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January 28, 1993


The opinion of the court was delivered by: BY THE COURT; TULLIO GENE LEOMPORRA

 Re: Plaintiff's Motion for Counsel Fees and Costs

 The plaintiff, James Strauss, has filed a Motion for Counsel Fees and Costs pursuant to 42 U.S.C. § 1988, and Federal Rule of Civil Procedure 68. Strauss sued Officers Richard Springer and Robert Clift and the City of Philadelphia under 42 U.S.C. § 1983, claiming violations of his civil rights due to the allegedly excessive force used by Springer and Clift in his arrest. At trial, the jury found against the officers with regard to the unreasonable use of force and awarded the plaintiff $ 11,760.11. *fn1"

 Title 42 U.S.C. Section 1988 provides:

In an action or proceeding to enforce a provision of Section 1981, 1982, 1983, 1985 and 1986 of this Title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.

 The Supreme Court has stated that with regard to § 1983 actions, a successful party vindicating protected rights "should ordinarily recover a attorney's fee unless special circumstances would render such an award unjust." Newman v. Piggie Park Enters, 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968); see also Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Fletcher v. O'Donnell, 729 F. Supp. 422, 425 (E.D. Pa. 1990).

 In order to determine the proper fee to be awarded plaintiff, the court must first determine whether Strauss was the prevailing party as required under 42 U.S.C. § 1988. If so, it must next be determined what the appropriate hourly rate and if the time charged is reasonable. In this case, a further analysis is required to determine whether a proper settlement offer was made which would preclude plaintiff the recovery of any fees accruing after the offer date. Fed. R. Civ. P. 68; Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1 (1985).

 1. Prevailing Party

 As noted above, § 1988 requires that a party prevail in its litigation in order to receive counsel fees. The Supreme Court in Texas State Teachers Assn. v. Garland, 488 U.S. 815, 109 S. Ct. 1486, 1493 (1989), stated that "if the plaintiff has succeeded on any significant issue in litigation which achieved some of the benefits the party sought in bringing the suit, the plaintiff has crossed the threshold to a fee award of some kind." Additionally, the court in Fletcher v. O'Donnell, supra, stated "the inquiry is generally not particularly involved; as the Court of Appeals has put it, 'usually a common sense comparison between relief sought and relief obtained will be sufficient to indicate whether a party has prevailed.'" 729 F. Supp. at 425, citing Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 911 (3d Cir. 1985).

 Trial in the instant case commenced on June 9, 1992. At the close of all the evidence and after the court had given its instructions, the jury was given special interrogatories to be answered during its deliberation and returned to the court as its verdict on June 19, 1992. The jury came back with the following verdict:

1. Officers Richard Springer and Robert Clift violated plaintiff's constitutional rights under § 1983 by using excessive force;
2. The City of Philadelphia did not have a custom, policy, or regulation which deprived plaintiff of his constitutional rights under § 1983;
3. Officers Springer and Clift did not commit an assault and battery upon the plaintiff on August 28, 1989;
4. Officers Springer and Clift were 40% negligent in their actions on the night in question;
5. Plaintiff, James Strauss, was found 60% contributorily negligent;
6. The City of Philadelphia was responsible for the negligence of their officers;
7. Under Pennsylvania comparative negligence law, the percentage of negligence attributable to the officers was found to be 40%, and the percentage of negligence attributable to the plaintiff was assessed at 60%, thereby foreclosing any recovery for the plaintiff for negligence against the officers or the City;
8. Officers Springer and Clift's actions were not done wilfully, maliciously, wantonly with reckless disregard for the plaintiff's constitutional rights and no punitive damages were awarded;
9. Damages were awarded against the City of Philadelphia only in the amount of $ 5,260.11 for past medical expenses, $ 2,500.00 for future medical expenses, and $ 4,000.00 for past loss of earnings, totalling $ 11,760.11;
10. No damages were awarded against Officers Springer and Clift.

 This verdict was entered on July 1, 1992. Although plaintiff did not achieve success on every aspect of the litigation, when viewing the outcome as a whole, it is clear that Strauss is the prevailing party based on the jury's conclusion that his civil rights were ultimately violated by the use of excessive force by the officers. As such, the plaintiff is entitled to recover attorney's fees.

 2. Plaintiff's Application for Counsel Fees

 Plaintiff also at this time elected to reduce his total request by $ 12,443.50, a figure which represents his expert witness fees. As a result, plaintiff now asks the court to award him $ 169,633.50 for attorney's fees, *fn3" plus $ 23,105.63 for costs and expenses, plus $ 7,985.50 for preparation of this fee petition, for a total of $ 200,724.63. Over objections by the City alleging the lateness of the requested amendment and the lack of substantiation, the court will grant the plaintiff's motion to amend the fee petition.

 I am allowing the amendment to the fee petition although the request was unusual and very late. At the time and during the oral argument on the fee petition proper, and after briefs were filed, plaintiff's attorney handed up the requested amendment to which defendant objected. Defendant stated that by allowing the fortuitously found amendment, plaintiff's attorney has managed to add a further claim which would bring the fees plus the jury award over the $ 20,000.00 limit. Defendant objected to the surprise request and argued that it was unfair and exaggerated and made in order to exceed the $ 20,000.00 offer and thereby defeat the purposes of Rule 68 and the cases cited herein. Acknowledging surprise and recognizing that the amended petition created charges that had to be examined closely, I required briefs to be filed to support each attorney's arguments addressing the issues. I have allowed the amendment and have reviewed plaintiff's contentions carefully.

 3. The Settlement Offer

 The ability to recover counsel fees has been significantly curtailed by the Supreme Court in the case of Marek v. Chesney, supra. In Marek, it was firmly established that a civil rights defendant is not liable for counsel fees and costs incurred after a pretrial settlement offer where the judgment recovered by the plaintiff is less than the offer. The court articulated its rationale:

 Section 1988 authorizes courts to award only "reasonable" attorney's fees to prevailing parties. . . . We held that the "most critical factor" in determining a reasonable fee "is the degree of success obtained." . . . In a case where a rejected settlement offer exceeds the ultimate recovery, the plaintiff -- although technically the prevailing party -- has not received any monetary benefits from the post-offer services of his attorney.

 473 U.S. at 11, 105 S. Ct. at 3017 . "In determining whether the result is more favorable to the plaintiff than the offer he rejected, the attorney's fees and costs that accrued before the offer must be added to the judgment." Lawrence v. City of Philadelphia, 700 F. Supp. 832 (E.D. Pa. 1988).

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