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Rodney Thomas v. United States of America

December 5, 2011


The opinion of the court was delivered by: Pitman, United States Magistrate Judge:


I. Introduction

By motion dated February 20, 2010 (Docket Item 79), one of plaintiff's attorneys,*fn1 Jake Harper, Esq., moves to recover his fees in this matter. All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Harper's motion is granted and he is granted a charging lien in the amount of $16,087.50 against plaintiff and the funds sums previously paid to plaintiff to settle this matter.

II. Facts

The facts underlying plaintiff's claims are set forth in detail in the prior decisions in this matter by the late Honorable Constance Baker Motley, United States District Judge, and the United States Court of Appeals for the Second Circuit. Thomas v. Ashcroft, 02 Civ. 5746 (CBM), 2004 WL 1444735 (S.D.N.Y. June 25, 2004), aff'd in part, rev'd in part, 470 F.3d 491 (2d Cir. 2006). Because they are not directly relevant to the pending dispute, the facts underlying plaintiff's claims are summarized only to the extent necessary for an understanding of the current dispute.

Plaintiff's complaint alleges that as a result of the repeated failures by the Drug Enforcement Administration ("DEA") and the United States Bureau of Prisons ("BOP") to provide eye drops to him while he was a pretrial detainee, in violation of the orders of both physicians and the Court, plaintiff permanently lost his eyesight.

Plaintiff alleges that he was diagnosed with glaucoma in March 2000 and was prescribed a combination of eye drops to be administered daily. In September 2001, plaintiff was arrested in California on the basis of a criminal complaint filed in this District alleging that plaintiff had violated various provisions of the federal narcotics laws. Plaintiff alleges that DEA agents confiscated his eye drops at the time of his arrest and subsequently discarded them. Plaintiff was subsequently removed to this District. Plaintiff claims that approximately one month elapsed between his arrest in California and his initial appearance in this District and that he was without his eye drops for that entire period

At his initial appearance in this District, a Magistrate Judge issued an Order directing that plaintiff receive adequate medical care.*fn2 Plaintiff alleges that during his ensuing months in custody, he was provided with his eye drops only rarely and erratically despite the fact that he had been examined by physicians who repeatedly advised BOP officials that plaintiff was in danger of losing his eyesight if he continued to be deprived of his eye drops. By the date of the complaint in this action -- July 20, 2002 -- plaintiff alleges that he had become permanently blind as a result of being deprived of the medication necessary to treat his glaucoma.*fn3

Plaintiff, represented by Harper, commenced this action on July 23, 2002 alleging constitutional claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Docket Item 1). Harper also prepared an amended complaint which was filed on February 10, 2003 (Docket Item 10). Defendants subsequently moved to dismiss the amended complaint, and Harper prepared two memoranda of law in opposition to the motion (Docket Items 30, 38). On June 25, 2004, Judge Motley granted the motion to dismiss, see Thomas v. Ashcroft, supra, 2004 WL 1444735, and Harper's active representation of plaintiff came to an end at that time.

Represented by pro bono counsel, plaintiff appealed from the dismissal of his amended complaint, and the Court of Appeals affirmed Judge Motley's decision in part, reversed the decision in part and remanded the matter for further proceedings.

Thomas v. Ashcroft, supra, 470 F.3d 491. Although Harper was never relieved as counsel for plaintiff, O'Melveny volunteered to represent plaintiff after the remand, and there appears to be no dispute that Harper took no active part in plaintiff's representation after the remand. Among other things, O'Melveny performed over 5,000 hours of legal and administrative work on plaintiff's case, filed a complaint in the United States District Court for the Central District of California asserting a claim under the Federal Tort Claims Act ("FTCA"), filed a second amended complaint in this action adding a similar claim, conducted 26 depositions, defended the depositions of plaintiff and two non-parties, hired and defended the deposition of an expert witness retained on behalf of plaintiff and conducted the deposition of defendants' expert witness (Declaration of Brooke E. Cucinella, Esq. in Support of Plaintiff Rodney Thomas's Opposition to Jake Harper's Motion for Attorney's Fees and/or Quantum Meruit Recovery Pursuant to 28 U.S.C. § 2678, dated March 11, 2010 (Docket Item 82) ("Cucinella Decl.") ¶¶ 5-6).

After O'Melveny entered the action, plaintiff and the defendants stipulated to the dismissal of plaintiff's Bivens claims, without prejudice to his FTCA claims against the United States (Docket Item 65). Thereafter, O'Melveny successfully negotiated the settlement of the FTCA claims for the sum of $250,000 and waived any claim that O'Melveny may have had against plaintiff or defendants for a fee. In addition to his work on this action, Harper also filed the administrative claim that was the necessary predicate for the FTCA claim. See 28 U.S.C. § 2675(a).

Harper seeks to recover the sum of $70,350.00 as fees. In support of his application, he has submitted time sheets in which he represents that he spent 234.5 hours working on the matter and seeks to be compensated at an hourly rate of $300.00 per hour (Declaration of Jake Harper, Esq., dated April 24, 2008, (Docket Item 63)). Plaintiff, through papers prepared by O'Melveny, opposes Harper's application and claims that Harper should ...

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