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Garcia v. Montgomery County

United States District Court, D. Maryland

March 22, 2018

MONTGOMERY COUNTY, MARYLAND, OFFICER CHRISTOPHER MALOUF, in his individual capacity, and OFFICER KEVIN BAXTER, in his individual capacity, Defendants. Personnel Reasonable Hours Reasonable Rate Lodestar TOTAL 1, 064.1 $436, 245.00



         Presently pending is Plaintiff Mannie Garcia's Motion for Attorney's Fees and Costs. Having reviewed the briefs and submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons set forth below, Garcia's Motion is GRANTED IN PART and DENIED IN PART.


         On December 7, 2012, Garcia filed suit against Defendants Montgomery County, Maryland; Montgomery County Police Department ("MCPD") Officers Kevin Baxter, Michael Graves, and Christopher Malouf; MCPD Chief Thomas Manger; and MCPD Lieutenant Mark Sheelor, alleging eight causes of action: (I) a claim under 42 U.S.C. § 1983 ("§ 1983") for a violation of his First and Fourteenth Amendment rights based on his allegation that on June 16, 2011, he was arrested for peacefully videorecording police activity; (II) a § 1983 claim for First Amendment retaliation stemming from incidents that occurred after he complained about his arrest; (III) a § 1983 claim for a violation of his Fourth and Fourteenth Amendment rights based on the allegation that he was arrested and had his video card seized without probable cause; (IV) a § 1983 claim against Montgomery County only, pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), alleging a custom and practice of allowing MCPD officers to prevent recording of police activity, in violation of the First Amendment; (V) a claim under the Privacy Protection Act ("PPA"), 42 U.S.C. §§ 2OOOaa-2000aa-17 (2012), relating to the seizure of his video card; (VI) a common law false arrest and false imprisonment claim; (VII) a common law malicious prosecution claim; and (VIII) a common law battery claim against Officer Malouf only. All individual Defendants were sued in both their individual and official capacities, with the exception of Chief Manger and Officer Graves, who were sued in their official capacities only. Garcia sought money damages as well as injunctive and declaratory relief.

         On August 23, 2013, the Court (Motz, J.) dismissed (1) all claims against Officer Graves and Lt. Sheelor; (2) all claims against Officer Baxter, except the First Amendment and retaliation claims; (3) the false arrest/false imprisonment and malicious prosecution claims against Montgomery County and Chief Manger; (4) the PPA claim against all defendants except Montgomery County; and (5) all claims against officers in their official capacity, except for Chief Manger.

         On November 5, 2015, following discovery, the Court granted in part and denied in part the parties' cross motions for summary judgment. Specifically, the Court held that the First Amendment protected the peaceful videorecording of police officers in the performance of their duties and barred the seizure by the police of related recordings in order to prevent their dissemination. Garcia v. Montgomery Cty., 145 F.Supp.3d 492, 507-08, 510 (D. Md. 2015). However, the Court further held that these rights were not clearly established in this jurisdiction at the time of the incident at the heart of this case, so Defendants Baxter and Malouf had qualified immunity from the damages claims asserted in Garcia's First Amendment claim in Count I. Id. at 509, 511. The Court thus granted summary judgment on Count I as to any claim for money damages, but not as to Garcia's claim for declaratory relief. Id. at 525. The Court also granted Officer Baxter summary judgment on the First Amendment retaliation claim. Id. at 515-16. On the Fourth Amendment claim in Count III, the Court granted summary judgment in favor of Garcia on the claims that he had been validly arrested for hindering an arrest and second-degree assault, but denied it on the claim that he was validly arrested for disorderly conduct. Id. at 519-21. The Court denied summary judgment on the remaining claims.

         On June 23, 2016, the parties stipulated to the dismissal of all claims against Chief Manger and all claims against Montgomery County with the exception of the PPA claim. In August 2016, the Court scheduled a trial on the remaining claims, which consisted of: (1) Count I: the § 1983 First Amendment claim for a declaratory judgment against Officers Malouf and Baxter in their individual capacities; (2) Count II: the § 1983 First Amendment retaliation claim against Officer Malouf in his individual capacity; (3) Count III: the § 1983 Fourth Amendment claim against Officer Malouf in his individual capacity; (4) Count V: the PPA claim against Montgomery County; (5) Count VI: the false arrest and false imprisonment claim against Officer Malouf in his individual capacity; (6) Count VII: the malicious prosecution claim against Officer Malouf in his individual capacity; and (7) Count VIII: the battery claim against Officer Malouf in his individual capacity.

