Brzowski v. Sigler

Roy Percy UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER

Roy Percy UNITED STATES MAGISTRATE JUDGE

This matter is before the Court, sua sponte, for consideration of dismissal. Derrick Willis, an inmate currently housed at the Mississippi State Penitentiary in Parchman, Mississippi, has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 against Jesse Williams. Doc. # 1. Having fully considered his allegations and the applicable authority, the Court finds that Willis' complaint must be dismissed.

As Willis consented to United States Magistrate Judge jurisdiction in this case in accordance with 28 U.S.C. § 636(c), see Doc. # 5, the undersigned has the authority to enter this memorandum opinion and order and the accompanying judgment.

Screening Standards

Because Willis has been permitted to proceed in forma pauperis in this action, his claims are subject to sua sponte dismissal under the Prison Litigation Reform Act (“PLRA”). See 28 U.S.C. § 1915(e)(2). Pursuant to the PLRA, the Court is obligated to evaluate the complaint and dismiss if it is “frivolous or malicious, ” if it “fails to state a claim upon which relief may be granted, ” or if it “seeks monetary relief against a defendant who is immune from such relief.” Id. A claim is frivolous if it “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if relief could not be granted to the plaintiff “under any set of facts that would be proven consistent with the allegations” in the complaint. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (citation omitted); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (complaint fails to state a claim only where it does not plead “enough facts to state a claim to relief that is plausible on its face”).

See Doc. #7.

See also 28 U.S.C. § 1915A (subjecting prisoner complaint to preliminary screening regardless of in forma pauperis status).

Plaintiff's Allegations and Procedural Posture

In the instant action, Willis complains about a Rule Violation Report (“RVR”) written against him for an incident which occurred while he was housed at the Marshall County Correctional Facility (“MCCF”) located in Holly Springs, Mississippi. The RVR at issue concerned an assault by Willis against another inmate. According to Willis, the fellow inmate was coughing and sneezing without covering his mouth while handling food in the kitchen. Willis alleges that he reported the inmate to the kitchen supervisor, but she took no action. Though not entirely clear, the allegations indicate that some sort of physical altercation then ensued between Willis and the other inmate.

Following the incident, Willis received an RVR. Willis asserts that the officer who wrote the RVR did not personally observe the incident, which is required under institutional policy, but rather wrote from second-hand knowledge. Willis additionally avers that the officer failed to include his correct Mississippi Department of Corrections (“MDOC”) Identification number in the report. Willis appealed these issues, but MCCF Warden and Facility Administrator Jesse Williams denied relief.

Willis filed the instant action on March 8, 2021, asserting a claim under 42 U.S.C. §1983 against MCCF Warden and Facility Administrator Jesse Williams. Doc. # 1. According to Willis, MCCF staff failed to follow institutional policy when rendering the RVR at issue. Id. By way of relief, Willis requests that the RVR decision be reversed, that he be reimbursed for the cost of the filing fee in this action, and that he be placed back in B-Custody. Id. On July 19, 2021, the Court entered an Order requiring Willis to submit additional information, particularly directing Willis to provide a detailed description of the only named Defendant's personal involvement in the actions or inactions alleged in his complaint. Doc. # 22. Willis submitted his response to the aforementioned order on August 25, 2021. Doc. # 30.

Failure to Follow Institutional Policy Not a Claim under Section 1983

Willis rests his claim entirely on his belief that MCCF staff failed to follow MDOC policy when issuing the relevant RVR. To state a claim under Section 1983, a plaintiff must allege that he was deprived a right under the Constitution or the laws of the United States by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Giving Willis' allegations liberal construction, it appears that he is asserting that he was denied due process by MCCF staff's failure to follow institutional policy and procedure. However, to invoke the protections of the Due Process Clause, a protected liberty interest is “limited to freedom from restraint which . . . imposes atypical and significant hardships on the inmate in relation to the ordinary incidents in prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The failure by prison officials to follow institutional policy and procedure in drafting RVRs does not implicate constitutional due process concerns. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (holding that “a prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met . . .”); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (“A violation of prison regulations, without more, does not give rise to a federal constitutional violation.”). Accordingly, Willis has failed to demonstrate that Defendant's actions violated his constitutional rights, and his complaint fails. See Hoye v. Nelson, 4:07cv44-M-B, 2007 WL 1321964 at *1 (N.D. Miss. Ma to 42 U.S.C. § 1997e(d)(1)(A) is unavailing. See Id. (emphasis added) ("In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that . . . the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute."). Brzowski's suit was brought under section 1983 and he was no longer a prisoner at the time his suit was filed.

