BAILEY v. SWINDELL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH BAILEY,

Plaintiff,

v. Case No. 3:15cv390-MCR-HTC

SHAWN T. SWINDELL,

Defendant.

______________________/

ORDER

This is a civil rights lawsuit in which the Plaintiff prevailed at a jury trial and

final judgment was entered in his favor. The Magistrate Judge issued a Report and

Recommendation (“R&R”), ECF No. 358, recommending that Plaintiff Kenneth

Bailey be awarded attorney fees totaling $759,745, plus $33,000 in non-taxable costs

pursuant to 42 U.S.C. § 1988(b).1 The parties have been furnished a copy of the

R&R and have been afforded an opportunity to file objections pursuant to Title 28,

United States Code, Section 636(b)(1). Defendant Shawn Swindell timely filed

objections, ECF No. 359, to which Bailey has responded, ECF No. 360. Having

reviewed the objections de novo, the undersigned concludes that the R&R should be

adopted.

1 The Court previously found Bailey entitled to attorney fees as the prevailing party, and

the parties have stipulated to the amount of non-taxable costs.

When a party properly and timely objects to a magistrate judge’s R&R, the

district court must review the disputed portions de novo and may accept, reject, or

modify in whole or in part the magistrate judge’s findings or recommendation. See

28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); see also LoConte v. Dugger, 847

F.2d 745, 750 (11th Cir. 1988) (stating the district court’s obligation to conduct a de

novo review of the record arises whenever there is a “timely and specific objection”).

Portions of an R&R to which there is no objection are reviewed for clear error.

Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006).

This has been a lengthy suit to say the least. To briefly recap, in 2015, Bailey

filed a state court complaint against Swindell, a deputy with the Santa Rosa County

Sheriff’s Office, alleging that Swindell had violated his Fourth Amendment rights

by tackling him through the front door of his parents’ home in order to effect his

warrantless arrest. Bailey sought damages from Swindell individually on these facts

for the use of excessive force and false arrest. Swindell removed the case to federal

court and sought qualified immunity. He initially prevailed on qualified immunity

for the false arrest claim, and Bailey lost at trial on the excessive force claim, but the

Eleventh Circuit reversed the qualified immunity ruling on appeal and remanded for

trial on the false arrest claim.2 Bailey ultimately prevailed in full after a second

2 See Bailey v. Swindell, 940 F.3d 1295 (11th Cir. 2019). Bailey did not appeal the adverse

jury verdict.

trial, with the jury finding that the arrest was unlawful because no exigent

circumstances justified Swindell’s warrantless entry into the home and awarding

Bailey $625,000 in compensatory damages. In post-trial proceedings, the Court

concluded that it was not clearly established at the time of the warrantless entry that

no exigent circumstance existed given the facts as determined by the jury and granted

Swindell judgment as a matter of law on qualified immunity. ECF No. 293. In a

second appeal, however, the Eleventh Circuit again disagreed and remanded with

directions to reinstate the jury’s verdict, and afterwards the Supreme Court denied

Swindell’s certiorari petition. See Bailey v. Swindell, 89 F.4th 1324 (11th Cir.), cert.

denied, 145 S. Ct. 162 (2024). The undersigned reinstated the jury’s verdict and

denied Swindell’s renewed request for a remittitur.

During those nine years of litigation, Bailey’s counsel was put to the test at

every turn, forced to grapple with complex, factually nuanced, and labor-intensive

issues in two separate trials, post-trial proceedings, two separate appeals, and to

respond to a cert petition before the Supreme Court to preserve his win. The Court

concluded that Bailey was entitled to an award of fees as the prevailing party, ECF

No. 335 (stating Bailey “ultimately prevailed in full on his Section 1983 claim that

Swindell violated his Fourth Amendment rights by wrongfully arresting him inside

the home without a warrant or exigent circumstances”), and referred the matter to

the Magistrate Judge to determine a reasonable fee amount.

In an exhaustive and detailed report, the Magistrate Judge has carefully

reviewed the fee request and addressed the issues and relevant factors necessary to

determining a reasonable fee amount. She concluded that the hours billed were

reasonable, recommended reducing the hourly rate requested for one appellate

attorney, Margaret Kozan, from $650 to $500, and rejected Swindell’s request for an

across-the-board reduction.

Swindell objects, first taking issue with the hourly rate allowed for Ms.

