UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF NEW HAMPSHIRE
Chasric k Heredia
v. Case No. 21-cv-198-PB Opinion No. 2024 DNH 036 Mic hael Ro sc o e et al.
MEMOR ANDUM AND OR DER
The plaintiff, Chasrick Heredia, sued Michael Roscoe and several other
members of the Manchester Police Department for violating his
constitutional rights while effectuating an arrest. A jury found for Heredia
only as to his excessive force claim against Roscoe and awarded nominal and
punitive damages. Pursuant to 42 U.S.C. § 1988, Heredia now moves for
$163,130.15 in attorney’s fees and costs. For the foregoing reasons, Heredia’s
motion is granted in part and denied in part.
I. BACKGROUND
A. Heredia’s Arrest
The defendants, Manchester Police Officers Michael Roscoe, Canada
Stewart, Matthew Nocella, and Nathan Harrington, first encountered
Heredia and a few of his friends while responding to a noise complaint at a
local bar. Heredia instigated a confrontation with the officers, who then
placed him under arrest for disorderly conduct. Roscoe attempted to take Heredia into custody, but abandoned his
efforts in order to detain one of Heredia’s friends who was intervening in the
arrest. Stewart then attempted to take Heredia into custody, but Heredia
struggled against her, causing Stewart to sustain a concussion. Based on his
belief that Heredia was punching Stewart, Roscoe began repeatedly punching
Heredia in the head with both fists. Stewart and Nocella attempted to bring
Heredia to the ground, at which point Roscoe shot Heredia with his taser.
Nocella was eventually able to place Heredia in handcuffs and transport him
to jail. Although Heredia suffered a number of cuts and bruises during the
incident, he was not offered any medical assistance.
Following the arrest, each of the officers filed an incident report
claiming that Heredia had grabbed Stewart’s hair and repeatedly punched
her. Based in part on these allegations, Heredia was charged in state court
with attempted murder, first-degree assault, second-degree assault, simple
assault, felony resisting arrest, felony riot, two counts of misdemeanor
resisting arrest, and misdemeanor disorderly conduct. A jury acquitted
Heredia of the attempted murder and assault charges but convicted him on
the remaining charges.
Sometime after his trial, Heredia learned that Stewart and Roscoe
were in a committed, romantic relationship at the time of the incident.
Heredia moved for a new trial based on the state’s failure to disclose the
2 officers’ relationship, which the court granted. Heredia eventually pleaded
guilty to resisting arrest, riot, and disorderly conduct, but consistently denied
that he punched Stewart.
B. Heredia’s Civil Suit
Heredia retained Attorneys Stephen Martin and Seth Hipple to pursue
a civil action against Roscoe, Stewart, Nocella, and Harrington. Heredia filed
a complaint in this court pursuant to 42 U.S.C. § 1983, alleging that each of
the officers violated his constitutional rights by (1) employing excessive force
during the arrest, (2) exhibiting deliberate indifference to his serious medical
needs, and (3) fabricating evidence that he punched Stewart. Following an
unsuccessful motion for judgment on the pleadings, the case proceeded to a
jury trial.
Over the course of a four-day trial, the jury heard testimony from
several witnesses, including each of the four officers involved, a use-of-force
expert retained by the defense, and Heredia. At the close of evidence, I
entered judgment as a matter of law as to Heredia’s deliberate indifference
and fabrication of evidence claims against some of the defendants but
presented the remaining claims to the jury.
The jury found for Heredia only as to his excessive force claim against
Roscoe. On that claim, the jury concluded that Heredia had not proved
3 compensatory damages but awarded him $1 in nominal damages and $2,000
in punitive damages.
Heredia now moves for attorney’s fees and costs pursuant to 42 U.S.C.
§ 1988. Heredia seeks to recover $143,170.00 in attorney’s fees and
$19,960.15 in expenses, for a total award of $163,130.15.
