GRAY v. BOSTIC

because plaintiffs succeeded on their primary First Amendment claim and their victory advanced an important public purpose now that defendants, who had argued vigorously that their conduct was constitutional, were on notice that it was not); Wagner v. City of Holyoke, 404 F.3d 504, 509-10 (1st Cir. 2005) (per curiam) (upholding a fee award of $72,840 in a First Amendment case because district court provided legally sound reasons for award); Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 125 (1st Cir. 2004) (affirming an award of nominal damages on a due process claim because "the determination that the municipality violated plaintiffs' constitutional rights represented a significant legal conclusion serving an important public purpose"); O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997) (noting that plaintiff's victory was not de minimis because, among other things, it provided an incentive to attorneys to represent civil rights litigants such as the plaintiff and deterred future abuses).

The panel's opinion attempts to over-stretch Farrar, the facts of which bear little resemblance to the facts of this case. In Farrar, no factor came close to weighing in favor of the plaintiff, see Farrar, 506 U.S. at 122, 113 S.Ct. at 579 (O'Connor, J., concurring); here, Gray satisfied difficult burdens to win in this Circuit's first case to deny a schoolhouse qualified immunity in the Fourth Amendment context, thus prevailing on an important constitutional issue of first impression.

The plaintiff in Farrar dragged six defendants through ten years of litigation for a business injury. Though he sought $17 million in damages, he obtained only $1 against the least blameworthy defendant, and no award against the other defendants. Furthermore, no important public purpose was discernible because it was not even clear what unlawful conduct had occurred. "In this case, the relevant indicia of success — the extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served — all point to a single conclusion. . . ." Farrar, 506 U.S. at 122, 113 S.Ct. at 579 (O'Connor, J., concurring).

Applying the factors set forth by Justice O'Connor to this case yields results very different from the outcome of Farrar. First, the holding of Gray II helps to delineate the boundaries of appropriate conduct for school and law enforcement officials in schools. Second, Gray's suit serves an important public purpose because it will deter future Fourth Amendment violations by school officials; in fact, the case has already been used to hold school officials accountable for unreasonable searches and seizures. Third, the difference between the amount of damages sought compared to those received was not nearly as dramatic as in Farrar. A. Gray Succeeded on a Significant Legal Issue of First Impression that Provides Important Guidance for School Officials

Although this Court has not engaged in extensive discussion to define "significant legal issue" in this context, other circuits have interpreted this prong of Justice O'Connor's inquiry in two ways. Some define the "significance of the legal issue" prong by going beyond a focus on actual relief obtained to examine the extent to which the plaintiff succeeded on her theory of liability. See Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1231 (10th Cir. 2001). Other courts have held that this prong addresses the "general legal importance of the issue on which the plaintiff prevailed." Mercer v. Duke University, 401 F.3d 199, 206 (4th Cir. 2005). Under either of the two prevailing definitions, Gray's victory weighs in favor of awarding attorney's fees.

See also Brandau, 168 F.3d at 1182 (even though plaintiff only succeeded on one of multiple claims, attorney's fees were justified because she succeeded on her primary claim of sexual harassment); Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993) (plaintiffs prevailed on almost all of their claims). This approach seems consistent with Justice O'Connor's analysis of this prong in Farrar. See Farrar, 506 U.S. at 121, 113 S.Ct. at 578 (O'Connor, J., concurring).

See also Maul v. Constan, 23 F.3d 143, 145 (7th Cir. 1994) ("[W]e understand the second Farrar factor to address the legal import of the constitutional claim on which plaintiff prevailed.").

Applying the first definition, Gray prevailed against the one defendant at trial on her primary claim that her rights under the Fourth Amendment had been violated. See Lippoldt v. Cole, 468 F.3d 1204, 1224 (10th Cir. 2006) (holding that the first prong of the O'Connor test was met because, although plaintiffs brought other claims, they succeeded on their primary First Amendment claim). Further, as the district court noted, Gray succeeded on her primary claim against Bostic despite his vigorous defense "on every hand and at every stage of the litigation." Gray v. Bostic, 2008 WL 4191384, No. 7:03-cv-2989-UWC (N.D.Ala. July 29, 2008); cf. Boston's Children First v. City of Boston, 395 F.3d 10, 18 (1st Cir. 2005) (finding no abuse of discretion where the district court denied attorney's fees on the grounds that there was no significant legal victory in a $1 "nominal award to two of ten original plaintiffs, the entitlement to which was conceded by the defendants from the virtual outset"). In contrast to Gray, who succeeded on her primary claim against the most culpable defendant, the plaintiffs in Farrar achieved a "hollow" victory because after 10 years of litigation, he recovered $1, not the $17 million he sought, from just one of six defendants, and the "least culpable defendant" at that. Farrar, 506 U.S. at 121, 113 S.Ct. at 578 (O'Connor, J., concurring).

Sheriff Edmund Sexton was also a defendant, but Grays claim against him was dismissed at the summary judgment stage. See Gray II, 458 F.3d at 1308-09.

Under the second approach, a plaintiff has prevailed on a "significant legal issue" where she has vindicated important constitutional rights or presented a matter of first impression in the Circuit. For example, the Eighth Circuit held that the "vindication of the constitutional right to be free from cruel and unusual punishment is a significant legal issue in contrast to the injury to a business interest alleged in Farrar." Lockhart, 29 F.3d at 424 (emphasis added).

See Piper v. Oliver, 69 F.3d 875, 877 (8th Cir. 1995) (holding that the "right to be free from illegal detention [is] a significant one"); Cabrera, 24 F.3d at 393 (finding success on "a significant legal issue — namely, that landlords can be held liable for employing real estate brokers who are engaged in racial steering").

The plaintiff in Farrar alleged a violation of his civil rights because defendants contributed to the temporary closing of his boarding school. Farrar v. Cain, 756 F.2d 1148, 1149 (5th Cir. 1985). After the jury verdict, it was not even clear what specific lawless conduct the SUIL condemned. Farrar, 506 U.S. at 122 — 23, 113 S.Ct. at 578 (O'Connor, J., concurring).

Gray succeeded on a significant legal issue because (1) she vindicated an important constitutional principle, the Fourth Amendment right of a child to be free from unreasonable seizures; (2) her case presented an issue of first impression and is the first in our Circuit to deny qualified immunity in the schoolhouse Fourth Amendment context, further defining the contours of "reasonableness" for school and law enforcement officials in schools; and (3) she prevailed where others had failed, by proving that her Fourth Amendment rights, in the school context, were violated and that this violation was clearly established.

Gray's "case was important in that it marked a milestone in the development of the law" concerning the Fourth Amendment rights of children in schools. Mercer, 401 F.3d at 207. In New Jersey v. T.L.O, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the Supreme Court held that searches by school officials are subject to a " Fourth Amendment standard of reasonableness that stops short of probable cause." Id. at 325, 105 S.Ct. at 742. Thus, a school search is "permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342, 105 S.Ct. at 743 (footnote omitted).

Applying the T.L.O. test, Gray II further defines and clarifies what type of conduct (i.e., handcuffing a child who poses no safety threat) is excessively intrusive in light of the age and sex of a child (here, a 9-year-old girl). 458 F.3d at 1306. We have noted that "[s]pecific application of [the T.L.O.] factors . . . is notably absent from the [ T.L.O.] Court's discussion and conclusion." Jenkins v. Talladega City Bd. of Ed., 115 F.3d 821, 825 (11th Cir. 1997) (en banc). Gray II offers a specific application, denying immunity to a school resource officer who used force as a disciplinary measure against a nine-year-old girl who posed no safety threat.

Significantly, Gray's victory represents the first case in our Circuit to deny qualified immunity to a school official on a Fourth Amendment claim. Gray was able to overcome T.L.O.'s permissive standard of "reasonableness" (rather than "probable cause") and then prove that Deputy Bostic's violation was clearly established. We have held that "where the applicable legal standard is a highly general one, such as `reasonableness,' preexisting case law that has applied general law to specific circumstances will almost always be necessary to draw a line that is capable of giving fair and clear notice that an official's conduct will violate federal law." Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 954 (11th Cir. 2003) (citation omitted). It is a "rare occasion" that a Fourth Amendment constitutional violation is "obvious." Gray II, 458 F.3d at 1307 (citations omitted). But in Gray II, this Court held that Deputy Bostic's conduct was a clearly established violation because it was "obvious." 458 F.3d at 1307. Thus, the case offers guidance for evaluating "reasonableness" in the context of future Fourth Amendment claims, putting school officials on notice of what conduct violates a child's Fourth Amendment rights.

Gray's success is even more remarkable in light of other plaintiffs' lack of success in litigation in the context of unreasonable searches and seizures within schools. In the two prior cases dealing with qualified immunity in the school context, we found that "s trip searches" of students undertaken to find stolen money were not clearly established violations of the Fourth Amendment. Thomas, 323 F.3d at 952, 956 (granting qualified immunity to a teacher and police officer who strip-searched a fifth-grade group to find a missing $26, because, although the search constituted a violation, it was not "clearly established"); Jenkins, 115 F.3d at 822-23, 828 (granting, en banc, qualified immunity to school officials who strip-searched two 8-year-old elementary students to find $7 stolen from a classmate, on the grounds that there was no clearly established violation). In both cases we relied in part on the fact that there was no factually similar case law on point and that the violations were not so "obvious" as to alert the school officials that the relevant conduct was unconstitutional.

See also Cuesta v. School Bd. of Miami-Dade County, Fla., 285 F.3d 962, 969 (11th Cir. 2002) (finding no Fourth Amendment violation in a strip search because there was reasonable suspicion of violence); C.B. v. Driscoll, 82 F.3d 383, 388 (11th Cir. 1996) (finding no violation because search was justified by reasonableness grounds).

The preceding discussion reveals that a plaintiff seeking to vindicate her Fourth Amendment rights in the school setting must overcome two significant hurdles: (1) the plaintiff must first show that the actions taken by school officials were unreasonable and (2) to avoid dismissal on qualified immunity grounds, she must further demonstrate that the defendants violated clearly established law. Gray did both. The district court underscored her success with regard to these standards when it stated that it initially had denied the plaintiffs claim on qualified immunity grounds. Gray succeeded not only on the legally significant issue of whether there was a constitutional violation, but also on whether the violation was clearly established. Prior plaintiffs in our Circuit claiming Fourth Amendment violations in the school context were unable to do so.

The district court had held that, while it found Deputy Bostic's "conduct to be reprehensible, the Plaintiff ha[d] not identified a single federal cass for the proposition that the handcuffing of a student by a law enforcement official for ostensibly pedagogical reasons violates the federal Constitution." Gray v. Bostic, N.D. Ala., 2004 WL 5624393 (No. 03-C-2989-W, Jan. 30, 2004), rev'd, 11th Cir. 2004, 127 Fed.Appx. 472 (No. 04-12240, Dec. 27, 2004).

While the panel's opinion minimizes Gray's legal victory as a "fairly narrow one," Gray IV 613 F.3d at 1041, it neglects to acknowledge that the importance of the legal issue. Gray II makes up part of a broader discussion, currently in a state of flux, about the boundaries of the relationship between students and school authority figures who are charged with securing their safety and providing them with a crime-free learning environment. The Supreme Court recently considered the Fourth Amendment rights of school-children in Safford Unified School District No. 1 v. Redding, ___ U.S. ___, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009). There, school officials strip-searched Savana Redding to see whether she was concealing prescription drugs in her undergarments. Id. at 2638. The district court found "no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. A closely divided Circuit sitting en banc, however, reversed." Id. (internal citation omitted).

After granting certiorari, the Supreme Court held that although the strip search violated the Fourth Amendment, the school official who ordered the search was entitled to qualified immunity because it was questionable whether the right was clearly established. Id. at 2643-44. The Supreme Court quoted our en banc decision in Jenkins, 115 F.3d at 828, where we stated that T.L.O. is a "series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other," which made it impossible "to establish clearly the contours of a Fourth Amendment right . . . [in] the wide variety of possible school settings different from those involved in T.L.O. itself." Safford, 129 S.Ct. at 2643.

