Prison Phone Justice

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 1 of 12 Page ID#1430

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BAHAA E. ISWED, #272102,
Plaintiff,

)
)
)
-v)
)
PATRICIA CARUSO, MARY BERGHUIS,
)
WRIGHT WADE, and G. RILEY,
)
Defendants.
)
____________________________________)

No. 1:08-cv-1118
HONORABLE PAUL L. MALONEY

OPINION AND ORDER
GRANTING PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES AND COSTS
On December 10, 2012, this court entered judgment against Defendants in this matter. (ECF
No. 161.) Before the court today are Plaintiff’s bill of costs (ECF No. 162) and his motion for
attorneys’ fees and costs. (ECF No. 164.)
I.

BACKGROUND
On November 28, 2008, Plaintiff Bahaa E. Iswed filed suit pro se against Patricia Caruso,

then-director of the Michigan Department of Corrections; Embarq Payphone Services Inc.; and a
number of MDOC employees. (ECF No. 1.) Mr. Iswed raised a number of causes of action, all
based on the defendants’ refusal to allow him to make telephone calls to his family in Romania and
Jordan. (Id.)
This court dismissed Mr. Iswed’s case on its initial review, finding that he had failed to state
a claim on which relief could be granted. (ECF No. 4.) On appeal, the Sixth Circuit affirmed most
of this ruling, but held that Mr. Iswed had sufficiently pleaded a First Amendment claim. (ECF No.
14.) On remand, this court ordered service of the complaint on four defendants: Director Caruso and
three MDOC employees alleged to have been directly involved in refusing Mr. Iswed’s request to

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 2 of 12 Page ID#1431

call Jordan and Romania. (ECF Nos. 16–17.)
In September 2011, after Mr. Iswed had survived a motion for summary judgment, the court
appointed attorney Daniel E. Manville, of the Michigan State University College of Law Civil Rights
Clinic, to represent Mr. Iswed going forward. After proceeding through additional discovery and
another motion for summary judgment, the case went to trial. Mr. Manville and two MSU law
students, Dorian George and Jesse Miller, presented the case for Mr. Iswed. After three days of trial,
the jury found in Mr. Iswed’s favor, but while it concluded that each Defendant had violated Iswed’s
constitutional rights, it awarded him only one dollar in damages from each Defendant. (ECF No.
137.) The court, however, granted Defendants the protection of qualified immunity and found even
these damages improper. (ECF No. 160.) The court then granted Mr. Iswed’s request for injunctive
relief, entering judgment against Defendants, in their official capacity, on December 10, 2012. (ECF
No. 161.)
On December 16, Mr. Iswed filed a bill of costs (ECF No. 162), and on December 23, he
filed a motion for attorneys’ fees (ECF No. 164). Defendants filed no objections to the bill of costs,
but they argue that the requested attorneys’ fees are excessive and, in the case of George and Miller,
improper under local rules. (ECF No. 170.)
II.

Plaintiff’s requests are now ripe for this court’s review.

ANALYSIS
A.

Attorneys’ Fees

As the prevailing party in a section-1983 suit, Mr. Iswed would normally be granted
attorneys’ fees. See 42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a provision of
section[] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs.”); Gregory v. Shelby Cnty., 220 F.3d 433, 447 (6th Cir.
2

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 3 of 12 Page ID#1432

2000) (“Although discretionary, a district court should award fees to a plaintiff if that plaintiff
prevails.”). Defendants do not dispute that Plaintiff is entitled to some fees, and the court agrees.
Nothing about this case suggests that attorneys’ fees would be inappropriate or unjust. Plaintiff’s
counsel obtained injunctive relief for their client, and they are therefore entitled to a reasonable fee
for their services.
1.

