Ronald Smith v. Jessie Freeman, Police Officer

921 F.2d 1120, 1990 U.S. App. LEXIS 22276, 1990 WL 211628
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 27, 1990
Docket90-1193
StatusPublished
Cited by72 cases

This text of 921 F.2d 1120 (Ronald Smith v. Jessie Freeman, Police Officer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ronald Smith v. Jessie Freeman, Police Officer, 921 F.2d 1120, 1990 U.S. App. LEXIS 22276, 1990 WL 211628 (10th Cir. 1990).

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

This appeal is before the court solely on the matter of attorney’s fees. We remand on one issue and affirm the remainder. 1

The underlying civil rights action, brought pursuant to 42 U.S.C. § 1983, arose out of an incident in which Ronald Smith allegedly cut himself while cleaning a goose and then went to the local fire department in search of a bandage. When the firemen insisted that he go to a hospital, Smith resisted and was eventually arrested by a City of Fountain policeman, Jessie Freeman, for threatening violence. Smith was treated at the hospital against his will and taken to the county jail, where he was held overnight. Thereafter, the criminal charges against him were dismissed. Smith then sued Jessie Freeman, among others, in state court for civil rights violations and for a number of state law claims. Subsequently, the suit was removed to federal court. On January 3, 1990, a settlement of $2,500, including damages and costs, was reached by Smith and Freeman.

The parties agreed to submit the fee claims of Smith’s attorneys, brought pursuant to 42 U.S.C. § 1988, to the district court. After settlement negotiations with a magistrate failed, the parties briefed the issues and, on June 5, 1990, the court awarded $8,139 to Craig Cornish, Smith’s primary attorney in the civil rights action, and $2,311.65 to another attorney with lesser involvement in the case.

The attorney’s fee award is appealed only as to Cornish. Cornish argues that the district court abused its discretion in three ways. First, it awarded him only 25% of his standard hourly rate for driving time from Colorado Springs to Denver for court appearances. Second, it refused to *1122 increase his lodestar hourly rate by $25.00 an hour to compensate for both the contingent nature of payment in the case and the delay of payment. Finally, the court reduced the number of hours Cornish spent on preparation of the attorney’s fee motion and ignored hours he expended on the reply brief.

At the outset, we note that “[t]he establishment of hourly rates in awarding attorneys’ fees is within the discretion of the trial judge who is familiar with the case and the prevailing rates in the area.” Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir.1987) (quoting Gurule v. Wilson, 635 F.2d 782, 794 (10th Cir.1980)). The burden is on the fee applicant to establish the reasonableness of the attorney fee award under § 1988. Lucero v. City of Trinidad, 815 F.2d at 1385. And the district court must “provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983). In our role as a court of review, we will overturn the district court award “only if it represents an abuse of discretion.” Mares v. Credit Bur. of Raton, 801 F.2d 1197, 1201 (10th Cir.1986).

Cornish first asserts that the district court abused its discretion by failing to award him his full hourly rate for the nine hours of driving time he expended traveling between Colorado Springs and Denver for court appearances. The issue of appropriate compensation for an attorney’s non-productive driving time has not been specifically addressed by this court before.

Cornish argues that customary practice is to charge the full hourly rate for driving time and that the court ignored uncontro-verted evidence in the record to that effect. He urges us to adopt the standard employed by this court in Bee v. Greaves, 910 F.2d 686 (10th Cir.1990), a case addressing the award of travel costs to an attorney traveling to and from court appearances. In Bee, we adopted a two-part inquiry. First, are the travel costs normally billed to a private client in the locality and, second, is the amount reasonable? Bee v. Greaves, 910 F.2d at 690.

As to the first part of the inquiry, we agree with Cornish that “customary practice” in the locale is one factor that the trial court should consider in its determination. It is not, however, the only factor. See Ramos v. Lamm, 713 F.2d at 555. A district judge, for example, may also “turn to her own knowledge” to supplement the evidence. Bee v. Greaves, 910 F.2d at 689 n. 4. Once the court has examined the factors, it then determines whether the amount is reasonable. Id. at 690. The court must engage in both inquiries because such factors as “customary practice” are not always “reasonable.”

One important part of determining the reasonableness of an attorney’s fee is assessing the attorney’s “billing judgment.” Practicing attorneys know that not all time expended on a case is actually billed to the client. Thus, hours that are “excessive, redundant, or otherwise unnecessary” should not be compensated. Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940. Similarly, “no compensation is due for nonproductive time.” Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980). Under this analysis, we see no abuse of discretion in the trial court’s determination that an attorney’s driving time, while necessary, is essentially unproductive and, therefore, compensable at a reduced hourly rate.

Cornish next contends that the district court abused its discretion by failing to increase his lodestar rate from $150 to $175 an hour as compensation for delay in payment and for risk of nonpayment. As a general comment, we observe that $150 is a more than generous hourly fee. Nonetheless, to account for delay in payment, an “appropriate adjustment ... is within the contemplation” of section 1988. Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989). Plainly, expenses of doing business continue during litigation and delayed payment may work a hardship on the attorney who is not compensated regularly for work completed. Pennsylvania v. Del. Valley Citizens’ *1123 Council for Clean Air, 483 U.S. 711, 716, 107 S.Ct. 3078, 3082, 97 L.Ed.2d 585 (1987) (“Delaware IF’). Similarly, “compensation received years after the services were rendered ...

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921 F.2d 1120, 1990 U.S. App. LEXIS 22276, 1990 WL 211628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-smith-v-jessie-freeman-police-officer-ca10-1990.