United States District Court, W.D. Missouri, St. Joseph Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
entry of a jury verdict in his favor, Plaintiff
Ecclesiastical Denzel Washington moves under 42 U.S.C. §
1988 for an award of attorney fees, costs, and expenses. The
Court grants the motion in part and denies it in part.
Ecclesiastical Denzel Washington brought this case against
various officials at Crossroads Correctional Center, where he
has been confined since 2010, for violation of his Eighth
Amendment rights under 42 U.S.C. § 1983. Mr. Washington
alleged that the officials were deliberately indifferent to
his serious medical needs in failing to take reasonable steps
to abate the risk of harm that secondhand smoke poses to him
due to his history of asthma.
trial, Mr. Washington presented evidence about his medical
conditions, as well as evidence that he regularly is exposed
to tobacco smoke due to Crossroads' inconsistent
enforcement of its policy prohibiting smoking inside the
prison, Crossroads' repeated refusal to permit Mr.
Washington to use a medically prescribed mask, and
Crossroads' refusal to assign him a nonsmoking cellmate.
After a three-day jury trial, the jury found in favor of Mr.
Washington and against Defendants Larry Denney, Ronda Pash,
Cyndi Prudden, and Cheryl Richey (collectively,
“Defendants”). The jury awarded $40, 000 in
compensatory damages and imposed an additional $71, 000 in
punitive damages. The jury found against Mr. Washington only
as to his claim against defendant Amy Parkhurst.
26, 2017, the Court denied Defendants' motion for
judgment as a matter of law or for a new trial. Doc. 195.
September 21, 2017, upon the parties' joint motion, the
Court entered an order for postjudgment injunctive relief,
requiring the Missouri Department of Corrections, on or
before April 1, 2018, (i) to amend its smoking policy to
prohibit the sale, possession, and consumption of all tobacco
products-except for authorized religious purposes-inside
correctional buildings and on the grounds inside the
correctional perimeter in each of the specified facilities,
and (ii) to thereafter enforce that policy. Doc. 215.
prevailing party, Mr. Washington moves for $255, 093 in
attorney fees, $4, 492.70 in costs, and $5, 306.91 in
additional expenses. Mr. Washington requests attorney fees for
the two primary attorneys, Michael Foster (at $320 and $350
an hour) and Phillip Zeeck (at $260 and $290 per hour),
 as well as
two other senior attorneys, three paralegals, a paralegal
assistant, and a case manager in Litigation Services who
assisted in the case. The breakdown of requested hours is as
Shareholder R.S. Jones
Shareholder K.C. Volpi
Shareholder M. Foster
Associate M. Foster
Associate P. Zeeck
Associate P. Zeeck
Paralegal T. Tan
Paralegal K.K. Murray
Paralegal J.P. Thies
Paralegal Asst. R.T. Brann
Litigation Svcs. Case Mgr. S.L. Pateidl
Washington also seeks reimbursement of monies paid for
transportation, document reproduction, court reporter fees,
meals, deposition transcripts, filing fees, and clothing that
Mr. Washington wore at trial.
42 U.S.C. § 1988, courts may award “a reasonable
attorney's fee as part of the costs” to a
“prevailing party” in cases brought under §
1983. 42 U.S.C. § 1988(b). However, in prisoners'
rights cases, the Prison Litigation Reform Act
(“PLRA”) imposes limitations on the attorney fees
that a prevailing plaintiff can recover. The PLRA's
provisions relating to attorney fees apply to “any
action brought by a prisoner who is confined to any jail,
prison, or other correctional facility, in which
attorney's fees are authorized under section 1988.”
42 U.S.C. § 1997e(d)(1).
do not dispute that Mr. Washington is the prevailing party
and therefore entitled to reasonable fees under § 1988.
However, Defendants argue that the PLRA requires the Court
to: (i) limit the hourly rate to 150 percent of the amount
established for this time period by the Eighth Circuit
Judicial Conference; (ii) reduce any fees awarded for work
performed by support staff in proportion to their market rate
relative to that of attorneys; (iii) apply the statutory cap
of $166, 500 to the total award; (iv) apply twenty-five
percent of Mr. Washington's monetary judgment to satisfy
the amount of attorney fees; (v) limit any award to those
fees directly and reasonably incurred in proving an actual
violation; and (vi) limit the fee award based on Mr.
Washington's success relative to his claims against
eighteen individuals, most of whom he dismissed prior to
submitting the case to the jury.
basis for any fee award under § 1988 is the lodestar
calculation, the product of the number of hours reasonably
expended on the litigation and a reasonable hourly rate.
