Gartman v. Cheatham

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

TRENTON GARTMAN, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:18cv534-MHT

) (WO)

LISA BRADY, an )

Individual, )

)

Defendant. )

OPINION AND ORDER

Following a jury trial on plaintiff Trenton Gartman’s

42 U.S.C. § 1983 claim against defendant Lisa Brady for

deliberate indifference to a serious medical need, a jury

found Brady liable for $ 100,000 in compensatory damages

and $ 35,000 in punitive damages. This case is before

the court on Gartman’s motion for attorney’s fees and

expenses. He seeks to recover $ 210,715.00 in attorney’s

fees and $ 26,676.89 in expenses. Brady responds that

Gartman’s attorney’s fees should be reduced by at least

$ 63,875.00 (to at most $ 146,840.00) and that his

expenses should be reduced by $ 5,808.62 (to

$ 20,868.27).

Brady’s principal argument for a reduction of

attorney’s fees and expenses is that Gartman obtained

only partial or limited success and that consideration

of the 12 factors identified by the former Fifth Circuit

Court of Appeals in Johnson v. Ga. Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974),1 weighs against the

reasonableness of the requested fees and expenses. She

also argues that the attorney’s fees should be reduced

based on a prior representation by one of Gartman’s

attorneys and the fact that the attorney billed his

travel time at his full hourly rate. Finally, she argues

that her insurance will not cover attorney’s fees and,

accordingly, that her inability to pay warrants a

reduction. For the reasons that follow, the court will

award Gartman $ 143,552.00 in attorney’s fees and

$ 19,716.25 in expenses.

1. In Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (en banc), the Eleventh Circuit Court

of Appeals adopted as binding precedent all of the

decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981.

2

I. Entitlement to Fees and Expenses

According to 42 U.S.C. § 1988, in a § 1983 action

“the court, in its discretion, may allow the prevailing

party ... a reasonable attorney’s fee as part of the

costs,” subject to exceptions not applicable here. 42

U.S.C. § 1988(b). “The purpose of § 1988 is to ensure

‘effective access to the judicial process’ for persons

with civil rights grievances.” Hensley v. Eckerhart, 461

U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at

1 (1976)).

“[A] prevailing plaintiff ‘should ordinarily recover

an attorney’s fee unless special circumstances would

render such an award unjust.’” Id., 461 U.S. at 429

(quoting S. Rep. No. 94-1011, at 4 (1976)). Therefore,

as a threshold matter, § 1988 requires that a party

seeking to recover attorney’s fees be a “prevailing

party.” Royal Palm Props., LLC v. Pink Palm Props., LLC,

38 F.4th 1372, 1376 (11th Cir. 2022). Given Gartman’s

3

recovery of damages on his § 1983 claim against Brady,

there is no dispute that Gartman was the prevailing party

and, therefore, that he is entitled to reasonable

attorney’s fees and expenses.

II. Reasonable Fees and Expenses

“The determination of reasonable attorneys’ fees is

left to the sound discretion of the trial judge.” Dowdell

v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir. 1983).

“The initial estimate of a reasonable attorney’s fee is

properly calculated by multiplying the number of hours

reasonably expended on the litigation times a reasonable

hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984).

This value is the “lodestar” of the attorney’s fee

calculation. Tex. State Teachers Ass’n v. Garland Indep.

Sch. Dist., 489 U.S. 782, 788-89 (1989). From this

starting point, the court must determine whether any

portion of this fee should be adjusted upward or

downward. See Hensley, 461 U.S. at 434. In making these

4

determinations, the court is guided by the 12 factors set

out in Johnson, 488 F.2d 714: (1) the time and labor

required; (2) the novelty and difficulty of the

questions; (3) the skill requisite to perform the legal

service properly; (4) the preclusion of other employment

by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client

or the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and

ability of the attorneys; (10) the “undesirability” of

the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar

cases.

“The ‘fee applicant bears the burden of establishing

entitlement and documenting the appropriate hours and

hourly rates.’” Am. Civil Liberties Union of Ga. v.

Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting

Norman v. Hous. Auth. of City of Montgomery, 836 F.2d

5

1292, 1303 (11th Cir. 1988)). This burden includes

“supplying the court with specific and detailed evidence

from which the court can determine the reasonable hourly

rate,” as well as “records to show the time spent on the

different claims[] and the general subject matter of the

time expenditures.” Id. (quoting Norman, 836 F.2d at

1303). “Those opposing fee applications have

obligations, too. In order for courts to carry out their

duties in this area, ‘objections and proof from fee

opponents’ concerning hours that should be excluded must

be specific and ‘reasonably precise.’” Id. at 428

(quoting Norman, 836 F.2d at 1301).

A. Reasonable Hours

Attorneys Henry F. Sherrod, III and Alan Bart

Lasseter represented Gartman in this case. Sherrod seeks

compensation for 388.8 hours, and Lasseter seeks

compensation for 41.1 hours. The court considers three

Johnson factors--the time and labor required; the novelty

6

and difficulty of the case; and the amount involved and

the results obtained--in assessing the reasonableness of

the hours claimed. The court must exclude “‘excessive,

redundant or otherwise unnecessary’ hours ... from the

amount claimed.” Norman, 836 F.2d at 1301 (quoting

Hensley, 461 U.S. at 434). “[A] lawyer may not be

compensated for hours spent on activities for which he

would not bill a client of means who was seriously intent

on vindicating similar rights ....” Id.