II. STANDARD OF R EVIEW
Section 1988 provides that the “prevailing party” in an action brought
under 42 U.S.C. § 1983 may recover “a reasonable attorney’s fee as part of
the costs[.]” A prevailing party is one who has “succeed[ed] on any significant
issue in litigation which achieves some of the benefit the parties sought in
bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting
Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). Under § 1988,
the prevailing party can recover his attorney’s reasonable fees as well as
certain out-of-pocket expenses necessarily incurred in prosecuting the case.
Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 17 (1st Cir. 2011).
The prevailing party has the burden of proving the reasonableness of
the fees he seeks to recover. Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331,
340 (1st Cir. 2008). “A reasonable fee is typically determined through the
lodestar method, which involves multiplying the number of hours
productively spent by a reasonable hourly rate to calculate a base figure.” Id.
at 336. In determining the hours productively spent on the litigation, the
4 court must “exclud[e] those hours that are excessive, redundant, or otherwise
unnecessary.” Perez-Sosa v. Garland, 22 F.4th 312, 321 (1st Cir. 2022)
(cleaned up). “Once established, the lodestar represents a presumptively
reasonable fee[.]” Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992).
Nonetheless, the court may exercise its discretion to “adjust the
lodestar amount, either upward or downward, if the specific circumstances of
the case warrant such an adjustment.” Perez-Sosa, 22 F.4th at 321. Because
attorney’s fees awards are not mandatory, the “trial court’s discretion in
respect to fee awards is extremely broad.” Lipsett, 975 F.2d at 937.
III. ANALYSIS
In support of his request for attorney’s fees, Heredia submitted 160
pages of billing records, which reflect over 600 hours of attorney and staff
time expended on this litigation, as well as several thousand dollars in
various out-of-pocket expenses. Heredia asserts that his requested fees are
reasonable in light of the complexity of the case and his ultimate success on
the excessive force claim against Roscoe. Roscoe concedes that some award is
warranted but argues that I should exclude certain fees and expenses in
calculating the award and, furthermore, apply a downward adjustment to
account for Heredia’s limited success. 1 I address each argument in turn.
1 Roscoe states in a footnote that whether Heredia is “truly the ‘prevailing party’ for the purposes of awarding attorney’s [fees]” is not
5 A. Calc ulating the Lo destar
The attorneys’ billing records indicate that they provided 300.75 hours
of work at a rate of $300 per hour and 134.75 hours of work at a rate of $250
per hour. 2 Doc. 92-2 at 5. The billing records also show that their firm’s
paralegals and secretaries performed 175.25 hours of work on the case, which
were variably billed between $60 and $175 per hour. Id. at 6.
Roscoe does not challenge the reasonableness of the hourly rates
charged but asserts that a number of the time entries are unreasonable and
therefore unrecoverable. Doc. 95-1 at 4-5 & n.1. Specifically, Roscoe argues
that I should (1) refuse to award fees for work on Heredia’s unsuccessful
claims, (2) exclude hours spent deposing Attorney Donald Topham, the
prosecutor in Heredia’s criminal case, (3) deduct fees for time spent
performing clerical work, (4) reduce the hourly fee awarded for work on the
entirely “clear-cut” given Heredia’s limited success. Doc. 95-1 at 11 n.3. To the extent Roscoe is arguing that Heredia is not eligible to recover attorney’s fees under § 1988, he is clearly wrong. The Supreme Court has held that “a plaintiff who wins nominal damages is a prevailing party under § 1988” and therefore eligible for an attorney’s fees award under the statute. Farrar v. Hobby, 506 U.S. 103, 112 (1992). The qualified nature of Heredia’s victory is relevant to the amount of fees that should be awarded but “does not affect the prevailing party inquiry[.]” Id. at 114.
2 According to Attorney Martin, the firm raised its rates part way through the litigation. Doc. 92-2 at 4.
6 fee petition, and (5) reduce the hours awarded to account for overbilling. 3 I
consider each argument in turn.
1. Work on Unsuccessful Claims
Roscoe asserts that I should deduct hours dedicated to Heredia’s
deliberate indifference claims, fabrication of evidence claims, and excessive
force claims against the other three officers since those claims were
ultimately unsuccessful.
