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Berrian v. City of New York

United States District Court, S.D. New York

November 21, 2014

STAFFORD BERRIAN, Plaintiff,
v.
CITY OF NEW YORK; Commissioner DORA B. SCHRIRO; Chief of Department MICHAEL HOURIHANE; Deputy Commissioner FLORENCE L. FINKLE; Warden LUIS RIVERA; Captain

Debra L. Greenberger, Alison Frick, EMERY CELLI BRINCKERHOFF & ABADY LLP, New York, NY, Jonathan S. Chasan, Mary Lynne Werlwas, THE LEGAL AID SOCIETY PRISONERS' RIGHTS PROJECT, New York, NY, for plaintiff Stafford Berrian.

Arthur G. Larkin, Odile M. Farrell, CORPORATION COUNSEL OF THE CITY OF NEW YORK, New York, NY, for defendant City of New York.

OPINION & ORDER

DENISE COTE, District Judge.

Following settlement of this action alleging assault by New York City Department of Correction ("DOC") officers on plaintiff Stafford Berrian ("Berrian" or "Plaintiff"), Plaintiff moved for an award of attorneys' fees and costs. The motion was referred to Magistrate Judge Freeman, who filed a Report and Recommendation (the "Report") on July 28, 2014 recommending that Plaintiff be awarded attorneys' fees in the amount of $44, 175.50, plus costs in the amount of $3, 253.77. The City of New York (the "City") filed timely objections on August 8 (the "Objections"), which were fully submitted on September 26. Having reviewed the City's Objections and having conducted a de novo assessment of the issues they raise, the Report's recommendation is adopted in part for the reasons that follow.

BACKGROUND

Berrian, an inmate at Rikers Island, brought suit for damages against the City of New York and others ("Defendants") on March 14, 2013 pursuant to 42 U.S.C. § 1983 and New York common law, alleging assault by DOC officers in retaliation for reporting a prior assault to the Legal Aid Society, as well as their pursuit of sham disciplinary proceedings against him in retaliation for the Plaintiff preparing to file the instant suit. Berrian was represented by attorneys at Emery Celli Brinckerhoff & Abady LLP ("Emery Celli") and the Legal Aid Society's Prisoners' Rights Project.

With respect to the retaliatory beating, Berrian alleged as follows. On August 1, 2012, thirty minutes after Berrian reported a prior assault by DOC officers to an attorney from the Legal Aid Society, three DOC officers and their captain approached his cell while he was on the toilet. One officer entered Berrian's cell and punched him in the face with force sufficient to knock him onto the ground. The two other officers followed, one kicking Berrian in the ribs and in the face while the other held his legs. The officers then handcuffed him, forced him to his knees, and punched him in the face multiple times. An X-ray taken that evening showed that Berrian's jaw was broken. Berrian underwent surgery for the injury to his jaw, and a metal plate was installed to close the fracture. Following the surgery, Berrian developed an infection in his mouth. Berrian alleged severe and continuing pain, as well as difficulty chewing and continued numbness.

The initial pretrial conference was held on October 11, 2013. The Pretrial Scheduling Order of October 15 provided for the close of fact discovery by April 25, 2014 and a jury trial to commence on September 8, 2014. The first deposition in this action was scheduled for February 19, 2014; depositions of the DOC officers and captain were scheduled for early March 2014.

Less than a week before the first scheduled deposition, on February 14, the City offered judgment, pursuant to Rule 68, Fed. R. Civ. Pro., (the "Rule 68 Offer")

for the total sum of Sixty-Five Thousand ($65, 000.00) Dollars, plus reasonable attorneys' fees, expenses and costs to the extent, and only to the extent, that recovery of attorneys' fees, expenses and costs is permitted by the Prison Litigation Reform Act ("PLRA") 42 U.S.C. § 1997e, to the date of this offer for plaintiff's federal claims.

Plaintiff accepted the Rule 68 Offer on February 18.[1] On March 6, judgment was entered for Plaintiff (the "Judgment")

for the sum total of Sixty-Five Thousand ($65, 000) Dollars, plus reasonable attorneys' fees, expenses, and costs to the extent, and only to the extent, that recovery of attorneys' fees, expenses and costs is permitted by the [PLRA], to the date of service of defendants' offer, February 18, 2014.

On March 25, Plaintiff moved for attorneys' fees and costs, submitting in support a memorandum of law, two attorney declarations, and exhibits including contemporaneous time records. Plaintiff sought $49, 511.33; he later reduced his request to $48, 536.74.

Plaintiff requested attorneys' fees for 231 attorney hours (after a voluntary reduction of 25.8 hours) multiplied by an hourly rate of $187.50 for work done between August 2012 and August 31, 2013 and $165 per hour for work thereafter (with travel billed at 50% of these rates), plus 44.6 paralegal hours at an hourly rate of $100. Plaintiff's four attorneys' hourly rates for paying clients range from $350 to $600. The majority of counsel's time - 155.5 hours ...


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