McCown v. City of Fontana ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IAN MCCOWN, 
Plaintiff-Appellee, No. 07-55896
v. D.C. No.
CITY OF FONTANA, a municipality;  CV-05-05537-AG
CITY OF FONTANA POLICE ORDER AND
DEPARTMENT; JORGE RODRIGUEZ; AMENDED
DAVID MAXSON, OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
November 17, 2008—Pasadena, California
Filed December 24, 2008
Amended April 24, 2009
Before: Pamela Ann Rymer and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
4793
4796 MCCOWN v. CITY OF FONTANA
COUNSEL
S. Frank Harrell and Christopher D. Whyte, Lynberg & Wat-
kins, Orange, California, for the defendants-appellants.
Jon R. Schlueter and Peter B. Schlueter, Schlueter &
Schlueter, San Bernardino, California, for the plaintiff-
appellee.
ORDER
The opinion filed on December 24, 2008, and appearing at
550 F.3d 918 (9th Cir. 2008), is hereby amended and attached
to this order.
Judges Rymer and M. Smith voted to deny the petition for
rehearing and the petition for rehearing en banc. Judge Kor-
man voted to deny the petition for rehearing and recom-
mended denying the petition for rehearing en banc. The full
court has been advised of the petition for rehearing en banc
and no judge of the court has requested a vote on it. Fed. R.
App. P. 35.
MCCOWN v. CITY OF FONTANA 4797
The Appellee’s petition for panel rehearing and rehearing
en banc is DENIED. Petitions for rehearing and rehearing en
banc concerning the attached, amended opinion will not be
permitted.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Plaintiff-Appellee Ian McCown (McCown) sued
Defendants-Appellants City of Fontana, City of Fontana
Police Department, Jorge Rodriguez and David Maxson (col-
lectively, the City) alleging violations of 42 U.S.C. § 1983,
including wrongful detention, false arrest, and use of exces-
sive force in connection with McCown’s arrest. After most of
McCown’s claims were dismissed on summary judgment, the
two parties settled McCown’s remaining claim for $20,000,
not including attorney’s fees. The parties stipulated in the set-
tlement agreement that McCown was the prevailing party
under 42 U.S.C. § 1988, and that the district court would
determine the appropriate amount of fees and costs. The dis-
trict court granted McCown attorney’s fees in the amount of
$200,000, plus $15,034.10 in costs. The City appealed the
award. We have jurisdiction under 28 U.S.C. § 1291, and we
reverse and remand to the district court.
FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 2004, officers of the Fontana Police Depart-
ment, responding to complaints of drug activity in a city park,
approached a group of people that included McCown. The
response team consisted of Rodriguez and Maxson as well as
two other officers. The group began to disperse as the team
of officers approached, but Maxson smelled marijuana where
the group had been. An officer1 instructed the group, includ-
1
In his complaint, McCown was uncertain which of the two officers,
Rodriguez or Maxson, was involved in the alleged actions. At some point
4798 MCCOWN v. CITY OF FONTANA
ing McCown, to get down on the ground. After the group
complied, an officer approached McCown and told him to
interlock his hands behind his back, and then get up on his
knees. The officer then grabbed McCown’s hands and belt
and stood McCown up. As he did so, McCown hopped hori-
zontally. The officer then told McCown to get down. Instead,
McCown took a few stutter steps away from the officer. The
officer grabbed McCown’s shirt with both hands and forced
him to the ground, hitting McCown in the head with his fore-
arm or elbow as he did so. As this occurred, both McCown
and the officer rolled downhill, with McCown ultimately
landing on his back.
McCown claims that at this point the officers put him on
his stomach and handcuffed his arms behind his back. Then,
he alleges that an officer pulled out a Taser and tased him
twice, once on the stomach and once on the genitals. McCown
also claims he was tased twice in the chest. The City of Fon-
tana asserts that McCown was only tased twice on the stom-
ach. The officers arrested McCown, but they found no
weapons or drugs in his possession.