It is true that, as a general rule, plaintiffs are not entitled to recover
fees for work on unsuccessful claims. Trainor v. HEI Hosp., 699 F.3d 19, 35
(1st Cir. 2012). However, “attorneys’ fees may be awarded with respect to
work performed on unsuccessful claims if those claims are interrelated with
successful claims.” Id. Claims are considered interrelated if they rest on a
“common core of facts” or are “based on related legal theories.” Lipsett, 975
F.2d at 940 (quoting Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir. 1984)).
Here, all of Heredia’s excessive force claims were interrelated because
they were based on the same set of facts. The excessive force claims all arose
out of the same incident, where multiple officers employed varying degrees of
3 As an alternative to these line-by-line deductions, Roscoe asserts that I could simply apply a 75% global reduction to Heredia’s requested fees. I decline to do so and will instead apply the “more exacting approach to the lodestar method” that is “preferred” within the First Circuit. Burke v. McDonald, 572 F.3d 51, 64 (1st Cir. 2009).
7 force against Heredia in short succession. Each officer—including Roscoe—
claimed that his or her use of force was justified based on Heredia’s
combative behavior towards the officers. In such a case, it would be
impossible to litigate the legality of Roscoe’s use of force without first
establishing Heredia’s actions towards the other officers and their responding
force.
Heredia’s fabrication of evidence claims, which were premised on the
assertion that Heredia never punched Stewart, are intertwined with his
excessive force claim for similar reasons. Because Roscoe asserted that his
use of force was justified by Heredia’s attack on Stewart, understanding what
occurred between Heredia and Stewart was crucial to Heredia’s excessive
force claim against Roscoe.
In sum, because the facts that bore on Heredia’s unsuccessful
fabrication of evidence and excessive force claims also bore on his successful
claim against Roscoe, counsel’s work on the unsuccessful claims was
“intertwined with, and contributed materially to, the eventual success” of
Heredia’s claim against Roscoe. See Trainor, 699 F.3d at 36.
The same cannot be said, however, of Heredia’s deliberate indifference
claims. While it is true that those claims also arose out of the same arrest,
they were based on an entirely distinct set of facts. The deliberate
indifference claims turned exclusively on post-arrest facts; namely, what sort
8 of injuries Heredia suffered and how the officers responded to those injuries.
Litigating those facts did nothing to contribute to Heredia’s excessive force
claim, which turned solely on whether Roscoe’s actions were justified at the
time of the arrest. Work expended on the deliberate indifference claims
therefore “cannot be deemed to have been expended in pursuit of the ultimate
result achieved,” and should be deducted from the fee award. Hensley, 461
U.S. at 435 (cleaned up).
The billing records, however, render it impossible to discern which
hours were expended in pursuit of the deliberate indifference claims. The
entries refer generally to various tasks, such as “preparing for trial” or
deposing witnesses, but largely fail to specify which claims were addressed
while performing those tasks. See, e.g., Doc. 93 at 13, 63. Because such
“ambiguous time entries” provide “little, if any, basis for determining what
work reflected in them was done to develop what claims,” I am unable to
parse which entries must be excluded from the ultimate award. Burke, 572
F.3d at 64.
In such a case, the First Circuit has stated that the district court may
apply a “global reduction” to the fees based on a “proportionate estimate of
the time spent” litigating the unsuccessful claims. Id. Here, the deliberate
indifference claims were scarcely addressed throughout course of the
litigation, which predominately emphasized the excessive force claims. At
9 trial, the facts relevant to the deliberate indifference claims were only briefly
discussed and no witnesses were called to testify exclusively to the deliberate
indifference claims. Based on my experience presiding over each stage of this
litigation, I estimate that approximately 5% of counsel’s efforts were directed
towards the deliberate indifference claims and will reduce the fees
accordingly.
2. Attorney Topham
Heredia seeks to recover fees associated with locating and deposing
Attorney Donald Topham, the prosecutor in Heredia’s underlying criminal
case. According to Attorney Martin, deposing Attorney Topham was
“necessary to understand how he decided to pursue certain charges against
[Heredia] in order to litigate the fabrication of evidence claim.” Doc. 92-2 at 3.
