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Prison Legal News v. Stolle

United States District Court, E.D. Virginia, Norfolk Division

September 8, 2015

KEN STOLLE, Sheriff for Virginia Beach, Virginia, et. al, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          For 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.

         For Ken 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.

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         This 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.

         I. Factual and Procedural Background

         The 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.

         In this 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.[1] 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

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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 attorney's fees.

         II. Standard for Attorney's Fee Award

         A. Right to Fees

         The 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.

         B. Calculation of " Reasonable" Fee Award

         The 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.

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McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014) (footnote omitted).

         The 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.

         The 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

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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 claims." Id.

         The 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.

         III. Discussion

         A. Lodestar Analysis

         1. Number of Reasonable Hours Expended

         As 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.

         In 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.

         a. ...

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