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Arce v. Louisiana State

United States District Court, E.D. Louisiana

June 4, 2019


         SECTION I

          ORDER & REASONS


         This case is before the Court on remand from the United States Court of Appeals for the Fifth Circuit regarding attorneys' fees. For the following reasons, plaintiff Ana Christine Shelton's request for fees and additional costs is granted in part and denied in part, as stated herein.


         This action was originally filed by Nelson Arce, a deaf man who was placed on probation in Jefferson Parish after pleading guilty to a drug possession offense in Louisiana state court. In his complaint, Arce alleged that he had limited proficiency in written English and that he communicated primarily in American Sign Language (“ASL”). According to Arce, his probation officer refused to provide him with an ASL interpreter during their meetings.[1] As a result, Arce alleged, he did not understand the terms of his probation and inadvertently violated them.

         Beginning in December of 2016, Arce was incarcerated for the probation violation in the Jefferson Parish Correctional Center (“JPCC”) for 90 days. Arce alleged that JPCC officials failed to provide him with an ASL interpreter. Because he did not have an interpreter to help him review JPCC's inmate handbook, Arce alleged that he did not understand JPCC's rules and regulations and that he was penalized twice for purported violations. After Arce was released from JPCC, his probation officer allegedly again refused to provide him with an ASL interpreter during their meetings.

         In August of 2016, Arce and his father sued the State of Louisiana, through the Louisiana Department of Public Safety and Corrections, and Jefferson Parish Sheriff Joseph Lopinto (collectively, the “defendants”) for violations of the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act.[2] They sought compensatory damages as well as declaratory and injunctive relief. Early in the litigation, Arce and his father moved for a preliminary injunction against the State of Louisiana, requesting that the Court order the State of Louisiana to provide him with a qualified ASL interpreter during the remainder of his probation meetings and while the case was pending. Before the Court could rule on the motion, the parties reached an agreement, pursuant to which the State of Louisiana would provide Arce with an ASL interpreter during all future probation meetings. Accordingly, the Court dismissed the motion as moot.

         For reasons unrelated to this lawsuit, Arce unfortunately passed away in May of 2017, and Ana Christine Shelton, as the administrator of Arce's estate and the mother of his children, was substituted as the plaintiff. Shortly thereafter, the Court dismissed all claims for injunctive relief, without opposition, for lack of standing. The case proceeded to trial, the jury finding that both the State of Louisiana and Sheriff Lopinto had intentionally discriminated against Arce in violation of the ADA.[3]However, the jury also found that the discrimination had not caused Arce injury and, therefore, it did not award him any compensatory damages. Rather, in accordance with a stipulation among the parties, the Court awarded Shelton nominal damages of $1 as to each defendant.

         Shelton moved for an award of attorneys' fees in the amount of $495, 853.50. After determining that Shelton was a prevailing party, the Court nonetheless held that special circumstances justified the denial of attorneys' fees because, at trial, Shelton sought solely monetary relief but achieved only nominal damages.[4] Shelton timely appealed the Court's denial of fees. Upon review, the Fifth Circuit vacated this Court's order and remanded the case for reconsideration. Shelton v. Louisiana, 919 F.3d 325, 331 (5th Cir. 2019). The Fifth Circuit instructed this Court to consider “whether [Arce's, and subsequently Shelton's, ] lawsuit achieved a compensable public goal”; however, it expressed no opinion as to the propriety of a fee award. Id.


         The United States Supreme Court's decision in Farrar v. Hobby, 506 U.S. 103 (1992), provides the legal framework in this matter. Shelton, 919 F.3d at 329. In Farrar, the Supreme Court affirmed the lower court's denial of attorneys' fees to the prevailing plaintiffs, [5] who exclusively sought monetary relief but achieved only nominal damages. 506 U.S. at 105-08. The Supreme Court observed that, “[i]n civil rights suits for damages, . . . the awarding of nominal damages [ ] highlights the plaintiff's failure to prove actual, compensable injury.” Id. at 115. “When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. (citation omitted).

         Here, Shelton sought compensatory damages, but she ultimately failed to persuade the jury that Arce suffered any injury arising out of the defendants' discrimination. As a result, she recovered only nominal damages, and “Farrar counsels that denial of attorneys' fees may be appropriate.” Shelton, 919 F.3d at 329.

