                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

____________________________
                              )
DARLENE DAVID, et al.,        )
                              )
     Plaintiffs,              )
                              )
     v.                       )     Civil Action No. 02-1145 (RWR)(DAR)
                              )
DISTRICT OF COLUMBIA, et al., )
                              )
     Defendants.              )
____________________________ )


                         MEMORANDUM OPINION

     A jury awarded plaintiff Darlene David $2,000 in

compensatory damages against the District of Columbia

(“District”), $30,000 in compensatory damages against the

Children’s National Medical Center (“CNMC”), and $1 in

compensatory damages and $1 in punitive damages against

Metropolitan Police Officer Andre Davis for injuries arising out

of an assault.   The District and Davis have objected to

Magistrate Judge Deborah A. Robinson’s recommendation that Davis

pay David $20,598 in reasonable attorneys’ fees and $2,375 in

costs.   Because the magistrate judge’s recommended attorneys’

fees award is reasonable, the defendants have failed to support

their objection to the recommended award of costs, and the costs

are appropriately reimbursable, Magistrate Judge Robinson’s

recommendations will be adopted.
                               - 2 -


                            BACKGROUND

     David sued the District, Davis, and CNMC for damages for

injuries sustained by David and her minor daughter arising out of

an assault against David in a treatment room at the CNMC.

David’s complaint included claims of assault and battery,

intentional and negligent infliction of emotional distress, and

false arrest and imprisonment against all defendants, and a civil

rights claim against Davis under 42 U.S.C. § 1983 for arresting

David under color of state law without probable cause in

violation of David’s Fourth Amendment rights.   A jury found

against all defendants on David’s claims of negligent infliction

of emotional distress, and false arrest and imprisonment, against

the District and CNMC on the assault and battery claim, and

against Davis on the § 1983 civil rights claim.   The jury

awarded David $2,000 in compensatory damages against the

District, $30,000 in compensatory damages against CNMC, and $1 in

compensatory damages and $1 in punitive damages against Davis.

     After the trial, David moved for an award of $114,435.75 in

attorneys’ fees and $2,557.63 in costs against all defendants

under 42 U.S.C. § 1988.   Magistrate Judge Robinson recommended   1


ordering Davis to pay David $20,598 in reasonable attorneys’ fees

under § 1988 and $2,375 in costs.   In setting the $20,598 fee

     1
      The magistrate judge issued an order, which has been
treated as a report and recommendation. See David v. D.C., 252
F.R.D. 56, 60 (D.D.C. 2008).
                                - 3 -


amount, the magistrate judge found that although David recovered

no more than $2 against Davis, she was nonetheless entitled to an

award of attorneys’ fees under § 1988.    In considering the

significant disparity between David’s $2 recovery against Davis

and David’s request of $114,435.75 in attorneys’ fees, the

magistrate judge found it reasonable to reduce David’s requested

fees by eighty percent “to take into account that only one count

of five renders Plaintiff eligible for an award of attorney’s

fees under [§ 1988]” and an additional ten percent “in lieu of a

line-by-line analysis of each entry in Plaintiff’s counsel’s

billing records,” to account for Davis’s challenges to specific

billing records.    David v. D.C., 489 F. Supp. 2d 45, 51 (D.D.C.

2007).

       The District and Davis have filed objections to the

magistrate judge’s recommendation, contending that “although

[David] was a prevailing party at trial, she is not entitled to

attorney’s fees in this case” because she received only nominal

damages against Davis.    (Defs.’ Objns. at 3.)2   In addition, the

defendants argue that David failed to separate the costs of her

unsuccessful claims from those of her successful claim.      (Id. at

11.)




       2
      David does not object to the magistrate judge’s
recommended reduced award of $20,598 against Davis.
                                - 4 -


                             DISCUSSION

     A magistrate judge’s report and recommendation is reviewed

de novo.    Highland Renovation Corp v. Hanover Ins. Group, 620 F.

Supp. 2d 79, 80-81 (D.D.C. 2009); LCvR 72.3(c); see Fed. R. Civ.

