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Prison Legal News v. Freeman, Jail Censorship Suit, Fee Order, 2010

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Case 1:07-cv-02618-CAP

Document 98

Filed 03/17/2010

Page 1 of 11

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PRISON LEGAL NEWS,
Plaintiff,

CIVIL ACTION

v.

NO. 1:07-CV-2618-CAP

FULTON COUNTY, GEORGIA and
MYRON FREEMAN, individually
and in his official capacity
as Fulton County Sheriff,
Defendants.
O R D E R
This action is before the court on the plaintiff’s motion for
attorneys’ fees and expenses [Doc. No. 88].
I.

Statement of Facts
The plaintiff in this matter is an independent, monthly

magazine, Prison Legal News (“PLN”) that has subscribers who are
incarcerated in the Fulton County Jail (“Jail”).
lawsuit challenging the Jail’s mail policy.

PLN filed this

According to PLN, the

policy that was in effect at the time the lawsuit was filed (“old
mail policy”), which was declared unconstitutional by this court in
a 2002 ruling,1 prevented inmates from receiving its publication.
The defendants filed an answer to the lawsuit denying that the old
mail policy was unconstitutional [Doc. No. 4 at 5-6].

1

See Daker v. Barrett, No. 1:00-CV-1065-RWS (N.D. Ga. July
22, 2002).

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On December 18, 2007, PLN moved for a preliminary injunction
to enjoin the defendants from continuing to enforce the mail
policy.

On December 20, 2007, Defendant Freeman modified the mail

policy

(“new

mail

constitutional.

policy”),

which

defendants

contend

See Freeman Aff. at ¶ 4[Ex. A to Doc. 11].

is

Thus,

the defendants argued that the motion for preliminary injunction
became moot upon the adoption of the new mail policy.
The court conducted a hearing on the motion for preliminary
injunction at which the defendants conceded that the old mail
policy

that

was

in

effect

when

this

lawsuit

was

filed

was

unconstitutional. Despite this admission, the defendants continued
to argue that no injunction should be issued. The plaintiff argued
and the court agreed that an injunction was necessary to prevent
the defendants from returning to the old mail policy. Accordingly,
the motion for preliminary injunction was granted [Doc. No. 16].
The parties then engaged in discovery and eventually summary
judgment motion practice.

After the denial of their motion for

summary judgment and the indication by the court that trial was
imminent, the defendants settled this case in mediation.

The case

has been closed and all that remains for the court to consider is
the plaintiff’s request for attorneys’ fees and expenses.

In sum,

the defendants forced the plaintiff to litigate a case for nearly
2 years, when the central issue of the cause of action, the
2

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validity of the Jail’s mail policy, had already be determined by
this court years earlier.
II.

Attorneys’ Fees
Pursuant to 42 U.S.C. § 1988, prevailing parties in civil

rights actions are entitled to an award of attorneys’ fees.
Hensley v. Eckerhart, 461 U.S. 424 (1983).
undisputed

that

the

plaintiff

was

the

In this case, it is
prevailing

party.

Accordingly, the plaintiff is entitled to an award of attorneys’
fees and expenses.
In calculating a reasonable attorneys’ fee award, the court
must multiply the number of hours reasonably expended on the
litigation by the customary fee charged in the community for
similar legal services to reach a sum commonly referred to as the
“lodestar.”

Hensley, 461 U.S. at 433-34; Norman v. Housing

Authority, 836 F.2d 1292, 1299 (11th Cir. 1988).

The court may

then adjust the lodestar to reach a more appropriate attorneys’
fee, based on a variety of factors, including the novelty or
difficulty of the question presented and the time and labor
required.

Association of Disabled Americans v. Neptune Designs,

Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006).

3

Case 1:07-cv-02618-CAP

A.

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Hourly Rate

The Eleventh Circuit provided the following instruction for
determining a reasonable hourly rate for the attorneys involved in
a case:
[O]rdinarily there are no quotations for the prevailing
market rate for a given attorney's services. Instead, the
best information available to the court is usually a
range of fees set by the market place, with the variants
best explained by reference to an attorney's demonstrated
skill. It is the job of the district court in a given
case to interpolate the reasonable rate based on an
analysis of the skills enumerated above which were
exhibited by the attorney in the case at bar . . . .
Norman, 836 F.2d at 1301.
In this case, attorneys Brian Spears and Gerald Weber assert
an hourly rate of $350 and $410, respectively.

Additionally, the

plaintiff indicates the use of a paralegal, Teresa Knight, whose
hourly rate is asserted to be $95.