Time and Labor Required, and Novelty and Difficulty

of Case: In the subsection that follows, the court has,

with explanation, reduced the hours claimed by Sherrod

and Lasseter by 25 % because of Gartman’s limited

success. Here, when it now discusses the ‘hours claimed’

by the attorneys it is referring to only 75 % of those

hours: 291.6 hours for Sherrod and 30.83 hours for

Lasseter.

The court has conducted an independent review of

these reduced hours to determine if there is any time

7

that should be excluded because it was “excessive,

redundant, or otherwise unnecessary.” Hensley, 461 U.S.

at 434. Although multiple attorneys worked on the case,

Lasseter represented Gartman at the outset of the case,

and Sherrod took over the representation later in the

process. Apart from what might amount to a couple of

hours of correspondence between Sherrod and Lasseter

about the case at the beginning of Sherrod’s involvement,

the court discerns no duplication of efforts, and

certainly no unreasonable or unnecessary duplication, in

the hours billed. Aside from Brady’s objection based on

Gartman’s partial success, which the court addresses

below, the hours billed are reasonably proportionate to

the amount of work required for purposes of the

pleadings, motions, depositions, and trial preparation

in this case. Even if, as Brady asserts, the case was

not overly complex, neither was it run-of-the-mill.

Although the incident at the core of this case took place

within the span of no more than 24 hours, relevant

8

evidence in the application of the

deliberate-indifference standard to Gartman’s § 1983

claim included nontrivial medical testimony, medical

records, and lay testimony about the specific procedures

and allocation of responsibility within the county jail

in which the incident underlying Gartman’s claims

occurred.

Aside from her objection based on Gartman’s partial

success, Brady makes no specific argument that the number

of hours Sherrod and Lasseter have billed is unreasonable

or excessive. The court finds that the hours billed by

Gartman’s counsel were reasonable in relation to the

issues presented in this case.

Amount Involved and Result Obtained: Brady objects

that Sherrod’s hours should be reduced to reflect

Gartman’s partial success. The court considers this

argument in the context of its determination of

reasonable hours within the lodestar calculation,

although Brady’s requested reduction might alternatively

9

be framed as an adjustment to the lodestar figure.

Compare Norman, 836 F.2d at 1302 (“[I]n determining

reasonable hours the district court must deduct time

spent on discrete and unsuccessful claims.”), with id.

(“If the result was partial or limited success, then the

lodestar must be reduced to an amount that is not

excessive. In doing so, the court may attempt to identify

specific hours spent in unsuccessful claims or it may

simply reduce the award by some proportion.” (citation

omitted)). “In the end, of course, the result is the

same whether you adjust the fee itself or the number of

hours spent, and the Supreme Court has approved of both

approaches.” Dillard v. City of Greensboro, 213 F.3d

1347, 1355 n.9 (11th Cir. 2000) (per curiam). The court’s

conclusion in this case is the same regardless of the

order in which it performs the calculations.

“[T]he extent of a plaintiff’s success is a crucial

factor in determining the amount of an award of

attorney’s fees under 42 U.S.C. § 1988.” Hensley, 461

10

U.S. at 440. The case law draws a distinction between

unrelated, discrete claims and claims involving a common

core of shared facts or law. Where a plaintiff

“present[s] in one lawsuit distinctly different claims

for relief that are based on different facts and legal

theories, ... work on an unsuccessful claim cannot be

deemed to have been ‘expended in pursuit of the ultimate

result achieved.’” Id. at 434-35 (citation omitted).

Accordingly, where the claims are distinctly different

and based on different facts and legal theories, “the

court cannot award any fee for services on the

unsuccessful claims.” Popham v. City of Kennesaw, 820

F.2d 1570, 1578 (11th Cir. 1987).

In contrast, where “the plaintiff’s claims for

relief ... involve a common core of facts or [are] based

on related legal theories,” the “lawsuit cannot be viewed

as a series of discrete claims,” and “the district court

should focus on the significance of the overall relief

obtained by the plaintiff in relation to the hours

11

reasonably expended on the litigation.” Hensley, 461

U.S. at 435. In a case involving such related claims,

“[i]f the plaintiff obtained ‘excellent results,’ his

attorney should be fully compensated for all time

reasonably expended on the litigation.” Popham, 820 F.2d

at 1578 (quoting Hensley, 461 U.S. at 435); see also

Hensley, 461 U.S. at 435 (“In these circumstances the fee

award should not be reduced simply because the plaintiff

failed to prevail on every contention raised in the

lawsuit.”). Conversely, if “a plaintiff achieved only

limited success, the district court should award only

that amount of fees that is reasonable in relation to the

results obtained.” Hensley, 461 U.S. at 440.

Gartman’s third amended complaint named five

defendants: two officers at the Autauga County Jail

(Patrick Cheatham and Jabari Agee), two nurses at the

jail (Lisa Brady and Latechia Ball), and the corporation

that contracted to provide medical services at the jail

12

(QCHC, Inc.).2 The complaint included two claims: a

§ 1983 claim against each defendant for deliberate

indifference to a serious medical need and a claim

against defendants Ball, Brady, and QCHC, Inc. under the

Alabama Medical Liability Act, Ala. Code § 6-5-480 et

seq. On both claims, Gartman sought damages in an

unspecified amount. Prior to trial, he voluntarily

dismissed his claim under the Alabama Medical Liability

Act against Brady, Ball, and QCHC, Inc., as well as his

§ 1983 claim against Ball and QCHC, Inc. At trial,

Gartman prevailed on his § 1983 claim against

Brady--recovering $ 100,000 in compensatory damages and

$ 35,000 in punitive damages--but lost on his § 1983

claim against Cheatham and Agee.