P. 72.

I.   ATTORNEY’S FEES UNDER § 1988

     Under 42 U.S.C. § 1988, “[i]n any action or proceeding to

enforce a provision of [section 1983,] . . . the court, in its

discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs.”     42

U.S.C. § 1988(b).    Congress passed § 1988 “to ensure ‘effective

access to the judicial process’ for persons with civil rights

grievances.”    Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

(quoting H.R. Rep. No. 94-1558, at 1 (1976)).    Because David

seeks attorneys’ fees under § 1988, and her civil rights claim

was brought against Davis, David may recover attorneys’ fees from

Davis.3    “[T]o qualify for attorney’s fees under § 1988, a

plaintiff must be a ‘prevailing party.’”    Farrar v. Hobby, 506


     3
     The District and Davis opposed David’s initial request to
have all defendants liable for attorneys’ fees and costs. The
magistrate judge recommended that fees and costs be assessed
against Davis alone. As David has filed no objection to the
magistrate judge’s recommendation, that issue is no longer in
dispute, nor is the issue of whether fees can be recovered for
the related non-constitutional claims on which David prevailed.
(See Pl.’s Reply to Defs.’ Opp’n to Pl.’s Req. for Atty.’s Fees
at 9 (citing Nat’l Org. for Women v. Op’n Rescue, 37 F.3d 646,
653 (D.C. Cir. 1994).)
                               - 5 -


U.S. 103, 109 (1992).   To be a prevailing party, a plaintiff

“must obtain at least some relief on the merits of his claim.

The plaintiff must obtain an enforceable judgment against the

defendant from whom fees are sought . . . .”   Id. at 111

(citations omitted); Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health and Human Res., 532 U.S. 598, 603-05 (2001); see

D.C. v. Straus, 607 F. Supp. 2d 180, 183 (D.D.C. 2009).     A

plaintiff who receives only nominal damages is nonetheless a

prevailing party under § 1988 because “[a] judgment for damages

in any amount, whether compensatory or nominal, modifies the

defendant’s behavior for the plaintiff’s benefit by forcing the

defendant to pay an amount of money he otherwise would not pay.”

Farrar, 506 U.S. at 113.   Thus, although the jury awarded David

only nominal damages against Davis, she was nonetheless a

prevailing party eligible for attorneys’ fees under § 1988.

     “Although the ‘technical’ nature of a nominal damages award

or any other judgment does not affect the prevailing party

inquiry, it does bear on the propriety of fees awarded under

§ 1988. . . .   ‘[T]he most critical factor’ in determining the

reasonableness of a fee award ‘is the degree of success

obtained.’”   Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S.

at 436) (internal citations omitted).   Thus, when a plaintiff

recovers only nominal damages because she failed to prove an

essential element of her claim for monetary relief -- that is,
                                 - 6 -


“actual, compensable injury” -- “the only reasonable fee is

usually no fee at all.”   Id. at 115 (citation omitted) (emphasis

added).

     Neither the Supreme Court nor the D.C. Circuit has described

what constitutes the unusual case where a plaintiff receiving

only nominal damages on her civil rights claim has nonetheless

achieved sufficient success such that an award of attorney’s fees

under § 1988 is appropriate.   However, Justice O’Connor, writing

separately in Farrar, explained that “an award of nominal damages

can represent a victory in the sense of vindicating rights even

though no actual damages are proved.”      Farrar, 506 U.S. at 121

(O’Connor, J., concurring).    She opined that, as a result, “[t]he

difference between the amount recovered and the damages sought is

not the only consideration[.]”    Id.    Instead, “the relevant

indicia of success” for determining the reasonableness of an

attorney’s fees award include “the extent of relief, the

significance of the legal issue on which the plaintiff prevailed,

and the public purpose served[.]”    Id. at 122.    At least seven

circuits have recognized these factors as appropriate

considerations for determining an award of attorney’s fees under

§ 1988.   See Jama v. Esmor Corr. Servs., Inc., 577 F.3d 169, 175-

76 (3d Cir. 2009); Benton v. Or. Student Assistance Comm’n, 421

F.3d 901, 905-06 (9th Cir. 2005); Mercer v. Duke Univ., 401 F.3d

199, 203-04 (4th Cir. 2005) (collecting cases); Boston’s Children
                                - 7 -


First v. City of Boston, 395 F.3d 10, 16 (1st Cir. 2005); Murray

v. City of Onawa, Iowa, 323 F.3d 616, 619-20 (8th Cir. 2003);

Brandau v. Kan., 168 F.3d 1179, 1181-82 (10th Cir. 1999);

Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993).

