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Miller v. City of Richmond

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

September 14, 2018

CITY OF RICHMOND, JEREMY WORCH in his individual and official capacities, CHASE PATTON in his individual and official capacities, and CHARLES IRVIN in his individual and official capacities, Defendants.

          Scott 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 LTD (Schererville)



         This 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.

         I. BACKGROUND

         The 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.)

         Miller 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.)

         On 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.)

         The 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.)

         Miller's 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.)


         The 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. § 1988.

         The 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).


         Miller's 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 ...

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