Other than to point out that

the two attorneys agreed to represent PLN without compensation, the
defendant does not challenge the reasonableness of the hourly rates
sought by the plaintiff.
The court has reviewed the affidavits of Spears and Weber as
well as the affidavit of Phillip E. Friduss.

Given the relative

skill of counsel and the prevailing rates in the Atlanta area at
the time services were rendered, the court finds that the rates
charged to plaintiff were reasonable.

Also, the court finds the

hourly rate of $95 for Ms. Knight to be reasonable. Accordingly,
4

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the court will utilize these rates to calculate the fee award in
this case.
B.

Hours Expended

The plaintiff has set forth exhibits documenting the time
expended by both attorneys and the paralegal who worked on this
case.

These totals are:

Brian Spears

198.75 hours

Gerald Weber

219.0 hours

Teresa Knight

53.33 hours

See Exs. A & B to Spears Dec. [Doc. No. 89]; Ex. B to Weber Dec.
[Doc. No. 90]; Second Weber Dec. [Doc. No. 97-3]; Supp. Spears Dec.
[Doc. No. 97-4].
As to the work performed, compensable activities include
pre-litigation services in preparation of filing the lawsuit,
background

research

and

reading

in

complex

cases,

productive

attorney discussions and strategy sessions, negotiations, routine
activities such as making telephone calls and reading mail related
to the case, monitoring and enforcing the favorable judgment, and
even preparing and litigating the request for attorney's fees. See
City of Riverside v. Rivera, 477 U.S. 561, 573 n.6 (1986) (allowing
compensation for productive attorney discussions and strategy
conferences); Webb v. Board of Education of Dyer County, Tenn., 471
U.S. 234, 243 (1985) (allowing compensation for pre-litigation
5

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services in preparation of suit); Cruz v. Hauck, 762 F.2d 1230,
1233-34 (5th Cir. 1985) (allowing compensation for preparing and
litigating fee request); Adams v. Mathis, 752 F.2d 553, 554 (11th
Cir.

1985)

(holding

that

measures

to

enforce

judgment

are

compensable); New York State Association for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1146 & n.5 (2d Cir. 1983) (allowing
compensation for background research and reading in complex cases);
Brewster

v.

Dukakis,

544

F.Supp.

1069,

1079

(D.Mass.

1982)

(compensating for negotiation sessions), aff’d as modified, 786
F.2d 16, 21 (lst Cir. 1986); In re Agent Orange Product Liability
Litigation, 611 F.Supp. 1296, 1321-48 (E.D.N.Y. 1985) (compensating
routine activities such as telephone calls or reading mail that
contribute to the litigation).
Reasonable travel time of the prevailing party's attorneys
ordinarily is compensated on an hourly basis, although the rate may
be reduced if no legal work was performed during travel.
706 F.2d at 1208.
paralegals,

law

Johnson,

As with attorneys’ work, the hours expended by
clerks,

and

other

paraprofessionals

are

also

compensable to the extent these individuals are engaged in work
traditionally performed by an attorney.

Missouri v. Jenkins by

Agyei, 491 U.S. 274, 285 (1989); Jean v. Nelson, 863 F.2d 759, 778
(11th Cir. 1988).
overhead

normally

In short, “with the exception of routine office
absorbed

by

the
6

practicing

attorney,

all

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reasonable expenses incurred in case preparation, during the course
of litigation, or as an aspect of settlement of the case may be
taxed

as

costs

reasonableness

under
is

to

section
be

given

1988"

and

a

liberal

“the

standard

of

interpretation.”

N.A.A.C.P. v. City of Evergreen, Alabama, 812 F.2d 1332, 1337 (11th
Cir. 1987) (quoting Dowdell v. City of Apopka, Florida, 698 F.2d
1181, 1192 (11th Cir. 1983)).
The Eleventh Circuit has stated that its decisions regarding
attorney's fees “contemplate a task-by-task examination of the
hours billed” and that applicants should “show the time spent on
the different claims.”
(11th Cir. 1999).

ACLU v. Barnes, 168 F.3d 423, 427, 429

The Eleventh Circuit has also stated that where

a fee application and supporting documents are voluminous, a
district court is not required to engage in an hour-by-hour
analysis of the fee award. Loranger v. Stierheim, 10 F.3d 776, 783
(11th Cir. 1994). In such cases, it is sufficient for the district
court to determine the total number of hours devoted to the
litigation and then reduce that figure by an across-the-board
percentage reduction if such a reduction is warranted.

Id.

The

Eleventh Circuit has even intimated that such a method may be the
preferred course with a voluminous fee request to avoid waste of
judicial resources.

Id.

