Coward v. Robinson

KALVIN DONNELL COWARD, Plaintiff, v. A. DAVID ROBINSON, Chief of Corrections, et al., Defendants

1:10-cv-147 (LMB/MSN)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

November 9, 2017

MEMORANDUM OPINION

Before the Court is plaintiff Kalvin Donnell Coward's ("Coward" or "plaintiff") Motion for Attorney Fees and Expenses ("Pl.'s Mot. Fees") [Dkt. No. 242], in which plaintiff seeks an order awarding his counsel $388,967.50 in attorneys' fees and $31,255.00 in litigation expenses. Defendants A. David Robinson and Harold W. Clarke (collectively, "defendants") argue that the amount of plaintiff's request is unreasonable due to block-billing and vague entries, multiple timekeepers billing time for the same task, and that some portions of the request relate to irrelevant matters. For the reasons that follow, plaintiff's motion will be granted in part and denied in part, and counsel for plaintiff will be awarded a total of $338,268.30, consisting of $310,748.30 in attorneys' fees and $27,520.00 in expenses.

I. BACKGROUND

The factual and procedural background of this case is fully recounted in the Court's Memorandum Opinion. See Coward v. Robinson, No. 10-cv-147, 2017 WL 3699866 (E.D. Va. Aug. 28, 2017). In brief, plaintiff alleged that defendants, in their capacities as employees of the Virginia Department of Corrections, unlawfully impeded his religious exercise as an adherent of the Nations of Gods and Earths ("NGE" or "the Nation") in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the First Amendment by refusing to recognize the NGE as a religion and instead designating it as a gang subject to the Department's zero tolerance policy. Id. at 1-2. Plaintiff filed his initial complaint pro se and litigated the case pro se for several years, during which the Court granted several dispositive motions in favor of defendants. Plaintiff successfully appealed the dispositive rulings, resulting in three remands. Id.

During his third appeal, the Fourth Circuit appointed pro bono counsel to represent plaintiff, who have voluntarily continued to represent plaintiff before this Court. Id.¹ Upon the third remand, the parties sought to resolve the case and plaintiff made at least two offers to settle without seeking attorneys' fees. See, e.g., Pl.'s Mot. Fees, Ex. 3; id., Ex. 6. As late as July 10, 2017, plaintiff offered to settle the litigation without seeking attorneys' fees, but the proposed settlement provisions were unacceptable to the Department. Ultimately the parties were unable to resolve their dispute. After a two-day bench trial, the Court found that defendants had violated plaintiff's rights under both the RLUIPA and the First Amendment, and ruled in favor of plaintiff on all counts.²

II. DISCUSSION

A. Standard of Review

Section 1988(b) allows a "prevailing party ... a reasonable attorney's fee as part of the costs" for claims brought under 42 U.S.C. § 1983 and RLUIPA. A party prevails for purposes of§ 1988 if it secures "actual relief on the merits of [its] claim [that] materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." See Lefemine v. Wideman, 568 U.S. 1, 4 (2012). When a party obtains complete relief, counsel should receive "a fully compensatory fee." Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174-75 (4th Cir. 1994).

Once a court determines that the prevailing party is entitled to attorneys' fees, the court must then determine whether the requested attorneys' fees are reasonable. To calculate an appropriate award, "a court must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate." Robinson v. Equifax Info. Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009) (citing Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)). The "fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). "The applicant should exercise 'billing judgment' with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Id. (internal citations omitted). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Id. at 433.

In evaluating "what constitutes a 'reasonable' number of hours and rate" for the work performed, "a district court's discretion should be guided by" the twelve factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and adopted by the Fourth Circuit in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir. 1978). These factors include:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation andability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Robinson, 560 F.3d at 243-44 (quoting Barber, 577 F.2d at 226 n.28). Some of these "factors may not have much, if anything, to add in a given case," but those "that do apply should be considered." In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010).