Fees for Law Students Practicing Under Supervision

Before the court addresses the question of whether Plaintiff’s requested fees are reasonable,
it has to determine whether it can award fees for the work done by Messrs. George and Miller, the
MSU law students who worked on this case. Defendants argue that it cannot. In support, they cite
Local Rule 83.1(h), which governs law student practice in this district. Specifically, Defendants
point to subsection (vi), which states in part, “An eligible law student may neither solicit nor accept
compensation or remuneration of any kind for services performed pursuant to this rule from the
person on whose behalf services are rendered.” W.D. Mich. LCivR 83.1(h)(vi) (emphasis added).
The court disagrees with Defendants’ interpretation of this rule. The portion quoted above
is narrower than Defendants claim. It plainly only prohibits the client (“the person on whose behalf
services are rendered”), not the court or the opposing party, from paying practicing law students.
Though Defendants argue that this language includes attorneys’ fees because they are awarded
through the client, this is a strained reading. Further, the rule expressly states in the next clause that
“this rule will not prevent an attorney, legal aid bureau, law school or state or federal agency from
. . . making such charges for services as may be proper.” Id. This language would appear to allow
MSU’s law clinic, through Mr. Manville, to seek appropriate attorneys’ fees (“charges for services”)
for the students’ work on the case. Because these fees would go to the MSU clinic, rather than to
3

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 4 of 12 Page ID#1433

the law students themselves, this would not violate any prohibition on compensating students for
their work. As other courts have noted, this result is consistent with the language and purpose
behind section 1988. See, e.g., Siggers-El v. Barlow, 433 F. Supp. 2d 811, 821 (E.D. Mich. 2006)
(“In this case, the law students participated as competent and professional attorneys throughout
discovery, dispositive motions, interlocutory appeal, and trial. The fact that they were supervised by
an attorney and obtained course credit for their work does not diminish the clinic’s entitlement to
attorney’s fees.”). The court will therefore award fees for Mr. George and Mr. Miller’s services.
2.

Reasonableness of Fees

In determining whether an attorney’s fees are reasonable, the courts apply a “lodestar”
approach. Under this approach, “[t]he most useful starting point . . . is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). “There is a ‘strong presumption’ that this lodestar figure represents a
reasonable fee,” though other considerations may increase or decrease the ultimate fee award. Bldg.
Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401–02
(6th Cir. 1995) (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 565 (1986)). “[T]here is no requirement that the amount of an award of attorneys’ fees be
proportional to the amount of the underlying award of damages.” Id. at 1401.
Mr. Manville claims an hourly rate of $187.50 for himself1 and a rate of $105 per hour for
1

This is the maximum hourly rate allowed by 42 U.S.C. § 1997e(d)(3), which provides
that attorneys’ fees in a prisoner’s case cannot be based on an hourly rate “greater than 150
percent of the hourly rate established under section 2006A of Title 18 for payment of courtappointed counsel.” Id. The current hourly rate for court-appointed counsel is $125 per hour,
making $187.50 the maximum hourly fee available in this case. See Hadix v. Johnson, 398 F.3d
863, 867 (6th Cir. 2005) (holding that section 1997e(d)(3)’s limit is to be determined by looking
to “the hourly rate for court-appointed counsel that is authorized by the Judicial Conference,
4

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 5 of 12 Page ID#1434

each of the law students. Defendants do not dispute these rates, and they expressly agree that Mr.
Manville’s rate is reasonable. The court agrees. Mr. Manville has been licensed to practice law in
Michigan for over 20 years, and he has extensive experience litigating prisoners’ rights cases.
According to a 2010 survey done by the State Bar of Michigan,2 the median billing rate for Michigan
attorneys with 3 to 5 years’ experience was $175 per hour, and the 25th percentile billing rate for
Michigan attorneys with 16 to 25 years’ experience was $185. In Kalamazoo itself, the median
attorney billing rate is $210, and the corresponding rate for Lansing is $200 per hour. In light of
these statistics, the court finds that $187.50 per hour is eminently reasonable for an attorney of Mr.
Manville’s experience.
As for the law students, the Michigan Bar’s 2010 survey found that the median billing rate
for attorneys with less than one year of experience was $150; the 25th percentile rate was $125 per
hour. The requested rate for Mr. George and Mr. Miller significantly discounts even this lesser
figure, which is appropriate given that neither is yet a licensed attorney. Further, this court has
previously noted the high quality of Mr. George and Mr. Miller’s work. In light of these factors, the
court finds the rate of $105 per hour for the law student practitioners’ work to be reasonable.
Mr. Manville claims 134.5 billable hours for himself, 135.3 hours for Mr. George, and 101.8
hours for Mr. Miller. The court’s review of counsel’s time sheets shows them to be reasonable. In
his declaration, Mr. Manville states that he did not record time spent instructing students, explaining
background information, and other activities more related to the clinical program’s educational goals
rather than on the rate that is actually paid to such counsel”).
2