As such, federal courts have allowed the recovery of fees for unsuccessful claims where those claims involved "'a common core of facts or related legal theories.'" Bellamy, 2017 WL 3675729, at *13; see Hensley, 461 U.S. at 440 ("Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised."). That some theories and arguments asserted and pursued by Brzowski's counsel were unsuccessful does not mean that those same theories and arguments were also unreasonable. See Bellamy, 2017 WL 3675729, at *13. Brzowski's earlier complaints and claims (as well as related work) were "factually related" to the claim on which he prevailed at trial and thus were "reasonably calculated to result in relief." See Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 661-62 (7th Cir. 2007). Moreover, Brzowski has explained the strategic purpose behind many of the purportedly "unrelated" tasks. See Brzowski's Reply Br. at 2-7; see also Jaffee, 142 F.3d at 414 (stating that "the touchstone" in cases where fees awarded for unsuccessful claims are or argument is not whether they were successful, but whether they were reasonable). Thus, this Court may award attorneys' fees for this work. See id.

Sigler's other objections on this basis are also unavailing. The fact Sigler was not initially a defendant is of no matter. See Sigler's Resp. Br at 7. The claims against her were arose from the same common core of facts as the claims that Brzowski pursued before she was added. Brzowski's May 12, 2020 status report may have been unneeded, but it was certainly related to this case and therefore reasonable. See Id. at 8. And last, of course Brzowski is entitled to attorneys' fees for additional summary judgment briefing ordered by the Court. See Id. It does not matter that Sigler's second motion for summary judgment would have been unnecessary if the Court had not permitted Brzowski to amend his complaint. The fact of the matter is that Brzowski was permitted to amend his complaint and did so. The third amended complaint involved the same common core of facts as the earlier versions, and thus it was undoubtedly related to the earlier complaints. Moreover, after the complaint was filed, Sigler moved for summary judgment, so it was obviously necessary for Brzowski to respond to that motion.

In short, the Court will not exclude from the fee award reasonable hours spent on related efforts. Brzowski is entitled to an award that takes account of the fact that his counsel went down seemingly promising roads even though they turned out to be dead ends. See Montanez, 755 F.3d at 555.

b. Excessive time

Sigler next argues that many (in fact almost all) of the attorneys' billed time is excessive. See Sigler's Resp. Br. at 6, 11. "[T]he line between ample preparation and excessive preparation is, at the margin, a fine one." Charles v. Daley, 846 F.2d 1057, 1076 (7th Cir. 1988). Sigler "offers only a bare list of entries that [she] deems excessive" and little rationale for supporting her conclusion. See O'Sullivan v. City of Chicago, 484 F.Supp.2d 829, 837 (N.D. Ill. 2007). She "has offered no objective standard, no 'reasonable' number of hours to spend on a given activity, with which to compare." Id. As such, the Court "will not engage in an arbitrary determination of how long a 'reasonable' attorney would spend on" a given matter and instead will include the allegedly excessive entries in the lodestar. See id.

c. Secretarial tasks

Sigler also asserts that Brzowski has impermissibly billed for secretarial work. "In calculating the number of hours reasonably expended on a case, courts should disallow time spent on what are essentially clerical or secretarial tasks." Cloutier v. GoJet Airlines, LLC, No. 16 C 1146, 2019 WL 5260756, at *4 (N.D. Ill. Oct. 17, 2019) (Kennelly, J.) (internal quotation marks omitted); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999) (concluding that "organizing file folders, document preparation, and copying documents" were clerical or secretarial tasks). In determining whether an entry includes a clerical or secretarial task, the Court must consider whether the task was sufficiently complex enough to justify the use of non-clerical staff. See People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1315 (7th Cir. 1996)

The Court agrees with Sigler that several of the attorneys' time entries involve clearly secretarial tasks. Some of these entries are poorly documented and therefore make it difficult for the Court to assess the work's complexity. See Cloutier, 2019 WL 5260756, at *4. The Court will disallow entries that are too vague to permit a finding that the work required an attorney's skill. The Court will also exclude entries for time spent "organizing files . . . or copying, formatting, processing, or preparing documents." Id. On those bases the following entries will be excluded from the final award:

