to
calculate fees, the requested fees and costs are grossly
As set forth below, I hold that the PLRA cap on fees does not
apply to this case. Accordingly, I apply the lodestar method, and
award Morris fees of $154,900 and costs of $25,000. BACKGROUND
A. The Facts
Early on April 20, 1999, Eversley, then a corrections officer
at Bayview, used a master key to unlock Morris's cell. Morris v.
Eversley, No. 00 Civ. 8166, 2004 WL 171337, at *1 (S.D.N.Y. Jan.
29, 2004). He entered, without asking Morris's permission, as she
was still sleeping. Id. Morris awoke when Eversley touched her.
Id. She ordered him to get out, but he refused and attempted to
rape her. Id.
Eversley was unable to penetrate Morris, and instead ejaculated
on her leg and bed. Id. The next morning, using a pair of nail
clippers, Morris cut out a piece of her sheet that had been
stained by Eversley's semen. Id. She eventually reported the
assault to prison officials and handed over the piece of stained
sheet. Morris v. Eversley, 282 F. Supp. 2d 196, 199 (S.D.N.Y.
2003). DNA testing later confirmed that the semen on the sheet
was, to a virtual certainty, Eversley's. Morris, 2004 WL
171337, at *1. Any such sexual conduct by Eversley was, by law,
unlawful because inmates are deemed incapable of consenting to
sexual contact with prison employees. Id. (citing N.Y. Penal
Law § 130.05(3) (e) (McKinney 2004)).
B. Procedural History
On October 25, 2000, while incarcerated at the Taconic
Correctional Facility, Morris filed a complaint pro se in
this Court against Eversley, the New York State Department of Correctional Services, Superintendent Alexandreena Dixon,
Assistant Deputy Superintendent of Programs Elnora Porter, and
Captain Kenneth Werbacher. See Morris v. Eversley,
205 F. Supp. 2d 234 (S.D.N.Y. 2002). Morris alleged violations of her
rights under federal and state law. (Def.'s Aff., Ex. A).
Morris was released from prison on November 10, 2000,
two-and-a-half weeks after filing her complaint. (Def.'s Aff.,
Ex. B). Milbank, Tweed, Hadley & McCloy LLP ("Milbank") was
retained to represent her on a pro bono basis on December 17,
2001. (Pl.'s Mem. at 2). On January 18, 2002, with the assistance
of counsel, Morris filed an amended complaint, asserting new
facts, adding new defendants, and adding new allegations. She
asserted claims under 42 U.S.C. § 1983 as well as state law
claims for assault and battery and intentional infliction of
emotional distress. Id. At the time Morris filed her amended
complaint the statute of limitations governing her § 1983 claim
had not expired. See Patterson v. County of Oneida, N.Y.,
375 F.3d 206, 225 (2d Cir. 2004) ("The statute of limitations
applicable to claims brought under §§ 1981 and 1983 in New York
is three years."). Defendants had not filed an answer or motion
for summary judgment at the time she filed her amended complaint.
(Pl.'s Reply Mem. at 1).
On March 15, 2002, Dixon and Porter moved to dismiss the
complaint on multiple grounds, including failure to exhaust
administrative remedies pursuant to § 1997e(a) of the PLRA.
Morris, 205 F. Supp. 2d 234. After oral argument on May 24, 2002, Morris discontinued her claims against two defendants added
in the amended complaint. On June 13, 2002, I denied the
remaining defendants' motion to dismiss this action, noting:
The PLRA requires exhaustion of `such administrative
remedies as are available.' Thus, even if I were to
dismiss Morris's claims, no administrative remedies
are `available' to her because she is no longer a
prisoner; Morris could simply refile her § 1983
claims unaffected by the PLRA's exhaustion
requirement. . . . [C]onsiderations of judicial
efficiency and economy advise against dismissal of
205 F. Supp. 2d at 241 (citations and footnote omitted).
Following discovery, defendants Dixon and Porter, joined by
Eversley, moved for summary judgment. On September 23, 2003, I
granted the motion for summary judgment as to the supervisory
defendants only. Morris, 282 F. Supp. 2d at 208-09. Morris and
Eversley thereafter stipulated to the dismissal of all remaining
claims except the 42 U.S.C. § 1983 claim. (Pl.'s Mem. at 2).