In light of Gartman’s success on one claim against

one defendant, Brady argues that Gartman’s recoverable

2. While additional defendants were included in the

first complaint, Brady does not suggest that any work

involving these other defendants was unnecessary or is

otherwise not properly countable among the reasonable

hours billed by Gartman’s counsel.

13

attorney’s fees should be reduced to exclude his

attorneys’ work on the voluntarily dismissed claim (the

Alabama Medical Liability Act claim) and their work

involving defendants against whom Gartman did not

ultimately succeed (Cheatham, Agee, Ball, and QCHC,

Inc.). With respect to specific reductions, Brady argues

that the court should exclude 30.3 hours that Sherrod

billed for work in connection with an expert witness,

Michael McMunn, R.N., whom Gartman did not call at trial;

22.3 hours that Sherrod billed for work pertaining to

Ball and QCHC, Inc., including the taking of depositions

of Ball and QCHC, Inc.’s corporate medical director; and

75.5 hours that he billed for work pertaining to Cheatham

and Agee, including the taking of their depositions and

the depositions of other correctional officers, as well

as the preparation of a response to Cheatham, Agee, and

Brady’s motions for summary judgment. In total, Brady

requests a reduction of 128.1 hours, or roughly one-third

of Sherrod’s hours.

14

To the extent Brady argues for a subtraction of 100 %

of the hours that Sherrod worked on unsuccessful claims,

the court disagrees. Neither Gartman’s Alabama Medical

Liability Act claim nor his § 1983 claim against the

other defendants was “distinctly different” from his

§ 1983 claim against Brady. To the contrary, Gartman’s

claims arose from the same conduct and shared a common

core of facts. His claims against the defendants under

§ 1983 and the Alabama Medical Liability Act were both

based on the defendants’ alleged conduct and omissions

during the same period of approximately 24 hours in which

Gartman was detained at the Autauga County Jail. The

claims contained considerable factual overlap in that

they implicated much of the same evidence regarding the

number of implantable cardioverter defibrillator, or ICD,

shocks that Gartman experienced while in custody, the

severity and obviousness of his medical condition as a

result of his shocks (as evidence of each defendant’s

knowledge), the actions that each defendant took or did

15

not take (as evidence of disregard of a known risk of

serious medical harm or, with respect to the Alabama

Medical Liability Act claim, a breach of the standard of

care), and the extent of the pain and suffering that the

shocks caused (as evidence of the seriousness of

Gartman’s medical condition and the extent of his

damages). Although Gartman’s claim of deliberate

indifference and his claim under the Alabama Medical

Liability Act involved the application of different legal

frameworks and standards, “courts have expansively

treated claims as being related,” Popham, 820 F.2d at

1579, and the court finds that Gartman’s claims were

related here.

While a blanket exclusion of hours for Sherrod’s work

on the unsuccessful claims is unwarranted, the court

agrees with Brady that Gartman’s partial or limited

success warrants some reduction of the hours billed.

“Where recovery of private damages is the purpose of ...

civil rights litigation, a district court, in fixing

16

fees, is obligated to give primary consideration to the

amount of damages awarded as compared to the amount

sought.” Farrar v. Hobby, 506 U.S. 103, 114 (1992)

(ellipsis in original) (quoting City of Riverside v.

Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring

in judgment). In several respects, Gartman’s recovery

was limited relative to the scope of relief he pursued

in the course of the litigation. As noted above, he

dismissed, and thus did not recover on, his claim under

the Alabama Medical Liability Act. Additionally, he

initially alleged permanent physical damages and medical

costs as a result of his experience in the jail, but he

ultimately did not pursue damages on these bases at

trial.

In one respect, however, the fact that Gartman

recovered against only one defendant out of five

understates the degree of Gartman’s success. A central

component of the relief that Gartman sought in this case

consisted of damages for the pain and suffering he

17

experienced while detained at the Autauga County Jail.

For much of the litigation of this case, there were

conflicts and ambiguities regarding the knowledge and

responsibility of various staff at the jail over the

course of Gartman’s detention. For example, even at the

trial stage, defendants Brady, Cheatham, and Agee gave

conflicting accounts of whether Cheatham and Agee

informed Brady of Gartman’s deteriorating physical

condition after Gartman met with Brady in the nurse’s

station. See Gartman v. Cheatham, No. 2:18cv534-MHT,

2022 WL 714643, at *7-8 (M.D. Ala. Mar. 9, 2022)

(Thompson, J.) (noting the inconsistent accounts in the

defendants’ depositions). An assessment of the

credibility of these competing accounts was relevant to

a determination of which of the three defendants, if any,

was deliberately indifferent to Gartman’s serious medical

need and caused him to suffer needlessly without

treatment. Thus, to some extent, the work of Gartman’s

counsel with respect to these other defendants, including

18

the taking of their depositions, played a causal role in

the success of Gartman’s claim against Brady. As this

court recognized in Hall v. Lowder Realty Co., 263 F.

Supp. 2d 1352 (M.D. Ala. 2003) (Thompson, J.), a

plaintiff’s success against only one of numerous

defendants may be “misleading” as a proxy for level of

success where litigation is necessary to determine which

of several connected defendants is properly held

accountable if a plaintiff succeeds on a claim. Id. at

1360-61. While the assignment of responsibility in this

case was not as complex as in Hall, which involved

interrelated corporate and individual defendants and

numerous real-estate transactions, the extent to which

Gartman’s § 1983 claim against each defendant sought

damages for the same, or substantially similar,

underlying injuries should be considered in his favor.