The Supreme Court's recognition of the still-developing case law regarding the Fourth Amendment rights of schoolchildren, coupled with the acknowledgement of our Court that these rights are not clearly established, leads to the conclusion that Gray prevailed on a significant legal issue of notable public benefit and first impression. She affirmed a student's constitutional right to be free from obviously unreasonable seizures.

Rather than being yet another opinion granting qualified immunity, Gray's case serves as a bookend, delimiting the narrow range of clearly established unacceptable conduct for school officials. It helps distinguish reasonable from unreasonable seizures in the schoolhouse context, where the highly general standard of "reasonableness" often fails to define the contours of students' Fourth Amendment rights with clarity. As such, her case provides useful guidance for school officers and courts — exactly what qualified immunity cases should do. As an issue of first impression, and the first of its kind to deny qualified immunity in our Circuit, Gray succeeded on an issue of legal significance.

In a pre- Farrar § 1983 case dealing with prison abuse, we affirmed the district court's award of $62,643.20 in attorney's fees on a $3,500 judgment, finding that "[t]he line between permissible discipline and impermissible abuse is often difficult to discern in a prison setting, but legal precedents and common sense help us to draw that line when necessary. Every time a court delineates discipline from abuse, the line becomes slightly easier to see." Davis v. Locke, 936 F.2d 1208, 1215 (11th Cir. 1991).

"In our legal system, with its reliance on stare decisis and respect for precedent, a case involving the claim of a single individual, without any request for wide-ranging declaratory or injunctive relief, can have a profound influence on the development of the law and on society. Because [the plaintiff's] case was the first of its kind, [our opinion] and the jury's verdict will serve as guidance to other schools facing similar issues." Mercer, 401 F.3d at 208.

B. Gray Advanced an Important Public Goal By Deterring Future Fourth Amendment Violations by School Officials and Affirming the Rights of Schoolchildren to be Free From Unreasonable Seizures

For the reasons set forth supra in section A, Gray II advances an important public purpose by deterring Fourth Amendment violations by school officials and vindicating important rights for children in the school setting. See Farrar, 506 U.S. at 121-22, 113 S.Ct. at 578-79 (O'Connor, J., concurring); Popham v. City of Kennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987) (citation omitted) ("The affirmation of constitutional principles produces an undoubted public benefit that courts must consider in awarding attorneys' fees under Section 1988."); Davis, 936 F.2d at 1215 (concluding that "the success or failure" of a civil rights lawsuit cannot "be judged solely by the size of the jury verdict," because "[t]he deterrent effect of [a civil rights] lawsuit could well be as important as the monetary damages recovered"). Courts have concluded that a plaintiff advances a public goal where her suit deters future abuses, affirms an important constitutional principle, puts the defendant on notice that it must improve its conduct in the future, or actually provokes a change in the defendant's conduct.

See, e.g., Lippoldt, 468 F.3d at 1224 (plaintiff's litigation revealed to defendants that their conduct was unconstitutional, though they had consistently argued otherwise); Cabrera, 24 F.3d at 393 (upholding ordinary lodestar fee amount for a $ 1 nominal damage award and incidental equitable relief for racially discriminatory denial of rental housing in part because the landlord's loss "serve[d] as a clear warning to landlords that the law will not tolerate their use of brokers who discriminate invidiously"); Muhammad, 104 F.3d at 1070 (stating that the verdict in favor of the plaintiff "accomplished a public goal, namely, encouraging governments scrupulously to perform their constitutional duties"); Piper, 69 F.3d at 877 (stating that "a public goal had been served by [the plaintiff's] victory in encouraging [the defendants] to refashion their forfeiture procedures to avoid future illegality"). But see Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052-53 (5th Cir. 1998) (holding that plaintiff's victory on procedural due process claim produced no "public benefit" because the "procedural due process violation as found by the jury was peculiar to Hidden Oaks, not general in the sense that the City would be forced to change its dealings with other landowners as a result").