Date	Attorney	Description	Time Billed
12/28/17	Hunstein	Complete civil cover sheet and provide summons information for filing (.40); Prepare appearances (.20)	.60
2/5/18	Hunstein	Review waivers of service of summons and prepare for issuance.	.40
5/23/18	Hunstein	Finalize and file First Amended Complaint	1.20
7/23/18	Hunstein	Finalize and file the Second Amended Complaint	1.80
8/23/18	Carmichael	Review and approve appearance in the case	.20
9/14/18	Hunstein	Prepare Notice of Motion for Motion for Leave to Submit Additional Authority created, then edited	.30
6/28/19	Carmichael	Obtain copies of decisions involving client	.70
6/28/19	Schoop	Drafting and filing attorney appearance for Devlin Joseph Schoop in the Brzowski v. Baldwin matter	.50
4/17/19	Schoop	Document2 created, then reviewed (.20); Scanned from a Xerox Multifunction Device created (.10); Creating summary of Brzowski complaints (1)	1.30
6/28/19	Carmichael	Obtain copies of decisions involving client, including Brzowski v Dept of Corrections - 2018 IL App (4th) 170010-U; Laura Brzowski v Walter Brzowski - 2018 IL App (4th) 170010-U; Brzowski v IL Prisoner Review Bd - 2018 ILApp (4th) 160601-U; Brzowski v Tristano - 2019 IL App (1st) 172 558-U; People v Brzowski - 2015 IL App (3d) 120376; and Brzowski v Brzowski 2014 IL App (3d) 130404	.70
10/30/19	Schoop	2019-10-30, dkt. #87, Defendants' Notice of Motion for Extension of Time to File MSJ Response created (.10); 2019-10-30, dkt. #86 Defendants' Motion for Extension of Time created (.10)	.20
12/17/19	Schoop	2019 -12-02-- _DE 100, Brzowski Defendants' Later Filed Exhibits created (.10)	.10
7/9/20	Schoop	Brzowski, Nicholas Lamb Deposition Designations created (.10); Brzowski, Guy Pierce Deposition Designations created (.10)	.20
7/13/20	Schoop	Bellamy MILS created (.10); Hostile Witness MIL created (.10); Alexander v Zinchuk MILs created (.10); Wilson MILS created (.10); Anderson Mils created (.10); Brzowski MIL GroupX 1 created (.10); Cooper MILS 1 through 8 created (.10); Brzowski MIL X 2 created (.10)	.80
7/20/20	Schoop	People v. Brzowski, 10 CF 1923 Bill of Indictment created (.10); Plaintiff's Proposed Deposition Designations Main Document created (0.10); Parties' Proposed Final Pre-Trial Order -- FINAL.7.20.2020 created (.10); Plaintiff's Response to Defendant's Motions in Limine Nos. 1 through 10 created (.10); Plaintiff 's Response to Defendant's Motions in Limine Nos. 1 through 10 Ex 4 created (.10); Brzowski -lDOC 000054-000237 reviewed (.10); Plaintiff's Proposed Deposition Designation Ex 1-Lamb created (.10); Guy Pierce Deposition Designations created (.10)	.70
7/24/20	Schoop	2020-07-23_--_DE 157 Sigler Brief in Opposition to Deposition Designations in Lieu of Live Testimony created (.10); 2020-07-23_ --_DE 155 Minute Order Setting Video Conference for July 24, 2020 Pre-Trial Conference created (.10)	.20
7/28/20	Schoop	Amended Proposed Deposition Designations in Lieu of Live Testimony and Defendant's Objections created (.10)	.10
7/29/20	Schoop	2020-07-29_--_DE 162 Sigler's Objections to Deposition Designations created (.10)	.10
7/30/20	Schoop	Revised PX 25 (reduced number of photos) created (.10); Plaintiff's Response to Defendant's Objections to Proposed Deposition Designations created (.10)	.20
9/4/20	Schoop	2020-09-03_--_DE 176 Def's Memo in Support of Combined Motion under Rules 50(b) & 59(a) created, then reviewed (.10)	.10
10/2/20	Schoop	2020-10-02 Memo in Opposition to Sigler's Combined Motion Under Rules 50(b) and 59(a) created (.10); 2020-10-02 Transmittal Ltr to Judge Kennelly re Memo of Law created, (.10)	.20

In sum, the Court will exclude 4.3 hours from Hunstein's total time, 1.6 hours from Carmichael's total time, and 4.7 hours from Schoop's total time. The Court overrules Sigler's remaining secretarial work objections.

e. Inadequately documented entries

Next to consider is Sigler's contention that many of the entries are inadequately documented, i.e. unduly vague. "[W]hen a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable percentage." Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000). District courts have this "broad discretion to strike such vague or unjustified billing entries" because it encourages "candor in fee requests and relieves the burden on district courts faced with vague or poorly documented fee claims." Id.