Kozan’s appellate work, which he contends should have been further reduced to

$350 to be consistent with the local market.3 Swindell argues that the Magistrate

Judge “primarily” cites cases in which the fee rate was not contested and that the

rates awarded by Judge Walker in other cases within this District that reach $600 an

hour are mere anomalies. These objections are non-starters. The Magistrate Judge

did not “primarily” rely on awards that were undisputed, and in any event, it is fair

game to include for comparison rates that were actually awarded in this District in

cases involving comparable complexities and experienced attorneys. Furthermore,

the undersigned does not agree that the higher rates awarded by Judge Walker in

some recent cases (based on his thorough examination of the skill and experience of

the attorney and particular complexities of the case) are somehow outliers with no

3 Ms. Kozan’s work in this case was billed from 2022 through 2024, and her regular rate

at that time in Orlando, Florida, was $850 per hour. She voluntarily reduced her rate to $650 per

hour for this case. Swindell’s argument for a reduced rate of $300 was unreasonable.

weight in a Pensacola case. As Swindell acknowledged, the Pensacola local market

stretches throughout the Florida panhandle for civil rights cases. The undersigned

awarded an hourly rate of $400 in a complex case out of Pensacola back in 2015––

10 years ago; and as long as 9 years ago, an experienced local trial attorney who

appears frequently throughout this District was awarded an hourly rate of $450.4 As

the R&R shows, some variability can be found among hourly rate awards, but the

Magistrate Judge did not err by considering a broad range of fee awards entered

throughout this District or in deciding that the particular circumstances here require

a rate on the higher end. Notably, Ms. Kozen has over 25 years of experience,

specializes in appellate litigation which proved critical in this case, and her work on

this case was billed recently, from 2022 through 2024. The Magistrate Judge’s

careful consideration of the expert affidavits, comparable cases, as well as the factors

set out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.

19745)—with which Swindell does not specifically take issue—is spot on. The

undersigned agrees on de novo review and personal experience, see Norman v. Hous.

Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (the court “is itself an

expert on the question and may consider its own knowledge and experience

4 See Poppell v. City of Tallahassee, No. 4:16cv61-RH/CAS, 2016 WL 11745556, at *3

(N.D. Fla. Dec. 28, 2016) ($450); Mort. Now, Inc. v. Stone, No. No. 3:09cv80/MCR/CJK, 2015

WL 868067 (Feb. 27, 2015) ($400).

5 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting

the case law of the former Fifth Circuit before October 1, 1981, as precedent in this Circuit).

concerning reasonable and proper fees”), that a $500 hourly rate is more than fair

and reasonable for Ms. Kozen’s appellate work.

Swindell objects also to the Magistrate Judge’s refusal to discount the hours

spent by Bailey’s trial attorneys in litigating the first trial, which ended in a verdict

adverse to Bailey on the excessive force claim. The objection is overruled. Under

§ 1988, while work on an unsuccessful unrelated claim cannot be considered time

“expended in pursuit of the ultimate result achieved,” where the claims involve a

“common core of facts” or “related legal theories,” the district court should “focus

on the significance of the overall relief obtained in relation to the hours reasonably

expended on the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The

Magistrate Judge correctly recognized that the claims involved the same core set of

facts. ECF No. 358 at 8–9. The legal theories were also related and overlapped,

such that any force used in effecting a false arrest is excessive as a matter of law and

subsumed within the false arrest claim. See Khoury v. Miami-Dade Cnty. Sch. Bd.,

4 F.4th 1118, 1130 (11th Cir. 2021). The first trial result was therefore effectively

mooted by the second jury’s verdict awarding damages for the use of force in

effecting a false arrest—an overall excellent result. The Court finds no basis for

apportioning the fee award based on a hyper-technical view that Bailey failed to

prevail in the first trial when that claim was ultimately subsumed within the false

arrest claim on which he fully prevailed in the second trial. See Bailey v. Swindell,

89 F.4th 1324, 1332 n.6 (11th Cir. 2024) (reinstating the verdict and stating,

“Swindell might not be liable for the excessive force claim, but he is liable for any

and all reasonably foreseeable damages caused by his unlawful entry), cert. denied,

145 S. Ct. 162 (2024).

Swindell’s final objection is that the claimed hours remain excessive across

the board and should be reduced by 30% for trial counsel and 50% for Ms. Kozen.

Swindell incorporates by reference the reductions he proposed in his Response, ECF

No. 356, which the Magistrate Judge carefully addressed and rejected in her 46-page

R&R. Swindell merely rehashes the very same arguments presented to the

Magistrate Judge and disagrees with her conclusions but identifies no error of fact

or law. Even on de novo review, the undersigned finds no error and agrees that the

amount claimed overall for 9 years of litigation, two trials, and two appeals, as well

as various pretrial and post-trial disputes, is reasonable such that no across-the-board

reduction is justified.

Accordingly, it is now ORDERED as follows:

1. The Magistrate Judge’s Report and Recommendation (ECF No. 358) is

adopted and incorporated by reference in this Order.

2. Plaintiff Kenneth Bailey’s motion for attorney’s fees (ECF No. 350) is

GRANTED to the extent that he is awarded $759,745 in attorney’s fees and $33,000

in non-taxable costs.

DONE AND ORDERED this 3rd day of September 2025.

s/

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE