ORDER AWARDING ATTORNEYS' FEES

GEORGE O'TOOLE JR., District Judge

In December 1999, the plaintiff brought this civil rights action for his wrongful arrest and imprisonment in connection with the murder of an elderly Walpole resident. The present motion for attorneys' fees comes at the end of a long and tortuous history of the case spanning seven years. During the course of the case, the plaintiff amended the complaint several times, ultimately expanding its scope to sixteen counts under state and federal law against twenty-one named defendants. After this Court granted summary judgment in favor of all the defendants on all counts, the plaintiff appealed and the First Circuit affirmed the judgment except as to one claim against one defendant. Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005). The Court of Appeals remanded for trial the claim brought under 42 U.S.C. § 1983 that Massachusetts State Trooper Steven McDonald violated the plaintiff's Fourth Amendment rights by withholding exculpatory DNA evidence and thus causing the plaintiff to be arrested without probable cause. After a six day trial, the jury found Trooper McDonald liable and awarded the plaintiff $400,000 in compensatory damages.

In the current motion (dkt. no. 331), brought pursuant to 42 U.S.C. § 1988, the plaintiff seeks $292,463.50 in attorney's fees and an additional $34,358.55 in expenses, for a total award of $326,822.05.

Section 1988 authorizes an award of attorneys' fees to a "prevailing party" in a suit under § 1983. 42 U.S.C. § 1988(b). In order to qualify as a "prevailing party," the party must "succeed on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); accord Boston's Children First v. City of Boston, 395 F.3d 10, 14 (1st Cir. 2005). In this case, the jury verdict for the plaintiff on his § 1983 claim against Trooper McDonald makes him a prevailing party as to that claim, and he is entitled to reasonable attorney's fees under § 1988.

The lodestar method, which multiples the number of hours reasonably expended on the litigation by a reasonable hourly rate, is the preferred approach to calculating attorney's fees.Hensley, 461 U.S. at 433; see also Coutin v. Young Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir. 1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992)). The awarding court may adjust the lodestar for a variety of reasons, such as eliminating time spent on unsuccessful claims, or for excessive or unproductive hours, or by assigning lower rates. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001);Coutin, 124 F.3d at 337 n. 3; Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996) (affirming an award that amounted to a ninety-one percent reduction of the requested fees).

The "results obtained" are a "particularly crucial" factor to consider when determining the reasonableness of an attorney's fee award if the plaintiff only partially succeeded in obtaining relief on his claims. Hensley, 461 U.S. at 434-37. In such circumstances, compensation for an attorney's time expended on unrelated, unsuccessful claims (i.e., claims based on a different core set of facts and distinct legal theories from the successful claim) is properly excluded from the calculation of awardable fees because such work "cannot be deemed to have been `expended in pursuit of the ultimate result achieved.'" Hensley, 461 U.S. at 435; Coutin, 124 F.3d at 339 ("Attorneys' fees normally should not be awarded for time spent in litigating (or preparing to litigate) unsuccessful, severable claims."); see also Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 124 (1st Cir. 2004).

The plaintiff's success in this case was decidedly partial, leading to judgment against only one of twenty-one defendants on only one of sixteen causes of action. The jury verdict against Trooper McDonald was supported by evidence that he, being the only investigating officer aware of exculpatory DNA evidence prior to the plaintiff's arrest, knowingly withheld that information from others who were applying for the arrest warrant. The other, unsuccessful claims focused on different alleged misconduct by different groups of actors. For example, the plaintiff alleged that police officers of the Town of Walpole executed his arrest without a validly issued warrant. See Burke, 405 F.3d at 77-81. Claims about the mishandling, as opposed to the purposeful withholding, of DNA evidence were also made against defendants other than McDonald. Id. at 87. The plaintiff also claimed that other defendants had withheld or misstated other evidence bearing on the existence of probable cause, such as unreliable evidence of bite marks found on the victim. Id. at 82-83. A completely distinct set of claims were made against forensic odontologists.Id. at 88-93. A defamation claim was also made against the Walpole police chief for statements he made to the press about Burke's arrest. Id. at 93-95.