Roscoe argues that these fees should be excluded from the award because
Attorney Topham’s deposition testimony was not relevant to Heredia’s
excessive force claim. I agree.
Because Heredia did not call Attorney Topham at trial or seek to enter
his deposition into evidence, the deposition could not have contributed to
Heredia’s success. Doc. 67 at 51. Moreover, Attorney Topham’s deposition
was principally focused on his charging decisions which, while relevant to the
fabrication of evidence claims, had no bearing on the excessive force claims.
Indeed, in ruling on a motion in limine filed by Heredia, I concluded that
10 Attorney Topham would not be permitted to testify about his views on the
officers’ use of force if called by the defense. Id. at 52-55. Thus, while
Attorney Topham’s deposition was arguably useful in developing the
fabrication of evidence claims, it was of no use in litigating the excessive force
claim against Roscoe. See Bodensteiner & Levinson, 2 State & Local Gov’t
C.R. Liab. § 2:39 (2023) (noting that, although work on related claims will
generally “contribute to the successful claims,” courts must nonetheless
undertake “a close examination of the activities and time of plaintiff’s counsel
to determine whether each activity contributed to a successful aspect of the
case”); accord Perez-Sosa, 22 F.4th at 324 (noting that, in fashioning a fee
award, “an inquiring court must look not to labels but, rather, to the nature
of the work and its utility to the case at hand”).
Because I conclude that the time spent preparing for and ultimately
deposing Attorney Topham was unnecessary, those entries must be deducted
from the fees award.
3. Clerical Tasks
Roscoe seeks to exclude from the award a number of time entries where
the attorneys or their staff were performing clerical or administrative work.
As a general rule, the performance of purely clerical or administrative
work is considered part of a firm’s overhead and cannot be awarded under
§ 1988. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); accord
11 Jacobs v. Mancuso, 825 F.2d 559, 563 (1st Cir. 1987). Accordingly, “[w]hen
clerical tasks are billed at hourly rates, the court should reduce the hours
requested to account for the billing errors.” Nadarajah, 569 F.3d at 921
(collecting cases).
Heredia’s billing records include 29.75 hours of clerical work performed
by various secretaries. Doc. 92-2 at 6. “Fees for work done by secretaries and
administrative staff are not compensable,” but rather “considered part of the
overhead included in counsel’s fee,” and therefore must be excluded from the
award. McLaughlin by McLaughlin v. Bos. Sch. Comm., 976 F. Supp. 53, 66,
69 (D. Mass. 1997) (quoting Jacobs, 825 F.2d at 563).
Similarly, Heredia’s billing records include 49.75 hours of work by
attorneys or paralegals completing purely administrative tasks, such as
scheduling meetings, drafting non-legal correspondence, compiling trial
binders, or printing documents. This is the sort of non-legal, clerical work
that should have been performed by the firm’s secretaries and included in
counsel’s overhead. See Vela v. City of Hous., 276 F.3d 659, 681 (5th Cir.
2001) (“Paralegal work can only be recovered as attorney’s fees if the work is
legal rather than clerical.”); Lipsett, 975 F.2d at 940 (“clerical or secretarial
tasks ought not to be billed at lawyers’ rates, even if a lawyer performs
them.”). Accordingly, I will deduct from the award fees for hours spent on
clerical tasks, regardless of who performed the work. See Conservation Law
12 Found., Inc. v. Patrick, 767 F. Supp. 2d 244, 254 (D. Mass. 2011) (“Whether
performed by attorneys or legal assistants, purely administrative work ought
be either eliminated or paid at lower rates.”); accord Terry v. City of San
Diego, 583 F. App’x 786, 790 (9th Cir. 2014).
4. Work on Fee Petition
Although Roscoe does not generally challenge the reasonableness of the
attorney’s rates, he argues that the rates are excessive as applied to work on
the fee petition given the comparatively simplistic nature of the task.