On January 28, 2004, after a three-day trial on the § 1983
claim, a jury found that Eversley acted intentionally and
maliciously and violated Morris's Eighth Amendment right to be
free from cruel and unusual punishment. Morris, 2004 WL 171337,
at *1. The jury, however, awarded Morris only $500 in
compensatory and $7,500 in punitive damages. Id. In an order
issued February 26, 2004, the Court held that the jury's damages
were so grossly inadequate as to shock the conscience, vacated
the jury's verdict in part, and ordered a new trial on the issues of punitive and compensatory damages only. On April 21, 2004,
after a two-and-a-half-day trial, a second jury awarded Morris
$1,000 in compensatory and $15,000 in punitive damages. Judgment
was entered in favor of Morris against Eversley for $1,000 in
compensatory damages and $15,000 in punitive damages on April 23,
C. The Fee Application
On May 7, 2004, Morris filed her motion, pursuant to
42 U.S.C. § 1988 and Rule 54(d) of the Federal Rules of Civil Procedure, to
recover reasonable attorneys' fees and costs. Morris requests
$295,818.00 in attorneys' fees and $58,228.23 in costs.
I address first the threshold question of whether the PLRA
restrictions on attorneys' fees applies to a case such as this,
where the plaintiff in a prisoner's civil rights case is released
from prison less than three weeks after filing suit and she
asserts significant, meritorious, and ultimately successful
claims. As I conclude that the PLRA's restrictions do not apply,
I then proceed to a traditional lodestar analysis.
A. Applicability of the PLRA
Eversley asserts that Morris's attorneys' fees award should be
capped at 150% of her monetary award, or $24,000, pursuant to the
PLRA, 42 U.S.C. § 1997e(d), because Morris was a prisoner when
she filed her initial complaint. He asserts that the fact she was
released from custody shortly after filing her complaint has no bearing on whether her attorneys' fees award is
subject to the PLRA. He also argues that 25% of the $16,000
judgment, or $4,000, must be paid from the plaintiff's judgment
to satisfy attorneys' fees, leaving $20,000 to be paid by the
1. The Statute
In 1996, Congress passed the PLRA, which "contains numerous
provisions governing the course of prisoner litigation in the
federal courts." Martin v. Hadix, 527 U.S. 343, 349-50 (1999).
The PLRA, codified in 42 U.S.C. § 1997e, was adopted with "the
principal purpose of deterring frivolous prisoner lawsuits and
appeals." Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997),
cert. denied, 523 U.S. 1126 (1998). Section 1997e(d)*fn1
imposes "substantial restrictions" on attorneys' fees that can be awarded to a prisoner-plaintiff who succeeds on a
civil rights claim, despite the allowances provided by
42 U.S.C. § 1988. Blissett v. Casey, 147 F.3d 218, 220 (2d Cir. 1998).
The Second Circuit has interpreted § 1997e(d) to cap a
defendant's liability for attorneys' fees at 150% of a
plaintiff's monetary judgment in a civil rights case brought by a
prisoner. Torres v. Walker, 356 F.3d 238, 242 (2d Cir. 2004).
Accordingly, a prisoner-plaintiff's attorneys' fees award is
directly proportional to the monetary success of his or her
claim. The PLRA also allows for a portion of the
prisoner-plaintiff's judgment, up to but not to exceed 25% of the
monetary value, to be applied to satisfy the payment of
attorneys' fees, but does not provide courts with guidelines for
determining the percentage (25% or below) to be applied.
42 U.S.C. § 1997e(d)(2).
The PLRA is not applicable to a plaintiff who is no longer a
confined prisoner when the suit is filed. See Kerr v.
Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (holding that the
term "prisoner" does not comprehend a felon who has been released). If
a plaintiff is a prisoner at the time a civil rights violation is
suffered, but waits until release from custody before filing a
complaint, the attorneys' fees restrictions of § 1997e are simply
inapplicable. In such a case, the prevailing plaintiff is free to
recover full reasonable attorneys' fees under § 1988. See
Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (holding that
a prisoner who files a civil rights action after release from
confinement is not subject to the PLRA's statutory exhaustion
requirement); cf. Gibson v. Brooks, 335 F. Supp. 2d 325 (D.