Although the multiple and varied claims asserted were all related in a very broad sense — they all pertained to the events that culminated in Burke's arrest for an offense it now seems universally conceded he had nothing to do with — preparation of the successful case against McDonald did not benefit from legal efforts expended in pursuit of theories based on different facts against different defendants. Accordingly, it would not be appropriate simply to award the plaintiff attorneys' fees for time spent on the whole case, and some appropriate adjustment of the whole-case lodestar is necessary.

Unfortunately, the time and billing records submitted by the plaintiff in support of his application for fees provide little, if any, basis for determining what work reflected in them was done to develop what claims. For instance, one is left to guess about which particular claim(s) were the focus of a "strategy meeting" or the subject of a "telephone conference." It might be possible to go line by line through the billing records and make a guess about whether the entry reflected work that supported the successful claim, but the guesses would probably be wild ones. The fact that the plaintiff himself has not made such an attempt but rather has submitted the records more or less en masse, testifies to the futility, and ultimate irrationality, of such an approach. Without a reliable way of making a calculation of the total number of hours reasonably spent developing the successful claim against McDonald, an proportionate estimate is the best that can be done. See Hensley, 461 U.S. at 436-37 ("There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.").

There is one calculation that can be made. After the Court of Appeals decision, only the claim against McDonald remained alive. Any time spent thereafter was devoted to preparing that claim for trial, and the same can be said for expenses.

Prior to the decision on appeal, the plaintiff was pursuing multiple factual narratives in support of his several claims, and the assertion that McDonald learned exculpatory information about the DNA testing that he withheld from other investigators was a relatively minor one in the mix. All things considered, I think it is fair to estimate that 15% of the pre-appeal work was of direct or indirect benefit to the plaintiff's ability to prevail on his claim against McDonald. Accordingly, I will recognize 15% of the pre-remand hours and expenses in awarding fees on the present application.

The lodestar method calls for the application of a reasonable hourly rate to the number of hours worked. "In calculating a reasonable hourly rate, one must consider such factors as the type of work performed, who performed it, the expertise that it required, and when it was undertaken." Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 951 (1st Cir. 1984). Typically, a reasonable hourly rate is based on "counsel's skill and experience and prevailing market rates." Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 8 (1st Cir. 1993). Given the length of time this case took to get to final judgment, it is appropriate to take into account the changes in billing rates over time.

In 2004, I found that a reasonable hourly rate for Attorney Sinsheimer was $250.00 based on his performance, skill, and my familiarity with the billing rates of attorneys practicing before this Court. Contrada v. Hall-Brewster, Case No. 02-11426, Order (Aug. 13, 2004). In line with that earlier assessment, I find that a reasonable hourly rate for Attorney Sinsheimer is $250.00 for work performed prior to April 26, 2005 (the date of the First Circuit opinion). Similarly, I find that a reasonable hourly rate for Attorney Sivacek is $175.00 for the same time period.

It is reasonable to recognize that rates change with time, and that since April 2005 Attorneys Sinsheimer and Sivacek have been able to demand a higher hourly rate in the market than when the case began. Again, based on my observations of the trial, the attorneys' skills, and general knowledge of the rates charged by other attorneys in this area, I find that $300.00 is a reasonable rate for Attorney Sinsheimer and $225.00 for Attorneys Sivacek and Malouf. A summary of the attorneys' hourly rates to be applied is as follows: Court-Approved Rate Pre-Appeal and Appeal Post-Appeal Rate Attorney Requested Rate Rate

The final calculation of the total award is summarized in the following chart: Pre-Appeal Appeal Attorney Hours Court-Approved Hourly Rate Total Requested in Hours (15% of Petition Petition) Post-Appeal Attorney Hours Court- Hourly Rate Total Requested in Approved Hours Petition TOTAL FEES TOTAL EXPENSES GRAND TOTAL