         But the Court's inquiry does not end there. “‘[E]ven nominal damages can support an award of attorneys' fees' if the litigation ‘achieved a compensable goal.'” Id. at 329-30 (quoting Hopwood v. Texas, 236 F.3d 256, 278 (5th Cir. 2000)). The Fifth Circuit decisions affirming fee awards in these limited cases “have focused on the plaintiff's accomplishments within the litigation itself, such as the deterrent value of a jury verdict or the significance of a new legal precedent.” Id. at 331. The Court must therefore determine whether-despite Shelton's failure to establish one of the elements of her claim for monetary damages at trial and her resulting failure to achieve more than nominal damages-she nonetheless accomplished a compensable goal that entitles her to attorneys' fees.


         Shelton argues that this litigation accomplished two compensable legal: (1) that it set new legal precedent and (2) that she achieved a favorable jury verdict with deterrent effects. With respect to her argument that Arce's lawsuit has generated significant legal precedent, the Court is unpersuaded.

         Shelton relies on the fact that this case has been cited twice since trial concluded.[6] First, in 2016, the plaintiffs in a disability-discrimination action cited this Court in support of their motion for summary judgment.[7] The plaintiffs argued:

Defendants' failure to provide qualified ASL interpreters to Plaintiffs clearly violates the Rehabilitation Act and ADA. See Arce v. Louisiana, No. 16-cv-14003, 2017 WL 6767200 (E.D. La., Dec. 18, 2018) (finding defendants were liable under [the] Rehabilitation Act and ADA for failing to provide qualified ASL interpreter to hard of hearing offender).

Levy v. La. Dep't of Pub. Safety & Corr., Civil Action No. 16-542 (M.D. La.) R. Doc. No. 55-31, at 15-16. But the Levy plaintiffs' reference is dubious at best. They cited to this Court's one-sentence judgment following the jury's verdict in this matter.[8]

         Although the descriptive parenthetical suggests that the Court found that the defendants violated Arce's rights, the Court made no such finding. Rather, the jury made the finding, and the Court entered judgment accordingly.

         Second, another section of the Court recently cited this Court's ruling in response to the motion to dismiss filed by the State of Louisiana in this case.[9] See Pegues v. Bd. of Supervisors, No. 18-2407, 2018 WL 4076385, at *3 & nn.23, 26 (E.D. La. Aug. 27, 2018) (Morgan, J.). According to Shelton, this Court's order “clarified complex legal issues regarding the Fourteenth Amendment and [s]tate [i]mmunity in the context of ADA Title II cases.”[10] Even so, in the portion of this Court's opinion cited by Judge Morgan, the Court did not posit a novel theory or formulate a new approach to the law; it simply summarized the law as it was already firmly established by the Supreme Court. See Id. (citing Arce v. Louisiana, No. 16-14003, 2017 WL 5619376, at *22 (E.D. La. Nov. 21, 2017) (Africk, J.)). In the same section of this Court's opinion, the Court did discuss the existence of a circuit split on a particular sub-issue pertinent to the State of Louisiana's motion-perhaps that analysis is the “clarif[cation] of complex legal issues” to which Shelton alludes. But Judge Morgan did not cite this Court for that discussion.

         Moreover, the fact that this Court's ruling has been cited once by another court does not demonstrate that Shelton achieved a compensable legal goal. This cannot be what the Fifth Circuit intended when it spoke of rewarding the creation of “significant legal precedent.” Cf. Hopwood v. State of Tex., 999 F.Supp. 872, 878 (W.D. Tex. Mar. 20, 1998), aff'd in part and reversed in part, 236 F.3d 256 (5th Cir. 2000) (explaining that the plaintiffs achieved a declaration by the Fifth Circuit that the University of Texas at Austin School of Law's use of racial preferences served no compelling state interests under the Fourteenth Amendment, a significant legal precedent).