Ct. 2004) (distinguishing Greig and holding that plaintiff who
was incarcerated when civil rights claim accrued, then released,
and then re-imprisoned at time he filed suit was subject to
exhaustion requirements of PLRA).
The parties have not cited and the Court has not found any
decision addressing the applicability of the PLRA restrictions on
fees to a situation where a prisoner-plaintiff files suit while
she is incarcerated but is released shortly thereafter.
2. The Plain-Meaning Rule
Eversley urges the Court to hold that the plain meaning of the
statutory language of § 1997e(d) is that any plaintiff who
files an action while he or she is incarcerated is subject to
the limitations imposed by the statute, even if the individual is
thereafter released. The language of § 1997e(d), however, does
not plainly so provide. Construction of a statute "must begin with the words of the
text." Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir.
2003). The plain meaning of the words, however, must be
considered "by looking to the statutory scheme as a whole and
placing the particular provision within the context of that
statute." Id. at 345; see also Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997) ("The plainness or ambiguity of
statutory language is determined by reference to the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole."). Whether the
words are plain in their meaning or ambiguous, as the Supreme
Court has held:
[i]n the interpretation of statutes, the function of
the courts is easily stated. It is to construe the
language so as to give effect to the intent of
Congress. . . .
. . . When aid to construction of the meaning of
words, as used in the statute, is available, there
certainly can be no "rule of law" which forbids its
use, however clear the words may appear on
United States v. American Trucking Ass'n, Inc., 310 U.S. 534
542, 543-44 (1940) (footnotes omitted). Hence, the apparent
facial meaning of a statute does not preclude the Court's
examination of the statute's purpose. See Train v. Colo. Pub.
Interest Research Group, 426 U.S. 1
, 10 (1976).
The plain-meaning rule the rule that the Court should rely on
the literal, unambiguous language of a statute is "rather an
axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists."
Boston Sand Co. v. United States, 278 U.S. 41, 48 (1928). The
courts generally recognize two exceptions to the plain-meaning
rule. First, courts need not adhere to the rule in cases where
"literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters, and
those intentions must be controlling." Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 571 (1982). The circumstances
that compelled the enactment of a statute "may persuade a court
that Congress did not intend words of common meaning to have
their literal effect." Watt v. Alaska, 451 U.S. 259, 266
(1981). Second, courts need not adhere to the plain meaning of
the statute when doing so would lead to an absurd result that is
"so gross as to shock the general moral or common sense." Crooks
v. Harrelson, 282 U.S. 55, 60 (1930).
I discuss the words of the statute, the legislative intent,
and, assuming the words of the statute have the plain meaning
urged by Eversley, application of the exceptions to the
i. The Words of the Statute
I begin with an examination of the words of the statute.
Section 1997e(d) provides that "[i]n any action brought by a
prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney's fees are authorized
under [section 1988], such fees shall not be awarded," except on
the terms specified in the statute. 42 U.S.C. § 1997e(d)(1) (emphasis added).
Although Eversley argues that the plain meaning of the language
is clear, I disagree. In my view, the language is not free from
ambiguity. The words arguably impose two requirements: (1) the
action must be brought by a "prisoner," and (2) the plaintiff
must be presently confined (as indicated by the words "who is
confined" (emphasis added)). If these two elements are not read
individually, the terms "prisoner" and the phrase "who is
confined" are arguably redundant, and the rule that each word and
clause of a statute should be given full effect arguably would be
violated. See Cal. Pub. Employees' Ret. Sys. v. WorldCom,
Inc., 368 F.3d 86, 106 (2d Cir. 2004) ("Statutes should be
construed, if possible, to give effect to every clause and
word."). Other sections of the PLRA do not include the phrase
"who is confined," further suggesting that both terms have
Significantly, if the plain words are placed in the context of
the entire statute as well as Congress's intent in passing the
statute, it becomes even more evident that the construction urged
by Eversley is wrong. Accordingly, I hold that the words of §
1997e(d) do not plainly require the statute's application to a
prisoner-plaintiff who is no longer "confined" when fees are
incurred and awarded.
ii. Legislative Intent
Whether the words are plain or ambiguous, the Court must
consider the legislature's intent in enacting the PLRA. The statutory construction urged by Eversley is not consistent with
the stated congressional purpose of the PLRA. The legislative
record reveals that the PLRA's passage was guided by the desire
to reduce the tremendous number of frivolous lawsuits filed by
inmates and the high costs associated with those actions.
