No. 13-­--2467 ANDREW RICHARDSON v. City of Chicago, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑2467
ANDREW RICHARDSON,
Plaintiff-­‐‑Appellant,
v.
CITY OF CHICAGO, ILLINOIS, et al.,
Defendants-­‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 C 4824 — Virginia M. Kendall, Judge.
____________________
ARGUED JANUARY 15, 2014 — DECIDED JANUARY 22, 2014
____________________
Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge. While off duty from his job
as a police officer, Darrin Macon argued with Andrew Rich-­‐‑
ardson about Macon’s former girlfriend. Macon fired his gun
at Richardson but missed. When on-­‐‑duty police officers ar-­‐‑
rived, Macon said that Richardson had struck him with a
baseball bat. Richardson was arrested and charged with as-­‐‑
sault and battery. After the charges were dismissed, Rich-­‐‑
ardson filed this suit making 39 claims under 42 U.S.C. §1983

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2 No. 13-­‐‑2467
and state law against Chicago, Macon, the arresting officers,
and others.
Chicago prevailed before trial because municipalities are
not vicariously liable under §1983, and the district judge
found that none of the City’s own policies (including its
training regimens) is constitutionally deficient. See Monell v.
New York City Department of Social Services, 436 U.S. 658
(1978). The other claims went to trial, and all defendants
other than Macon won. The jury decided in Richardson’s fa-­‐‑
vor on one claim, concerning the shot Macon fired, and
awarded $1 in nominal damages plus $3,000 in punitive
damages. Macon did not appeal—nor did Chicago, which
under Illinois law must indemnify Macon for the $1 but not
the punitive award—but the main event of the case lay
ahead: a request for attorneys’ fees under 42 U.S.C. §1988.
Richardson asked for more than $675,000 in fees. The dis-­‐‑
trict judge ultimately awarded about $123,000. 2013 U.S.
Dist. LEXIS 78677 (N.D. Ill. June 5, 2013). First she excluded
time that counsel had devoted to unsuccessful motions (or
the unsuccessful response to Chicago’s motion for summary
judgment under Monell). The judge then observed that Rich-­‐‑
ardson’s lawyers had not kept time sheets in a way that al-­‐‑
low the identification of hours spent pursuing claims against
the defendants who won at trial, or indeed to unsuccessful
claims against Macon. Because non-­‐‑compensable time could
not be separated out, the district judge decided that the
lodestar (the number of hours times the market rate for each
hour) should be cut across the board. But what was the right
reduction? The judge noted that Richardson had asked for
$500,000 in settlement and rejected a generous offer, then
asked the jury for $200,000, yet recovered only $3,001. That

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No. 13-­‐‑2467 3
result was a flop, the judge reckoned, even though it techni-­‐‑
cally makes Richardson a “prevailing” party. See Farrar v.
Hobby, 506 U.S. 103 (1992).
If the jury had stopped with the $1 in nominal damages,
then under Farrar an award of attorneys’ fees would be un-­‐‑
warranted. But the $3,000 in punitive damages was enough,
in the judge’s view, to justify some attorneys’ fees. The judge
thought that a roughly 80% reduction from the lodestar ap-­‐‑
propriate in light of the modest success counsel had
achieved for Richardson. The district court ordered Macon
personally—but not the City of Chicago—to pay Richardson
$123,165.24 under §1988. The court also ordered Richardson
to reimburse Chicago’s costs under Fed. R. Civ. P. 54(d)(1).
Macon did not file a notice of appeal. But in response to
Richardson’s appeal, Macon (in his role as appellee) main-­‐‑
tains that the award should have been against Chicago ra-­‐‑
ther than against him personally. His decision not to appeal
means, however, that we cannot alter the judgment to make
it more favorable to him. See, e.g., Greenlaw v. United States,
554 U.S. 237 (2008); El Paso Natural Gas Co. v. Neztsosie, 526
U.S. 473 (1999).
Richardson, like Macon, wants Chicago added as a
judgment debtor on the award of attorneys’ fees (though
Richardson does not want Macon’s liability ended). Yet Chi-­‐‑
cago’s only substantive obligation is to indemnify Macon for
the nominal award. That obligation rests on state law, but
we put to one side the fact that §1988 deals with parties who
have prevailed on federal claims. Cf. Graham v. Sauk Prairie
Police Commission, 915 F.2d 1085 (7th Cir. 1990) (discussing
the possibility, not raised by Richardson’s briefs, that a state
indemnification statute may include attorneys’ fees inde-­‐‑

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4 No. 13-­‐‑2467
pendent of §1988). We also bypass Richardson’s failure to
object to a magistrate judge’s recommendation that Macon
alone be liable for attorneys’ fees. See Thomas v. Arn, 474 U.S.
140 (1985); Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538
(7th Cir. 1986). It is enough to rely on Farrar, which holds
that establishing an entitlement to nominal damages does
not justify an award of attorneys’ fees under §1988. So even
if we assume that Chicago’s obligation runs directly to Rich-­‐‑
ardson (to whom Chicago wrote a check for $1), rather than
to Macon, Richardson is not entitled to anything from Chi-­‐‑
cago under §1988.
Quite the contrary, Richardson must pay the City’s costs
under Rule 54(d)(1), just as the district court held. Rule 54
entitles prevailing parties to recover their costs. Chicago
prevailed against Richardson under §1983 when the district
court granted its motion for summary judgment under Mo-­‐‑
nell, and it prevailed at trial on all state-­‐‑law claims. State law
requires Chicago to cover the $1 award, given the jury’s spe-­‐‑
cial verdict that Macon acted under color of state law be-­‐‑
cause he had a City-­‐‑issued weapon, which the Police De-­‐‑
partment requires its officers to carry when off duty. That
verdict was not a victory by Richardson against Chicago,
however; it was a victory by Richardson against Macon, and
by Macon against Chicago.
Richardson asks us to treat the “state actor” verdict as at
least a moral victory vis-­‐‑à-­‐‑vis Chicago, which may lead it to
take greater care in the future when selecting and supervis-­‐‑
ing police officers. Costs (and fees) do not follow moral vic-­‐‑
tories, however; they depend on concrete judgments that al-­‐‑
ter legal relations. See Buckhannon Board & Care Home, Inc. v.
West Virginia Department of Health & Human Resources, 532