I agree that, as a general matter, “litigating a fee petition is typically
an uncomplicated exercise” that warrants a lesser fee. Torres-Rivera, 524
F.3d at 340. Moreover, because the attorneys here raised their rates part way
through the litigation, awarding Heredia’s requested fees would lead to the
anomalous result of awarding a higher rate for work on the fee petition
($300) than work on the earlier portions of the merits ($250). Cf id. (noting
that “fees for [work on a fee petition] are often calculated at lower rates than
those deemed reasonable for the main litigation”).
I conclude that an hourly rate of $200 would reasonably compensate
the attorneys for completing the relatively straightforward work of preparing
13 a fee petition and will apply that rate to the 9.5 attorney hours expended on
the petition. 4
5. Overbilling
Roscoe asserts that the time entries are excessive and unreasonable in
at least two respects. First, Roscoe argues that the there are several
duplicative entries in the time records, including multiple rounds of review of
the same documents and excessive hours spent conferencing among the
attorneys and their staff. Second, Roscoe asserts that the attorneys’ practice
of billing in 15-minute increments impermissibly inflated their hours. Roscoe
requests that I omit the duplicative time entries from the award and, further,
apply a 25% across-the-board reduction to counteract the effect of quarter-
hour billing.
Although Roscoe takes issue with certain instances where multiple
attorneys and staff members worked on the same task, he does not appear to
assert that the staffing patterns themselves were unreasonable. Indeed, the
attorneys appeared to have made wholly reasonable staffing decisions.
4 Roscoe also seeks to reduce the hourly rate for the paralegal who worked on the fee petition. The rationale that justifies reducing the attorneys’ fees does not extend to the paralegal’s fees, particularly given that the paralegal’s work on the fee petition was billed at the firm’s lowest paralegal rate. See Baines v. Bellows, No. 1:19-cv-00509-LEW, 2022 WL 2753185, at *4 n.2 (D. Me. July 14, 2022) (concluding that a paralegal’s hourly rates should not be reduced for work on a fee petition because “fee petitions and merits work likely generate equally complex tasks for paralegals”).
14 Attorney Martin was the sole attorney on the case throughout the majority of
the litigation, and only brought on Attorney Hipple to assist with the trial.
This was a reasonable decision given the number of parties involved and the
fact that the defendants employed two attorneys at all times. See Lipsett, 975
F.2d at 939 (noting that “the number of defendants, and the defense’s
formidable staffing patterns” were relevant to determining the
reasonableness of staffing patterns).
Where, as here, two attorneys are reasonably deployed on a case, there
will inevitably be “a need for some amount of coordination, including
intramural conference.” Hutchinson, 636 F.3d at 14. I do not find that the
level of coordination and conferencing between Attorneys Martin and Hipple
was excessive, and therefore will not deduct those hours from the award. See
id. (“Everything turns on the reasonableness of the staffing patterns
employed and the overall time spent.”).
Nor do I find that the time expended reviewing the paralegals’ work
was excessive. While the use of paralegals is a broadly accepted, and even
encouraged, “cost-saving device,” Lipsett, 975 F.2d at 939; it nonetheless
necessitates some amount of attorney supervision and review, cf. N.H. R. of
Pro. Conduct 5.3 (discussing an attorney’s obligation to appropriately
supervise the work of paralegals). The time spent reviewing the paralegal’s
work was not excessive, and therefore will not be deducted from the award.
15 The attorneys’ practice of billing in quarter-hour increments, however,
does warrant a reduction. An attorney’s time is typically rounded up to the
next time increment, which inevitably results in some amount of “‘breakage’
favorable to the attorney.” Perez-Sosa, 22 F.4th at 331. Because larger time
increments result in more breakage, “the practice of quarter-hour billing may
lead to overbilling.” E. Associated Coal Corp. v. Dir., Off. of Workers’ Comp.
Programs, 724 F.3d 561, 576 (4th Cir. 2013). In order to counteract such
overbilling, the First Circuit has held that district courts may apply a global
reduction to a fee award based on quarter-hour billing records. See, e.g.,
Perez-Sosa, 22 F.4th at 331; Diffenderfer v. Gomez-Colon, 587 F.3d 445, 455-
456 (1st Cir. 2009).
