United States District Court, S.D. Indiana, Indianapolis Division
Leroy Barnhart ATTORNEY AT LAW Brooke Smith KEFFER BARNHART
LLP, Matthew Scott Clark KNIGHT HOPPE KURNIK & KNIGHT
LTD, Alexandra M. Shenoo KNIGHT HOPPE KURNIK & KNIGHT LTD
(Rosemont), Joseph W. Smith KNIGHT HOPPE KURNIK & KNIGHT
ENTRY ON PLAINTIFF'S PETITION FOR ATTORNEYS'
FEES AND COSTS
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Meshach Miller's
(“Miller”) Petition for Award of Attorneys'
Fees and Costs pursuant to 42 U.S.C. § 1988 (Filing
No. 33). Miller filed this action on March 23, 2017,
under 42 U.S.C. § 1983 against the City of Richmond
(Indiana), Jeremy Worch (“Officer Worch”), Chase
Patton (“Officer Patton”), and Charles Irvin
(“Officer Irvin”) (collectively,
“Defendants”). The Defendants sent an Offer of
Judgment to Miller, which he accepted on January 23, 2018.
Id. at 1. Unfortunately, the parties were unable to
agree on the issue of Miller's attorneys' fees and
costs. The Defendants filed a timely Response in opposition
to the amount of attorneys' fees requested by
Miller's counsel (Filing No. 36). For the
following reasons, Miller's Petition for Award of
Attorneys' Fees and Costs is granted in
part, and denied in part.
claims in this action surround the following allegations. On
or about March 20, 2016, Miller was followed by officers of
the City of Richmond Police Department (the
“Officers”), which resulted in a vehicle pursuit.
Miller crashed the vehicle that he was driving, exited the
vehicle and surrendered to the Officers by placing his hands
in the air and laying facedown as he was instructed. After
being handcuffed, Officer Worch placed his knees on
Miller's head and hit Miller in the head with his knee or
knees. Officer Irvin also put his knees on Miller's back
and struck Miller with his knees. Officer Patton was also on
the scene. None of the officers in close proximity stopped
the excessive use of force. As a result of the force, Miller
sustained a swollen and black eye in addition to a broken
blood vessel in his eye. Miller was taken to the hospital and
then transported to the Wayne County Jail. Following the
incident, Miller filed an internal affairs complaint against
Officers Worch, Irvin and Patton. The Deputy Chief of Police
of the City of Richmond, Major Jon Bales, responded to
Miller's complaint in a letter indicating that an
internal investigation had been conducted and found only
Officer Worch in violation of departmental rules pertaining
to use of force, handcuffed prisoners, and proper
documentation through reports. (Filing No. 1 at 3-4.)
filed a Complaint on March 23, 2017, raising claims pursuant
to 42 U.S.C. § 1983 against the Defendants. (Filing No.
1.) On January 12, 2018, the Defendants tendered an Offer of
Judgment “in the total amount of … $25, 001;
plus reasonable attorneys' fees that are recoverable
pursuant to 42 U.S. § 1988, expenses, and costs to which
Plaintiff is entitled to as of the date of this offer to be
determined by the Court”. (Filing No. 30-1 at 2.)
Thereafter, Miller filed a Notice of Acceptance of Offer of
Judgment on January 23, 2018. (Filing No. 30.)
January 24, 2018, Miller's counsel sent the
Defendants' counsel an itemized breakdown of time entries
and hourly rates for the attorneys and staff that
participated in Miller's representation (Filing No.
35-1). The parties attempted to resolve the attorneys'
fees and costs issue but were unable to reach an agreement.
Miller's counsel asks for $18, 110.00 in attorneys'
fees, a 30% enhancement of $5, 556.14, and $410.46 in costs
for a total amount of $23, 953.46. (Filing No. 33.)
Defendants assert that because the lodestar calculation
adequately covers expenses related to Miller's
attorneys' fees and costs, the Court should not grant
enhancement fees (Filing No. 36 at 6-7). In addition,
Defendants contend the hourly rate requested by Miller's
counsel is above the Indianapolis average hourly rate given
the experience of counsel. (Id. at 5-6.)
counsel asserts that the rates are reasonable and he provides
affidavits in support of his assertion. (Filing No. 35-2.)
Miller's counsel also asserts that his expertise and
experience related to the City of Richmond was not accounted
for in the hourly rate and argues that his expertise supports
enhancement of his fee. (Filing No. 37 at 4.)
American Rule regarding an award of attorney fees is that
“[e]ach litigant pays his own attorney's fees, win
or lose, unless a statute or contract provides
otherwise.” Hardt v. Reliance Standard
Life Ins. Co., 560 U.S. 242, 253 (2010). Pursuant to
statute, the court, in its discretion, may allow the
prevailing party in a proceeding to enforce a provision of 42
U.S.C. § 1983, reasonable attorney's fees. 42 U.S.C.
United States Supreme Court identified a two-step process for
determining attorneys' fees. The first step requires the
fee applicant to be a prevailing party. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). If the fee
applicant is determined to be the prevailing party, the
second step is to determine the amount of a reasonable fee
based on the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.
Id. This ‘lodestar' method is generally
accepted as producing a reasonable fee. Gastineau v.
Wright, 592 F.3d 747, 748 (7th Cir. 2010). But the court
“has the flexibility to adjust that figure to reflect
various factors including the complexity of the legal issues
involved, the degree of success obtained, and the public
interest advanced by the litigation.” Id.
(internal quotation marks omitted).
counsel contends he is entitled to attorneys' fees which
include time spent investigating an unpursued tort claim, as
well as an enhancement fee pursuant to 42 U.S.C. § 1988.
Counsel seeks $18, 110.00 in attorneys' fees, a 30%
enhancement of $5, 556.14, and $410.46 in litigation costs,
for a total amount of $24, 076.60. (Filing No. 35-2). In
support of the Motion, counsel submitted an itemized,
detailed billing statement of the hours expended and rates
charged in this matter, and an affidavit in support of his
market rate. Defendants contend that Miller's
attorney's fees are unreasonable, the tort claim should
not be considered because ...