McCullough v. Roby

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 22-10177-RGS

JOHN MCCULLOUGH

v.

SCOTT ROBY and FRANK WOODS

MEMORANDUM AND ORDER ON PLAINTIFF’S

MOTION FOR ATTORNEY’S FEES AND EXPENSES

December 11, 2024

STEARNS, D.J.

Having prevailed on one of his civil rights claims brought against two

Boston Police Department officers, Scott Roby and Frank Woods, plaintiff

John McCullough moves pursuant to 42 U.S.C. § 1988 and Rule 54 of the

Federal Rules of Civil Procedure for an award of $79,500 in attorney’s fees,

$1,210 in litigation expenses, and $2,663.90 in costs. Officer Roby, the only

defendant found liable, acknowledges McCullough’s entitlement to

reasonable attorney’s fees and costs. However, he challenges the total

amount sought. For the reasons that follow, the court will allow plaintiff’s

motion for attorney’s fees and costs, although with a reduction in the

requested fees award.

BACKGROUND

In February of 2024, McCullough tried five claims against Officer Roby

and Officer Woods before a jury. After hearing claims of excessive force, false

arrest, malicious prosecution, and First Amendment retaliation against

Officer Roby and a claim of failure to intervene against Officer Woods, a jury

returned a verdict in favor of McCullough on the malicious prosecution claim

against Officer Roby and awarded him $5,000. The jury exonerated Officer

Woods. Dkt. # 134 at 2-3.

LEGAL STANDARD

Under Section 1988, “a prevailing party in a civil rights suit is entitled

to reasonable attorneys’ fees ‘unless special circumstances would render

such an award unjust.’” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 336

(1st Cir. 2008), quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).

Section 1988 “requires a two-part inquiry: (1) whether the plaintiff is a

prevailing party, and (2) if the plaintiff is a prevailing party, what constitutes

a reasonable fee award.” Boston’s Children First v. City of Bos., 395 F.3d 10,

14 (1st Cir. 2005). “To qualify as a prevailing party, a litigant must show that

a material alteration of the parties’ legal relationship has taken place as a

result of the litigation.” Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 8

(1st Cir. 2011). “A reasonable fee typically is determined through the lodestar

method, which involves multiplying the number of hours productively spent

by a reasonable hourly rate to calculate a base figure.” Torres-Rivera, 524

F.3d at 336. “In implementing this lodestar approach, the judge calculates

the time counsel spent on the case, subtracts duplicative, unproductive, or

excessive hours, and then applies prevailing rates in the community (taking

into account the qualifications, experience, and specialized competence of

the attorneys involved).” Gay Officers Action League v. Puerto Rico, 247

F.3d 288, 295 (1st Cir. 2001).

DISCUSSION

The parties agree that McCullough is a prevailing party because he

received “a favorable judgment on the merits of” his malicious prosecution

claim. Diffenderfer v. Gomez-Colon, 587 F.3d 445, 453 (1st Cir. 2009); see

Dkt. # 147 at 1. However, Officer Roby challenges the reasonableness of

McCullough’s attorney’s hourly rate and the amount of the fee sought,

contending that the fee should be reduced because of: (1) block-billed

entries; (2) incorrectly billed non-core work; and (3) failed claims. Dkt. #

166 at 1. The court will discuss each issue in turn, beginning with the

reasonableness of the attorney rate.

(1) Reasonableness of Attorney Rate

Officer Roby requests that the hourly rate for McCullough’s attorney,

Joshua O’Neill, be reduced from $530 to $365 to reflect more accurately his

skills and experience. Dkt. # 166 at 9. A reasonable hourly rate is “often

benchmarked to the prevailing rates in the community for lawyers of like

qualifications, experience, and competence.” Matalon v. Hynnes, 806 F.3d

627, 638 (1st Cir. 2015). These rates must “be calculated according to the

prevailing market rates in the relevant community, regardless of whether

plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson,

465 U.S. 886, 892 (1984); see Castaneda-Castillo v. Holder, 723 F.3d 48, 56

n.4 (1st Cir. 2013). Fee awards must “encourage the bringing of meritorious

civil rights claims which might otherwise be abandoned because of the

financial imperatives surrounding the hiring of competent counsel.” City of

Riverside v. Rivera, 477 U.S. 561, 578 (1986).

