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Percelle v. Pearson

United States District Court, N.D. California

June 22, 2017

STEVEN PEARSON, et al., Defendants.



         Before 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.


         Plaintiff 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.

         An 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.

         Plaintiff 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.


         Pursuant 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).

         To 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).


         Plaintiff 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 motion.[1] 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.

         As a 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.

         I. Applicability of the PLRA

         Defendants' 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.

         The 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.

         After a 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 ...

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