Senator Dole, speaking in support of the PLRA, noted that
frivolous prisoner suits "can involve such grievances as
insufficient storage locker space, a defective haircut by a
prison barber, the failure of prison officials to invite a
prisoner to a pizza party for a departing prison employee, and
yes, being served chunky peanut butter instead of the creamy
variety." 141 Cong. Rec. S14611-01 (daily ed. Sept. 29, 1995).
Senator Dole also noted that an estimated $81 million is spent
each year defending such civil rights claims and that "most of
these costs are incurred defending lawsuits that have no merit
whatsoever." Id. Senator Kyl read two lists into the
congressional record: the "Top 10 Frivolous Inmate Lawsuits in
Arizona," which cited a suit against corrections officials filed
by a death row inmate for taking away his Gameboy electronic
game, and the "Top 10 Frivolous Inmate Lawsuits Nationally,"
which cited an inmate civil rights claim seeking $1 million in
damages because his ice cream had melted. Id.
Some senators, however, expressed hesitation about the breadth
of the PLRA. Senator Biden urged Congress not to "lose sight of
the fact that some of these lawsuits have merit some prisoners'
rights are violated." Id. He noted a case in the District of Columbia where correctional officers had sexually
assaulted female prisoners on a regular basis and prison
officials failed to act. He further argued that the PLRA placed
"too many roadblocks to meritorious prison lawsuits." Id. Even
Senator Hatch, a staunch supporter of the legislation, admitted
that the PLRA was not intended to "prevent inmates from raising
legitimate claims." Id.
This desire to ensure that meritorious prisoner civil rights
claims can proceed is well founded. Sexual abuse of female
prisoners by male corrections officers is a pervasive,
well-documented, national problem. See Amy Laderberg, The
"Dirty Little Secret": Why Class Actions Have Emerged as the Only
Viable Option for Women Inmates Attempting to Satisfy the
Subjective Prong of the Eighth Amendment in Suits for Custodial
Sexual Abuse, 40 Wm. & Mary L. Rev. 323 (1998) ("[S]exual abuse
of women inmates by their male guards is a pervasive and
legitimate problem in both state and federal prisons of the
The sexual vulnerability of female prisoners was illuminated by
testimony at Morris's second trial. Kenneth Werbacher, the former
deputy superintendent for security at Bayview, who was
responsible for the care of inmates and supervision of
correctional staff while Morris was incarcerated, testified that
sexual abuse of inmates was an ongoing problem at Bayview during
his tenure. When asked during direct examination why he thought
sexual abuse was such a serious problem at Bayview, he replied:
Within the prison system there's a double standard.
In a male jail, if a female staff member has sex with
an inmate, the staff gets extremely indignant.
They'll kick down my door to tell me about it. In a
female jail it's different. The staff tends to look
the other way. . . . It gives a boldness to the
people that are doing it.
(R. at 170).
Werbacher also testified that the problem of sexual abuse of
female prisoners by guards at Bayview was so serious that it
compelled him to resign from his position. "It is what caused me
to leave, that I had had enough. . . . I made several attempts
through the state system to transfer. . . . I demoted myself in
order to get myself transferred to another job." (R. at 170-71).
In light of the legislative intent driving the PLRA's passage
and the need to ensure that meritorious prisoner civil rights
suits can proceed, I conclude that the words of the statute must
be interpreted so that § 1997e(d) is inapplicable to a case such
as this, where the prisoner-plaintiff was released shortly after
filing suit and did not engage lawyers until she was no longer
confined in prison.
iii. Exceptions to the Plain-Meaning Rule
Even assuming the words of the statute have the literal meaning
urged by Eversley, both exceptions to the plain-meaning rule
would apply here.
First, literal application of the words of the statute, with Eversley's proposed construction, would be inconsistent with
Congress's intent in passing the PLRA. As discussed above,
Congress did not intend for prisoner-plaintiffs with meritorious
claims to be lumped together with inmates who bring frivolous
suits to entertain themselves while in prison.