As the district court noted when explaining its award of attorney's fees, in a case like Gray's that involves "individual police misconduct," a "deterrent effect is particularly evident [because] . . . injunctive relief generally is unavailable." Riverside, at 575, 106 S.Ct. at 2694; see also Davis, 936 F.2d at 1215. For instance, in Duckworth v. Whisenant, 97 F.3d 1393, 1395, 1400 (11th Cir. 1996) (per curiam), our Circuit found that the district court did not abuse its discretion in awarding attorney's fees of 8162, 209 against a sheriffs department on an excessive force claim, despite a $500 damage award. We held that we would "not endorse Defendants' efforts to undermine the significance of this litigation," because a finding that the sheriffs department tacitly condoned excessive force by their officer's could "only inure to the benefit of those involved when redressing an officer's abuse of discretion which violates a person's constitutional rights." Id. at 1399. As a result, we deferred to the district court's discretion in declining to reduce the lodestar amount on the basis of Farrar. Id., at 1395.

Likewise, Gray's suit serves an important purpose, and unlike Farrar, one does not search "in vain for the public purpose" Gray's litigation has served. Farrar, 506 U.S. at 122, 113 S.Ct. at 578 (O'Connor, J., concurring). This case reminds school officials that while they have considerable freedom in maintaining school safety, they do not have unlimited discretion. As the district, court noted, at every stage in this litigation, Deputy Bostic argued vigorously that his seizure of Gray was justified under either a reasonableness standard or a more heightened "arguable probable cause" standard. See, e.g., Gray v. Bostic, 11th Cir. 2004 127 Fed.Appx. 472 (No. 04-12240, Dec. 27, 2004) (complaint stage); Gray II, 458 F.3d at 1300 (summary judgment stage); Gray v. Bostic, 264 Fed.Appx. 856, 856 (11th Cir. 2008) (judgment as a matter of law stage). Our Court's finding to the contrary serves to deter not only Deputy Bostic but all school officials in this Circuit from violating the Fourth Amendment rights of students. Consequently, Gray's suit serves an important public purpose for all school children; it did not merely give Gray the "moral satisfaction of knowing that a federal court concluded that [her] rights had been violated in some unspecified way." Farrar, 506 U.S. at 114, 113 S.Ct. at 574 (quotation omitted).

By contrast, in Farrar, the Court searched in vain for the public purpose that plaintiffs litigation may have served, "other than occupying the time and energy of counsel, court, and client." Farrar, 506 U.S. at 121-22, 113 S.Ct. at 578 (O'Connor, J., concurring). No one could discern the lawless conduct that could be deterred in the future as a result of the suit, as the jury verdict was "regrettably obtuse," id. at 122, 113 S.Ct. at 578-79, and reflected only that Farrar's rights were violated in "some unspecified way." Id. at 114, 113 S.Ct. at 574 (majority opinion) (quotation and citation omitted). Because his case "carrie[d] no discernable meaning," it had no prospect of benefitting anyone other than Farrar. Id. at 122, 113 S.Ct. at 579 (O'Connor, J., concurring) (citations omitted).

Gray's case clearly established that a school official cannot seize a child in the absence of any safety threat. By helping to define the boundaries of permissible and impermissible conduct for school officials, it serves a greater public purpose by deterring future abuses by such officials and has already aided in vindicating the rights of other children who have been subject to Fourth Amendment violations in their schools. C. The Amount of Damages Sought Compared to the Amount of Damages Received Was Not Outrageous

Further, the divergence between the amount of damages that Gray sought and what she received was not drastic. In Farrar, the plaintiff sought $17 million, and after 10 years of litigation, was awarded only $1 by the jury. The high damages Farrar sought indicated that money was the primary purpose of his action, and thus a low monetary recovery reflected a low degree of success. See Wilcox, 42 F.3d at 557 n. 8.