On July 29, 2005, McCown filed a complaint in the Central
District of California seeking damages in excess of $75,000,
exclusive of costs and fees, against the City. McCown alleged
three violations of 42 U.S.C. § 1983: (1) use of excessive
force; (2) arrest without the benefit of probable cause; and (3)
deliberate indifference on the part of the City of Fontana. The
City denied all McCown’s allegations and asserted several
affirmative defenses.
The parties began discovery in October 2005. On Decem-
ber 30, 2005, McCown made a demand of $251,000 for a
during the proceedings in district court, McCown named both officers as
the alleged perpetrator. Because the actual identity of the officer is irrele-
vant to this opinion, we merely refer to the relevant party as an officer.
MCCOWN v. CITY OF FONTANA 4799
global settlement, inclusive of attorney’s fees. The parties
were unable to reach an agreement, and continued discovery
and other pretrial preparations. In June of 2006, the parties
held another settlement conference, which was also unsuc-
cessful. McCown continued to aggressively pursue discovery,
requesting hundreds of documents regarding officers’ train-
ing, investigations, citizen complaints, police reports, and the
internal workings of the police department.
On December 21, 2006, the district court ruled on cross-
motions for summary judgment. The court ruled for the City
on McCown’s claims of wrongful arrest, specifically finding
that (1) the officers had particularized reasonable suspicion;
(2) the detention was conducted in a reasonable manner; and
(3) the detention was not overly intrusive. The court also
granted summary judgment for the City on McCown’s claims
of municipal liability under Monell v. New York Department
of Social Services, 436 U.S. 658 (1978). However, the court
declined to grant summary judgment on McCown’s excessive
force claim regarding the use of a Taser, noting that material
issues of fact remained in dispute.
On March 16, 2007, shortly before trial was to commence,
the parties reached a settlement on the remaining issue. The
settlement agreement stipulated that the City would pay
McCown $20,000, that McCown was the prevailing party
“both legally and factually,” and that the district court would
determine the amount of attorney’s fees due to McCown
under 42 U.S.C. § 1988. The district court accepted the settle-
ment agreement and vacated the trial.
In his motion before the district court for attorney’s fees
and costs, McCown requested $301,551.22 in attorney’s fees
and $15,034.10 in costs. The City strenuously opposed
McCown’s request, arguing that the claim should be adjusted
to account for McCown’s failed claims and limited success.
The court considered the arguments of both parties and con-
cluded that the figure requested was excessive. The court
4800 MCCOWN v. CITY OF FONTANA
reduced the award of attorney’s fees to $200,000, but granted
McCown all the costs requested. The City appealed the
award.
STANDARD OF REVIEW
We review attorney fee awards made pursuant to 42 U.S.C.
§ 1988 for abuse of discretion. Tutor-Saliba Corp. v. City of
Hailey, 452 F.3d 1055, 1059 (9th Cir. 2006). A trial court
abuses its discretion if its fee award is based on an inaccurate
view of the law or a clearly erroneous finding of fact. Benton
v. Or. Student Assistance Comm’n, 421 F.3d 901, 904 (9th
Cir. 2005).
DISCUSSION
[1] The City argues that the amount of attorney’s fees
awarded by the district court is unreasonable in light of
McCown’s limited success, and that the district court failed to
adequately explain how it arrived at the final figure. Under 42
U.S.C. § 1988, a court may award the prevailing party in a
§ 1983 claim “a reasonable attorney’s fee as part of the costs.”
The reasonableness of the fee is determined primarily by ref-
erence to the level of success achieved by the plaintiff. Hens-
ley v. Eckerhart, 461 U.S. 424, 436 (1983). In order to ensure
the availability of meaningful review, a district court’s dispo-
sition of a motion for attorney’s fees must “provide a concise
but clear explanation of its reasons for the fee award” and
“make clear that it has considered the relationship between
the amount of the fee awarded and the results obtained.” Id.
at 437.
