United States District Court, N.D. California
ORDER GRANTING IN PART PLAINTIFF'S RENEWED MOTION
FOR REASONABLE ATTORNEY'S FEES
THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's renewed motion for
attorney's fees. ECF No. 434. On April 20, 2017, the
Court found the matter suitable for resolution without oral
argument, vacated the motion hearing, and ordered
supplemental briefing on the question of whether the Prison
Litigation Reform Act (“PLRA”) restricted
Plaintiff's attorney's fees in this case. ECF No.
441. Now, having carefully considered the motion papers and
supplemental briefs, the Court GRANTS IN PART Plaintiff's
motion for the reasons set forth below.
Steven Dale Percelle (“Plaintiff”) is a former
prisoner who sued four correctional officers, pursuant to 42
U.S.C. § 1983, for retaliation in violation of his First
Amendment right to petition the courts for grievances.
Plaintiff sought to hold Officers Steven Pearson, Derek
Arredondo, Michael Williams and Dylan Fletcher
(“Defendants”) accountable for their retaliatory
actions in investigating Plaintiff, falsely validating him as
a gang member, and placing him in administrative segregation
for fourteen months. He filed a pro se complaint on
October 16, 2012 while he was still incarcerated. ECF No. 1.
He was released from prison five months later, on March 16,
2013, and obtained counsel sometime in the middle of April
2013. Dresser Decl. in Support of First Fee Motion
(“First Dresser Decl.”) ¶ 27 (ECF No. 417).
He was represented by his current counsel William Dresser
through the remainder of the litigation.
eight-day jury trial was held on December 8, 2016. The jury
unanimously found that all four Defendants had retaliated
against Percelle in violation of the First Amendment. ECF No.
404. They awarded Plaintiff $335, 000 in compensatory
damages, and $50, 000 against each Defendant in punitive
damages. The Court entered final judgment on January 3, 2017.
ECF No. 413.
filed a timely motion for attorney's fees and costs on
January 16, 2017. ECF No. 416. Defendants opposed (ECF No.
418) and Plaintiff replied (ECF No. 423). While that motion
was pending, Defendants filed a renewed motion for judgment
as a matter of law, remittitur and new trial (ECF No. 419),
which the Court denied on March 14, 2017 (ECF No. 433). On
March 27, 2017, Plaintiff filed a second motion for
attorney's fees (ECF No. 434), which was subsequently
briefed (ECF Nos. 436, 439). The present order addresses both
motions for attorney's fees and fully resolves the case.
to 42 U.S.C. § 1988, “[a] party who prevails on a
claim under [Section] 1983 is entitled to reasonable
attorney's fees unless special circumstances would render
such an award unjust.” Chaudhry v. City of Los
Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014). Since the
statute was passed “to attract competent counsel to
prosecute civil rights cases, ” courts have held that
“fee awards should be the rule rather than the
exception.” Barnard v. Theobald, 721 F.3d
1069, 1077 (9th Cir. 2013). District courts “must
strike a balance between granting sufficient fees to attract
qualified counsel to civil rights cases and avoiding a
windfall to counsel.” Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).
determine the amount of a reasonable fee under Section 1988,
a district court typically proceeds in two steps. See
Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th
Cir. 2013). First, the court “appl[ies] ... the
‘lodestar' method to determine what constitutes a
reasonable attorney's fee” by multiplying the
number of hours reasonably expended on the litigation by the
reasonable hourly rate. Costa v. Comm'r of Soc.
Security Admin., 690 F.3d 1132, 1135 (9th Cir.
2012). Second, the court may adjust the presumptively
reasonable lodestar amount based on factors listed in
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,
69-70 (9th Cir, 1975), that have not been subsumed in the
lodestar calculation. Gracie v. Gracie, 217 F.3d
1060, 1070 (9th Cir. 2000).
seeks a total of $454, 007.91 in attorney's fees and
expenses, broken down as follows: (1) $423, 407.41 in fees
accrued before the filing of Plaintiff's first fee motion
on January 16, 2017; (2) $28, 150.50 in additional fees
accrued on the first fee motion and the opposition to
Defendants' motion for a new trial; (3) $2, 450.00 as
fees and costs in preparing the second fee
Defendants object to the amount requested on the grounds that
the limitations imposed by the PLRA are applicable, that the
fees requested are not sufficiently documented, and that
Plaintiff's counsel was unprofessional and difficult. In
addition, Defendants argue that the Court should disregard
Plaintiff's second motion for attorney's fees because
Plaintiff did not seek or receive leave to file a
supplemental fee motion.
preliminary matter, the Court addresses Defendants'
objection to the filing of Plaintiff's second motion for
attorney's fees. Although Defendants are correct that
Plaintiff's counsel should have sought leave to file a
supplemental brief in support of his initial fee motion, the
Court finds that Defendants were not prejudiced by the filing
of the second fee motion. Plaintiff's counsel did not
raise any new arguments or seek previously undisclosed fees
and costs, other than the fees accrued after the filing of
the first fee motion. The Court deems it proper to consider
the supplemental motion though, as explained below, fees for
the preparation of that motion will not be awarded.
Applicability of the PLRA
first substantive argument is that Plaintiff's hourly
rate is excessive under the PLRA. Plaintiff contends that the
PLRA limitation on attorney's fees does not apply to the
present case because even though Plaintiff was incarcerated
when he filed the case, he was released five months later and
remained a free man during the entire course of the
litigation and his counsel's representation.
PLRA limitation on attorney's fees applies to “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
[Title 42 U.S.C.]” 42 U.S.C. § 1997e(d)(1). It is
undisputed that in this case Section 1988 authorizes the
award of attorney's fees because Plaintiff was the
prevailing party in a lawsuit under Section 1983. The
question is whether the PLRA applies to the calculation of
Plaintiff's attorney's fees given that Plaintiff was
a prisoner when the action was “brought” but that
he was no longer “confined to any [...] prison”
when counsel was retained, the fees in question were accrued,
and judgment was entered. Id.
thorough consideration of the arguments made and cases cited
in the parties' supplemental briefs on this issue, the
Court finds that the PLRA limits the award of attorney's
fees that can be awarded in the present case. The plain text
of the statute, although not unambiguous, is most naturally
read as restricting attorney's fees in any action
“brought by a prisoner, ” meaning filed or
commenced by a prisoner. See Connecticut Nat'l Bank
v. Germain, 503 U.S. 249, 253-54 (1992) (“courts
must presume that a legislature says in a statute what it
means and means in a statute what it says there.”). The
second clause-“who is confined to any jail, prison, or
other correctional facility” - does not require that
the person is confined at the time the motion for
attorney's fees is resolved; it simply ...