ROBERT E. BLACKBURN, District Judge.
The matter before me is
I have jurisdiction over the parties to and subject matter of this action. My jurisdiction arises under 28 U.S.C. § 1331 (federal question).
The generally applicable "American Rule" provides that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser."
Because "[t]he purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances . . . a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."
"A frivolous suit is one `based on an indisputably meritless legal theory, . . . [or] whose factual contentions are clearly baseless.'"
"IIn applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation."
This lawsuit arose out of events that allegedly transpired at St. Anthony's Central Hospital in Denver, where plaintiff Dean Carbajal was transported following his arrest on several warrants on the night of August 28, 2010. Mr. Carbajal alleged that medical personnel at the hospital, at the direction of defendant Detective Larry Black, forcibly catheterized him while Detectives Black, Jay Lopez, and Michael O'Neill
Mr. Carbajal initially sued fourteen defendants on six separate theories, many of which were further divided into two or more subparts. The majority of these claims against the majority of defendants were dismissed either at the pleading stage or on motions for summary judgment. A single claim of excessive force against Detectives Black, Lopez, and O'Neill remained for trial. That claim was tried to a jury on August 10 to 18, 2015. The jury quickly returned a verdict in favor of all three defendants in all particulars. At the conclusion of the proceedings, and in connection with the entry of judgment, I invited defendants to file the instant motions seeking attorney fees related solely to the trial of this case. I took this extraordinary step in light of the extraordinary nature of the proceedings over which I had just presided, as will be detailed more thoroughly below. The instant motion was submitted in response to that invitation.
Even though I rejected defendants' unexcused belated pretrial attempt to move for summary judgment on Mr. Carbajal's claim of excessive force against them (
It was clear to this court as Mr. Carbajal began recounting his story that he was attempting to manufacture factitiously a state of high emotion in order to improperly influence the jury, becoming increasingly (but disingenuously) distraught as he told the jury that defendants choked him to the point of unconsciousness and struck him in the testicles with such force that he wondered whether something had ruptured. As Mr. Carbajal's histrionics reached a crescendo, to the extent he appeared to be sobbing and gasping for breath, I was forced to halt the proceedings for the day, ostensibly to allow Mr. Carbajal to "compose" himself and to prevent him from improperly influencing the jury. After excusing the jury, I committed to the record my observations that despite the fevered tenor of Mr. Carbajal's testimony that afternoon, he had not shed a single actual tear during the entirety of his performance. Mr. Carbajal engaged in similar fictitiously overwrought behavior during his closing arguments as well.
Aside from being suspect in its own right, Mr. Carbajal's testimony also was contrary to every piece of documentary evidence submitted at trial as well as to the testimony of every other witness who took the stand. For one thing, there was not a shred of evidence to suggest that Mr. Carbajal was catheterized forcibly. Both the physicians assistant and the nurse who performed the procedure testified that Mr. Carbajal was catheterized without objection, complaint, or difficulty. More to the point, however, the evidence plainly showed that none of the three defendants was even present during the procedure, much less inflicted the type of aggravated abuse on Mr. Carbajal that he claimed to have suffered.
Mr. Carbajal's reiterated belief that the lack of evidence to support his version of events was due to a grand (but not fully articulated or explicated) conspiracy involving the police, medical personnel, and members of the defense team was nothing short of pure fantasy. Every witness who took the stand and refuted his story was accused argumentatively by Mr. Carbajal of lying under oath. In addition, he repeatedly and spuriously accused defense counsel of engaging in various types of nefarious conduct in an effort to thwart him (a charge which he repeats in response to the instant motion) without a shred of actual evidence to support his slanderous allegations.