A. The District Court’s Explanation of the Fee Award
[2] A district court acts within its discretion in awarding
fees when the amount is reasonable and the court fully
explains its reasoning in making the award. Typically, a dis-
trict court begins it calculation of fees by multiplying the
MCCOWN v. CITY OF FONTANA 4801
number of hours reasonably spent on the litigation by a rea-
sonable hourly rate. Id. at 433. The resulting number is fre-
quently called the “lodestar” amount. City of Riverside v.
Rivera, 477 U.S. 561, 568 (1986). In determining the appro-
priate number of hours to be included in a lodestar calcula-
tion, the district court should exclude hours “that are
excessive, redundant, or otherwise unnecessary.” Hensley,
461 U.S. at 434. The party seeking the award should provide
documentary evidence to the court concerning the number of
hours spent, and how it determined the hourly rate(s)
requested. Id. at 433.
[3] Once the district court completes its analysis of the final
lodestar amount, it must explain how it arrived at its determi-
nation with sufficient specificity to permit an appellate court
to determine whether the district court abused its discretion in
the way the analysis was undertaken. Chalmers v. Los Ange-
les, 796 F.2d 1205, 1211 (9th Cir. 1986); see also Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)
(“Because the record before us is devoid of information as to
the factors considered by the district court in its determina-
tion, a meaningful review is impossible. Therefore, the case
is remanded . . . .”).
[4] Here, the district court considered the applicable case
law and the arguments of both parties before concluding:
The Court finds that, based on the support provided,
Plaintiff’s requested fees are excessive. The declara-
tions of Plaintiff’s counsel and [John] Burton [, a
local attorney who testified regarding the prevailing
rates,] do not establish that counsel deserve between
$400 and $550 an hour. Also, the Court finds that the
hours expended are not justified by the issues
involved. But the Court finds that Plaintiff achieved
substantial success in a difficult case obtaining the
$20,000 settlement. With reductions to the hourly
rate and the number of hours involved, the Court
4802 MCCOWN v. CITY OF FONTANA
GRANTS Plaintiff’s Motion and awards $200,000 in
attorney’s fees. The Court finds that $200,000 is rea-
sonable in light of the degree of success, the overlap-
ping issues involved, and the public interest served
by prosecuting a difficult case until the very eve of
trial.
The district court provided no other explanation for the final
number of hours allowed in its lodestar calculation, or how it
arrived at an applicable hourly rate. The district court’s failure
to provide such an explanation makes meaningful review of
its lodestar determinations impossible, and we have no choice
but to remand the case to the district court to permit it to make
the necessary calculations and provide the necessary explana-
tions. See Tutor-Saliba, 452 F.3d at 1065; Chalmers, 796 F.2d
at 1213.
B. The Reasonableness of the Award in Light of
Results Obtained
A second critical component of attorney’s fee calculations
under 42 U.S.C. § 1988 is found in the Supreme Court’s anal-
ysis in Hensley. Under Hensley, the reasonableness of a fee
award is determined by answering two questions: “First, did
the plaintiff fail to prevail on claims that were unrelated to the
claims on which he succeeded? Second, did the plaintiff
achieve a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award?” 461
U.S. at 434. In this case, while the district court properly
answered “no” to the first question, it failed to properly ana-
lyze the award in light of the second question.
1. Unrelated Claims
[5] A plaintiff is not eligible to receive attorney’s fees for
time spent on unsuccessful claims that are unrelated to a
plaintiff’s successful § 1983 claim. Such unrelated claims
must be treated as if they had been raised in a separate lawsuit
MCCOWN v. CITY OF FONTANA 4803
to realize “congressional intent to limit awards to prevailing
parties.” Id. at 435. However, in a lawsuit where the plaintiff
presents different claims for relief that “involve a common
core of facts” or are based on “related legal theories,” the dis-
trict court should not attempt to divide the request for attor-
ney’s fees on a claim-by-claim basis. Id. Instead, the court
must proceed to the second part of the analysis and “focus on
the significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the litigation.”
Id.
