United States District Court, E.D. Michigan, Southern Division
ORDER REGARDING PLAINTIFF'S POST-JUDGMENT
Victoria A. Roberts, United States District Judge.
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.
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.
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.
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.
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.
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
other motion before the Court, Kensu seeks an order
compelling Defendants and/or MDOC to produce phone call
records and recordings.
MOTION FOR ATTORNEY FEES
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).
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.
Oliver Law is Entitled to Attorney Fees
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.
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.” §
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.
“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).
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 ...