See State Bar of Michigan, 2010 Economics of Law Practice: Attorney Income and
Billing Rate Summary Report (January 2011), available at http://www.michbar.org/pmrc/
articles/0000146.pdf.
5

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 6 of 12 Page ID#1435

than to this case itself. His time sheets appear to bear this out. Thus, although clinical programs
necessarily involve some inefficiency and duplication of effort, the court finds that Mr. Manville has
appropriately limited his claimed hours to account for these inefficiencies. Similarly, the time sheets
of Mr. George and Mr. Miller appear reasonable, with little overlap and reasonable amounts of time
allocated to their respective tasks. The only significant overlap on their time sheets include final
client/witness meetings and trial itself, and the court finds that it was reasonable for all attorneys to
attend both events. Both Mr. George and Mr. Miller contributed substantively to Mr. Iswed’s
presentation of his case, and they appear to have divided their duties efficiently. The court declines
to hold that this trial should have been handled by a single attorney, given the effectiveness of Mr.
George and Mr. Miller relative to their hourly rates.
Further, the time counsel spent on this case as a whole appears reasonable. In the time since
Mr. Manville was appointed counsel, this case proceeded through a reasonable amount of discovery,
as well as a number of substantive and procedural motions, including one dispositive motion, before
going to trial. Parties had to argue the significance of a new decision from the Sixth Circuit, and the
fact-specific nature of Mr. Iswed’s claims prevented counsel from relying heavily on prior
documents or templates. Given these circumstances, the court sees no reason to suspect that
counsel’s time sheets suffer from overclaiming or inefficiency.
Defendants specifically challenge only two timesheet entries: an entry of 0.8 hours for
“reviewing file in preparation for visit with clinic” and an entry of 1.3 hours for drafting a sanctions
motion that was never filed. Defendants seem to read the first entry as describing preparation for
a discussion among clinic staff, which it claims was unnecessary, as “all involved should have been
up to speed on [the] case” by that time. In reality, however, this entry appears to be only an
6

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 7 of 12 Page ID#1436

infelicitous way of saying that Mr. Manville was preparing for a visit with Mr. Iswed on behalf of
the clinic. The two entries following this one make the point clearly. The day after this preparation,
Mr. Manville “[d]rove to Prison,” after which he spent time “[a]t prison for legal visit and to discuss
possible settlement” before driving back to Lansing. With this context, the court finds this time
entry reasonable.
As for the second entry, Defendants argue that the time spent preparing this motion for
sanctions should not be rewarded, as Plaintiff never filed the motion. It is true that Plaintiff did not
file the motion. He did, however, draft it and mail it to Defendants, as required under Fed. R. Civ.
P. 11(c)(2)’s “safe-harbor.” (See ECF No. 98.) Under these circumstances, the court is not inclined
to rule that this work was improper or unrelated to Mr. Iswed’s case simply because it was not
ultimately filed. Such a rule would only give counsel incentives to file weak or unsupported motions
that they otherwise would not. Similarly, it would fail to compensate a party’s legal work that
induced the opposing party to take action, mitigating the need for legal relief. Instead, attorneys
should be encouraged to exercise judgment and discretion in selecting the issues and claims they
make to the court. This is not to say that counsel should receive attorneys’ fees for every dead-end
theory and abandoned bit of research, but here, where the court did in fact partially strike
Defendants’ filing that appears to have triggered the sanctions motion (see ECF No. 112), the court
finds that this time is reasonably included in Mr. Manville’s fee award.
Defendants also dispute Plaintiff’s fees calculation as a whole. They argue that because Mr.
Iswed was ultimately granted only “half” of the relief he requested—injunctive relief, but not
monetary damages—the court should only award fees for half of the hours spent. The courts have
emphatically rejected this sort of automatic proportional recovery, however. See Hensley v.
7