         In September 2016, Garcia propounded a settlement demand seeking an apology from MCPD, financial compensation, attorney's fees, and training of MCPD officers on media relations. On January 13, 2017, the parties proceeded to mediation before a United States Magistrate Judge. At the start of the mediation, Defendants presented Garcia with MCPD Training Bulletin # 17-01, adopted one day earlier, the purpose of which was "to emphasize and clarify current law and the policy of the Montgomery County Police Department when dealing with citizens who are using a camera, cellphone or other recording devices to film/video tape the police during the performance of their duties." Training Bulletin at 1, Mot. Atty. Fees Ex. 9, ECF No. 98-2. That Bulletin announced that "[a] citizen or member of the media may not be arrested solely because that citizen is filming the police, " because "the United States District Court for the District of Maryland recently held that ' recording of police activity, if done peacefully and without interfering with the performance of police duties, is protected by the First Amendment.'" Id. The Bulletin further instructed that "Officers are prohibited from threatening, intimidating, or otherwise discouraging any individual from recording police activities, " and that "[t]he mere fact that the citizen was video recording the officer's conduct IS NOT an element in determining probable cause" to arrest for a different offense. Id. at 1-2. According to Garcia, once he had approved the contents of the Training Bulletin, the settlement negotiations turned to money damages, with Defendants ultimately agreeing to pay him $45, 000.

         On January 27, 2017, the parties notified the Court that they had negotiated a settlement in principle, asked to be removed from the trial calendar, and informed the Court that a stipulation of dismissal would soon be filed. By February 23, 2017, no such stipulation had been filed, so the Court convened a status conference at which the parties explained that they continued to disagree on whether the issuance of the Training Bulletin was part of the settlement agreement. After a follow-up session with the Magistrate Judge, the parties agreed to reference the Training Bulletin in the settlement agreement. On March 3, 2017, the parties filed a Stipulation of Dismissal with a proposed Order for the Court. The Stipulation provided that Garcia could petition for attorney's fees and that:

Defendants will raise defenses in opposing any such request, including but not limited to Defendants'] assertion that Plaintiff did not prevail on such claims, except that the parties agree, solely for the purpose of the Fee Petition, to treat Plaintiff as if he prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted.

         Stipulation of Dismissal with Prejudice ("Stipulation") at 1, ECF No. 96. On March 6, 2017, the Court issued an Order dismissing the case. Garcia then filed his Motion for Attorney's Fees and Costs.


         Garcia initially sought attorney's fees in the amount of $718, 703.00 for 1, 124.5 hours of work and costs in the amount of $12, 402.34. Garcia later consented to exclude 7.7 billed hours on his voluntarily dismissed Monell claim, reducing the billed hours to 1, 116.8 and the requested fee award to $712, 889.50. Defendants assert that Garcia is not a prevailing party entitled to attorney's fees, or, in the alternative, that the requested attorney's fees are vastly disproportionate to Garcia's success; that Garcia's attorneys have billed their time at rates far exceeding what is customary in this District; and that the number of billed hours exceeds what is reasonable.

         I. Prevailing Party

         Under 42 U.S.C. § 1988 ("§ 1988"), in any action to enforce § 1983, "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). Before awarding fees, a court must therefore make a threshold determination whether a plaintiff is a prevailing party. "[P]laintiffs may be considered 'prevailing parties' for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court held that fees could be awarded when a plaintiff "obtain[s] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Id. at 111 (internal citations omitted). More recently, the Supreme Court was presented with the question whether a plaintiff could be considered a prevailing party under a "catalyst theory, " a term designating instances where a lawsuit prompted a "defendant's voluntary change in conduct, " but produced no binding resolution. Buckhannon Bd. v. W.Va. Dep't of Health and Human Res., 532 U.S. 598, 602, 605 (2001). In rejecting the catalyst theory as a basis to award attorney's fees, the Supreme Court stated that in order to be deemed a prevailing party under § 1988, a plaintiff must have secured a "judicially sanctioned change in the legal relationship of the parties." Id. at 605. By way of illustration, the Buckhannon Court stated that "judgments on the merits" and "settlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees." Id. at 604. Noting that "[n]ever had we awarded attorney's fees for a nonjudicial 'alteration of actual circumstances, '" the Court established a requirement that there be a "judicial imprimatur" on the change in order for it to confer prevailing party status. Id. at 605-06; Grissom v. The Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008).

         Although Buckhannon decided only the issue of the viability of the catalyst theory for establishing prevailing party status, it arguably could be read to narrow Farrar by excluding settlements unaccompanied by consent decrees from the forms of case resolution warranting prevailing party status. The Court need not decide that issue. Here, the parties have entered into a settlement agreement that does not include a consent order and, in fact, has never been presented to the Court. Ordinarily, in a settlement agreement without a consent order, the issue of attorney's fees is resolved through a negotiated agreement so that prevailing party status does not matter. See Buckhannon, 532 U.S. at 609 (noting that a defendant "has a strong incentive to enter a settlement agreement where it can negotiate attorney's fees and costs"). In this case, the parties have stipulated as part of their settlement not to the amount of attorney's fees, but "to treat Plaintiff as if he prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted." Stipulation at 1. Defendants have therefore already conceded the point that the Court must treat Garcia as a prevailing party and thus may award attorney's fees. The scope of Garcia's success, and the amount of attorney's fees that should reasonably be awarded, is addressed at later stages of the review process. See Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989) (emphasizing that "the degree of the plaintiffs overall success goes to the reasonableness of the award under Hensley, not to the availability of a fee award velnon"); Farrar, 506 U.S. at 114 (stating that "the 'technical' nature of a nominal damages award ... does not affect the prevailing party inquiry, " but does "bear on the propriety of fees awarded under § 1988").