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No. 13-­‐‑2467 5
U.S. 598 (2001). Chicago won a judgment against Richard-­‐‑
son, not the other way around, so the award of costs to Chi-­‐‑
cago was proper. See also First Commodity Traders, Inc. v.
Heinold Commodities, Inc., 766 F.2d 1007, 1015 (7th Cir. 1985).
The principal remaining question is whether a district
court may reduce attorneys’ fees across the board to reflect
limited success, when the lawyers’ records do not permit the
court to decide which hours were devoted to winning claims
and which to losing ones. Richardson contends that percent-­‐‑
age reductions are never allowed. He relies principally on
Riverside v. Rivera, 477 U.S. 561 (1986), which held that a dis-­‐‑
trict judge may not routinely limit attorneys’ fees under
§1988 to a fixed percentage of the recovery (such as ⅓ of the
damages, along the lines of a contingent-­‐‑fee contract). Yet a
rule that fees may not be capped at a percentage of the plain-­‐‑
tiff’s recovery differs from a rule that a district judge never
can award fees based on a percentage of the lawyer’s bill.
The appropriate fee under §1988 is the market rate for the
legal services reasonably devoted to the successful portion of
the litigation. See, e.g., Pennsylvania v. Delaware Valley Citi-­‐‑
zens’ Council for Clean Air, 483 U.S. 711 (1987); Hensley v. Eck-­‐‑
erhart, 461 U.S. 424 (1983). If an attorney’s billing records
permit the calculation of the hours devoted to the claims on
which the plaintiff prevailed, then all a judge need do is de-­‐‑
termine the market rate for an hour of the lawyer’s time and
whether the fee generated by multiplying the hours by the
rate is reasonable in relation to the value of the case (which
can include precedential value as well as the plaintiff’s mon-­‐‑
etary recovery). See Hensley, 461 U.S. at 440. But when the
lawyer’s billing records do not permit time to be allocated
between winning and losing claims, estimation is inevitable.

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6 No. 13-­‐‑2467
No algorithm is available. Some legal time will be a joint
cost of winning and losing claims alike; it is compensable
despite the losses. If the winning and losing claims are just
different legal theories in support of the same relief, again
full compensation is proper. But losing claims seeking dif-­‐‑
ferent or additional relief, or damages against different de-­‐‑
fendants, usually add some marginal expenses to the litiga-­‐‑
tion. A judge could try to estimate how much time would
reasonably have been devoted to the winning claims, had no
clunkers been presented. But if that attempt would be futile
(the district judge here permissibly reached that conclusion),
there is nothing to do but make an across-­‐‑the-­‐‑board reduc-­‐‑
tion that seems appropriate in light of the ratio between
winning and losing claims. As Hensley put it, a court may
“identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success.”
Id. at 436–37. Just as a percentage increase may be added to a
lodestar to reflect exceptionally good results, see Perdue v.
Kenny A., 559 U.S. 542 (2010), so a percentage decrease may
be applied to reflect poor results. See, e.g., Cooke v. Stefani
Management Services, Inc., 250 F.3d 564, 570 (7th Cir. 2001)
(50% across-­‐‑the-­‐‑board reduction was within district judge’s
discretion); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544,
558–59 (7th Cir. 1999) (same).
The jury gave Richardson 1.5% of what he sought at trial.
This was a dismal outcome; Richardson rued rejecting de-­‐‑
fendants’ settlement offers. He prevailed against only one of
nine defendants. He lost 38 of his 39 claims. The district
judge concluded that chunks of the litigation had been over-­‐‑
staffed, with multiple lawyers doing tasks that a single law-­‐‑
yer could have accomplished more economically. Despite all
of this, the judge awarded Richardson approximately 18% of

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No. 13-­‐‑2467 7
the fees his legal team requested (or about 20% after reduc-­‐‑
tions for time that confidently could be traced to losing
claims). An award of some $123,000 is generous in relation
to Richardson’s recovery. It cannot be condemned as too low
under the deferential standard applicable to appellate re-­‐‑
view. See Pickett v. Sheridan Health Care Center, 664 F.3d 632,
639 (7th Cir. 2011); cf. Pierce v. Underwood, 487 U.S. 552, 571
(1988).
In Estate of Enoch v. Tienor, 570 F.3d 821 (7th Cir. 2009),
we held that a district court could not take a meat cleaver to
the requested attorneys’ fees when the recovery ($635,000)
was “spectacular … in the realm of prison-­‐‑related litigation”
(id. at 822) just because plaintiff had asked the jury for an ab-­‐‑
surd award of $5 million. No one could think that Richard-­‐‑
son’s award of $3,001 is spectacularly high or that a verdict
well below what he could have had in settlement reflects a
significant victory.
Richardson’s other arguments have been considered but
do not require discussion.
AFFIRMED

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