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DRAKE v. PERRIN

September 20, 1984

MICHAEL DRAKE and TERRY McQUADE
v.
RONALD PERRIN, Individually and as a Police Officer of the City of Phila., RICHARD ROE, Individually and as a Police Officer of the City of Phila., MORTON B. SOLOMON, Individually and as Police Commissioner of the City of Phila., CITY OF PHILADELPHIA and DAVID BROWN, Individually and as a Police Officer of the City of Philadelphia



The opinion of the court was delivered by: LORD, III

 This is a petition seeking counsel fees under 42 U.S.C. § 1988. To understand the basis of my ruling which follows, an understanding of the underlying facts is necessary.

 On the evening of April 23, 1982, the defendants Officers Perrin and Brown stopped plaintiff on suspicion of drunken driving and later arrested him on that charge. Plaintiff alleged that the two defendants used excessive force in effecting the arrest and further, that they stood by and failed to prevent violence by other police arriving on the scene. Plaintiff originally joined as defendants the Police Commissioner and the City of Philadelphia, both of whom were dismissed before trial.

 Plaintiff was unable to identify either Officer Perrin or Officer Brown as having actively inflicted any brutality. Accordingly, I directed a verdict for them. The jury found in favor of defendants on the charge of failing to prevent brutality by other officers. On the false arrest and false imprisonment charges, the jury found for plaintiff in the amount of $1.00 for each of the two offenses.

 Counsel have submitted a request for a total of $14,713.50 in counsel fees and $1,243.57 in costs.

 The liminal inquiry is whether plaintiff was a "prevailing party." In Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978), the court said, at page 487:

 
. . . a prevailing party on a particular claim is one who fairly can be found by the district court to have essentially succeeded on such claim, as "claim" is used in Fed.R.Civ.P. 10(b). . . . The application of the "essentially successful" standard normally is left, of course, to the sound exercise of discretion by the district court in the first instance.

 I must confess to a modicum of doubt on a practical basis as to whether a plaintiff who seeks only money damages and who obtains a verdict of $1.00 can be said to have "essentially succeeded". I know that if I were the plaintiff's lawyer in such a case, I would consider that I had failed miserably, at least in a pragmatic sense. However, I am now convinced that a "prevailing party" under § 1988 is one who prevailed in a legal sense, if not under a practical interpretation.

 In Hensley et al. v. Eckerhart et al., 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40, 51 U.S.L.W. 4552 (1983), the Court said, 51 U.S.L.W. at 4554:

 
A plaintiff must be a "prevailing party" to recover an attorney's fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that "plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-279 ((1st Cit. 1978). This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is "reasonable."

 This language admittedly does little to dispel the practical doubts that I entertain, but I think the breadth of the "prevailing party" concept is indicated by the Court's characterization of it as a "generous formulation." From this, I take it that when a plaintiff obtains a verdict, no matter how minimal, the plaintiff has prevailed. It then falls within the ambit of the trial judge's discretion to determine the amount of the fee. "In exercising this discretion, however, a district court is not without guidance." Milwe v. Cavuoto, et al., 653 F.2d 80, 82 (2d Cir. 1981). That guidance is now authoritatively explicated in Hensley v. Eckerhart, supra.

 The starting point is the number of hours reasonably expended multiplied by a reasonable rate. Hensley, supra. Id. at 4555. In Hensley, supra, the Court said, at 51 U.S.L.W. 4554:

 
The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

 Counsel has here submitted an affidavit claiming a total of 154.10 hours. The documentation, ...


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