Second, the "absurdity exception" to the plain-meaning rule
would also apply. The construction urged by Eversley would lead
to an illogical result by punishing prisoner-plaintiffs who were
not the intended targets of the legislation but are subjected to
its limitations because of mere happenstance.
As Eversley indicates, some courts have interpreted other PLRA
provisions to rigidly apply to any plaintiff who filed a
complaint while a prisoner. Few circuits, however, have addressed
the scope of § 1997e(d) specifically. While Eversley's rigid
construction may make sense for the PLRA sections that have been
scrutinized by other courts, that same reasoning applied to §
1997e(d) in the instant case would lead to an absurd outcome.
Eversley cites Harris v. Garner, 216 F.3d 970 (11th Cir.
2000), cert. denied, 532 U.S. 1065 (2001), to support his
argument that the "fact that Plaintiff was released during the
pendency of the litigation has no bearing on the application of
the statute, because the date the action was commenced is the
controlling date." (Def.'s Mem. at 2). Harris involved §
1997e(e)*fn2 of the PLRA, which sets out elements that must
be met to commence an action. Harris, 216 F.3d at 974.
Eversley also relies on Ahmed v. Dragovich, 297 F.3d 201 (3d
Cir. 2002). That court also analyzed a different provision of the
PLRA, § 1997e(a).*fn3 That section similarly deals with the
PLRA requirement that a plaintiff exhaust administrative remedies
to commence an action. I previously rejected the strict
application of this section to Morris's case in addressing the
defendants' motion to dismiss for failure to exhaust her
administrative remedies. See Morris,
205 F. Supp. 2d at 240-41.
Eversley also misreads the Ahmed court's denial of a former
inmate's motion to amend his complaint to reflect his release
from prison as requiring an analogous, technical application of §
1997e(d) in the instant case. In Ahmed, however, the court did
not allow for a relation back amendment because the statute of
limitations for the action had run. In this case, Morris could
have amended her complaint as of right.
Section 1997e(d), unlike these other sections, addresses
limitations on a suit that has already been filed and
successfully litigated to conclusion. Neither side cites Robbins
v. Chronister, No. 97-3489-DJW, 2002 WL 356331 (D. Kan. March 1,
2002), a case that offers a more persuasive model, as it directly addressed the language of § 1997e(d). That case involved a
policeman who violated the plaintiff's Fourth Amendment rights by
using excessive force during arrest. The incident occurred before
the plaintiff was incarcerated, but the plaintiff did not file
his action until he was a prisoner.
The Robbins court concluded that while the plain meaning of
the statute supported the conclusion that the plaintiff's
attorneys' fees should be limited by the PLRA because the
plaintiff was a prisoner when the action was brought,*fn4
the absurdity exception to the plain-meaning rule applied.
The Robbins court was particularly persuaded by the
legislative history surrounding the PLRA's enactment and that
"[i]ronically, with this timing-based distinction, an individual
who files his `peanut butter' lawsuit the type clearly targeted
by the PLRA after being released from prison is not subject to
the PLRA at all." Robbins, 2002 WL 356331, at *6. The court
also noted that it could "conceive of no rational justification
for distinguishing between prisoner and non-prisoner litigants
based upon when they file their lawsuits." Id. at *7 (footnote
omitted). The court ultimately concluded that because the
plaintiff's claim was not the typical frivolous lawsuit that
Congress was attempting to prevent by passing the PLRA and
because time-based distinctions in interpreting § 1997e(d) could
result in an absurd outcome, the statute did not apply to the plaintiff in that case.
The reasoning of Robbins is instructive. Although Morris was
a prisoner when she brought her action, she was released less
than three weeks later. She was not confined for the overwhelming
majority of the case, and Milbank was not retained until after
her release. She was also released from prison before the
defendant answered the complaint or filed a motion for summary
judgment, and she was able to amend her complaint as a matter of
right. She did so. She also could have voluntarily discontinued
her action and then refiled it when she was no longer a
"prisoner." See Morris, 205 F. Supp. 2d at 241 (denying the
defendants' motion to dismiss this action for failure to exhaust
administrative remedies pursuant to § 1997e(a) because plaintiff
could simply voluntarily discontinue and then refile suit).