B. Attorneys' Fees

Plaintiff seeks to recover $388,967.50 in attorneys' fees, relying on the hourly totals and rates reproduced below:

Timekeeper

Hours Billed

Hourly Rate

Fees Requested

Attorney

1617.50

$193.50

$312,986.25

Senior Paralegal

278.00

$150.00

$41,700.00

Junior Paralegal

274.25

$125.00

$34,281.25

Total

2169.75

$388,967.50

Pl.'s Mot. Fees at 14.³ Defendants argue that the number of hours is unreasonable because of overstaffing, block-billing, and duplicative work.

Defendants do not, and cannot, dispute that plaintiff is entitled to an award of attorneys' fees. Through this litigation, plaintiff secured complete relief on all of his substantive claims. See Reaching Hearts Int'l, Inc. v. Prince George's Cty., 478 F. App'x 54, 56-57 (4th Cir. 2012) (upholding an award of attorneys' fees under § 1988 for a RLUIPA claim); Project Vote/Voting for Am., Inc. v. Dickerson, 444 F. App'x 660, 661 (4th Cir. 2011) (holding that plaintiff who "successfully vindicated important First Amendment rights" are entitled to attorneys' fees). Indeed, the Court explicitly warned defendants about substantial "fees that might be paid should there be a ruling against the commonwealth [sic]." Hr.'g Tr. 18:24. Additionally, althoughplaintiff's counsel represented him on a pro bono basis, the Fourth Circuit has recognized that "entities providing pro bono representation may receive attorney's fees where appropriate, even though they did not expect payment from the client." Brinn v. Tidewater Transp. Dist. Comm'n, 242 F.3d 227, 234-35 (4th Cir. 2001).

Similarly, the parties do not dispute that the hourly rates charged were reasonable. The Prison Litigation Reform Act ("PLRA") contemplates an hourly rate of "150 percent of the hourly rate established under [the Criminal Justice Act ("CJA")] for payment for court-appointed counsel." 42 U.S.C. § 1997e(d)(3). In the Eastern District of Virginia, from January 1, 2016 to May 5, 2017, the CJA rate was $129.00 per hour.⁴ The CJA does not establish a rate for paralegal time, but multiple courts have concluded that paralegals may seek the same maximum rate as attorneys. See, e.g., Perez v. Cate, 632 F.3d 553, 554 (9th Cir. 2011); Duvall v. O'Malley, No. ELH-94-2541, 2016WL 3523682, at *14 (D. Md. June 28, 2016).

The fees sought are for a total of ten timekeepers, consisting of six attorneys at $193.50 per hour, two senior paralegals at $150.00 per hour, and two junior paralegals at $125.00 per hour. All these rates comport with the statutory rate under the PLRA, and are toward the low end of the guidelines adopted in Vienna Metro LLC v. Pulte Home Corp., No. 1:10-cv-502, Dkt. No. 263 (E.D. Va. Aug. 24, 2011), which have been used in a variety of decisions in this district. See, e.g., BMG Rights Mgmt. LLC v. Cox Cox Comms., Inc., 234 F. Supp. 3d 760, 770-73 (E.D. Va. 2017), appeal filed No. 17-1353 (4th Cir. Mar. 20, 2017). According to those guidelines, in 2011, reasonable rates included $130-350/hour for paralegals; $250-425/hour for lawyers with 1-3years of experience; $350-600/hour for lawyers with 4-7 years of experience; $465-640/hour for lawyers with 8-10 years of experience; $520-770/hour for lawyers with 11-19 years of experience; and $505-820/hour for lawyers with 20+ years of experience. Id. at 12. There is no basis for contesting the charged hourly rates, and the Court finds that these rates were reasonable.

After determining that the hourly rates were reasonable, the Court must determine whether the number of hours (2169.75 hours in total) were reasonable. In addition to submitting its billing records, which identify the tasks that make up those 2169.75 hours and the respective timekeeper charging for each entry, plaintiff points out a variety of actions by defendants that drove up the number of hours needed. For example, defendants refused multiple offers to accept plaintiff's settlement position, which included plaintiff not seeking to recover his attorneys' fees. See Pl.'s Mot. Fees at 10-11. The Fourth Circuit has recognized that courts properly "conside[r] a [party's] rejection of a settlement offer as one factor affecting" what...