Gray's case, however, was not simply about the money. At the close of a one-day jury trial, Gray's counsel argued that in a civil case like this one, all that a plaintiff could ask for was money (presumably because injunctive relief was not available), but that no dollar value could be placed on the injury that occurred to Gray as a result of Bostic's constitutional violation. Gray asked for a sum of $25,000, a far cry from Farrar's request for $17 million. Other courts have granted fee awards both where there were similar and more drastic splits. Compare Murray, 323 F.3d at 619 (upholding an award of attorney's fees, inter alia, because the disparity between the $500,000 in damages requested and the $1 received was not "an outrageous split"), and Brandan, 168 F.3d at 1182 (holding that the "difference between the judgment recovered and the recovery sought was significantly distinct from the corresponding difference in Farrar `where plaintiff sought backpay for twenty-one months and $50,000 in non-economic damages'"), and Lockhart, 29 F.3d at 424 (fees granted because, inter alia, the discrepancy between the amount of damages sought ($860,000) and amount recovered ($2) "pales in comparison to the discrepancy presented in Farror"), with Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995) (denying attorney's fees where plaintiff sought $16 million in damages from 8 defendants, but received only nominal damages), and Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (denying attorney's fees where plaintiff asked for $21 million and got $1). Viewed in light of these cases, the difference between the damages Gray sought and the relief she was awarded does not rise to the level of "outrageous."

III. Attorney's Fee Awards Enable Plaintiffs to Bring Meritorious Civil Rights Claims Absent the dedication and efforts of Gray's attorneys, Gray's Fourth Amendment rights would not have been vindicated, nor could she have helped to uphold the Fourth Amendment rights of other schoolchildren in our Circuit. "Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest importance." Riverside, 477 U.S. at 575, 106 S.Ct. at 2694 (citation omitted) (internal quotation marks omitted). As the Supreme Court has explained, "[u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms." Id. at 574, 106 S.Ct. at 2694. Therefore, "Congress has determined that the public as a whole has an interest in the vindication of the rights conferred by [§ 1983], over and above the value of a civil rights remedy to a particular plaintiff." Id. (internal quotation marks omitted). Because it realized that contingency-fee arrangements did not provide sufficient incentives to lawyers to accept civil rights cases that often produced small monetary recoveries but great public benefit, Congress enacted § 1988. Id. at 577, 106 S.Ct. at 2695.

The Seventh Circuit has noted that if a small damages award is the reason for denying attorney's fees, then misconduct that is neither harmful enough to support a large compensatory award nor egregious enough to justify a punitive damages award is "as a practical matter, beyond the reach of the law" because would be impossible to attract a competent lawyer without an expectation of a fee award. Hyde v. Small, 123 F.3d 583, 585 (7th Cir. 1997). While cases such as Gray's may seem "narrow" in their reach, the Seventh Circuit stated that "the cumulative effect of petty violations of the Constitution arising out of the interactions between the police (and other public officers) and the citizenry on the values protected by the Constitution may not be petty. . . ."` Id.,; see also Koopman, 41 F.3d at 1421 ("Deterring meritorious lawsuits on constitutional issues because they offer a small likelihood of a significant money judgment presents as grave a danger to our legal system as frivolous litigation.",).

CONCLUSION

Farrar reiterates the importance of a plaintiffs overall success in calculating an award of attorney's fees. The district court, with its intimate knowledge of Gray's suit, gave reasoned consideration to this issue. While this Court may not agree with the way in which the district court articulated its reasoning, the discretion due to the district court, combined with the actual significance of Gray's victory, requires that we defer to the district court's award of attorney's fees. No error of law exists to support a conclusion that the district court abused its discretion when awarding attorney's fees in this litigation.

Quite simply, "[i]n our legal system, with its reliance on stare decisis and respect for precedent, a case involving the claim of a single individual . . . can have a profound influence on the development of the law and on society." Mercer, 401 F.3d at 208. The district court properly recognized that Gray's success did not lie in a monetary award, but in affirming an important constitutional principle. It is not our place to substitute our own judgment.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

LAQUARIUS GRAY, a minor by and through her mother and next friend, TONIKA L. ALEXANDER, Plaintiff, vs.

ANTONIO BOSTIC, Defendant.

Civil Action Number 7:03-cv-2989-UWC

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND EXPENSES

Eschewing Defendant Antonio Bostic's position that Plaintiff Laquarius Gray is not entitled to an award of attorney's fees, ^fn1 the Court makes and enters herein the following Findings of Fact and Conclusion of Law.