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The supporting documentation filed by the plaintiff does not
allow the court to make a task-by-task analysis prescribed by the
Eleventh Circuit.

The time records submitted by the two attorneys

and the paralegal are chronological listings of tasks performed by
each.

There are 684 individual entries in the time records.

Many

of the fee entries contain several different activities grouped
together as one entry, making it nearly impossible for the court to
decipher how much time was spent on each individual activity.
There was no overall summary of the time counsel devoted to various
stages of the litigation such as initial investigation, drafting
the complaint, initiating discovery, responding to discovery,
prehearing

preparation,

etc.

Due

to

the

lack

of

adequate

summaries, the court cannot undertake a task-by-task analysis of
the reasonableness of the hours recorded in the voluminous time
records.

Where a litigant submits a fee application that is too

consolidated and vague to permit the district court to determine
whether the hours claimed were reasonably spent, that applicant
runs the risk that the fees sought will be reduced by the court.
Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 327 (5th
Cir.) cert. denied, 516 U.S. 862 (1995).

In such cases, courts

have reduced entire fee applications, or portions thereof, by a
stated percentage to accommodate for the deficiencies contained in
the application.

Mallinson-Montague v. Pocrnick, 224 F.3d 1224,
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1235 (10th Cir. 2000); George v. GTE Directories Corp., 114
F.Supp.2d 1281, 1292-93 (M.D. Fla. 2000).
In response to the motion for attorneys’ fees, the defendants
argue that the number of hours expended in this case is excessive.
In particular, the defendants point out that many of the activities
billed for by Spears and Weber are duplicative.

Moreover, the

defendants question the need for two attorneys of the experience
level of those involved in this case.
The court agrees with the defendants that, in light of the
extensive

experience

and

expertise

of

the

two

attorneys

representing the plaintiff here, the number of hours expended is
excessive.

Accordingly, the court finds that the fee request

should be reduced by thirty percent. The court is forced to resort
to a percentage reduction because the submissions by the plaintiff
do not allow a task-by-task analysis without an unreasonable
investment of further time and judicial resources in this matter.
The final fee request is for $164,418.85.

Therefore, the lodestar

amount is $115,093.20.
C. Adjustment to the Lodestar
Once the lodestar is obtained, the court may then adjust it
upwards or downwards.

Hensley, 461 U.S. at 434; Blum v. Stenson,

465 U.S. 886, 897 (1984); Barnes, 168 F.3d at 427; Norman, 836 F.2d
at 1302.

The Supreme Court and Eleventh Circuit have stated that
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while the adjustment may be based on a number of factors, the most
important factor is the results obtained.
434; Norman, 836 F.2d at 1302.

Henslev, 461 U.S. at

The Supreme Court has warned,

however, that upward adjustments are rarely warranted because the
factors on which a prevailing party typically seeks an enhancement
already have been considered by the court in determining the
reasonable hourly rate:
Expanding on our earlier finding in Hensley that many of
the Johnson[v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974)] factors “are subsumed within the
initial calculation” of the lodestar, we specifically
held in Blum that the “novelty [and] complexity of the
issues,” “the special skill and experience of counsel,”
the “quality of representation,” and the “results
obtained” from the litigation are presumably fully
reflected in the lodestar amount, and thus cannot serve
as independent bases for increasing the basic fee award.
Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,
478 U.S. 546, 565 (1986).
The plaintiff in this case does not seek an enhancement of the
lodestar, and the court finds no basis for such enhancement
However, the court does find that the degree of success and benefit
to the public as a result of this case do warrant the award of the
full lodestar amount.
III.

Expenses
The plaintiff is seeking to recover expenses in the amount of

$4,666.01.

The only objection to this amount raised by the

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defendants is that the amount listed as owing to Bay Mediation is
more than the defendants were charged by Bay Mediation.

In reply

to the defendants’ opposition, the plaintiff has provided the court
with the invoice it received from Bay Mediation as well as a copy
of the check paying the full amount of the invoice.

Because this

evidence supports the amount sought in the plaintiff’s original
motion, the court will not reduce the expense total.

Accordingly,

the plaintiff is entitled to an award of $4,666.01 as expenses
incurred in litigating this action.
IV.

Conclusion
For the reasons set forth above, the court hereby GRANTS the

plaintiff’s motion for costs, fees, and other expenses [Doc. No.
87].

Accordingly, the total amount awarded is $115,093.20 in

attorneys’ fees, plus expenses in the amount of $4,666.01.
SO ORDERED, this 17th day of March, 2010.

/s/ Charles A. Pannell, Jr.
CHARLES A. PANNELL, JR.
United States District Judge

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