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 8 of 12 Page ID#1437

Eckerhart, 461 U.S. 424, 435 (1983) (“[T]he fee award should not be reduced simply because the
plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise
alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain
grounds is not a sufficient reason for reducing a fee. The result is what matters.”). In some cases,
counsel’s work related to one claim can be accurately separated from work on other claims. But
here, Mr. Iswed’s requests for monetary damages and injunctive relief largely overlap and are not
easily separated. “When claims are based on a common core of facts or are based on related legal
theories, for the purpose of calculating attorney fees they should not be treated as distinct claims, and
the cost of litigating the related claims should not be reduced.” Thurman v. Yellow Freight Sys., Inc.,
90 F.3d 1160, 1169 (6th Cir. 1996), amended in part, 97 F.3d 833 (6th Cir. 1996).
In sum, the court finds that the hourly rates and time sheets submitted by Mr. Iswed’s
attorneys are reasonable. The court sees no reason to depart from this lodestar figure, and so it will
award fees in the amount of $50,214.25.
3.

Attorneys’ Expenses

Mr. Manville also asks to recover $2,224.60 worth of expenses related to his representation
of Mr. Iswed, including deposition costs, transcript costs, and various travel, room, and board
expenses. (See ECF No. 166-1.) An award of attorneys’ fees under section 1988 can include
reimbursement for “those reasonable out-of-pocket expenses incurred by the attorney which are
normally charged to a fee-paying client, in the course of providing legal services.” Northcross v. Bd.
of Ed. of Memphis City Sch., 611 F.2d 624, 639 (6th Cir. 1979).
Defendants do not dispute that these expenses, in the abstract, may be properly awarded, but
they do challenge a number of specific entries. First, Defendants argue that it was unnecessary for
8

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 9 of 12 Page ID#1438

counsel to charge for more than one hotel room on October 14, 2011 and September 12, 2012, or for
more than one attorney’s meals on October 13 and 14, 2011 and on September 21, 2012. Mr.
Manville counters that it was reasonable to take one or more law students along with him on these
trips; because they were Mr. Iswed’s lawyers too, it stands to reason that they should meet Mr. Iswed
and his witnesses. Further, Mr. Manville points out that their meals and accommodations were
modest.
It is certainly true that in some situations, taking more than one attorney to meet with a client
or with witnesses would be reasonable. Where a task requires more than one person, or where
multiple attorneys split up duties to become more efficient or effective, they have a strong argument
that their charges are not duplicative—or at least, are less than fully so. The September 21, 2012
charges are therefore appropriate, as having all trial counsel present at the trial-preparation meeting
with Mr. Iswed and his witnesses is a reasonable choice. The other charges do not fare so well. Mr.
Manville’s time sheet entries suggest that the October 13–14, 2011 hotel and meal charges are
associated with a visit with Mr. Iswed in prison. But neither Mr. George nor Mr. Miller appears to
have been working on this case at the time, and so it is unclear who the second person was and what
role that person played in this meeting. The September 12, 2012 hotel charge is even less explicable,
as it is not associated with any entries on counsel’s time sheets. As there is no evidence that these
charges served Mr. Iswed’s case, the court declines to charge them to Defendants here. The court
will therefore subtract from Plaintiff’s request $32 for two dinners on October 13, 2011, $26.67 for
two dinners and $111.99 for one hotel room on October 14, 2011, and $179.20 for two hotel rooms
on September 12, 2012.
Next, Defendants dispute charges for meals on September 18, 2012 with an unnamed
9