         Nevertheless, in order properly to assess the remaining issues on the Motion, the Court considers on which claims Garcia is deemed to have prevailed. To do so, the Court must interpret the language of the Stipulation, the vehicle by which prevailing party status is conferred in this case. Rather than simply identifying the specific counts on which the parties agreed that Garcia should be deemed to have prevailed, the parties agreed opaquely "to treat Plaintiff as if he prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted." Stipulation at 1. This language undisputedly includes the First Amendment retaliation claim in Count III against Officer Malouf, the Fourth Amendment claim in Count V against Officer Malouf, and the PPA claim in Count VI against Montgomery County, but the parties disagree on whether it includes the First Amendment claim in Count I. Defendants argue that because the Court granted qualified immunity on damages to Officer Malouf and Officer Baxter on the First Amendment claim, Garcia did not prevail on any aspect of Count I. Garcia, however, argues that Count I included a First Amendment claim for a declaratory judgment on which no qualified immunity was granted, such that the parties agreed that he prevailed on that claim.

         Where the Stipulation does not contain more explicit language on whether Garcia prevailed on Count I, the Court is left to interpret the parties' agreed-upon language. The Court finds the language ambiguous in that it could be read to include or exclude the First Amendment declaratory judgment claim from those claims on which Garcia prevailed, depending on whether the First Amendment claims for money damages and declaratory relief could be fairly separated from each other. See Pacific Indem. Co. v. Interstate Fire & Cas. Co., 488 A.2d 486, 489 (Md. 1985) ("If the language of the contract is ambiguous, extrinsic evidence may be consulted to determine the intention of the parties."). Although not a model of clarity, the language is most fairly read, in context, to include an agreement that Garcia prevailed on the First Amendment claim for declaratory relief. First, in ruling on the Cross Motions for Summary Judgment, the Court denied summary judgment on this claim such that it was a fee-shifting claim "left for trial by the jury" along with the remaining claims for damages. See Beacon Theaters, Inc. v. Westover, 359 U.S. 550, 508-09 (1959) (noting that where an action for a declaratory judgment is brought together with an action for damages, the Federal Rules of Civil Procedure and the Declaratory Judgment Act allow them to be resolved together in a jury trial); 9 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2313 (3d ed. 2013) (stating that "[i]f there would have been a right to jury trial on the issue if it had arisen in an action other than one for a declaratory judgment, it must be tried to a jury in the declaratory action"). Indeed, the Court specifically stated in its opinion on summary judgment that a ruling on the First Amendment declaratory judgment claim "would require a trier of fact to sift through and weigh these opposing factual accounts." Garcia, 145 F.Supp.3d at 513. Moreover, although Garcia pleaded a single First Amendment count seeking damages, a declaratory judgment, and injunctive relief, the Court explicitly treated the damages claim and the declaratory judgment claim separately on the issue of whether it would proceed to trial. With this backdrop, the most reasonable interpretation of the Stipulation is that it recognized these two claims to be separate, and that the parties thus agreed that Garcia had prevailed on the declaratory judgment claim but not on the damages claim of his First Amendment cause of action, just as had occurred on the summary judgment motions. Had the parties agreed that all First Amendment claims were to be treated together, there would have been no need for qualifying language referring to claims "for which qualified immunity from damages was not granted." Stipulation at 1.

         This interpretation is consistent with the principle that a grant of qualified immunity from damages would not necessarily preclude a plaintiff from prevailing on a First Amendment claim such that attorney's fees would be due. See Lefemine v. Wideman, 758 F.3d 551, 555 (4th Cir. 2014). In Lefemine, the United States Court of Appeals for the Fourth Circuit stated that § 1988 was enacted in part to allow for attorney's fees in cases where money damages are unavailable due to immunity, because "awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if [f]ederal civil and constitutional rights are to be adequately protected." Id. (quoting H.R. Rep. No. 94-1558, at 9 (1976)).

         It is also consistent with the relief that arose from the settlement agreement. Here, one of the key forms of relief Garcia sought was training of MCPD officers on the First Amendment rights of journalists and citizens. The settlement agreement specifically referenced MCPD's adoption of a Training Bulletin on that very topic. The fact that the primary message in the Training Bulletin was that this Court had ruled, in this very case, that the First Amendment protected videotaping by citizens of police activity, is consistent with the interpretation that the parties agreed that Garcia prevailed on the First Amendment declaratory judgment claim, as the Training Bulletin, though not a formal declaratory judgment on the constitutionality of MCPD's treatment of Garcia, provided a public acknowledgment that the law barred the type of treatment he alleged he received from Defendants.

         Accordingly, the Court concludes that pursuant to the Stipulation, Garcia is deemed to have been the prevailing party on the First Amendment declaratory judgment claim, the First Amendment retaliation claim against Officer Malouf, the Fourth Amendment ...

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