McCullough directs the court’s attention to Attorney Wendell in Muehe

v. City of Boston, 589 F. Supp. 3d 80, 86-87 (D. Mass. 2021), as comparable

counsel to Attorney O’Neill. Adjusted for inflation, the court in Muehe found

the reasonable rate for Attorney Wendell, an associate attorney at an

established Boston law firm with eight years of experience, is $560 per hour.

Muehe, 589 F. Supp. 3d at 86-87; Dkt. # 156 at 6. Attorney O’Neill has the

equivalent experience of an eighth-year associate attorney.1 However, he

1 After graduating from law school in 2016, Attorney O’Neill spent over

two years working as a law clerk, a year assisting with complex litigation,

over three years representing hundreds of clients charged with crimes in New

admits that he has “limited experience litigating civil rights matters as lead

counsel in federal court,” and that the claims here were not complex, with

“relatively straightforward and largely undisputed” facts. Dkt. # 157, ¶ 18.

In contrast, the rates in Muehe reflected the unique expertise that counsel

had compiled in the specialized legal field of disability access and class action

litigation and settlement practice. Muehe, 569 F. Supp. 3d at 87.

Although Attorney O’Neill adjusted his rate to $530 per hour to reflect

“significant differences between the complexity of Muehe and Mr.

McCullough’s matter and the experience and skill of the attorneys in both

matters,” Dkt. # 156 at 7, the court finds a further adjustment to $430 per

hour is reasonable. This rate also is in the approximate range, adjusted for

inflation, that other courts in this district have found reasonable for similarly

experienced attorneys working on relatively straightforward claims. See,

e.g., Alexander v. Mass. Dep’t of Corr., 2024 WL 2013852, at *3 (D. Mass.

May 7, 2024) (finding $560–$600 per hour was reasonable for a law firm

partner with twenty-nine years of experience and $365–$385 per hour was

reasonable for an associate with five years of experience); Cox v. Mass. Dep’t

York and Massachusetts, and over two years specializing in criminal defense

and civil rights litigation since opening the firm, Boston Defender, in 2022.

Dkt. # 156 at 6.

of Corr., 2019 WL 2075588, at *8 (D. Mass. May 20, 2019) (compensating

lead attorney with twenty-seven years of experience at $450 per hour in

prisoner civil rights case). This rate also appropriately incentivizes the

“bringing of meritorious civil rights claims.” Rivera, 477 U.S. at 578.

(2) Block Billing

Officer Roby challenges many of McCullough’s entries on the grounds

that they are presented in “block billing.” Dkt. # 166 at 7. “Courts disfavor

the use of block billing ‘because it requires decipher[ing] on the judges’ part.”

Hermida v. Archstone, 950 F. Supp. 2d 298, 312 (D. Mass. 2013) (citations

and quotations omitted). Where a party furnishes time records that are ill-

suited for evaluative purposes, courts may adjust those entries “to achieve an

equitable result.” Torres-Rivera, 524 F.3d at 340. That said, a reduction of

the fee award is not warranted “where block-billing is infrequent or relatively

minor, or where most of the entries were reasonably recorded.” In re

Volkswagen & Audi Warranty Extension Litig., 89 F. Supp. 3d 155, 176 (D.

Mass. 2015). Here, a significant number of entries are block billed, but

include detailed accounts of the tasks performed.2 However, it is difficult to

2 For example, on November 17, 2023, McCullough’s counsel

submitted 1.3 hours for: “Miscellaneous: Communicated with opposing

counsel and client regarding deposition scheduling. Discussed case status

and plan with client. Reviewed Federal Rules of Criminal Procedure

regarding depositions.” Dkt. # 157-1 at 11. Counsel on October 10, 2023,

fully evaluate the reasonableness of the time spent on each task, particularly

when the task involves non-core work.