Perhaps most significantly, if Morris had simply waited a few
weeks to file her suit in the first place, the PLRA would not
have been implicated at all. This was purely a matter of
happenstance. It would be absurd to interpret § 1997e(d) to
impose attorneys' fees limits on a plaintiff who files a
successful, non-frivolous civil rights action while a prisoner,
but is released from prison less than three weeks later and
retains lawyers when she is no longer a prisoner. Accordingly, I
hold that § 1997e(d) does not apply to this case.
B. The Lodestar Analysis
I turn, then, to a traditional lodestar analysis of Morris's application for fees and costs.
1. Applicable Law
Under 42 U.S.C. § 1988, in civil rights actions "the court, in
its discretion, may allow the prevailing party . . . a reasonable
attorney's fee as part of the costs." See Raishevich v.
Foster, 247 F.3d 337, 344 (2d Cir. 2001). The Second Circuit has
explained that the award of attorneys' fees is designed to
"`encourage the bringing of meritorious civil rights claims which
might otherwise be abandoned because of the financial imperatives
surrounding the hiring of competent counsel.'" Id. (quoting
Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982)).
The Supreme Court has held that success on any significant
issue in litigation that achieves "some of the benefit" sought is
sufficient to qualify a plaintiff as a "prevailing party" for
attorneys' fees purposes. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983) (internal quotations and citation omitted); see
Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir. 1991). At a
minimum, the plaintiff "must be able to point to a resolution of
the dispute which changes the legal relationship between itself
and the defendant." Texas State Teachers Ass'n v. Garland Indep.
School Dist., 489 U.S. 782, 792 (1989) (citations omitted).
Additionally, under § 1988, a prevailing party is entitled to
recover "those reasonable out-of-pocket expenses incurred by
attorneys and ordinarily charged to their clients."
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (internal quotations omitted). The costs awarded under § 1988
include not only those ordinarily recoverable pursuant to
28 U.S.C. § 1920, Rule 54(d)(1) of the Federal Rules of Civil
Procedure, and a judicial district's local civil rules, but also
any additional costs ordinarily charged in the particular legal
marketplace. Anderson v. City of New York, 132 F. Supp. 2d 239,
245 (S.D.N.Y. 2001).
i. Lodestar Calculation
Courts typically use a "lodestar" figure as an initial estimate
of reasonable attorneys' fees. This figure is calculated by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate for each attorney or
paralegal involved. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.
1992) (citing Blanchard v. Bergeron, 489 U.S. 87, 94 (1989)).
Thus, using the lodestar approach, the Court assesses the
reasonableness of the number of hours expended, as well as the
reasonableness of the requested rates. Under § 1988, plaintiffs
are entitled to reasonable hourly rates that fall within the
prevailing marketplace rates "in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11
(1984). The relevant community for a fee determination is the
judicial district in which the trial court sits here, the
Southern District of New York. In re Agent Orange Prod. Liab.
Litig., 818 F.2d 226, 232 (2d Cir. 1987). In addition to looking at prevailing marketplace rates, the Court may rely on its own
knowledge of comparable rates charged by lawyers in the district.
Ramirez v. New York City Off-Track Betting Corp., No. 93 Civ.
0682, 1997 WL 160369, at *2 (S.D.N.Y. Apr. 3, 1997).
Although there is a "strong presumption" that the lodestar
figure represents a reasonable fee, City of Burlington v.
Dague, 505 U.S. 557, 562 (1992), "[t]he product of reasonable
hours times a reasonable rate does not end the inquiry."
Hensley, 461 U.S. at 434. Other considerations may lead to an
upward or downward departure from the lodestar. Id.
"`[T]he most critical factor' in determining the reasonableness
of a fee award `is the degree of success obtained.'" Farrar v.
Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley,
461 U.S. at 436); N.A.A.C.P. v. Town of East Haven, 259 F.3d 113, 117 (2d
Cir. 2001). The Supreme Court has reasoned that if a plaintiff
achieves only limited or partial success, the lodestar amount may
be excessive. Hensley, 461 U.S. at 436. "This will be true even
where the plaintiff's claims were interrelated, nonfrivolous, and
raised in good faith." Id.
In Farrar, the Supreme Court held that a plaintiff who wins
only "nominal damages" is a prevailing party for purposes of a
fee award under § 1988, but the Court also held that such a
plaintiff's lack of success had to be considered in determining
the amount of fees. 506 U.S. at 115.