Nevertheless, the court is, in general, also

convinced that Gartman would have spent much less time

in factual development and legal research if the focus

19

of the case had been on only the claim against Brady.

Some reduction on this basis is warranted.

Taking the above factors into consideration, the

court will reduce Gartman’s requested hours by 25 %.

Although Brady’s specific objections address only hours

billed by Sherrod, the court finds that application of

the reduction for partial success to all hours claimed

by Gartman is appropriate. Rather than the “mathematical

approach comparing the total number of issues in the case

with those actually prevailed upon” that the Supreme

Court has rejected, Hensley, 461 U.S. at 435 n.11, the

court arrives at this reduction based on a comparison of

the nature and scope of the work underlying Gartman’s

hours and the extent of his requested relief throughout

this litigation, as well as the fact that Gartman would

have spent much less time in factual development and

legal research if the sole focus of the case had been the

claim against Brady.

Among the hours that were less directly related to

20

Gartman’s success against Brady, Sherrod’s work with

McMunn was relatively attenuated. Not only did Gartman

not call McMunn as a witness, but Brady had raised

unresolved objections regarding McMunn’s prospective

testimony. Further, McMunn’s opinions focused primarily

on breaches of the medical standard of care--evidence

that is less than deliberate indifference, but not

necessarily unrelated to the deliberate-indifference

inquiry. See, e.g., Hinson v. Edmond, 192 F.3d 1342,

1345 (11th Cir. 1999) (“That medical

malpractice--negligence by a physician--is insufficient

to form the basis of a claim for deliberate indifference

is well settled.”); McElligott v. Foley, 182 F.3d 1248,

1255 (11th Cir. 1999) (“We have ... held that deliberate

indifference may be established by a showing of grossly

inadequate care as well as by a decision to take an easier

but less efficacious course of treatment.”). However,

much of the time billed by Gartman’s counsel in this case

bore a much closer relationship to his ultimate success

21

against Brady, enabling Gartman to defeat Brady’s motion

for summary judgment and allowing Gartman’s attorneys to

develop fully the severity and obviousness of Gartman’s

pain and suffering, as well as Brady’s knowledge of that

suffering. A 25 % reduction of Gartman’s hours balances

those hours that bore a more attenuated connection with

Gartman’s success against Brady with those hours that

more directly contributed to that success.

After the court applies this reduction, Sherrod will

be compensated for 388.8 x 75 % = 291.60 hours, and

Lasseter will be compensated for 41.1 x 75 % = 30.83

hours.

B. Prevailing Market Rate

“A reasonable hourly rate is the prevailing market

rate in the relevant legal community for similar services

by lawyers of reasonably comparable skills, experience,

and reputation.” Norman, 836 F.2d at 1299. To determine

the prevailing market rate, the court will consider the

22

following Johnson factors: customary fee; whether the

fee is fixed or contingent; the novelty and difficulty

of the questions; the skill required to perform the legal

services properly; the experience, reputation, and

ability of the attorneys; time limitations; preclusion

of other employment; the undesirability of the case; the

nature and length of any professional relationship with

the client; and awards in similar cases.

Sherrod requests compensation at a rate of $ 500 per

hour, and Lasseter requests a rate of $ 400 per hour.

Both attorneys assert that the State of Alabama is the

relevant legal market for determining their reasonable

hourly rates. Brady makes no argument regarding

Lasseter’s requested hourly rate. The court focuses its

analysis on Sherrod’s requested hourly rate of $ 500.

At the outset, Brady argues that Gartman and Sherrod

should be estopped from claiming a rate of more than

$ 450 per hour for Sherrod’s work in this case. She

cites Sherrod’s representation that his hourly rate was

23

$ 450 during oral argument on a motion for a protective

order before the magistrate judge. See Def.’s Ex. A

(Doc. 285-1) at 5 n.2 (“Counsel for the plaintiff stated

at oral argument that he was not requesting attorney’s

fees for opposing the motion but submitted that his

hourly rate is $ 450 and [that] he did not spend much

time responding to the motion as he had previously

researched the issue for another case.”). In reply,

Gartman asserts that Sherrod “made a mistake” at the

hearing because he was “caught off guard.” Pl.’s Reply

(Doc. 293) at 1.

Brady cites no authority for her position that

Gartman and Sherrod should be ‘estopped’ based on

Sherrod’s earlier representation. Several

considerations weigh against estoppel. First, Sherrod’s

explicit disavowal of any request for attorney’s fees at

the time of his prior representation cuts against the

notion that he attempted to mislead the courts. See New

Hampshire v. Maine, 532 U.S. 742, 750 (2001) (“[C]ourts

24

regularly inquire whether the party has succeeded in

persuading a court to accept that party’s earlier

position, so that judicial acceptance of an inconsistent

position in a later proceeding would create ‘the

perception that either the first or the second court was

misled.’” (citation omitted)). Second, Brady does not

assert any sort of reliance on Sherrod’s previous

statement that would indicate unfairness. See id. at 751

(noting that another “consideration is whether the party

seeking to assert an inconsistent position would derive

an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.”). Accordingly, the

court finds that estoppel is inappropriate and proceeds

with its analysis of the prevailing market rate for

Sherrod’s work in this case. Nevertheless, the court

finds it is still proper to consider this earlier

representation in determining the appropriate rate for

Sherrod here.

Experience, Reputation, and Ability: Brady concedes

25

that Sherrod has established his experience, reputation,

and ability as a lawyer. Sherrod’s declaration reflects

that he has been an attorney in private practice for over

30 years, during which time he has litigated a

substantial number of § 1983 cases involving law

enforcement and correctional facilities.