     Here, although David received only nominal damages against

Davis, the jury’s verdict nonetheless represents a significant

legal vindication that serves an important public purpose.    The

jurors found that Davis violated David’s Fourth Amendment right

to be free from unlawful arrest.    They were instructed that they

could impose a punitive damage award against Davis to punish him

as a deterrent to other officers if the jurors found by “clear

and convincing evidence” that Davis acted willfully and

outrageously under the circumstances.    (See Final Instructions to

Jury at 40.) David argued that arresting her for trying to see

her minor child after her child had been reported to have been

sexually assaulted warranted a punitive award as a signal that

the officer must modify his behavior and chosen response in

future similar situations.    The jury apparently agreed.   Because

the jury verdict vindicating an important right serves this

public purpose, an award of attorneys’ fees to David under § 1988

is reasonable in this case.

     While there is reason to award fees under § 1988, a “court

should award only that amount of fees that is reasonable in

relation to the results obtained,” Hensley, 461 U.S. at 440, and
                                 - 8 -


it has “broad discretion to reduce requested fees when a

plaintiff has achieved limited success on her basic claim.”     Goos

v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1384 (D.C. Cir. 1995).

The magistrate judge’s recommended award of $20,598, to which

David has not objected and which is a substantial reduction of

the $114,435.75 in attorneys’ fees sought by David, is reasonable

in relation to David’s degree of success on her claims against

Davis, and it will be adopted.

II.   COSTS

      The magistrate judge recommends awarding to David costs in

the amount of $2,375.4   The defendants object to this award,

contending that David should not recover the costs permitted by

the magistrate judge because such costs were “not reasonably

associated with the litigation of [David’s] § 1983 claim.”      (See

Defs.’ Objns. at 11.)    A review of David’s request reveals that

the costs identified are of the kind usually awarded to a

prevailing party, and the defendants’ brief objection to the

magistrate judge’s recommended award of costs fails to explain

the basis for the defendant’s assertion that the modest costs

allowed by the magistrate judge were irrelevant to David’s

      4
      David’s motion for attorneys’ fees and costs sought
$2,557.63 in costs. The magistrate judge’s recommendation
reasonably excludes the costs attributable to the deposition of
Keith McGlen, service of the complaint on CNMC, and courier
services on June 3, 2003. David, 489 F. Supp. 2d at 52. David
has not objected to the exclusion of these costs, and the
magistrate judge’s exclusion of these costs will be adopted.
                                - 9 -


claims.   In addition, where, as here, a plaintiff asserts

multiple claims based on the same core set of facts, costs are

likely to relate to all claims and cannot be easily separated on

a per-claim basis.    Cf. Hensley, 461 U.S. at 435 (recognizing

that in cases where “the plaintiff’s claims for relief involve a

common core of facts[,] . . . [m]uch of counsel’s time will be

devoted generally to the litigation as a whole, making it

difficult to divide the hours expended [by counsel] on a claim-

by-claim basis”).    Accordingly, the magistrate judge’s

recommended award of $2,375 in costs will be adopted.

                             CONCLUSION

     Although David received only nominal damages on her claims

against Davis, she is entitled to an award of reasonable

attorneys’ fees because she achieved a significant legal

vindication that advanced a public purpose.    Because Magistrate

Judge Robinson’s recommended award of $20,598 is reasonable in

this case, the defendants’ objections to the magistrate judge’s

recommendation will be overruled, and the magistrate judge’s

recommendation will be adopted.    In addition, because the

defendants have failed to support their objection to Magistrate

Judge Robinson’s recommended award of $2,375 in costs and because

the costs sought by David are appropriately reimbursable, the

magistrate judge’s recommendation regarding David’s request for
                              - 10 -


costs will be adopted.   An appropriate order accompanies this

memorandum opinion.

     SIGNED this 19th day of November, 2009.


                                            /s/
                                    RICHARD W. ROBERTS
                                    United States District Judge