Here, it seems all but inevitable that the attorneys’ quarter-hour billing
practice resulted in some amount of overbilling. See Lucky Brand Dungarees,
Inc. v. Ally Apparel Res., LLC, No. 05 Civ. 6757(LTS)(MHD), 2009 WL
466136, at *4 (S.D.N.Y. Feb. 25, 2009) (cited favorably in Perez-Sosa, 22
F.4th at 331) (noting that quarter-hour billing will “add[] an upward bias in
virtually all cases”). Accordingly, I conclude that some amount of reduction is
warranted.
I decline, however, to apply Roscoe’s requested 25% reduction. While it
is true that the First Circuit has affirmed similar reductions, such a
significant reduction is not warranted here. Because the vast majority of the
16 15-minute billing entries combine multiple tasks, it is not clear that those
billing entries were significantly inflated. Cf. Diffenderfer, 587 F.3d at 455-
456 (affirming a 20% global reduction where “plaintiffs had billed fifty or
more menial items in quarter-hour increments when the actual task would
have taken a negligible amount of time”). Nor are the billing entries
otherwise excessive, for the reasons I have explained. Cf. Perez-Sosa, 22
F.4th at 331 (affirming a 25% global reduction to account for both “quarter-
hour billing and excessive time spent on reviewing discovery and
communication with the client”). Therefore, I will apply a 10% across-the-
board reduction to account for time inflated by quarter-hour billing.
6. Lodestar Calculation
In sum, I calculate the lodestar as follows:
Ho urly Fees Requested: $143,700.00
Line Item Ded uc tio ns: Attorney hours on Topham deposition: -$2,182.50 Paralegal hours on Topham deposition: -$170.00 Secretary hours: -$2,155.00 Paralegal clerical hours: -$4,490.00 Attorney clerical hours: -$1,425.00 $133,277.50
Glo bal R educ tio n fo r Deliberate Ind ifferenc e Claims -$6,663.87 $126,613.63
Reduc ed Fee fo r Wo rk o n Fee Petitio n -$950.00 $125,663.63
Glo bal R educ tio n fo r Quarter-Ho ur Billing -$12,566.36 To tal: $113,097.27
17 B. Adjustment to Lo destar
The Supreme Court has recognized that “the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly
rate may be an excessive amount” where the “plaintiff has achieved only
partial or limited success,” even if the “the plaintiff’s claims were
interrelated, nonfrivolous, and raised in good faith.” Hensley, 461 U.S. at 436.
Accordingly, “[i]f a plaintiff prevails on an insubstantial set of her
interrelated claims and obtains only limited relief, the trial court has
discretion to shrink fees to reflect that inferior result.” Coutin v. Young &
Rubicam P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997). In exercising this
discretion, courts may consider a variety of factors, referred to as the
“Johnson factors.” 5 Id. at 337 & n.3. The most important factor by far is the
5 The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney(s) due to acceptance of the case; (5) the customary fee; (6) the nature of the fee (fixed or contingent); (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney(s); (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) the size of awards in similar cases.
Coutin, 124 F.3d at 337 n.3.
18 results obtained, which looks to (1) the plaintiff’s “claim by claim” success, (2)
“the relief actually achieved,” and (3) “the societal importance of the right
which has been vindicated[.]” Id. at 338; see also Hensley, 461 U.S. at 440.
Here, Heredia failed on the vast majority of his claims and was unable
to establish compensatory damages. In some cases, such failures could render
a plaintiff’s victory merely “technical” or de minimis, in which case “the only
reasonable fee is usually no fee at all.” See Farrar, 506 U.S. at 114-115; see
also Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 125 (1st Cir. 2004).