Customary Fee: “The customary fee for similar work

in the community should be considered.” Johnson, 488

F.2d at 718. “Although it is generally true that the

‘rate of attorney’s fees is that of the place where the

case is filed,’ it is proper to consider a different

legal market if it appears unlikely that there would be

any attorneys in the local market who would be willing

to take the case and who would possess sufficient

expertise in the area of law involved.” Gay Lesbian

Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1495

(M.D. Ala. 1996) (Thompson, C.J.) (citation omitted)

(quoting Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489,

1494 (11th Cir. 1994)). Sherrod and Lasseter assert that

26

the State of Alabama, rather than the local Montgomery

area, is the relevant legal market, based on the “limited

number of attorneys who have the ability, experience, and

financial wherewithal to handle [§ 1983 civil-rights]

cases.” Declaration of Henry F. Sherrod, III (Doc.

277-1) at 5; Declaration of Alan B. Lasseter (Doc. 277-5)

at 4. Both attorneys more specifically highlight this

scarcity in the context of § 1983 cases where plaintiffs

have not suffered permanent physical injuries. See

Declaration of Henry F. Sherrod (Doc. 277-1) at 4;

Declaration of Alan B. Lasseter (Doc. 277-5) at 5.

Gartman also presents the declarations of three other

attorneys familiar with plaintiff-side legal practice in

the State. At least one of these attorneys specifically

opines that Alabama is the relevant legal market for

plaintiff-side civil-rights and anti-discrimination

litigation, see Declaration of Andrew C. Allen (Doc.

279-1) at 5, and the other two allude to a statewide

market based on the scarcity of attorneys specializing

27

in the representation of § 1983 civil-rights plaintiffs,

see Declaration of Jon Goldfarb (Doc. 277-8) at 2;

Declaration of Randall C. Marshall (Doc. 277-9) at 2-3.

Sherrod’s own experience litigating § 1983 cases in all

three federal districts in Alabama further speaks to a

statewide market. Brady does not put forward any

substantive argument or evidence to the contrary, apart

from a citation to a decision of this court in the context

of employment discrimination. See Adams v. City of

Montgomery, No. 2:10cv924-MHT, 2013 WL 6065763, at *3

(M.D. Ala. Nov. 18, 2013) (Thompson, J.). The court

finds that the appropriate legal market in this case is

the State of Alabama.

The court next turns to Gartman’s evidence of the

prevailing rate within the Alabama legal market.

“Satisfactory evidence” of the prevailing market rate “is

more than the affidavit of the attorney performing the

work” and “must speak to rates actually billed and paid

in similar lawsuits.” Norman, 836 F.2d at 1299. “The

28

weight to be given to opinion evidence ... will be

affected by the detail contained in the testimony on

matters such as similarity of skill, reputation,

experience, similarity of case and client, and breadth

of the sample of which the expert has knowledge.” Id.

While Sherrod’s actual rate is an appropriate

consideration, “the issue is the legal market rate, not

an individual lawyer’s rate.” Gay Lesbian Bisexual

Alliance, 930 F. Supp. at 1496. Moreover, the court

notes that the evidence of prior awards should not be

given controlling weight. See Dillard, 213 F.3d at 1355.

Sherrod’s declaration states that his customary

hourly rate since 2019 has been $ 500 when he bills on

an hourly basis or quotes an hourly rate and that this

rate is within the range of fees customarily charged by

attorneys of similar experience handling cases of similar

complexity in Alabama. In support of this contention,

he states that, between 2009 and 2014, courts awarded his

clients attorney’s fees at hourly rates of $ 300 in 2009,

29

$ 350 in 2012, and $ 400 in 2014. See Declaration of

Henry F. Sherrod, III (Doc. 277-1) at 5. He also offers

the declarations of three attorneys that his rate is

reasonable based on their opinions of the prevailing

market rate within the State and of his experience and

reputation. One attorney opined that “[t]he prevailing

market rate in Alabama for a plaintiff’s attorney in

cases such as the current case range from $ 300.00 to

$ 650.00 per hour,” Declaration of Jon Goldfarb (Doc.

277-8) at 2, while another opined that Sherrod “could

reasonably charge hourly rates anywhere in Alabama

between $ 500 and $ 650 per hour,” Declaration of Andrew

C. Allen (Doc. 279-1) at 6. Against the above, Sherrod’s

in-court representation that his hourly rate was $ 450

is some countervailing evidence of his customary rate,

even if estoppel is not warranted on that basis.

Weighing Sherrod’s representations about his current

rate, his previous awards of attorney’s fees, and the

declarations of Sherrod and three other attorneys that

30

$ 500 is a reasonable hourly rate for an attorney in

Alabama with comparable skills and experience, the court

concludes that $ 450 is a reasonable hourly rate for an

attorney in the State of Alabama with approximately the

same experience and skill as Sherrod in a case of this

nature.

Whether Fee is Fixed or Contingent: With respect to

the existence of a contingent-fee agreement between

Gartman and Sherrod, Brady argues that “by agreeing to a

contingency contract,” Gartman and Sherrod “should be

held to that agreement.” Def.’s Resp. & Opp. (Doc. 285)

at 32. However, the Supreme Court has explained that “a

contingent-fee contract does not impose an automatic

ceiling on an award of attorney’s fees.” Blanchard, 489

U.S. at 93. Rather, “[s]hould a fee agreement provide

less than a reasonable fee calculated” in accordance with

the lodestar approach, “the defendant should nevertheless

be required to pay the higher amount.” Id.; see also

City of Burlington v. Dague, 505 U.S. 557, 566 (1992)

31

(noting that “the lodestar model often (perhaps,

generally) results in a larger fee award than the

contingent-fee model”). Considering Sherrod’s

acceptance of a contingent-fee agreement as one factor

in the lodestar calculation and the determination of

reasonableness, the court does not find that Sherrod’s

contingent-fee agreement with Gartman supports a downward

adjustment of his hourly rate from the customary rate

determined above.