[6] In this case, the district court correctly treated all of
McCown’s claims as “related” for the purpose of determining
attorney’s fees. Each of McCown’s claims, though brought on
the basis of different legal theories against different defen-
dants, arose from a common core of facts, namely, his arrest
on June 2, 2004. Therefore, the district court did not abuse its
discretion when it treated all the claims, successful and unsuc-
cessful, as arising out of a common core of facts.
2. Level of Success
The City claims the amount of attorney’s fees awarded to
McCown was disproportionate to the amount he received on
his one successful claim. Specifically, the City argued that
because McCown only prevailed on one of his nine original
claims, receiving a fraction of what he originally requested in
his settlement demands, his attorney’s fees and costs should
be reduced to a similar fraction. The district court indicated
that it was unsure whether the fact that eight of McCown’s
nine claims were dismissed at summary judgment “figures
into the calculation” of attorney’s fees. We conclude that it
does.
[7] Although we can understand why our able district court
colleague may have found the case law on this issue to be
inscrutable, we hold that attorney’s fees awarded under 42
U.S.C. § 1988 must be adjusted downward where the plaintiff
4804 MCCOWN v. CITY OF FONTANA
has obtained limited success on his pleaded claims, and the
result does not confer a meaningful public benefit.2 This con-
clusion follows largely from Hensley itself, where the
Supreme Court noted that “[a] reduced fee award is appropri-
ate if the relief, however significant, is limited in comparison
to the scope of the litigation as a whole.” 461 U.S. at 440.3
[8] Although the Supreme Court has disavowed a test of
strict proportionality, it also suggested that a comparison of
damages awarded to damages sought is required. City of Riv-
erside v. Rivera, 477 U.S. 561, 576, 585 (1986) (Powell, J.,
concurring). A rule of proportionality is inappropriate, as the
Court found, because it fails to recognize the nature of many,
if not most, civil rights cases, in which damages may be lim-
ited by law, regardless of the importance of the civil rights at
issue. Id. at 576-78. Indeed, it was because counsel in civil
rights cases “might not have found it economically feasible”
to provide services to low-income clients without a fee-
shifting provision that Congress enacted § 1988. Id. at 579.
For this reason, the district court must consider the excellence
of the overall result, not merely the amount of damages won.
However, the Court also clarified that, in judging the plain-
tiff’s level of success and the reasonableness of hours spent
achieving that success, a district court should “ ‘give primary
consideration to the amount of damages awarded as compared
to the amount sought.’ ” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (quoting Rivera, 477 U.S. at 586 (Powell, J. concur-
ring)).
2
Although costs do not necessarily track fees, with some costs being
fixed and independent of the number or success of claims filed, we note
that the district court has discretion to reduce unreasonable costs. See
Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005).
3
The Court in Hensley also noted, in dicta, that “had respondents pre-
vailed on only one of their six general claims, [rather than five of the six,]
. . . a fee award based on the claimed hours clearly would have been
excessive.” 461 U.S. at 436.
MCCOWN v. CITY OF FONTANA 4805
[9] Case law in this circuit provides additional guidance in
how to measure a plaintiff’s level of success when the plain-
tiff has prevailed on some, but not all his claims. For example,
in McGinnis v. Kentucky Fried Chicken, this court echoed the
holding in Rivera that a pro rata distribution of fees to claims
“makes no practical sense,” but noted that “[t]he district court
must reduce the attorneys fee award so that it is commensu-
rate with the extent of the plaintiff’s success.” 51 F.3d 805,
808, 810 (9th Cir. 1994). In McGinnis, the plaintiff success-
fully sued his employer on the issue of disability discrimina-
tion, winning $234,000 inclusive of punitive damages, and
$148,000 in attorney’s fees. After a finding that punitive dam-
ages were not allowed, the plaintiff’s award was reduced to
$34,000, but the district court did not reduce the attorney’s
fees. We vacated the district court’s decision on the basis that
“the district court abused its discretion by expressly refusing
to relate the extent of success to the amount of the fee award.”