But Heredia’s victory in this action, although undoubtedly limited, was
more than simply de minimis. Heredia succeeded in vindicating an important
constitutional right and secured punitive damages in the process. See Coutin,
124 F.3d at 339 n.5 (“the vindication of rights . . . plainly cuts against a
reduction in fees . . . .”). This result conferred not only a benefit to Heredia,
but also a benefit to the broader public by “encouraging [the city] to ensure
that all of its police officers are well trained to avoid the use of excessive
force, even when they confront a person whose conduct has generated the
need for police assistance.” Guy v. City of San Diego, 608 F.3d 582, 589 (9th
Cir. 2010); accord Diaz-Rivera, 377 F.3d at 125 (finding that attorney’s fees
were warranted where “the determination that the [defendant] violated
plaintiffs’ constitutional rights represented a significant legal conclusion
serving an important public purpose”).
19 Moreover, there was not a significant “difference between the amount
recovered and the damages sought[.]” Farrar, 506 U.S. at 121 (O’Connor, J.,
concurring) (relied on in Diaz-Rivera, 377 F.3d at 125). Heredia received
little, to be sure, but he did not seek much. Cf. id. at 114 (finding that
attorney’s fees were not warranted where the plaintiff sought $17 million in
compensatory damages but only received nominal damages). Heredia only
requested compensatory damages for pain and suffering, which were always
bound to be minimal given that Heredia could not challenge the lawfulness of
his arrest or conviction. Doc. 104 at 8-9. Thus, although Heredia’s monetary
award was de minimis, his overall results were not.
In addition to the results obtained, I note that awarding a substantial
portion of the lodestar amount would “provid[e] an incentive to attorneys to
represent litigants, such as [Heredia], who seek to vindicate constitutional
rights but whose claim may not result in substantial monetary
compensation.” O’Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997). This
incentive is particularly important where, as here, the plaintiff’s culpability
in the underlying incident and resulting criminal conviction could render it
difficult to attract competent counsel. See Blum v. Stenson, 465 U.S. 886,
897 (1984) (“a reasonable attorney’s fee is one that is adequate to attract
competent counsel, but that does not produce windfalls to attorneys.”)
(cleaned up); see also Gomez v. Gates, 804 F. Supp. 69, 75 (C.D. Cal. 1992)
20 (noting the undesirability of civil rights cases that “pit admitted criminals
against law enforcement officers”).
Considering Heredia’s limited, but not wholly insubstantial, success, I
conclude that Heredia’s attorney’s fees should be reduced by 33%. Cf. Diaz-
Rivera, 377 F.3d at 122 (affirming a 33% fee reduction where the plaintiff
succeeded on only one claim and failed to prove compensatory damages). This
would provide the attorneys with $75,775.18 in fees, which is roughly in line
with awards in similar cases. See, e.g., Wagner v. City of Holyoke, 404 F.3d
504, 509-510 (1st Cir. 2005) (per curiam) (affirming award of $72,840 to a
plaintiff who failed on all but one of his claims and obtained only nominal
damages); Stoedter v. Gates, 320 F. Supp. 3d 1265, 1282 (D. Utah 2018)
(awarding $93,289.77 in attorney’s fees where the plaintiff obtained only
nominal damages against one of several defendants); Wolfe v. Routzahn, 953
F. Supp. 2d 627, 638 (D. Md. 2013) (awarding $100,000 in attorney’s fees
where an excessive force plaintiff obtained only nominal damages against one
of several defendants).
C. Out-o f-Po c ket Expenses
In addition to the hourly fees discussed above, Heredia seeks to recover
$19,960.15 in expenses paid by his attorneys. “The attorneys’ reasonable and
necessary costs and expenses may be awarded to a prevailing party” under
§ 1988 so long as they are “related to [the plaintiff’s] successful claims.”
21 Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 103 (1st Cir. 1988);
accord Hutchinson, 636 F.3d at 17. Roscoe asserts that several of Heredia’s
claimed expenses were unnecessary to his excessive force claim and therefore
should be excluded from the award.
First, Roscoe seeks to exclude the cost of deposing Attorney Topham.
Because Attorney Topham’s deposition was unnecessary for the reasons I
explained, I agree that expenses associated with that deposition must be
deducted.
