United States District Court, E.D. Virginia, Norfolk Division
PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER, Plaintiff,
KEN STOLLE, Sheriff for Virginia Beach, Virginia, et. al, Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Prison Legal News, a project of the Human Rights Defense
Center, Plaintiff: Jeffrey E. Fogel, Steven David Rosenfield,
Charlottesville, VA; Lance Theodore Weber, PRO HAC VICE,
Human Rights Defense Center, Lake Worth, FL.
Stolle, Sheriff for Virginia Beach, Virginia, sued in his
official and inidivual capacity, G Havens, V Ogden, A Torno,
V Harris, M Brittingham, Matthew Wilson, E Rodriguez, Darlene
Moore, Defendants: Jeff Wayne Rosen, LEAD ATTORNEY, Pender &
Coward PC, Virginia Beach, VA.
Davis, UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion seeking attorney's
fees and litigation expenses filed by Prison Legal News, a
project of the Human Rights Defense Center, ("
Plaintiff," or " PLN" ). Such motion is filed
pursuant to 42 U.S.C. § 1988, and is predicated on
Plaintiff's success in obtaining permanent injunctive
relief on its § 1983 claims through summary judgment as
well as securing a subsequent negotiated consent decree.
Defendant Ken Stolle, the Sheriff of Virginia Beach,
Virginia, and the individually named Sheriff's deputies
(collectively, " Defendants" ), filed a joint brief
acknowledging that a fee award is appropriate, but challenge
the extent of the award requested by Plaintiff. For the
reasons discussed below, Plaintiff's motion seeking
attorney's fees is GRANTED, although the amount of fees
requested is reduced from the amount sought by Plaintiff.
Factual and Procedural Background
Court incorporates herein the sections entitled "
Factual and Procedural Background" in its December 8,
2014 Opinion and Order and March 31, 2015 Opinion and Order.
ECF Nos. 65, 84. In short, PLN is the publisher of a monthly
magazine titled " Prison Legal News,"
which is marketed mainly to inmates. Over the past several
years, inmates at the Virginia Beach Correctional Center
(" VBCC" ), which is operated by Sheriff Stolle and
the Virginia Beach Sheriff's Office (" VBSO" ),
have not been permitted to receive the monthly Prison
Legal News magazine due to its alleged violation of the
VBSO " sexually explicit" materials policy and
" ordering forms" policy. Plaintiff's lawsuit
challenged Defendants' exclusion of Prison Legal
News magazine from VBCC.
Court's December 8, 2014 Opinion, the Court ruled in
Defendant's favor regarding the exclusion of Prison
Legal News magazine from VBCC based on the VBSO "
ordering forms" policy, and reserved ruling on the
" sexually explicit" materials
policy. In this Court's March 31, 2015
Opinion, the Court found that the VBSO had previously
maintained an unconstitutionally overbroad " sexually
explicit" materials policy, and although such policy had
been amended during the course of the litigation, the Court
entered a permanent
injunction precluding the VBSO from returning to its former
policy. Additionally, the Court found that Defendants had
previously engaged in due process violations in their
handling of magazine censorship decisions, and although such
procedures had been modified and corrected during the course
of the litigation, the Court entered a permanent injunction
precluding the VBSO from returning to its prior notification
and censorship practices. After the issuance of the
Court's March 31, 2015 Opinion, the parties continued to
dispute the degree of nominal damages that should be awarded
to PLN for the due process violations, as well as whether
punitive damages should be awarded. Prior to a bench-trial
being conducted to resolve such remaining dispute, the
parties reached a settlement and a consent decree was
entered. Plaintiff thereafter filed this motion as the
consent decree did not include an agreement regarding
Standard for Attorney's Fee Award
Right to Fees
instant civil case was filed pursuant to 42 U.S.C. §
1983 seeking to remedy the alleged depravation of
constitutional rights, and it is undisputed that: (1)
pursuant to 42 U.S.C. § 1988, this Court has discretion
to award reasonable attorney's fees and litigation
expenses to a " prevailing party" in a § 1983
action; and (2) that PLN qualifies as a " prevailing
party" in this case and is thus entitled to at least a
partial award of fees, as well as litigation expenses. 42
U.S.C. § 1988; see S-1 by & Through P-1 v. State Bd.
of Educ. of N. Carolina, 21 F.3d 49, 51 (4th Cir. 1994)
(indicating that a " prevailing party" may be
awarded attorney's fees if it obtains " an
enforceable judgment, consent decree, or settlement giving
some of the legal relief sought in a § 1983 action"
(citing Farrar v. Hobby, 506 U.S. 103, 113 S.Ct.
566, 121 L.Ed.2d 494 (1992))). It is well-established that
the purpose of fee shifting under § 1988 is to "
'ensure effective access to the judicial process,'
for persons with civil rights grievances." Lefemine
v. Wideman, 758 F.3d 551, 555 (4th Cir. 2014)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 429,
103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Accordingly, "
[i]n light of Section 1988's language and purpose, a
prevailing plaintiff 'should ordinarily recover an
attorney's fee unless special circumstances would render
such an award unjust.'" Id. (quoting
Hensley, 461 U.S. at 429). Here, Plaintiff's entitlement
to an award of attorney's fees and litigation expenses is
well-supported by the record, and thus, the only remaining
task is determination of a " reasonable fee award"
that is appropriate in this case. Id. at 559.