A. FINDINGS OF FACT

1. This action was commenced on November 4, 2003, by the minor Plaintiff Laquarius Gray through his attorney, Gary P. Cody. Although the original thirty-six-page complaint named other defendants, the case has proceeded against Tuscaloosa County Deputy Sheriff Antonio Bostic and, to a significantly lesser extent, Sheriff Edmund Sexton.^fn2 The gravamen of the complaint is that Deputy Bostic detained and handcuffed the nine-year old Plaintiff during her physical education class, in violation of her constitutional rights.

2. At the conclusion of the evidence at trial, the Court granted judgment as a matter of law against Deputy Bostic. The jury returned nominal damages in the amount of $1.00, and Plaintiffs counsel did not seek a new trial on damages.^fn3

3. In the Northern District of Alabama, an hourly range of $150.00 to $250.00 is the prevailing market rate for similar services performed by lawyers of reasonably comparable skills, experience, and reputation to those of attorneys Liveoak, Cody, Edge, Collins, and Boyles. An hourly range of $ 100.00 to $150.00 is the prevailing market rate in North Alabama for similar services performed by lawyers of reasonably comparable skills, experience, and reputation to those of attorney Peacock.

4. A reasonable hourly rate for Plaintiffs attorneys Liveoak, Cody, Edge, Collins, and Boyles is $200.00.

5. Because of his relatively short time at the bar, a reasonable hourly rate for Plaintiffs attorney Peacock is $125.00.

6. A total of 346.2 hours were reasonably expended by counsel in the prosecution of this case. The following counsel expended the hours indicated: T. Blake Liveoak.......................232.7^fn4 H. Arthur Edge.........................73^fn5 W. Brian Collins.......................4.5^fn6 G. Richard Boyles, Jr..................10 Curtis Peacock.........................6 Gary Cody..............................20^fn7 7. Gary Cody's law firm has reasonably incurred $562.93 in expenses directly related to the prosecution of this case.^fn8

8. The Collins, Liveoak Boyles ("CLB") law firm has reasonably incurred $1,180.00 in expenses directly related to the prosecution of this case.^fn9

9. The CLB firm is not entitled to reimbursement for the services rendered by their secretaries in this case.

10. Over a five-year period, this case has been the subject of four appeals^fn10 and three decisions by the Eleventh Circuit Court of Appeals. The most important of these decisions, handed down just two years ago, ^fn11 has already been cited in more than fifty other cases.^fn12 The case was vigorously defended on every hand and at every stage of the litigation. The legal acumen of Plaintiffs counsel is reflected in the fact that the Plaintiff ultimately prevailed, despite this Court's initial dismissal of this action.

11. Among the bar of the Northern District of Alabama, this case was an undesirable one. Because of the limited financial resources of the Plaintiff, the case could only be taken on a contingency basis. For completely understandable reasons, ^fn13 it is extremely difficult to find lawyers willing to represent plaintiffs in civil rights cases on a contingency basis.

12. The relationship between the Plaintiff and his counsel is limited to this case.

13. Although the Plaintiff received only $1.00 in nominal damages, as found earlier, the jury's damage award was considerably unsupported by the evidence. In its most recent expression in this case, the Eleventh Circuit affirmed this Court's grant of judgment as a matter of law to the Plaintiff: "we conclude that, viewing the evidence in the light most favorable to Deputy Bostic, he lacked even arguable probable cause to arrest Gray." (Doc. 116 at 5.)