Second, Roscoe seeks to exclude the cost of transcribing Heredia’s bail
hearing, criminal trial, and plea hearing. The transcript of the plea hearing
was submitted to the court in support of Heredia’s objection to the
defendants’ motion for judgment on the pleadings and was critical to my
resolution of that motion, including my conclusion that Heredia’s guilty plea
did not preclude him from arguing that he did not punch Stewart, which was
an important aspect of Heredia’s excessive force claim. Doc. 12-4; Doc. 18 at
6. Additionally, Heredia’s attorneys invoked Stewart’s testimony at the
criminal trial to impeach her in front of the jury. Doc. 101 at 95-97. Because
the attorneys were not present for Heredia’s criminal trial, they would not
have been able to identify inconsistencies in Stewart’s testimony without the
transcripts.
22 Heredia has not, however, demonstrated, that the bail hearing
transcript was necessary to his excessive force claim. Although the bail
proceedings were arguably relevant to establishing damages on his
fabrication of evidence claim, Heredia has not explained how they were in
any way relevant to his excessive force claims. Accordingly, Heredia can
recover the cost of the trial and plea transcripts, but not the cost of the bail
hearing transcripts.
Finally, Roscoe seeks to exclude the costs associated with Heredia’s
retained use-of-force expert, who consulted with Heredia’s attorneys but did
not testify at trial. In West Virgina University Hospitals, Inc. v. Casey, the
Supreme Court concluded that expert fees are not recoverable under § 1988.
499 U.S. 83, 97 (1991). Although Congress subsequently amended § 1988 to
allow for the recovery of expert fees in some cases, the amendment only
extended to “proceeding[s] to enforce a provision of section 1981 or 1981(a)[.]”
42 U.S.C. § 1988(c); see also Pub. L. 102-166, Title I, § 113, Nov. 21, 1991, 105
Stat. 1074, 1079. Because the amendment did not explicitly authorize expert
fees in actions brought under § 1983, there is widespread agreement that
“courts are not authorized to award expert fees for actions brought under
§ 1983.” Drumgold v. Callahan, 806 F. Supp. 2d 428, 436 (D. Mass. 2011); see
also Ruff v. Cnty. of Kings, 700 F. Supp. 2d 1225, 1243 (E.D. Cal. 2010)
(collecting cases and noting the absence of any “authority that has permitted
23 an award of expert witness fees in a Section 1983 action pursuant to Section
1988(c)”).
Heredia has not pointed to any cases to the contrary, nor has he
identified any other statutory basis for an award of expert fees. See Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (noting that expert
fees are only recoverable where there is “explicit statutory or contractual
authorization”). Accordingly, the $11,885.65 paid to Heredia’s expert must be
deducted from his award. 6
In sum, I calculate Heredia’s recoverable expenses as follows:
Expenses Req uested: $19,960.15
Line Item Ded uc tio ns Fee for service of process to Topham: -$61.00 Topham deposition fee: -$785.00 Bail hearing transcript: -$123.75 Expert fees: -$11,885.65 To tal: $7,104.75
6 Roscoe argues that I should also exclude fees for time spent conferring with the expert. I disagree. That expert fees are not recoverable does not mean that the attorneys’ time working with the expert is not recoverable. See Casey, 499 U.S. at 87 (concluding that expert witness fees were not recoverable only because there was no “explicit statutory authority”). An attorney’s time spent working with an expert, like any other time expended on the case, should be included in a fee award to the extent reasonable. See Hensley, 461 U.S. at 435 n.11 (noting that an attorney’s fee award should ordinarily “encompass all hours reasonably expended on the litigation”). Here, although Heredia’s expert did not testify at trial, the attorneys’ time conferring with the expert was reasonably necessary to develop the excessive force claim and prepare to cross-examine the defendants’ use-of-force expert.
24 IV. CONCLUSION
For the foregoing reasons, Heredia’s motion for attorney’s fees (Doc. 92)
is granted in part and denied in part. Pursuant to 42 U.S.C. § 1988, Heredia
is entitled to recover $75,775.18 in attorney’s fees and $7,104.75 in out-of-
pocket expenses, for a total award of $82,879.93.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
April 19, 2024
cc: Counsel of record