Kennington v. Marion County Sheriff Frank Anderson

Full title: JAMES KENNINGTON, Plaintiff, v. MARION COUNTY SHERIFF FRANK ANDERSON, in…

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Mar 30, 2005

IP02-0648-C-T/K (S.D. Ind. Mar. 30, 2005)

Opinion

No. IP02-0648-C-T/K.

March 30, 2005

ENTRY RULING ON DEFENDANT'S OBJECTION TO REPORT AND RECOMMENDATION (DKT. NO. 121) ¹

1 This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.

JOHN TINDER, District Judge

Magistrate Judge Tim A. Baker has issued his Report and Recommendation on Plaintiff's Petition for Attorneys' Fees, recommending that the petition be granted in part and denied in part. The Defendant filed an objection, which is now before the court. The essence of the objection is that the Plaintiff achieved a limited success and the recommended fee award is contrary to the public purpose of the litigation.

The Plaintiff's motion for attorneys' fees was referred to Magistrate Judge Baker pursuant to Rule 72(b) of the Federal Rules of Civil Procedure for issuance of a report and recommendation for disposition. When considering objections to the Magistrate Judge's recommendations, the court conducts a "de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Fed.R.Civ.P. 72(b); see Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7^th Cir. 1999). The court may, among other things, "accept, reject or modify" the recommended disposition. Fed.R.Civ.P. 72(b).

The Defendant contends that the Plaintiff's limited degree of success requires a reduction in the lodestar amount as allowed by Hensley v. Eckerhart, 461 U.S. 424, 430 (1983). "The degree of success a plaintiff obtains is one of the most important factors to be considered in determining whether the attorneys' fees requested by the plaintiff are reasonable." Johnson v. Kakvand, 192 F.3d 656, 662 (7^th Cir. 1999); see also Farrar v. Hobby, 506 U.S. 103, 114 (1992); City of Riverside v. Rivera, 477 U.S. 561, 574 (1986).

The Defendant first argues that the Plaintiff achieved a limited success because his claim consisted of two parts, but he prevailed on only one. Hensley addressed the situation when a plaintiff achieves only partial success on his claims for relief. An attorneys' fee may not be awarded for services on an unsuccessful claim that is "distinctly different" from a successful claim for relief. Hensley, 461 U.S. 434-35; Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 646 (7^th Cir. 1995). Two claims are "distinctly different" when "based on different facts and legal theories." Hensley, 461 U.S. at 434. An attorneys' fee, however, may be awarded for time expended on an unsuccessful claim that is related to a successful claim — where the claims "involve a common core of facts" or are "based on related legal theories." Id. at 435; Spellan, 59 F.3d at 646. With respect to such related claims, "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis." Hensley, 461 U.S. at 435. In such a case, the court "should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id.

The Defendant maintains that the Plaintiff's claim had two parts: (1) that the Sheriff failed to communicate effectively with him through auxiliary aids and services during the book-in process at the Marion County Lock-Up and (2) that the Sheriff failed to provide him with a TTY phone and to communicate effectively with him through auxiliary aids and services during his incarceration in the Lock-Up. The court disagrees that these parts of the Plaintiff's claim are sufficiently discrete as to preclude an award of fees for time expended on the book-in aspect of the claim. The two parts of the claim as articulated by the Sheriff are based on the same legal theories — failure to accommodate and intentional discrimination under the Americans with Disabilities Act. Therefore, the court finds that an attorneys' fee may be awarded for Plaintiff's counsel's time expended on the book-in part of the claim as well as on the incarceration part of the claim. The two parts of the claim arguably share common facts as well which also supports a fee award for the book-in aspect of the claim, though sufficient relation for fee award purposes only requires either a common core of facts or related legal theories. See Hensley, 461 U.S. at 435.

The Defendant next contends that the Plaintiff settled his case following the summary judgment entry for a nominal amount of $5,000. A comparison between the damages sought and those awarded is "highly relevant" to the reasonableness of the fee where damages were the primary goal of the litigation. See Farrar, 506 U.S. at 114; Rivera, 477 U.S. at 585 (Powell, J., concurring); see also Perlman v. Zell, 185 F.3d 850, 858-59 (7th Cir. 1999). Though the $5,000 settlement amount was moderate, as Magistrate Judge Baker observed, this amount does not include attorneys' fees — the parties' settlement contemplates a fee award in addition to the $5,000. In addition, the $5,000 is not far out of proportion to the last settlement demand of $75,000 (which included attorneys' fees) or so de minimis as to be a nominal amount.

The court finds that the first factor — the difference between the judgment recovered and the recovery sought, Farrar, 506 U.S. at 114, 121 (O'Connor, J., concurring) — weighs in favor of awarding Plaintiff the attorneys' fees sought (with the reductions noted by the Magistrate Judge). This is the most important factor, Simpson v. Sheahan, 104 F.3d 998, 1002 (7^th Cir. 1997), and thus weighs most heavily in the court's determination of the appropriate fee award.

The court agrees that issues regarding disability discrimination by a public entity, particularly where incarceration is involved, is a significant matter, as the Magistrate Judge concluded. The Defendant does not contend otherwise. Thus, this second factor — the significance of the legal issue on which the plaintiff prevailed, see Farrar, 506 U.S. at 121-22 (O'Connor, J., concurring) — also favors a fee award.

Finally, the Defendant argues that the limited public purpose served by this litigation is outweighed by the effect the fee award will have on the Sheriff's ability to perform his statutory duties. This argument, however, was not made to the Magistrate Judge and is, therefore, waived. See United States v. Moore, 375 F.2d 580, 684 at n. 2 (7^th Cir. 2004) (noting argument not raised before magistrate judge is waived); United States v. Melgar, 227 F.3d 1038, 1040 (7^th Cir. 2000) (accord). It also is argued that the facts show no policy that needs to be changed and that the failure of the Plaintiff to receive a TTY device or other reasonable aid was an unusual and isolated event, for which he has been compensated. However, the undisputed facts at summary judgment established that when the Plaintiff was at the jail, a TTY device was kept in the Lock-up, but it was stored in the medical unit and was thus unavailable to deaf and hearing impaired inmates during the third shift. This policy had to be changed. The court agrees with Magistrate Judge Baker that the third factor — the public purpose served, see Farrar, 506 U.S. at 122 (O'Connor, J., concurring), is a close call, but nonetheless weighs in favor of a fee award. But even if this factor did not support a fee award in or near the amount requested, the other two, including the most important factor, support the conclusion that the Plaintiff achieved enough success to entitle him to an award of attorneys' fees as found by the Magistrate Judge.

For the foregoing reasons, the undersigned OVERRULES the Sheriff's objections to the Report and Recommendation on the Plaintiff's motion for attorneys' fees (Dkt. No. 121) and APPROVES, ADOPTS and ACCEPTS Magistrate Judge Baker's recommended disposition of the Plaintiff's motion for attorneys' fees (Dkt. No. 120). Therefore, the motion is DENIED to the extent that it seeks $61,949.45 in fees and $4,565.39 in costs and the motion is GRANTED to the extent that $51,201.95 in fees and $2,511.56 in costs are awarded.