The Court agrees that some of the attorneys' billing entries are unduly vague and will strike those entries it concludes do not provide enough information to judge whether the entry involved time spent on Brzowski's claims or enough information to determine whether attorneys expended their time reasonably. See Cloutier, 2019 WL 5260756, at *6. The following entries will be excluded from the award amount:

Date	Attorney	Description	Time Billed
11/1/18	Hunstein	Review available documents and create summary of information	1.60
1/14/19	Hunstein	Review materials related to discovery to provide update on discovery	.70
1/22/19	Hunstein	Revise and edit Plaintiff's Response to RFPs and Interrogatories; Prepare for client review.	1.50
4/15/19	Henderson	Attention to discovery; communicate with client and opposing counsel regarding prison visits.	.50
4/17/19	Schoop	2 emails sent/reviewed	.20
4/19/19	Schoop	1 email sent/reviewed	.10
5/1/19	Schoop	4 emails sent/reviewed	.20
5/2/19	Schoop	1 email sent/reviewed	.10
5/3/19	Schoop	2 emails sent/reviewed	.20
5/6/19	Schoop	1 email sent/reviewed	.50
5/13/19	Schoop	4 emails sent/reviewed	1.3
5/14/19	Schoop	4 emails sent/reviewed	.20
6/3/19	Schoop	4 emails sent/reviewed	.20
9/26/19	Van Overloop	Edited Devlin's draft	1
10/11/19	Schoop	1 email sent/reviewed regarding FOR YOUR REVIEW	.10
10/15/19	Carmichael	Review List of Mr. B's Lawsuits, CM_ECF entries, and related proceedings)	.40
10/15/19	Henderson	1 email sent/reviewed (.10)	.10
9/23/20	Schoop	1 message sent/reviewed (.10); 2 internal messages sent/reviewed (.10)	.20

As a result of these exclusions, the Court will subtract 3.8 hours from Hunstein's total time, 3.3 hours from Schoop's, 1 hour from Van Overloop's total time, 0.6 hours from Henderson's total, and .40 from Carmichael's total time. The Court overrules the remainder of Sigler's vagueness objections.

f. Duplicative entries

Because "overstaffing cases inefficiently is common," district courts are "encouraged to scrutinize fee petitions for duplicative billing when multiple lawyers seek fees." Schlacher v. L. Offs. of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 858 (7th Cir. 2009). Sigler urges the Court to reduce the fee award further because she believes Brzowski has included several duplicative entries. But almost all these entries are for assignments that one attorney completed over a period of time, rather than one attorney's work being duplicative of another's. See generally dkt. no. 194-1; see also Bellamy, 2017 WL 3675729, at *7 (analyzing plaintiff's billing entries for "pervasive overstaffing").

To the extent Sigler objects to Brzowski's attorneys billing for different times for similar events (e.g., meeting with Brzowski or trial preparation meetings), it's unclear what basis she has for that objection. It's not uncommon for persons attending a meeting to arrive and leave at different times. And without more, it's certainly not evidence of duplicative work. ---------

Nevertheless, Brzowski has agreed to withdraw some of the contested entries. Brzowski no longer seeks fees for Schoop's work on 4/11/2019 (3.0 hours), 3/4/20 (.30 hours), 3/5/20 (11.40 hours), and 3/6/20 (9.50 hours). Brzowski's Reply Br. at 12. In total then, the Court will reduce Schoop's total by an additional 24.2 hours.

g. Block billing

Block billing-the combination of several discrete tasks in a single billing entry without specifying the amount of time spent on each task-"is not a prohibited practice" in this circuit. Gibson v. City of Chicago, 873 F.Supp.2d 975, 986 (N.D. Ill. 2012). Sigler contends that Brzowski's attorneys have block-billed both compensable and non-compensable work, but her objections do not identify what she contends the non-compensable work is. In any event, the Court has already considered Sigler's other objections for non-compensable work and has excluded the impermissible entries either entirely or partially. The Court is not also "obligated to conduct a line-by-line review of the bills to assess the charges for reasonableness." Rexam Beverage Can Co. v. Bolger, 620 F.3d 718, 738 (7th Cir. 2010). These objections are therefore overruled.

3. Modified lodestar

Taking into the above-stated exclusions, the attorneys' total hours are reduced as follows: Henderson's by .60 hours, Schoop's by 32.2 hours, Carmichael's by 2 hours, Hunstein by 8.1 hours, and Van Overloop by 1.9 hours. The following table summarizes the Court's resulting calculations:

Attorney	Total Hours	Billed Rate	Lodestar
Victor Henderson	67.6	$465	$31, 434.00
Devlin Schoop	305.9	$450	$137, 655.00
Christopher Carmichael	56.6	$450	$25, 470.00
Alexandra Hunstein	81.0	$150	$12, 150.00
Kelsey Van Overloop	1.9	$150	$285.00
Total			$206, 994.00

The modified lodestar amount is $206, 994, which the Court finds is reasonable.

B. Costs

Brzowski seeks costs of $4, 487.30. "There is a presumption that the prevailing party will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005). Sigler does not object to Brzowski's costs. The Court awards his requested costs in full.

Conclusion

For the reasons stated above, the Court grants Brzowski's petition for attorneys' fees [dkt. no. 190] and the motion for bill of costs [dkt. no. 173]. The Court awards Brzowski $206, 994 in attorneys' fees and $4, 487.30 in costs.