Other Factors: The remaining Johnson factors that

are relevant to the prevailing market rate do not weigh

strongly for a rate higher or lower than the customary

rate. Generally, these factors reinforce the court’s

conclusion that a $ 450 rate is reasonable. Sherrod

litigated this case with appropriate skill and ability.

His time spent on this case is time that he could not

have spent pursuing other employment or litigating other

cases. And there is no reason to believe that Sherrod

had a prior professional relationship with Gartman or was

32

subject to unique time limitations that would lead to a

variance from the prevailing and customary rate.

With respect to specific hours, Brady argues that

Gartman’s hourly rate should be cut in half where Sherrod

has billed for his travel time. Based on Sherrod’s

submissions (Doc. 277-2 and Doc. 293-5), it appears that

he has billed for 54.2 hours of travel time, comprised

of travel by car to and from numerous depositions, one

mediation session, one visit to the Autauga County Jail

(the site of the incident underlying the complaint),

three client meetings, and the trial. With the exception

of travel to and from one deposition in Georgia, all

travel occurred within the State. Additionally, it

appears that two of the three client meetings did not

require any travel beyond travel for another purpose on

the same day.

The court finds that Sherrod’s travel in this case

was reasonable. Additionally, as noted above, Gartman’s

decision to retain counsel from outside the Montgomery

33

area was reasonable in light of the limited availability

of local civil-rights attorneys with experience handling

comparable § 1983 cases. See Dowdell, 698 F.2d at 1192

(“Civil rights litigants may not be charged with

selecting the nearest and cheapest attorney.”). As this

court has done previously, it will compensate Sherrod’s

reasonable travel time at his full hourly rate. See,

e.g., Hall, 263 F. Supp. 2d at 1363; Gay Lesbian Bisexual

Alliance, 930 F. Supp. at 1497.

In sum, the court finds that the prevailing market

rate is $ 450 per hour for an attorney of Sherrod’s

experience and qualifications in this case and $ 400 per

hour for an attorney of Lasseter’s experience and

qualifications.

C. Lodestar Calculation

In light of the above, the lodestars for Gartman’s

attorneys are as follows.

For Sherrod:

34

388.8 hours x 75 % = 291.60

291.60 hours x $ 450 per hour = $ 131,220.00.

For Lasseter:

41.1 hours x 75 % = 30.83

30.83 hours x $ 400 per hour = $ 12,332.00.

Total:

131,220.00

+12,332.00

143,552.00

D. Adjustments

In addition to the arguments addressed in the

lodestar calculation above, Brady argues that her ability

to pay should be considered as a basis for a reduction

in Gartman’s attorney’s fees. According to Brady, she

does not have insurance that covers the attorney’s fees

of an opposing party, and, when the financial

circumstances set out in her affidavit are considered,

she cannot afford to pay Gartman’s attorney’s fees.

Gartman contends that Brady’s insurance policy through

35

QCHC, Inc. will cover Gartman’s attorney’s fees and

further argues that, whether or not attorney’s fees are

covered, Brady’s ability to pay is irrelevant. The court

will assume that Brady’s insurance policy will not cover

Gartman’s attorney’s fees. Even with that assumption,

the court finds that no adjustment is warranted.

Neither party has identified any case squarely

deciding the question of whether a non-prevailing

defendant’s ability to pay is a basis for reducing the

amount of attorney’s fees awarded to the prevailing

plaintiff under 42 U.S.C. § 1988. In Durrett v. Jenkins

Brickyard, Inc., 678 F.2d 911 (11th Cir. 1982), the

Eleventh Circuit held that “a district court awarding

attorney’s fees to a prevailing Title VII defendant

should consider ..., as a limiting factor, the

plaintiff’s financial resources.” Id. at 917 (emphasis

added). In explaining its reasoning, the court

elaborated that “the losing party’s ability to pay” was

“a consideration uniquely pertinent to the losing

36

plaintiff.” Id. Like Durrett, the other cases cited by

the parties involved awards of attorney’s fees to

prevailing defendants. See Nesmith v. Martin Marietta

Aerospace, 833 F.2d 1489, 1491 (11th Cir. 1987) (per

curiam) (“The amount of attorney’s fees [awarded against

the Title VII plaintiff] was properly modified by the

district court in consideration of the plaintiff’s

ability to pay.”). Although the Eleventh Circuit

referred more generally to the “losing party’s financial

status” in Baker v. Alderman, 158 F.3d 516, 528 (11th

Cir. 1998), that case also involved an award of

attorney’s fees to prevailing defendants. While the

court in Baker observed generally that “[t]he law in this

circuit is clear that ability to pay should be considered

in the award of attorney’s fees under § 1988,” it cited

to Durett and Nesmith for that proposition without

purporting to expand the scope of those cases or

otherwise identifying when, how, or to what extent the

court had interpreted those cases to apply to awards to

37

prevailing plaintiffs. Id. at 528 & n.77.

