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Livingston v. Lee

December 17, 2007

DETROY LIVINGSTON, PLAINTIFF,
v.
R. LEE, CORRECTION OFFICER (C.O.); S. HURTEAU, C.O.; D. ABAIR, C.O.; S. SALLS, SERGEANT OF DOCS; AND J. BOUYEA, C.O., DEFENDANTS.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER RE: ATTORNEY'S FEES

At Docket No. 137 plaintiff Detroy Livingston has moved for an award of attorney's fees in the amount of $39,190.50 as against defendants D. Abair and S. Salls. Defendants Abair and Salls oppose the motion at Docket No. 138, to which plaintiff replied at Docket No. 140. The Court having reviewed the moving papers and opposition has determined that oral argument would not assist in determining the motion and the matter is submitted on the moving papers and opposition.

Plaintiff, a prisoner incarcerated by the State of New York, brought this action against the defendants under 42 U.S.C. § 1983 alleging that defendants R. Lee and S. Hurteau knowingly, intentionally, and deliberately served him food trays laced with unknown drugs; and that defendants D. Abair, S. Salls, and J. Bouyea deprived him of his rights under the First Amendment to the Constitution when they denied him religious meals.

On November 1, 2007, the jury returned a verdict in favor of Plaintiff against defendants Abair and Salls for compensatory damages in the amount of $3,000.00 and for punitive damages against defendant Abair in the amount of $1,500.00 and defendant Salls in the amount of $500.00; a verdict was entered in favor of defendants R. Lee, S. Hurteau, and J. Bouyea (Docket No. 132). Judgment was entered on the verdict on November 5, 2007 (Docket No. 135).

The Court may, as a part of costs, award the prevailing party a reasonable attorney's fee in an action brought under 42 U.S.C. § 1983. 42 U.S.C. § 1988(b). The award of fees in this case is directly governed by 42 U.S.C. § 1997(e), which provides in relevant part:

(d) Attorney's Fees

(1) In 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 of this title, such fees shall not be awarded, except to the extent that-

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and

(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.

(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18 for payment of court-appointed counsel.

(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney's fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to section 1988 of this title.

Section 1997e(d) places a cap on attorney's fees of 150 per cent of the amount of damages awarded. Torres v. Walker, 356 F.3d 238, 242 (2d Cir. 2004); see also Boivin v. Black, 225 F.3d 36, 40--41 (1st Cir. 2000); Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001); Pearson v. Wellborn, 471 F.3d 732, 742 (7th Cir. 2006); Foulk v. Charrier, 262 F.3d 687, 703--04 (8th Cir. 2001); Robbins v. Chronister, 435 F.3d 1238, 1240 (10th ...


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