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Kensu v. Buskirk

United States District Court, E.D. Michigan, Southern Division

November 1, 2016

TEMUJIN KENSU, Plaintiff,
v.
JOSHUA BUSKIRK, et al., Defendants.

          ORDER REGARDING PLAINTIFF'S POST-JUDGMENT MOTIONS

          Victoria A. Roberts, United States District Judge.

         I. INTRODUCTION

         On March 28, 2016, a jury returned a verdict in favor of Plaintiff Temujin Kensu (“Kensu”) in the amount of $325, 002, finding that five defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The Court entered a judgment closing the case on March 30, after which Kensu filed four motions: (1) motion for attorney fees; (2) motion for equitable relief; (3) motion to compel the production of records; and (4) motion for an indicative ruling. These motions are fully briefed. For the following reasons, the Court GRANTS IN PART Kensu's motion for attorney fees, as explained below, and DENIES his other motions.

         II. BACKGROUND

         Kensu began this prisoner civil rights action on January 22, 2013, alleging an Eighth Amendment deliberate indifference claim, a First Amendment retaliation claim, and a claim for intentional infliction of emotional distress; he filed an amended complaint the following month alleging only the deliberate indifference claim. Oliver Law Group, P.C. (“Oliver Law”) represented Kensu from the outset of the litigation until October 2013, when the Court granted its request to withdraw as counsel. Kensu proceeded pro se until retaining Solomon Radner (“Radner”) in April 2015.

         The suit proceeded to a jury trial in March 2016 against 8 defendants: Jeffrey Stieve, Susan McCauley, Mary Zamora, Charles Turner, William Borgerding, Lloyd Rapelje, Russell Vittitow, and Jeannie Stephenson. On March 28, 2016, a jury returned a verdict in favor of Kensu, finding that Stieve, McCauley, Zamora, Borgerding, and Rapelje (“Defendants”) were deliberately indifferent to his serious medical needs. The jury found Stieve, McCauley, and Borgerding liable for compensatory damages of $25, 000, $5, 000, and $10, 000, respectively, and assessed punitive damages against them, respectively, in the amounts of $150, 000, $70, 000, and $65, 000. The jury rendered an award of $1.00 in nominal damages against each Zamora and Rapelje. The following day, the Court entered a judgment in accordance with the verdict, closing the case.

         On April 11, 2016, Kensu filed a motion for attorney fees. Oliver Law responded, seeking to recover for work performed prior to withdrawing as Kensu's counsel by either enforcing a lien pursuant to the terms of a contingent fee agreement or by payment of attorney fees on a per-hour basis. Defendants filed a late response to Kensu's motion, but they did not address Oliver Law's fee request. Kensu filed a reply.

         Kensu also filed a motion for equitable relief, in which he seeks an order: declaring that Defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights; preventing the Michigan Department of Corrections (“MDOC”) from transferring him to a different facility without Court approval; and requiring Defendants to provide him with several different medical treatments, examinations, and accommodations. While the motion was pending, Defendants filed a Notice of Appeal to the Sixth Circuit. Subsequently, they filed an objection to Kensu's motion for equitable relief, stating that their notice of appeal divested the Court of its jurisdiction to decide the motion.

         Agreeing that the Court could no longer grant him the equitable relief he sought due to Defendants' appeal, Kensu filed a motion for the Court to enter an indicative ruling stating that if the case were remanded, it would decide his motion for equitable relief.

         In his other motion before the Court, Kensu seeks an order compelling Defendants and/or MDOC to produce phone call records and recordings.

         III. MOTION FOR ATTORNEY FEES

         A. Legal Standard

         District courts have discretion to award attorney fees to a “prevailing party” in a civil rights suit. 42 U.S.C. § 1988(b). However, the Prisoner Litigation Reform Act (“PLRA”) limits the award of attorney fees in prisoner civil rights suits. 42 U.S.C. § 1997e(d)(1). The PLRA allows an award of attorney's fees in a 42 U.S.C. § 1983 claim brought by a prisoner only to the extent that the fee “was directly and reasonably incurred in proving an actual violation of the plaintiff's rights . . . and the amount of the fee is proportionately related to the court ordered relief for the violation. . . .” § 1997e(d)(1)(A). In determining an attorney fees dispute under the PLRA, the Court follows a four-step approach: (1) determine whether plaintiff prevailed for the purposes of § 1988; (2) calculate the amount of attorney fees due under the “lodestar” method; (3) determine whether the amount of the fee is proportionate to the court ordered relief for the violation; and (4) apply a portion of the judgment, not to exceed 25%, to attorney fees. Siggers-El v. Barlow, 433 F.Supp.2d 811, 820 (E.D. Mich. 2006).

         Defendants concede that Kensu is a “prevailing party” under § 1988. Thus, the Court must determine the reasonable attorney fees under the lodestar method, and ensure that they comply with the PLRA.

         B. Oliver Law is Entitled to Attorney Fees

         Before determining the merits of Kensu's motion for attorney fees, the Court must address a procedural matter regarding Oliver Law's fee application. Oliver Law seeks to recover for time spent representing Kensu by either enforcing a lien pursuant to a retainer agreement, or by receiving an award of fees on an hourly basis. Although Kensu primarily addresses the validity of the lien in his motion for attorney fees, he does acknowledge that Oliver Law may be entitled to either a quantum meruit fee or a recovery of fees on an hourly basis, by application. Since Kensu and Oliver Law agree the quantum meruit approach may resolve this dispute, the Court analyzes the issue on this basis.

         Oliver Law may recover attorney fees under both Michigan law and the PLRA. Prior to withdrawing, counsel combed through extensive records, filed a comprehensive complaint and an amended complaint, and successfully defended against a motion to dismiss. Thus, the fees which Oliver Law seeks to recover fall within the scope of the PLRA, as they were “directly and reasonably incurred in proving an actual violation of the plaintiff's rights.” § 1997e(d)(1)(A).

         Under Michigan law, an attorney on a contingent fee arrangement is entitled to a quantum meruit recovery of attorney fees if she rightfully withdraws from a matter, is wrongfully terminated by a client, or is terminated by a client for cause but has not engaged in disciplinable misconduct prejudicial to the client's case or contrary to public policy. Idalski v. Crouse Cartage Co., 229 F.Supp.2d 730, 741 (E.D. Mich. 2002) (citing Polen v. Melonakos, 222 Mich.App. 20, 24, 27 (1997)). A quantum meruit award is “generally determined by simply multiplying the number of hours worked by a reasonable hourly fee, ” but Courts must also look to the contractual terms. Island Lake Arbors Condo. Ass'n v. Meisner & Associates, PC, 301 Mich.App. 384, 401 (2013) (citation omitted). Because Oliver Law withdrew at such an early stage in this litigation, enforcing the contingency fee agreement would result in an excessive fee award. Quantum meruit means “as much as deserved.” Id. at 402 (citation and quotation marks omitted). Here, an award of fees based on the lodestar approach under the PLRA is appropriate and will compensate Oliver Law the amount it deserves.

         C. Lodestar Calculation

         The “starting point for determining the amount of a reasonable attorney fee is the ‘lodestar' amount which is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). The party seeking to recover fees bears the initial burden to substantiate the hours worked and the rate claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

         Here, Radner seeks total attorney fees in the amount of $48, 355.62, as follows: (i) 156.75 hours at $217.50 per hour for himself; (ii) 4 hours at $217.50 per hour for attorney Ari Kresch; and ...


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