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 10 of 12 Page ID#1439

“expert,” as Plaintiff did not use any expert in their case. Plaintiff explains that this entry refers to
Richard Stapleton, who testified at trial as a fact witness. The court declines to reimburse Plaintiff
for Mr. Stapleton’s meals. While a party may reasonably pay an expert witness’s expenses, the
expenses of a fact witness are less clearly proper. Even if such payments violate no ethical rule, they
may raise concerns about influencing the witness’s testimony. The court declines to create
incentives for attorneys to pay fact witnesses’ expenses by approving such costs here, and so it will
subtract from Plaintiff’s request $24.50 for lunch on September 18, 2012 and $8.93 for breakfast on
September 29, 2012.
Finally, Defendants object to meal charges for more than one attorney during trial. As
discussed above, the court finds that having Mr. George and Mr. Miller present at trial was
reasonable, particularly given the rates at which their time was charged. Because they were both
properly present during trial, their meal expenses during trial are also reasonable. Defendants also
argue that Plaintiff should be limited to the state reimbursement rate for counsel’s meals, but they
provide no support for this claim. Plaintiff’s meals were not unreasonably costly, and the court will
award these expenses in full.
After taking out the unnecessary and duplicative charges discussed above, the court awards
Plaintiff’s counsel $1,841.31 in expenses.
B.

Costs

As the prevailing party in this matter, Plaintiff is entitled to costs under Rule 54(d). The term
“costs” is not given a broad meaning, however. Instead, the courts interpret the term to cover the
categories of expenses outlined in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 441 (1987). This statute provides that a court may tax as costs (1) fees of the clerk
10

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 11 of 12 Page ID#1440

and marshal, (2) fees for printed or electronically recorded transcripts necessarily obtained or used
in the case, (3) fees and disbursements for printing and witnesses, (4) fees for exemplification and
the costs of making copies of materials where the copies are necessarily obtained for use in the case,
(5) docket fees under 28 U.S.C. § 1923, and (6) compensation for court appointed experts and for
interpreters. 28 U.S.C. § 1920; Hadix v. Johnson, 322 F.3d 895, 899–900 (6th Cir. 2003). If the cost
falls under one of the authorized categories, the court must determine whether the cost was
“reasonable and necessary.” BDT Prods. v. Lexmark, Int’l, Inc., 405 F.3d 415, 417 (6th Cir. 2005),
abrogated on other grounds by Taniguchi v. Kan Pacific Saipan, Ltd., ___ U.S. ___, 132 S. Ct.
1997, 2007 (2012).
Plaintiff’s bill of costs seeks payment of a total of $1,507.01 for clerk fees ($805.00), printing
fees ($679.50), and docket fees under 28 U.S.C. § 1923 ($22.51). Defendants do not object to this
request. The court finds that these items are appropriately treated as “costs” and that Plaintiff
adequately showed that they were reasonable and necessary for this case. The court will therefore
grant Plaintiff costs of $1,507.01.
IV.

CONCLUSION
The court finds that Plaintiff is entitled to an award of $52,055.56 in attorneys’ fees

(consisting of $50,214.25 in hourly fees and $1,841.31 in related expenses) and $1,507.01 in costs.

11

Case 1:08-cv-01118-PLM-ESC Doc #185 Filed 02/14/13 Page 12 of 12 Page ID#1441

ORDER
For the reasons discussed herein, Plaintiff’s Application for Attorneys’ Fees and Costs (ECF
No. 164) is GRANTED. Defendants are hereby ORDERED to pay to Plaintiff $52,055.56 in
attorney’s fees and $1,507.01 in costs.
IT IS SO ORDERED.

Date:

February 14, 2013

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

12