         Shelton also argues that it was necessary to obtain a jury verdict in her favor in order to deter further ADA violations by the defendants. According to Shelton, both defendants denied any wrongdoing up until, and through, trial.[11] As a result, Shelton argues, the verdict was pivotal to holding the defendants accountable for discrimination and protecting similarly situated deaf and hard-of-hearing individuals in the future.[12] Shelton also argues that Arce's lawsuit was the “primary impetus” behind substantial policy changes implemented by each defendant.[13]

         In response, the defendants argue that the jury verdict is simply too vague to serve as a deterrent.[14] They contend that the verdict in this matter resembles the verdict in Farrar, which the Supreme Court described as “accomplish[ing] little beyond giving petitioners ‘the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated' in some unspecified way.'” 506 U.S. at 114 (quoting Hewitt v. Helms, 482 U.S. 755, 762 (1991)).[15] Both defendants also argue that there is no evidence demonstrating that they took any action as a direct result of the litigation.[16]

         With respect to Sheriff Lopinto, Shelton has failed to establish that this lawsuit had any deterrent effect or that it prompted any significant policy changes. Shelton points to the sheriff's installation of a video relay service (“VRS”) system-effectively, a videophone-at JPCC.[17] At trial, several witnesses testified regarding JPCC's use of auxiliary aids for deaf and hard-of-hearing individuals. Before 2017, JPCC relied exclusively on TTY machines, which allow deaf or hard-of-hearing inmates to use the telephone. Eventually, in large part as a result of the work of advocates like Scott Huffman, who testified at trial, JPCC officials installed a VRS system as well.

         Shelton argues that it was Huffman's request that a VRS system be made accessible to Arce while he was incarcerated that spurred the system's installation.[18]First and foremost, although Huffman may have advocated on Arce's behalf while he was incarcerated at JPCC, there is no evidence that Huffman's request was at all related to Arce's lawsuit or prompted by Arce's counsel. Furthermore, Sheriff Lopinto asserts both that his employees were working with deaf advocates like Huffman well before Arce was a JPCC inmate and that none of the evidence establishes that the VRS system was installed as a result of this lawsuit.[19]

         It is unclear from the record what event or combination of events finally prompted the installation of a VRS system at JPCC. It is undisputed, however, that Huffman had been advocating for the use of such a system since June or July of 2015-before Arce was first incarcerated in December of 2015 and well before this lawsuit was filed in August of 2016.[20] Captain Bryan Bordelon, who was JPCC's assistant deputy administrator when Arce was incarcerated, testified that he was interested in exploring the use of a VRS system because of the information provided to him by Huffman in 2015, but there were bureaucratic and technical hurdles that posed barriers to the system's immediate installation.[21] For example, Bordelon and former Sheriff Normand Newell testified that installation ultimately required approval by the parish.[22]

         The evidence clearly establishes that Bordelon and his superiors were working toward acquiring and installing a VRS system before, during, and after Arce's incarceration. Because the VRS system was implemented before this case proceeded to trial in December of 2017, Shelton cannot credibly argue that the jury's verdict was the “primary impetus” behind the system's installation.[23] As to the effect of the overall lawsuit, there is no convincing or direct evidence that it prompted the sheriff's decision to finally install the VRS system at JPCC, and the Court cannot conclude that this litigation changed Sheriff Lopinto's conduct or his office's policies and practices.

         However, the State of Louisiana's contention that it did not change its policies as a result of Arce's lawsuit defies the record. This is illustrated by the following colloquy between Shelton's counsel, Brittany Shrader, and Bobby Lee, Jr., the deputy director for the Louisiana Department of Probation and Parole, during his deposition:

SHRADER: In response to your awareness of this lawsuit, do you intend to implement any additional policies?
LEE: Yes, ma'am. We're going to go back and relook at all of our policies regarding deaf offenders, and we've already started implementing new policies and new training to assist in doing better communication [sic] with the deaf offenders.[24]