(3) Core v. Non-Core Work

Officer Roby contends that plaintiff’s bill contains some entries that

blend core and non-core activities and do not specify the amount of time

spent on each activity. Dkt. # 166 at 6. Courts have the discretion to apply

differential rates to fees for “core” work, such as “legal research, writing of

legal documents, court appearances, negotiations with opposing counsel,

monitoring, and implementation of court orders,” and “non-core” work,

which includes “letter writing and telephone conversations.” Matalon v.

Hynnes, 806 F.3d 627, 638 (1st Cir. 2015), quoting Brewster v. Dukakis, 3

F.3d 488, 492 n.4 (1st Cir. 1993). “Non-core work is usually compensated at

two-thirds the billing rate approved for core legal work.” Parker v. Town of

Swansea, 310 F. Supp. 2d 376, 391 (D. Mass. 2004). However, a court “may

employ an across-the-board rate cut,” rather than use two-tiered rates.

billed 3.3 hours for: “Trial/Hearing Preparation: Drafted, reviewed, and

revised subpoenas for four witnesses. Sent to constable and paid for service.

Drafted, reviewed, and revised notice of depositions. Provided to opposing

counsel and scheduled stenographer for depositions. Set calendar reminders

for client and myself for depositions. Communicated with client regarding

lack of receipt of discovery—surveillance video—from defendants. Reviewed

client’s request for production of documents and defendants’ responses.

Reviewed local rule 7.1. Drafted, reviewed, revised, and sent to opposing

counsel request for surveillance video or rule 7.1 conference.” Id. at 13.

Matalon, 806 F.3d at 639. There is no “rigid requirement” that a court

employ a core/non-core analysis when adjudicating a fee petition. Id.

The court finds that some of McCullough’s counsel’s tasks, such as

communicating with his client through text message, email, and telephone

calls; communicating with opposing counsel through email exchanges and

telephone conferences; drafting, reviewing, and revising subpoenas and

notices of depositions; and making arrangements for depositions, including

scheduling a stenographer and contacting a constable, are non-core tasks

that “ought not to be billed at lawyers’ rates, even if a lawyer performs them.”

Lipsett v. Blanco, 975 F.3d 934, 940 (1st Cir. 1992); see Dkt. # 157-1 at 13.

As such, the court will reduce the award, as explained further below.

(4) Unsuccessful Claims

McCullough’s counsel contends that there should be no reduction for

his prosecution of unsuccessful claims. Although McCullough prevailed on

only one of his claims, counsel argues that all of McCullough’s claims arose

from the same common core of facts — Officer Roby’s arrest of McCullough

— and were based on related legal theories. Dkt. # 156 at 4. “When a plaintiff

prevails on some, but not all, of multiple claims, a fee reduction may be in

order.” Gay Officers Action League, 247 F.3d at 298. The court “must filter

out the time spent on unsuccessful claims and award the prevailing party fees

related solely to time spent litigating the winning claim(s).” Id. However, a

prevailing party sometimes can avoid this “by a showing that the work done

on unsuccessful claims was inextricably intertwined with the work done on

successful claims.” Id. at 298 n.7. Thus, fees are appropriately excluded

from the lodestar “[w]hen different claims for relief are not interconnected—

that is, when the claims rest on different facts and legal theories.” Figueroa-

Torres v. Toledo-Davila, 232 F.3d 270, 278 (1st Cir. 2000), quoting Coutin

v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 339 (1st Cir. 1997).