Having lived through this trial, it is plain to this court that Mr. Carbajal manufactured this lawsuit almost entirely out of whole cloth, doggedly determined to press his factually baseless claims without any regard for the truth. Indeed, this lawsuit appears to this court to have been little more than a spurious, vindictive, retributive, and disturbing campaign of vengeful character assassination against these three officers. In other words, the record is plain not only that the claims lacked any merit whatsoever, but moreover that Mr. Carbajal prosecuted this suit in the utmost bad faith. This suit was vexatious, frivolous, and brought to both harass and embarrass the defendants.
I thus find and conclude that this case not only warrants but demands an award of attorney fees on defendants' behalf, both to compensate them for the loss of time and dignity involved in being caught up in Mr. Carbajal's web of lies and half-truths and to deter the filing of future utterly baseless and fantastical claims, not only by Mr. Carbajal himself (a goal I frankly think unlikely to be achieved in the absence of restrictions on Mr. Carbajal's ability to file pro se lawsuits) but also by other litigants who might be tempted to follow his lead. In this case it is eminently reasonable to shift to Mr. Carbajal the reasonable costs that his baseless claims imposed on his adversaries. Having so concluded, I turn to consider the amount of an appropriate award of attorney fees as a part of costs under 42 U.S.C. § 1988(b).
The starting point for any calculation of reasonable attorney fees is the "lodestar," that is, the number of hours reasonably expended multiplied by a reasonable hourly rate.
Defendants in this case were represented by Senior Assistant City Attorney David C. Cooperstein, Assistant City Attorney Jamesy C. Owen, Assistant City Attorney Steven W. Martyn, and paralegal Cassandra Sudbeck. The qualifications of these professionals are set forth in their affidavits, appended to the motion, and are incorporated by reference. Mr. Cooperstein's hourly rate is $215, Ms. Owen and Mr. Martyn bill at rates of $160 and $150 an hour, respectively, and Ms. Sudbeck's time is billed at a rate of $85 an hour. Defendants' affidavits and the court's own knowledge of fees typically charged in cases of this type in this area substantiate that these rates are slightly lower than rates typically charged by other lawyers and paralegals of similar skill and experience in the Denver metropolitan market.
I thus turn to consider the number of hours reasonably expended in connection with the trial of this case. In requesting reimbursement for attorney fees, defense counsel must exercise the same "billing judgment" as would be proper in setting fees for a paying client.
In total, the defense team spent 698.30 hours in connection with preparation for and prosecution of the trial of this case: 237.10 hours by Mr. Cooperstein; 323.20 hours by Ms. Owens; 28.5 hours by Mr. Martyn; and 109.50 hours by Ms. Sudbeck. Defendants' request for reimbursement attributable to Ms. Owens's work has been reduced by 25 percent given that this was her first trial in a case of this type, which understandably may have created some inefficiencies. While the court appreciates counsels' efforts to exercise billing judgment in connection with their request for attorney fees, it still appears to this court that the hours requested are moderately excessive.
More particularly, I perceive some not inconsequential duplication of effort on the part of Mr. Cooperstein and Ms. Owens.
Where an attorney has failed to exercise billing judgment, the court may do so for him by striking problematic entries or by reducing the hours requested by a percentage intended to substitute for the exercise of billing judgment.
Section 1983 provides an important safeguard against abuses of government officials. This case demonstrates what can happen when the laudable goals of the statute are turned on their head and used as a cudgel to bully, intimidate, and defame otherwise good and decent police officers. Blinded by whatever psychological cataract prevents him from perceiving reality no matter how pellucidly presented to him, Mr. Carbajal has perverted our system of justice in this iteration of his campaign against the City of Denver and its police officers. The imposition of costs in the form of attorney fees is the least this court can do at this juncture to attempt to reign in his egregious excesses. To the extent applicable, the court also finds that this case should count as a strike against Mr. Carbajal for purposes of 28 U.S.C. § 1915(g).
1. That
2. That defendants are awarded reasonable attorney fees of $82,674 pursuant to 42 U.S.C. § 1988(b); and
3. That to the extent applicable, this case shall count as a strike against Mr. Carbajal for purposes of 28 U.S.C. § 1915(g).