At the same time, however, courts have expressly rejected a per se "proportionality" rule, i.e., proportionally
linking the prevailing plaintiff's attorneys' fees to the degree
of monetary success the plaintiff achieved. City of Riverside v.
Rivera, 477 U.S. 561, 578 (1986). As the Supreme Court has held:
A rule of proportionality would make it difficult, if
not impossible, for individuals with meritorious
civil rights claims but relatively small potential
damages to obtain redress from the courts. This is
totally inconsistent with Congress' purpose in
enacting § 1988. Congress recognized that
private-sector fee arrangements were inadequate to
ensure sufficiently vigorous enforcement of civil
rights. In order to ensure that lawyers would be
willing to represent persons with legitimate civil
rights grievances, Congress determined that it would
be necessary to compensate lawyers for all time
reasonably expended on a case.
Id. In City of Riverside, the Court upheld an award of
$245,456.25 in fees even though plaintiffs had recovered only
$33,350 in both compensatory and punitive damages. Id. at
These two concepts are not at odds. If a prevailing plaintiff
recovers only limited monetary damages, that lack of success is
to be considered by a court in setting the amount of attorneys'
fees. Lack of monetary success, however, does not require a fee
reduction. See Ayres v. 127 Restaurant Corp., No. 96 Civ.
1255, 1999 WL 328348 (S.D.N.Y. May 21, 1999) (noting that
attorneys' fees award should not be limited for proportionality
where plaintiffs were "everyday workers" who were members of a
restaurant's wait staff and their income, and therefore their
monetary award, was modest). Rather, the degree of monetary success (or lack thereof) is only one factor to be considered.
Courts must also consider whether the plaintiff has achieved some
other measure of success.
In affirming an award of attorneys' fees that substantially
exceeded plaintiffs' recovery, the Court in Riverside
recognized that "a successful civil rights plaintiff often
secures important social benefits that are not reflected in
nominal or relatively small damages awards." City of Riverside,
477 U.S. at 574. Thus a civil rights plaintiff may obtain
important equitable or declaratory relief, or some other
non-monetary vindication of his or her civil rights, by, for
example, establishing the violation of an important
constitutional right. These non-monetary measures of success must
be considered as well in setting the amount of a fee award.
Milbank submits that partners, senior associates, and
associates worked on Morris's case on a pro bono basis for
approximately 3,400 hours over a two-and-a-half year period, and
that its attorneys recorded the rates they ordinarily charge
paying clients. Milbank additionally states that Morris's request
only represents fees incurred for legal work specifically related
to the trial and retrial of her case, and that it has excluded
fees for work prior to the Final Pretrial Conference, Morris's
claim in the New York Court of Claims, the supervisory time
expended by partners and senior associates, and time expended by
associates present at trial but not actively participating. Of the approximately 3,400 total hours Milbank
spent on the case, 2,700 hours were spent on these uncharged
activities. Morris therefore requests payment for approximately
700 hours of associate time plus payment for the time of
administrative staff and costs.
Milbank's billing statement includes charges for the time of
six associates at hourly rates of $315-395/hour. These associates
graduated from law school between the years of 2001 and 2003.
Milbank also requests payment for the time of several legal
assistants and administrative staff at rates of $125-175/hour.
Eversley asserts that the rates charged by Milbank's associates
are excessive in light of the type of litigation involved,
counsel's failure to indicate how long its attorneys have been
admitted to the bar, and the reimbursement rates that the State
of New York is paying defendant's attorneys. He also argues that
the number of hours and the number of attorneys Milbank devoted
to the case are excessive and urges the Court to consider the
limited financial success of Morris's action. Finally, Eversley
argues that the request for costs is exorbitant and includes
items that are not recoverable.
i. Lodestar Analysis
The Court finds the rates charged by Milbank for associates'
time are excessive in light of the type of litigation involved
and the experience level of the associates who worked on the
case. While rates of $315-395/hour for junior associates may be warranted for the corporate litigation that Milbank is
accustomed to handling for large, fee-paying companies, these
amounts exceed the rates usually charged by similarly experienced
civil rights attorneys. See Pastre v. Weber,
800 F. Supp. 1120, 1125
(S.D.N.Y. 1991) (concluding that defendant should not be
required to pay the rates usually charged to clients such as
General Motors or IBM, but should be required to pay the rates
that "would have been charged by a competent attorney
specializing in civil rights litigation"). Although one could
debate whether substantially higher rates are warranted for a
corporate lawyer with the same number of years experience as a
civil rights lawyer, the fact is the markets and billing
considerations are different. Moreover, Milbank took this case on
as a pro bono matter, in part to give its young lawyers the
experience of trying a case before a jury in federal court, and
it would not be fair to Eversley to assess fees against him based
on the same rates Milbank charges its large corporate clients for
very different legal work.