Here, McCullough prevailed on just one out of five of the claims he

tried before the jury and received a $5,000 judgment. Dkt. # 134 at 2-3. Of

the five claims, only the malicious prosecution and false arrest claim involve

the same facts — they stem from Officer Roby’s arrest of McCullough — and

share a legal element — a showing of probable cause. Thus, a fee reduction

is appropriate to account for McCullough’s unsuccessful claims, which rest

on different legal theories.3 See Figueroa-Torres, 232 F.3d at 278; Cosenza

v. City of Worcester, Mass., 2023 WL 2838381, at *4 (D. Mass. Apr. 7, 2023)

(imposing a 20 percent reduction for pre-trial hours and 5 percent reduction

3 The court also has reservations about counsel’s decision to put Officer

Woods to trial on a failure to intervene claim that had very little factual

support. See Davis v. Rennie, 264 F.3d 86, 98 n.10 (1st Cir. 2001) (the failure

to intervene rule applies only where an officer has “a realistic opportunity to

intercede”).

for post-trial work to account for the limited success because, although “the

underlying alleged facts were all of a similar type—they all supported

allegations that plaintiff’s conviction was the result of the bad actions of law

enforcement—they were all distinct from each other”).

Moreover, as McCullough’s counsel concedes, the “claims and legal

issues in this case were neither complex nor novel” and the “facts were

relatively straightforward and largely undisputed.” Dkt. # 157 at 4; see Foley

v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991) (holding a fee amount may

be reduced on the basis that the matter was not complex). The court is aware

that McCullough’s counsel voluntarily reduced the hours he submitted to this

court by over 10 percent from 172.10 hours to 150 hours to account for the

“unintentional, unnecessary billing and unsuccessful claims.” Dkt. # 156 at

5. However, given all the above — the block-billed entries that erroneously

bill non-core tasks at core rates, the success of only one out of five of the

claims, and the non-complex nature of the dispute — the court will impose a

60 percent reduction to the total requested attorney fee. See Hensley, 461

U.S. at 436-437 (1993) (“There is no precise rule or formula for making these

determinations. The district court may attempt to identify specific hours

that should be eliminated, or it may simply reduce the award to account for

the limited success.”); Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 121-

122 (1st Cir. 2004) (affirming district court’s reduction of the total attorney’s

fees by thirty-three percent because “plaintiffs obtained limited claims-based

success and relief”); Doe v. Mass. Dep’t of Corr., 2019 WL 2913969, at *2 (D.

Mass. July 8, 2019) (awarding plaintiff one-third of the total attorney’s fee

“because she successfully obtained relief on three out of her nine requests”).

The Table below incorporates Attorney O’Neill’s revised hourly rate.

Total Revised Total Fee

Hours Hourly Rate

Joshua O’Neill 150 $430 $64,500

60 Percent $25,800

Reduction

Lastly, the court finds McCullough’s requested expenses and costs

reasonable and supported by the record.4 See Dkt. # 156, Exs. 4-10.

ORDER

4 Officer Roby does not dispute McCullough’s requested expenses and

costs. McCullough seeks reimbursement for $1,210 in expenses related to

serving deposition subpoenas and hiring stenographers. McCullough paid

$460 for deposition subpoenas and $150 for a stenographer for each of the

depositions of officers Roby, Woods, Matthew Turner, and Saequan Sparks-

Clancy, and Lieutenant Thomas Brooks. McCullough seeks reimbursement

for $2,663.90 in costs for deposition transcripts. McCullough paid $327.25

for Officer Woods’s deposition transcript, $200 for Officer Turner’s, $250

for Officer Sparks-Clancy’s, $544 for Officer Roby’s, $429.25 for Lieutenant

Brooks’, and $913 for McCullough’s. Dkt. # 156, Exs. 4-10.

For the foregoing reasons, McCullough’s motion for attorney’s fees is

ALLOWED in part. The Clerk will award McCullough $25,800 in attorney’s

fees, $1,210 in expenses, and $2,663.90 in costs.

SO ORDERED.

/s/ Richard G. Stearns___ _____

UNITED STATES DISTRICT JUDGE