14. Most of the legal work performed in this case relates to the claim against Deputy Bostic. The court finds that at least eighty-five percent (85%) of the legal services would have been required even if Sheriff Sexton had never been a party to the action.^fn14

15. Since the Plaintiff did not prevail on his claim against Sheriff Sexton, the hours to which his counsel would otherwise be entitled will be reduced by fifteen percent (15%).^fn15

16. Plaintiffs counsel are entitled to a 15% enhancement for the delay in payment.

17. Plaintiffs counsel are entitled to the following amounts of reasonable attorneys' fees and reimbursement of expenses: a. The CLB Firm Attorney Hours Hourly rate Total Fees T. Blake Liveoak 232.70 X $200 = $46,540 H. Arthur Edge 73 0 X $200 = $14,600 W. Brian Collins 4.5 X $200 = 901 G. Richard Boyles, Jr. 10 X $200 = $2,000 Curtis Peacock 6 x $125 = $750 Total fees................................................$64,790

Moreover, the CBL firm is entitled to reimbursement of reasonable expenses in the amount of $1,180.

b. Gary Cody

Gary Cody is entitled to payment for 20 hours at a $200.00 hourly rate, for a total of $4,000.00. He is also entitled to reimbursement for expenses in the amount of $562.93.

B. CONCLUSIONS OF LAW

1. A prevailing party in an action brought under 42 U.S.C. § 1983 is entitled to a reasonable attorney's fee. 42 U.S.C. § 1988; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Plaintiff Gray is a prevailing party in this action.

2. In setting a reasonable attorney's fee, a district court is required to utilize the "lodestar approach," which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Kenny A v. Purdue et al., Nos. 06-15514, 06-15874, 532 F.3d 1209, 2008 WL 2609238, at *10 (11th Cir. July 3, 2008); Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The lodestar is "the guiding light of our fee-shifting jurisprudence." City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). The lodestar incorporates all of the twelve factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See also Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).

3. "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. An hourly rate of $200.00 is reasonable for Plaintiffs attorneys Live-oak, Edge, Collins, Boyles, and Cody; and an hourly rate of $125.00 is reasonable for attorney Peacock.

4. In calculating the number of hours reasonably expended in the prosecution of the action, a court must exclude "excessive. redundara, or otherwise unnecessary hours." Hendey, 461 U.S. at 434, 103 S.Ct. 1933. The Court has disallowed 14.5 hours as redundant.

5. In determining reasonable hours, a court must deduct time spent on discrete and unsuccessful claims. Norman, 836 F .2d at 1302. The Court has reduced by fifteen percent (15%) the reasonable hours expended by Plaintiff as time attributable to the discrete claims against Sheriff Sexton.

6. "It is improper [to reduce hours] based on a simple ratio of successful issues to issues raised." Id. "Where all theories derive from a common nucleus of operative facts, the focus should be on the significance of overall results as a function of total reasonable hours." Id. The hours for which Plaintiffs counsel are being compensated all derive from a common nucleus of operative facts.

7. Where the documentation of claimed attorney hours is inadequate, "the court may make the award based on its own experience." Norman, 836 F.2d at 1303. The Court has based its conservative award of 20 hours to Gary Cody on its own expertise and experience.

In the area of police misconduct, where injunctive relief is generally unavailable to safeguard individual constitutional rights, a court should not reduce the prevailing attorney's hours simply because the monetary relief is paltry. Popham v. City of Kennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987); City of Riverside v. Rivera, 474 U.S. 917, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985); Norman, 836 F.2d at 1303.

8. A reasonable attorney's fee for the prevailing party should reflect the delay between the time the services were rendered and the payment for the services. While the Eleventh Circuit does not "prescribe any set method for correcting the delay in payment, . . . some form of correction must be undertaken." Johnson v. Univ. Coll. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1211 (11th Cir. 1983). Generally courts in the Eleventh Circuit deal with the delay factor by compensating at current rates rather than at historic rates. Norman, 836 F.2d at 1302. However,

using current rates to account for the delay in payment is somewhat inaccurate as it assumes that the increase in legal fees mirrors that of inflation, which in many instances is not the case. A more accurate method for adjusting for delays in payment would be to apply to the award a figure which is recognized as representing the time value of money over the period of the litigation.

Gaines v. Dougherty County Board of Education, 775 F.2d 1565, 1572 n. 14 (11th Cir. 1985). Since over the past five years, the prevailing market rates in the Northern District of Alabama do not reflect inflation, the Court has enhanced the award by fifteen (15%) percent.

Conclusion

By separate order, the Court will grant the Plaintiffs motion for reasonable attorneys' fees and reimbursement of expenses.

U.W. Clemon /s/ United States District Judge