I conclude that the appropriate rate is $200/hour for Milbank's
associates, under all the circumstances and given the marketplace
rates for similar legal services by other lawyers with one to
three years' experience in this District. See Betancourt v.
Giuliani, 325 F. Supp. 2d 330, 333 (S.D.N.Y. 2004) (concluding
that an average hourly rate of $200 is reasonable for associate
from major New York City law firm); see also Marisol A. ex
rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 386-88 (S.D.N.Y. 2000) ("[A] reasonable rate scale [for civil rights cases in the
Southern District of New York] is as follows: $350 for attorneys
with more than fifteen years of experience, $300 for attorneys
with ten to fifteen years of experience, $230-250 for attorneys
with seven to nine years of experience, $180-200 for attorneys
with four to six years of experience, and $130-150 for attorneys
with one to three years of experience.").
I also find that 712 hours is not excessive. Although six
associates is excessive, Milbank is not seeking payment for a
substantial portion of the 3,400 hours spent on the case. It has
limited its fee application to time spent on the trial and the
retrial. I would have awarded fees for some of the time spent on
discovery, motion practice, and preparing the instant fee
application, and hence I will award fees for 712 hours.
Morris requests payment for 172.60 hours of paralegal/legal
assistant time. It appears from Milbank's billing statement that
the paralegal/legal assistant who devoted the most time to the
case, Mimi Einhorn, billed 97.5 hours at $155/hour. That rate is
high. I will allow 100 hours of paralegal time at $125/hour.
Finally, Eversley argues that the Court should limit Morris's
attorneys' fees award because of her limited monetary success;
the first jury awarded her only $500 in compensatory damages and
$7,500 in punitive damages and the second jury, considering only
damages, awarded her only $1,000 in compensatory and $15,000 in
punitive damages. The argument is rejected. I was baffled that the first jury
awarded such low amounts, and yet the second jury did not award
much more. It is hard to imagine that Morris could be made whole
for the damages she suffered, including the loss of her dignity,
by a mere $500 or $1,000 dollars in compensatory damages. See
Morris v. Eversley, No. 00 Civ. 8166, 2004 WL 171337 (S.D.N.Y.
Jan. 29, 2004). Even if both juries had concluded that Morris had
"consented" to the sexual contact an allegation that Eversley
never made by law Morris could not consent. The fact that a
prisoner, even a former prisoner, is unable to recover a fair
measure of damages from a jury is not a basis for reducing a fee
Moreover, notwithstanding the amounts of the damages awarded,
Morris and the Milbank lawyers still obtained a significant
victory, one that undoubtedly will help to protect the civil
rights of others. The non-monetary value of her victory, and
Milbank's work, should not be underestimated. Accordingly, no
deduction will be made because of the limited monetary value of
Accordingly, the Court will award Morris reasonable attorneys'
fees of $154,900 consisting of fees for 712 hours of attorney
time ($142,400) and 100 hours of paralegal time at $125/hour
Morris seeks to recover $4,478.39 in costs pursuant to
28 U.S.C. § 1920 for deposition transcripts, witness fees, and trial transcripts. Morris also seeks to recover $53,749.84
pursuant to 28 U.S.C. § 1988 for general office expenses,
messenger fees, photocopying, binding, secretarial assistance,
word processing, and electronic legal research.
The requested costs, particularly office expenses and
electronic legal research costs, are excessive. I will award
costs of $25,000.
For the reasons set forth above, Morris's motion for attorneys'
fees and costs pursuant to 42 U.S.C. § 1988 is granted. Morris
and her attorneys are awarded fees of $154,900 and costs of
$25,000 for a total award of fees and costs of $179,900. The
Clerk of the Court is directed to enter a supplemental judgment