This court has not found a binding case settling

whether and to what extent a § 1983 defendant’s inability

to pay attorney’s fees may justify a reduction in an

award under § 1988. In Knighton v. Watkins, 616 F.2d

795 (5th Cir. 1980), the former Fifth Circuit Court of

Appeals refused to hold that the defendants’ ability to

pay was “totally irrelevant” to attorney’s fee awards to

plaintiffs under § 1988, but found that the defendants’

financial problems in that case took on “minor

importance” in light of the fact that the plaintiff was

“far more impoverished” than the defendants and that the

case involved “relatively modest sums.” Id. at 799-800.

Subsequently, in a case not binding on this court, the

Fifth Circuit declined to address “whether or under what

circumstances a nonprevailing defendant’s financial

condition may be weighed in charging that party with

attorneys’ fees under section 1988.” Alizadeh v. Safeway

Stores, Inc., 910 F.2d 234, 239 n.8 (5th Cir. 1990).

38

Several federal courts of appeals for other circuits

have held, at a minimum, that a non-prevailing

defendant’s ability to pay does not warrant a denial, or

even a reduction, of attorney’s fees under § 1988. The

Seventh Circuit Court of Appeals held that a defendant’s

“ability to pay is not a ‘special circumstance’ that will

bar an award of attorneys’ fees to a successful

plaintiff.” Entm’t Concepts, Inc., III v. Maciejewski,

631 F.2d 497, 507 (7th Cir. 1980) (quoting Bunn v. Cent.

Realty of La., 592 F.2d 891, 892 (5th Cir. 1979) (per

curiam)). Likewise, the Third Circuit Court of Appeals

held that “the losing party’s financial ability to pay

is not a ‘special circumstance’” and rejected the

defendants’ argument that “the district court erred in

not reducing or denying the fee award” under § 1988.

Inmates of Allegheny Cty. Jail v. Pierce, 716 F.2d 177,

179-80 (3d Cir. 1983) (quoting Maciejewski, 631 F.2d at

507); see also E.C. v. Phila. Sch. Dist., 644 F. App’x

154, 157 (3d Cir. 2016) (applying Pierce in a different

39

statutory context and rejecting argument that district

court should have reduced fee award due to defendant

school district’s budgetary difficulties).

This court has previously held that a defendant

school board’s “precarious financial condition” did not,

in that particular case, “override[] the directive of 42

U.S.C.A. § 1988 to award attorney’s fees to successful

civil rights plaintiffs.” Lee v. Randolph Cty. Bd. of

Educ., 885 F. Supp. 1526, 1532 (M.D. Ala. 1995)

(Thompson, C.J.); see also Lee v. Randolph Cty. Bd. of

Educ., 882 F. Supp. 2d 1292, 1295-96 (M.D. Ala. 2012)

(Thompson, J.) (reaffirming the same proposition).

However, the court did not resolve whether a

non-prevailing defendant’s ability to pay could be

considered generally.

Moreover, the differences in the purposes and

standards for attorney’s fee awards to prevailing

plaintiffs and prevailing defendants under § 1988 suggest

that the inability to pay carries much greater weight for

40

a non-prevailing plaintiff than for a non-prevailing

defendant, if it is properly considered for a

non-prevailing defendant at all. “Congress enacted

§ 1988 specifically because it found that the private

market for legal services failed to provide many victims

of civil rights violations with effective access to the

judicial process.” Rivera, 477 U.S. at 576 (plurality

opinion). “[T]he contingent fee arrangements that make

legal services available to many victims of personal

injuries would often not encourage lawyers to accept

civil rights cases, which frequently involved substantial

expenditures of time and effort but produce only small

monetary recoveries.” Id. at 577. In accordance with

the purpose of § 1988 to ensure effective access to the

judicial process for civil-rights plaintiffs, “a

prevailing plaintiff ‘should ordinarily recover an

attorney’s fee unless special circumstances would render

such an award unjust.’” Hensley, 461 U.S. at 429 (quoting

S. Rep. No. 94-1011, at 4 (1976)); see also Ellwest Stereo

41

Theatre, Inc. v. Jackson, 653 F.2d 954, 955 (5th Cir.

Unit B Aug. 1981) (“Although a district court’s grant or

denial of attorneys’ fees is reviewable only for abuse

of discretion, the discretion afforded district courts

to deny attorneys’ fees to prevailing plaintiffs under

§ 1988 is exceedingly narrow ....”).

Whereas awarding attorney’s fees to prevailing

plaintiffs typically will vindicate the purpose of

§ 1988, “[i]f prevailing defendants were routinely

awarded attorney’s fees under § 1988, civil rights

plaintiffs would be extremely reluctant to initiate

litigation for fear of being charged with a fee award

vastly exceeding the expected recovery, and in some cases

their ability to pay, thereby vitiating the underlying

purpose of § 1988.” Coates v. Bechtel, 811 F.2d 1045,

1049 (7th Cir. 1987). To avoid this chilling effect,

attorney’s fees are not awarded to a prevailing defendant

unless “the plaintiff’s action was frivolous,

unreasonable, or without foundation.” Hughes v. Rowe,

42

449 U.S. 5, 14 (1980) (per curiam) (quoting

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421

(1978)).