Calculation of " Reasonable" Fee Award
Fourth Circuit has outlined a three step framework for
calculating a reasonable attorney's fee:
First, the court must " determine the lodestar figure by
multiplying the number of reasonable hours expended times a
reasonable rate." Robinson v. Equifax Info. Servs.,
LLC, 560 F.3d 235, 243 (4th Cir. 2009). To ascertain
what is reasonable in terms of hours expended and the rate
charged, the court is bound to apply the factors set forth in
Johnson v. Georgia Highway Express Inc., 488 F.2d
714, 717-19 (5th Cir. 1974). Id. at 243-44. Next,
the court must " subtract fees for hours spent on
unsuccessful claims unrelated to successful ones."
Id. at 244. Finally, the court should award "
some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff." Id.
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013),
as amended (Jan. 23, 2014) (footnote omitted).
calculation of a lodestar figure is " [t]he most useful
starting point for determining the amount of a reasonable
fee," because it " provides an objective basis on
which to make an initial estimate of the value of a
lawyer's services." Hensley, 461 U.S. at
433; see Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010)
(characterizing the lodestar calculation as " the
guiding light of . . . fee-shifting jurisprudence" )
(quotation marks and citation omitted). The fee applicant
bears the burden of proving the reasonableness of the hours
expended and the requested hourly rates, which generally
requires submission of the attorney's own affidavit and
timesheets as well as " 'satisfactory specific
evidence of the prevailing market rates in the relevant
community for the type of work for which [the attorney] seeks
an award.'" Grissom v. The Mills Corp., 549
F.3d 313, 321 (4th Cir. 2008) (quoting Plyler v.
Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). In evaluating
the submissions in order to determine both a reasonable rate
and a reasonable number of hours expended, the lodestar
analysis is guided by the following twelve factors (the
" Johnson factors" ):
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the
legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and
client; and (12) attorneys' fees awards in similar cases.
Barber v. Kimbrell's Inc., 577 F.2d 216, 226
n.28 (4th Cir. 1978) (adopting the twelve factors identified
by the Fifth Circuit in Johnson v. Georgia Highway Express
Inc.); cf. Perdue, 559 U.S. at 550-52 (explaining
why the objective lodestar approach is superior to the
subjective approach outlined in Johnson, but failing to hold
that it is improper to be informed by the Johnson factors
when performing a lodestar analysis). Because Fourth Circuit
precedent requires this Court to be guided by the Johnson
factors in determining the lodestar figure, " to the
extent that any of the Johnson factors has already been
incorporated into the lodestar analysis," such factor(s)
should not later be considered a second time to make an
upward or downward adjustment to the lodestar figure because
doing so would " inappropriately weigh" such
factor. McAfee, 738 F.3d at 91.
second step in the fee calculation requires the Court to
exclude fees for counsel's time spent on unsuccessful
claims that are unrelated to the successful claims.
Robinson, 560 F.3d at 244; see Hensley, 461 U.S. at
435 (" The congressional intent to limit awards to
prevailing parties requires that . . . [unrelated claims
based on different facts and legal theories] be treated as if
they had been raised in separate lawsuits, and therefore no
fee may be awarded for services on the unsuccessful
claim[s]" ). The Supreme Court has recognized that
" [i]t may well be that cases involving such unrelated
claims are unlikely to arise with great frequency,"
because " [m]any civil rights cases will present only a
single claim," and in other cases, the claims "
will involve a common
core of facts or will be based on related legal
theories." Hensley, 461 U.S. at 435. In such
latter circumstance, " [m]uch of counsel's time will
be devoted generally to the litigation as a whole, making it
difficult to divide the hours expended on a claim-by-claim
basis," with the nature of the lawsuit precluding it
from being " viewed as a series of discrete
third and final step, after a lodestar calculation has been
made and any unsuccessful efforts on unrelated claims have
been excluded, requires the Court to award " 'some
percentage of the remaining amount, depending on the degree
of success enjoyed by the plaintiff.'"
Grissom, 549 F.3d at 321 (quoting Johnson v.
City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). It is
appropriate for the Court to reduce an award at the third
step of the analysis if " 'the relief, however
significant, is limited in comparison to the scope of the
litigation as a whole.'" McAfee, 738 F.3d
at 92 (quoting Hensley, 461 U.S. at 439-40). "
What the court must ask is whether 'the plaintiff
achieved a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee
award.'" Id. (quoting Hensley, 461
U.S. at 434). Accordingly, when " a plaintiff has
achieved only partial or limited success, the product of
hours reasonably expended on the litigation as a whole times
a reasonable hourly rate may be an excessive amount"
even in cases " where the plaintiff's claims were
interrelated, nonfrivolous, and raised in good faith."
Hensley, 461 U.S. at 436. An attorney's fee
award under § 1988 is therefore not driven by whether it
was reasonable to file suit or whether plaintiff's
counsel litigated the case " with devotion and
skill" ; rather, " the most critical factor is the
degree of success obtained." Id.
Number of Reasonable Hours Expended
indicted above, it is undisputed that Plaintiff is a "
prevailing party" and Defendants do not contest a
reasonable fee award to compensate Plaintiff's outside
counsel in this case. Defendants do, however, challenge the
propriety of any fee award to Plaintiff's in-house
counsel. Additionally, Defendants further argue that many of
the hours for which Plaintiff seeks compensation are
duplicative hours spent in conferences, time spent on tasks
not sufficiently related to the litigation, including
pre-complaint time, and travel time inappropriately billed at
full hourly rates. Defendants also seek an overall reduction
due to the degree of success obtained in this case.
analyzing Defendants' challenges to the hours expended,
the Court considers the relevant Johnson factors, including
the time and labor expended by the attorneys of various skill
levels and experience, the difficulty of the questions
raised, the skill required to perform the services rendered,
and any time limitations imposed by the circumstances of this
case. Barber, 577 F.2d at 226 n.28.