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(“The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.”); Hanig v. Lee, 415 F.3d 822, 825 (8th
Cir. 2005) (“The starting point in determining attorney
fees is the lodestar, which is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly
rates.”). The PLRA has altered the lodestar calculation
method in prisoner rights cases in three ways. “First,
rather than hours reasonably expended in the litigation,
hours used to determine the fee award are limited to those
that are (1) directly and reasonably incurred in proving an
actual violation of the plaintiff's rights and (2) either
proportionately related to court-ordered relief or directly
and reasonably incurred in enforcing such relief.”
Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir.
2016) (citing 42 U.S.C. § 1997e(d)(1)). Second, the
hourly rate used for the attorney fee award cannot exceed 150
percent of the hourly rate used for paying appointed counsel
under the Criminal Justice Act, 18 U.S.C. § 3006A.
See 42 U.S.C. § 1997e(d)(3)). Finally, to the
extent the plaintiff obtains a monetary judgment, the
attorney fees award cannot exceed 150 percent of that
judgment. See § 1997e(d)(2)).
party seeking the award must submit documentation supporting
the requested amount, making a good faith effort to exclude
hours that are excessive, redundant or otherwise unnecessary.
See Hensley, 461 U.S. at 434. Reimbursement for
reasonable expenses of the kind a law firm ordinarily would
bill its client may be included in an attorney fee award
under § 1988. See Williams v. ConAgra Poultry
Co., 113 F. App'x 725, 728 (8th Cir. 2004) (noting
that “travel expenses for attorneys” and other
“expenses that a law firm normally would bill to its
client” are “properly characterized as part of an
attorney's fees award”); Sapa Najin v.
Gunter, 857 F.2d 463, 465 (8th Cir. 1988)
(“Reasonable expenses of litigation incurred by counsel
on the prevailing side can be awarded as part of the fees due
under Section 1988.”).
Applicable Hourly Rates
PLRA limits the hourly rate for attorney fees to no
“greater than 150 percent of the hourly rate
established under section 3006A of title 18 for payment of
court-appointed counsel.” § 1997e(d)(3). The rate
established under § 3006A of Title 18 for the relevant
time period is $129 per hour for attorneys. See
United States Court of Appeals for the Eighth Circuit, CJA
Information, available at
http://www.ca8.uscourts.gov/cja-information.[] Therefore, the maximum
rate an attorney may charge under the PLRA is $129 x 1.5, or
$193.50 per hour.
are a number of factors that would have warranted using a
higher rate to calculate the lodestar figure. Plaintiff's
counsel's billing rates, which far exceed the $193.50
rate cap, are in line with market rates for comparable
attorneys in Kansas City (see Doc. 176-4) and appear
both reasonable and fair, given counsel's years of
experience, superior preparation, and skill. The primary
attorneys, Mr. Foster and Mr. Zeeck, performed admirably and
obtained excellent results for their client at trial.
However, the PLRA prevents the Court from calculating the
attorneys' fees using a rate greater than $193.50.
Accordingly, the Court will use that maximum rate for all of
the attorneys in calculating the lodestar figure.
PLRA is silent with respect to compensation for work
performed by paralegals and similar support staff. See
Hall v. Terrell, 648 F.Supp.2d 1229, 1235 (D. Colo.
2009) (citing 165 A.L.R. Fed. 551 § 2(b)); Ilick v.
Miller, 68 F.Supp.2d 1169, 1179 (D. Nev. 1999) (noting
that “the PLRA is silent with respect to fees allowed
to paralegals”). As such, “courts have used their
own discretion” in determining appropriate rates for
such staff. Hall, 648 F.Supp.2d at 1235.
Washington's legal team included three paralegals with
billable hourly rates of $210, $215, and $220, a paralegal
assistant with a billable hourly rate of $130, and a
litigation services case manager with a billable hourly rate
of $195. The publications provided by plaintiff's counsel
establish that the firm's billing rates for these
individuals and the attorneys who worked on this case are in
line with average rates in the Kansas City market.
Compare Doc. 176-3 at 26 with Doc. 176-4 at
6 (rates for the primary plaintiff's counsel average to
305/hour, while average attorney rate in Kansas City is
$355/hour; rates for plaintiffs' support staff range from
$130 to $220, while average support staff in Kansas City
range from $70 to $298). Because these rates are reasonable,
the Court will determine the appropriate PLRA rate for the
support staff by drawing comparisons between the firm billing
rates for the support staff on the one hand and the firm
billing rates for the attorneys on the other hand. Since each
of the attorneys has had his billing rate artificially
depressed by the PLRA's rate cap, the Court will use the
lowest attorney rate, $260 per hour for attorney Zeeck, as
the basis for the ...