The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE DEFENDANT'S MOTION FOR ATTORNEYS' FEES AND COSTS (DOC. 50 & 52)
On January 18, 2007, Plaintiff Juan R. Sandoval filed a complaint against the City of Parlier and Defendant Parlier City Police Officer Rene Jimenez, seeking damages for civil rights violations and various state law torts. The City of Parlier was dismissed from the action after the pretrial conference. On July 3, 2008, after a seven day trial, a jury returned a verdict in favor of Defendant Jimenez and against Plaintiff on all counts.
Before the court for decision is Defendant's motion for an award of attorneys fees and costs, pursuant to Federal Rule of Civil Procedure 65, in the amount of $99,217.25, reflecting costs and fees incurred during the entire litigation. Doc. 52 at 1-2. In the alternative, Defendant requests a fee award in the amount of $86,107.50, reflecting fees and costs incurred after depositions were completed in September 2007. Id. at 2.
Plaintiff's complaint alleged that on March 9, 2006, at the Administration Office Board Room of the Parlier Unified School District, Plaintiff was tasered by two Parlier Police Department Officers, including Defendant Jimenez. Doc. 1, Compl., at ¶7. Plaintiff alleged that Officer Jimenez failed to follow Parlier Police Department "Use of Taser" Policy because Plaintiff did not present an immediate, credible threat to the safety of the officers or the public; Plaintiff was "at worst engaged in a passive demonstration;" Defendant failed to announce that the Taser was going to be used; and Defendant unnecessarily applied the Taser multiple times. Id. at ¶8. The Complaint alleged the following causes of action: (1) excessive force in violation of Title 42 U.S.C. § 1983, against Defendant Jimenez in his official capacity; (2) supervisory liability under section 1983 against the City of Parlier; (3) assault and battery against Defendant Jimenez; (4) intentional infliction of emotional distress against Defendant Jimenez; and (5) negligence against Defendant Jimenez.
Defendant Jimenez did not move to dismiss the complaint, nor did he move for summary judgment prior to trial. All claims against the City of Parlier were dismissed prior to trial. Doc. 36, filed June 24, 2008. A seven day jury trial commenced June 24, 2008. Docs. 38, 40, 41-44.
The evidence at trial established that, on March 9, 2006, at the Administration Office Board Room of the Parlier Unified School District ("PUSD"), the PUSD Board of Directors (the "Board") held a regularly scheduled meeting, attended by many citizens.
Plaintiff, who at the time was both employed by the School District and was a parent of at least one child attending school within the District, desired to address the Board in his capacity as a parent about the District's budget and Bilingual Education program. Prior to the meeting, Plaintiff submitted a form requesting that his name be added to the list of persons who would be allowed to speak during the public comment portion of the meeting. Plaintiff was a regular speaker at the meetings. According to Board policy, he was allotted five minutes to speak.
When it was Plaintiff's time to speak, Plaintiff, who is bilingual, chose to give his comments in Spanish. Slightly less than 3 minutes after his name was called, Plaintiff was interrupted so that his statements could be translated. Plaintiff asked, in English, if someone was going to translate. The PUSD superintendent, Dr. Elizondo, replied: "Would you like to translate or would you like to have somebody translate?" Plaintiff stated that he would like to have someone translate, then asked if the translation would "be part of my minutes?" Dr. Elizondo confirmed that it would. Plaintiff responded: "Ok then I'll wait until I am finished because I don't want it to be part of my minutes." Elizondo replied: "You have two minutes to finish up."
Precisely 4 minutes and 9 seconds after his name was called, Plaintiff was interrupted and the translator was asked to begin his translation. The translator finished translating 5 minutes and 17 seconds after Plaintiff's name was called. Although Plaintiff testified that he had completed saying everything he had to say to the Board, when the translator was done, Plaintiff refused to cede the dais. After a brief argument regarding the need for Plaintiff to sit down and allow the meeting to proceed, the PUSD staff security guard was called, but was unable to convince Plaintiff to cede the dais.
Plaintiff stated that he was not done with his public comments. Dr. Elizondo reiterated that Plaintiff's time was up and directed the Board President, Yolanda Montalvo to call a recess. Montalvo called a recess and ordered that the audio recording device be turned off. Plaintiff then demanded that the recording device not be turned off and requested a transcript of the proceedings. Elizondo then directed Montalvo to summon the police and the audio recording device was turned off.
Defendant Officer Jimenez arrived on the scene after receiving a call from dispatch that someone was disrupting the meeting. Officer Jimenez spoke briefly with Montalvo and Elizondo, then approached Plaintiff and asked him to step outside. Plaintiff asked Defendant Jimenez what the charges were. Defendant Jimenez responded that there were no charges.
According to Officer Jimenez, Jimenez asked Plaintiff several times to accompany him outside. When Plaintiff refused to comply, Jimenez placed his right hand around Plaintiff's left wrist and told Plaintiff to walk out or he was going to be placed under arrest. Jimenez requested that dispatch send another unit to his location. Jimenez then took out his taser ...