Id at 810.
[10] In this case, McCown received $20,000 in damages as
part of a settlement agreement for his single remaining claim,
and no other relief. The amount he received was roughly one-
fourth of the “damages in excess of $75,000” that he pled in
his complaint, and less than one-tenth of the $251,000 he
requested in settlement,4 which, however, included attorney’s
fees and costs.5 McCown’s victory clearly fell far short of his
4
Although we generally refrain from referencing proposed settlement
agreements in light of Federal Rule of Evidence 408, in this case both par-
ties sought to introduce evidence of settlement discussions and negotia-
tions, and the district court considered that evidence when making its
ruling on attorney’s fees. The $251,000 figure was brought to the district
court’s attention by McCown. The purpose behind Rule 408, to protect the
confidentiality of settlement negotiations, is not served when we fail to
consider those negotiations against the wishes of both parties.
5
If we calculate the amount of attorney’s fees McCown’s attorneys
would have been entitled to at the time of the settlement demand on
December 30, 2005, using the same rate McCown used to make his ulti-
mate request for attorney’s fees, the attorneys would have received
4806 MCCOWN v. CITY OF FONTANA
goal; therefore, it is unreasonable to grant his attorneys more
than a comparable portion of the fees and costs they
requested. Although the district court need not be so mechani-
cal as to divide the amount of fees and costs requested by the
number of claims, and therefore grant one-ninth of the fees
and costs, the district court should take into account
McCown’s limited success when determining a reasonable
award.
3. Excellent Result
McCown argues that his attorney’s fees should be granted
in full because, while his monetary success was limited, he
achieved an “excellent result” because his success conferred
a benefit on the public.
[11] We have previously noted that results may not be mea-
sured solely in terms of damages, and “in determining a rea-
sonable fee award on remand, the district court should
consider not only the monetary results but also the significant
nonmonetary results [the plaintiff] achieved for himself and
other members of society.” Morales v. City of San Rafael, 96
F.3d 359, 365 (9th Cir. 1996). Such a nonmonetary victory
may constitute “excellent results” for the purpose of calculat-
ing attorney’s fees. The Supreme Court has likewise indicated
that when a decision has “served the public interest by vindi-
cating important constitutional rights” an award of attorney’s
fees that is disproportionate to the actual damages may be
appropriate. Rivera, 477 U.S. at 572.
[12] In setting a reasonable fee award on remand, the dis-
trict court should consider whether, and to what extent,
roughly $70,000 for the hours they expended, leaving McCown with
$180,000 minus costs. Alternatively, and more likely, McCown’s attor-
neys would have received a one-third contingency fee amount of about
$85,000, leaving McCown with roughly $165,000 minus costs. Either
way, what he ultimately received represents only a small portion of what
he requested in the settlement agreement.
MCCOWN v. CITY OF FONTANA 4807
McCown’s suit benefitted the public. The public benefit of a
suit must have enough of an impact to justify a fully compen-
satory fee award despite limited success on damages claims.
To determine this impact, the district court should consider
whether the plaintiff has affected a change in policy or a
deterrent to widespread civil rights violations. See Rivera, 477
U.S. at 574-76; Morales, 96 F.3d at 364-65. The district court
may also consider the public benefit of deterring unconstitu-
tional conduct by law enforcement officials in determining the
appropriate fee. Morales, 96 F.3d at 364.
CONCLUSION
[13] We conclude that the district court erred, both in fail-
ing to adequately explain its reasons for the award it granted
to McCown, and in failing to adequately consider McCown’s
limited success. When awarding attorney fees on remand, the
district court should adequately explain the reasonable num-
ber of hours and hourly rate it uses in calculating the fee, and
appropriately adjust the award to account for McCown’s lim-
ited success on claims and damages, and for any public bene-
fit derived from his suit. We reverse and remand to the district
court for reconsideration of the issue of attorney’s fees and
costs consistent with this opinion.
REVERSED and REMANDED.