Where the purpose of attorney’s fee awards to

prevailing defendants is “to deter the bringing of

groundless lawsuits and to protect defendants from

burdensome litigation having no legal or factual basis,”

Durrett, 678 F.2d at 915 (describing the Christianburg

standard in the Title VII context), the non-prevailing

plaintiff’s financial ability to pay is directly relevant

to the determination of an award that will “fulfill the

deterrent purpose ... without subjecting the plaintiff

to financial ruin,” id. at 917. In contrast, a

non-prevailing defendant’s financial ability or

inability to pay would appear to bear little relation to

the purpose of § 1988 to ensure that plaintiffs with

meritorious civil-rights claims have effective access to

representation to vindicate their rights. Indeed, a

legal landscape in which courts routinely reduced

43

prevailing plaintiffs’ attorney’s fee awards below

reasonable amounts determined in accordance with the

lodestar method could be viewed as undermining the

purpose of the statute.

Nevertheless, the court need not reach the issue of

whether a defendant’s financial condition should be a

proper consideration for determining whether to deny or

reduce a prevailing plaintiff’s request for attorney’s

fees. First, Brady does not seek a denial but only a

reduction of Gartman’s fee request. Second, even if this

court had the discretion to reduce Gartman’s fee request

based on Brady’s financial circumstances, it would not

do so. The court has, in its discretion, already greatly

reduced Gartman’s fee to essentially the bottom end of

the reasonable range allowable. To reduce it further

would penalize Gartman. Moreover, Brady has not

indicated, and thus left the court in the dark as to, how

much she wants to court to reduce Gartman’s fee in light

of her financial circumstances. Based on how much the

44

court has already reduced Gartman’s fee request, and

after careful consideration of Brady’s financial

circumstances, the court believes that it has struck a

proper balance--between the interest of Gartman in a

reasonable fee and the interest of Brady in a smaller fee

because of her financial circumstance--by allowing the

reduced fee to stand as is.

E. Reasonable Expenses

In addition to attorney’s fees, “[w]ith the exception

of routine office overhead normally absorbed by the

practicing attorney, all reasonable expenses incurred in

case preparation, during the course of litigation, or as

an aspect of settlement of the case may be taxed as costs

under § 1988.” Barnes, 168 F.3d at 438 (quoting Dowdell,

698 F.2d at 1192); see also Dowdell, 698 F.2d at 1190

(“Reasonable attorneys’ fees under [§ 1988] must include

reasonable expenses because attorneys’ fees and expenses

are inseparably intertwined as equally vital components

45

of the costs of litigation.”). “[T]he standard of

reasonableness is to be given a liberal interpretation.”

Dowdell, 698 F.2d at 1192. Reasonable costs of travel,

food, lodging, postage, and photocopying are among the

expense reimbursements that the Eleventh Circuit observed

to have been “awarded ... liberally” by courts in the

circuit. Id. at 1191-92.

Sherrod seeks $ 23,297.55 in expenses, consisting

primarily of $ 13,496.15 in expenses for deposition

transcripts, as well as lesser expenses for travel

($ 1,959.14), lodging ($ 2,725.42), meals ($ 432.48),

copies of trial exhibits ($ 1,114.12), fees for

subpoenas, depositions, mediation, and service of process

($ 2,741.21), trial notebooks and tabs ($ 777.12),

parking ($ 45.00), and postage ($ 6.91). Lasseter seeks

$ 3,379.34 in expenses, which appear to consist of the

court filing fee ($ 400.00), expenses related to service

of process ($ 1,515.00), and expenses related to medical

records ($ 1,464.34).

46

Brady objects to Gartman’s request for $ 777.12 in

expenses for trial notebooks and tabs, arguing that

Sherrod could have retrieved these notebooks following

trial. Gartman responds that the notebooks were

purchased specifically for this trial and could not be

retrieved for reuse without consuming excessive time and

expense. Gartman’s billing of this expense without

additional detail impedes this court’s ability to

determine whether the full expense is reasonable or

whether it should be absorbed by Sherrod as routine

overhead. Given this lack of specificity, the court will

reduce the expense by 50 %, from $ 777.12 to $ 388.56,

decreasing Sherrod’s pre-adjustment expenses to

$ 22,908.99.

As with Gartman’s requested attorney’s fees, Brady

argues that expenses associated with Gartman’s claims

against other defendants, such as the costs of

transcripts of depositions of those defendants and other

witnesses, should be excluded entirely. For the reasons

47

explained above with respect to attorney’s fees, the

court will not exclude these expenses in their entirety.

Rather, the court will reduce Gartman’s expenses by 25 %

to account for his partial success. See Hall, 263 F.

Supp. 2d at 1371; Black v. M.G.A., Inc., 51 F. Supp. 2d

1315, 1326 (M.D. Ala. 1999) (Thompson, J.). Applying

this adjustment, the court will reduce Sherrod’s expenses

to $ 22,908.99 x 75 % = $ 17,181.74, and Lasseter’s

expenses will be reduced to $ 3,379.34 x 75 % =

$ 2,534.51, for a total of $ 19,716.25 in expenses. (The

court notes that it has reduced the allowed expenses even

more than Brady has requested.)

* * *

Accordingly, for the above reasons, it is ORDERED

that:

(1) Plaintiff Trenton Gartman’s motion for

attorney’s fees and expenses (Doc. 277) is granted.

(2) Attorney’s fees in the amount of $ 143,552.00

48

are awarded to plaintiff Gartman from defendant Lisa

Brady as follows:

(a) For attorney Henry F. Sherrod, $ 131,220.00.

(b) For attorney Alan Bart Lasseter,

$ 12,332.00.

(3) Expenses are awarded to plaintiff Gartman from

defendant Brady in the amount of $ 19,716.25.

This case remains closed.

The clerk of the court is DIRECTED to enter this

document on the civil docket as a final judgment pursuant

to Rule 58 of the Federal Rules of Civil Procedure.

DONE, this the 1st day of September, 2022.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

49