         Although Shelton has yet to point this Court to a particular policy change stemming from this litigation, the State of Louisiana's own representative admitted that Arce's lawsuit prompted a change in its protocols and training. At a minimum, the record reflects that this case “sent a message” to the State of Louisiana that its failure to provide certain deaf and hard-of-hearing individuals with auxiliary aids may constitute discrimination. See Guerrero v. Torres, 208 F.3d 1006, 2000 WL 177895, at *2 (5th Cir. 2000) (Table) (holding that attorneys' fees were appropriate because the jury verdict “sent a message to [the defendants] that the unjustified used of force, even when a prisoner is not severely injured, is intolerable in a civilized society”). Therefore, pursuant to Fifth Circuit guidance and considering the facts of this case, Shelton is entitled to an award of attorneys' fees in connection with her counsel's pre-appeal work, to be assessed solely against the State of Louisiana.[25]


         The Court must now determine what constitutes a reasonable fee award. “[T]he fee applicant bears the burden of establishing entitlement to an award . . . .” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court will separately consider Shelton's request for those fees incurred prior to her appeal and her request for fees incurred as a result of and following her appeal.


         After a five-day jury trial, Shelton achieved a meager $2 in damages, yet Shelton's attorneys request almost half of a million dollars in fees for efforts undertaken prior to Shelton's appeal. The Court must ensure that an attorneys' fees award assessed against the State of Louisiana is reasonable, as the civil rights litigation fee-shifting provisions were never intended to “produce windfalls to attorneys.” Farrar, 506 U.S. at 115 (quoting Riverside v. Rivera, 477 U.S. 561, 580 (1986)).

         Typically, to calculate a reasonable fee, courts in this circuit use the lodestar method. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 323-24 (5th Cir. 1995). The district court “multipl[ies] the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). Then the district court considers whether the lodestar should be adjusted based on the relative weight of the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds, 489 U.S. 87 (1989). Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir. 2006). The Johnson factors are:

(1) the time and labor required;
(2) the novelty and difficulty of the issues in the case;
(3) the skill requisite to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee charged for those services in the relevant community;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.[26]

Johnson, 488 F.2d at 717-19. The Supreme Court and the Fifth Circuit have stressed that “the most critical factor” in determining a reasonable fee award is “the degree of success obtained.” Migis, 135 F.3d at 1047 (quoting Farrar, 506 U.S. at 114).

         However, as both this Court and now the Fifth Circuit have noted, “Farrar provides the relevant legal framework in this case.” Shelton, 919 F.3d at 329. “[I]f ‘a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate'”-in other words, the lodestar- “may be an excessive amount.” Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. at 436). The Supreme Court counsels that, “[w]here recovery of private damages is the purpose of . . . civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought.” Id. (citation omitted). This comparison “promotes the court's ‘central' responsibility ‘to make the assessment of what is a reasonable fee under the circumstances of the case.'” Id. at 115 (quoting Blanchard v. Bergeron, 489 U.S. 87, 96 (1989)). When Farrar governs, as long as the court has “considered the amount and nature of damages awarded, the court may lawfully award low fees . . . without reciting the 12 factors bearing on reasonableness . . . or multiplying ‘the number of hours reasonably expended . . . by a reasonable hourly rate.'” Id. (citations omitted).[27]

         Shelton did not request a specific amount of compensatory damages at trial. Her settlement demands are the only indication of the monetary value she assigned to her claims.[28] By Shelton's own account, Arce and his father demanded approximately $2 million from each defendant.[29] After Arce's death, Shelton initially continued to demand $4 million[30] but eventually reduced her demand to $2 million- $1 million per defendant.[31] Although Shelton did not request a specific damages award at trial, the amount she requested at a settlement conference held only two months before trial reasonably approximates how she valued her case. See Lohman v. Duryea Borough, 574 F.3d 163, 167 (3d Cir. 2009) (noting that evidence of settlement negotiations “can be relevant when comparing what a plaintiff ‘requested' to what the plaintiff was ultimately ‘awarded'”).[32]

         Despite Shelton's demand, the jury awarded her, pursuant to the parties' stipulation, what amounted to $1 for each defendant as a result of her failure to prove that the defendants' discrimination caused Arce any injury. In light of Shelton's extremely limited success, the Court concludes that an attorneys' fee award of $495, 853.50 would not only be unreasonable but unconscionable. See Walker v. United States Dep't of Hous. & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (“[L]imited success requires a downward adjustment.”); Migis, 135 F.3d at 1048 (reversing the district court's award of attorney's fees because the plaintiff “sought over twenty-six ...

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