Alnutt v. Cleary

27 F. Supp. 2d 395, 1998 U.S. Dist. LEXIS 18477, 1998 WL 818043
CourtDistrict Court, W.D. New York
DecidedNovember 24, 1998
Docket90-CV-804L
StatusPublished
Cited by18 cases

This text of 27 F. Supp. 2d 395 (Alnutt v. Cleary) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alnutt v. Cleary, 27 F. Supp. 2d 395, 1998 U.S. Dist. LEXIS 18477, 1998 WL 818043 (W.D.N.Y. 1998).

Opinion

DECISION AND ORDER

LARIMER, Chief Judge.

Plaintiff, Jeffrey Alnutt, commenced this action pro se in 1990, pursuant to 42 U.S.C. § 1983, alleging that several corrections officers violated his civil rights after he was elected as an Inmate Grievance Resolution Committee (“IGRC”) representative at Wende Correctional Facility. In 1993, the Court appointed Margaret Somerset of Harris, Beach and Wilcox to represent the plaintiff pro bono. The case went to trial in July 1998, and plaintiff was the prevailing party. Plaintiff now moves for an award of attorney’s fees and costs, pursuant to 42 U.S.C. § 1988.

FACTUAL BACKGROUND

In his amended complaint, which was filed November 12, 1993, by Ms. Somerset, plaintiff asserted claims against Sergeant Robert Graver and corrections officers Carl Anderson, Joseph Bates, William Cleary, Mary Guenther, James Kenner, Richard Koslowski, Thomas Lamb, and Keith White. Specifically, plaintiff alleged four causes of action. First, plaintiff claimed that Graver, Cleary, Kenner, and White verbally harassed and assaulted him and issued false disciplinary tickets against him in a concerted effort to deter him from performing his duties as IGRC representative. Second, plaintiff alleged that Graver, Andersen, and Lamb failed to conduct plaintiffs urinalysis test in accordance with department directives and caused a false positive test result to be reported in retaliation for plaintiffs IGRC activities. Third, plaintiff claimed that Graver, Anderson, Bates, Guenther, and Lamb transferred plaintiff to another facility, in violation of department directives, while plaintiff was an IGRC representative. Fourth, plaintiff alleged that Bates failed to afford him a fair disciplinary hearing on the drag charges and that Koslowski testified falsely at the hearing.

After extensive discovery, the parties cross-moved for summary judgment. In a decision filed January 8, 1996, familiarity with which is assumed, I denied plaintiffs cross-motion for partial summary judgment and denied, in part, and granted, in part, defendants’ cross-motion for summary judgment. Specifically, I denied defendants’ motion for summary judgment on plaintiffs first two causes of action, finding that plaintiffs numerous allegations, if true, could support a verdict that defendants retaliated against *398 him for performing his IGRC duties. 1 I granted summary judgment in favor of defendants on plaintiffs third cause of action on the ground that the directive limiting the transfer of IGRC representatives did not give rise to a liberty interest. I did note, however, that evidence of the improper transfer could be introduced at tidal in support of plaintiffs retaliation claim. Finally, I granted summary judgment on plaintiffs fourth cause of action on the ground that plaintiff was afforded the requisite due process at his disciplinary hearing. As a result of my decision on the summary judgment motions, the complaint was dismissed as to defendants Bates, Guenther, and Koslowski.

The case then proceeded to trial against the remaining six defendants. On August 4, 1998, after five days of trial, the jury found, in answer to written interrogatories, that Sergeant Gruver had, in fact, retaliated against plaintiff for exercising his First Amendment rights and assessed compensatory damages against Gruver in the amount of $35,000. The jury also found that plaintiff was entitled to recover punitive damages from Gruver. The jury returned a verdict of no cause of action in favor of defendants Anderson, Cleary, Kenner, Lamb, and White. Prior to a hearing before the jury on the amount of punitive damages, the parties reached a settlement. Pursuant to that agreement, judgment was entered in favor of plaintiff and against Gruver in the amount of $35,000, and Gruver waived his right to appeal the jury’s verdict. Plaintiffs claim for punitive damages was withdrawn and dismissed. It was understood that plaintiff would petition the Court for attorney’s fees.

Plaintiff now moves for an award of attorney’s fees and costs, pursuant to 42 U.S.C. § 1988, in the amount of $106,167.99. Plaintiffs counsel seeks $102,517 in fees and $3,650.99 in costs. The fee request of $102,-517 is allocated between the following individuals: Margaret Somerset, Esq. (663.9 hours at $120-$180 per hour for a total of $100,957); 2 Daniel P. O’Brien, Esq. (5.7 hours at $90 per hour for a total of $513); Leslie Ortiz, summer associate (5 hours at $85 per hour for a total of $425); Ed Russell, summer associate (2.8 hours at $85 per hour for a total of $238); Joette McHugh, nurse legal consultant (4 hours at $75 per hour for a total of $300); Melinda Muldoon, paralegal (.6 hours at $55 per hour for a total of $33); Jane Prucha, library clerk (1.3 hours at $30 per hour for a total of $39); and Janet Jab-lonski, library clerk (.4 hours at $30 per hour for a total of $12).

The cost request of $3,650.99 is allocated among the following: computer research ($125.13); long-distance telephone calls ($421.86); photocopies ($2,254.90); special mailing expenses ($124.05); travel ($184.27); facsimile transmissions ($26.00); deposition transcripts ($446.78); and service of process ($68.00).

Defendant does not dispute that plaintiff is the prevailing party in this action and, therefore, is entitled to an award of reasonable attorney’s fees and costs. Defendant contends that the request is not reasonable. Defendant contests the total hours worked, *399 the rates charged, and seeks a reduction based on the degree of success.

DISCUSSION

I. Attorney’s Fees

A. The Lodestar Approach

Title 42 U.S.C. § 1988 provides that in federal civil rights actions, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” In this Circuit, “[t]he lodestar approach governs the initial estimate of reasonable fees.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992). Under this approach, “the number of hours reasonably expended on the litigation [are] multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Grant, 973 F.2d at 99.

Plaintiff has the burden to establish the reasonableness of both the number of hours worked and the rate charged. Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Cefali v. Buffalo Brass Co., 748 F.Supp. 1011, 1018 (W.D.N.Y.1990). The initial fee calculation should exclude hours that were not “reasonably expended” because they were “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933.

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Bluebook (online)
27 F. Supp. 2d 395, 1998 U.S. Dist. LEXIS 18477, 1998 WL 818043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alnutt-v-cleary-nywd-1998.