NOT RECOMMENDED FOR PUBLICATION File Name: 17a0052n.06 No. 16-3333

UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT JOSEPH HINES, Plaintiff-Appellant,

v. CITY OF COLUMBUS, OHIO; DEBRA PAXTON; THOMAS DEWITT; EDWARD PRIME, Defendants-Appellees, and KIMBERLY JACOBS; RICHARD BASH; CHRISTOPHER BOWL ING; LUELLEN KUYKENDOLL; JAMES MORROW; PATRICK SHAFFER; EARL WEST FALL; IAN PRUITT, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: SUHRHEINRICH, SUTTON, a nd McKEAGUE, Circuit Judges. SUHRHEINRICH, Circuit Judge. Plaintiff Joseph Hines (Pla intiff) seeks a new trial following a jury verdict in this civil rights action alleging excessive use of force by several City of Columbus, Ohio police officers. He also ch allenges the district court’s reduction of his attorneys’ fees award. I. On August 29, 2012, at about 11:45 p.m., several Columbus police officers, including Defendants-Appellees Debra Paxton (Paxton), Thomas DeWitt (DeWitt), and Edward PrimeNo. 16-3333, Hines v. City of Columbus

-2- (Prime) (collectively Defendants), arrested Plaintiff for littering and underage drinking. 1 The officers used force in arresting Plaintiff, causing injuries, which in cluded post-concussive syndrome with contusions on his face, chemosis of his eyes from mace, and post-traumatic stress disorder. Plaintiff incurred $10,303.00 in medical bills. In his amended complaint, Plaintiff br ought excessive force and § 1983 conspiracy claims against five Columbus police officers a nd failure-to-intervene claims against three of those officers. The district court dismissed the ex cessive force claims against two of the officers, granted summary judgment to all five officers on the conspiracy claims, and dismissed a failureto-intervene claim against one of the officers. Three officers—Defendants—were tried by jury on the remaining excessive force and failure-to-intervene claims. Without objection from Plainti ff, the district court granted Paxton’s motion for judgment as a matter of law on the excessive force claim. The jury awarded Plaintiff $30,000 in compensatory damages on his excessive force claim against DeWitt and denied punitive damage against him. They found in favor of Prime on th e excessive force claim. The jury found in favor of Paxton and DeWitt on the failure-to-intervene claims. After the district court entered judgment, Plaintiff’s attorneys filed petitions for attorneys’ fees and costs. Plaintiff sought fees and co sts totaling $91,342.05 to the la w firm of David A. Goldstein Co., L.P.A. (the Goldstein Firm), of Columbus, Ohio, and $211,600.43 to the law firm of Fieger, Fieger, Kenney & Harrington, P.C. (the Fieger Firm) of Detroit, Michigan, for a grand total award of $302,942.48. Observing that this amount was “more than ten times the jury’s damages award” of $30,000, the district court re duced it to “a more reasonable amount.” ID# 3109-10. The district court adjusted the rates th e Fieger Firm requested to align with rates

1 Plaintiff was charged with various offenses including resisting arrest and causing harm to a law enforcement officer, obstructing official business, underage intoxication, and an open container violation. Plaintiff pleaded guilty to the littering charges and the others were dismissed. ID# 746-47.No. 16-3333, Hines v. City of Columbus

-3- reported in the Ohio State Bar Association Report, The Economics of Law Practice in Ohio in 2013 , available at https://www.ohiobar.org/NewsAndPublic ations/Documents/OSBA_EconOf LawPracticeOhio.pdf. and charged by local co unsel, David Goldstein, ID# 3113-15, and redlined “specific instances of unreasonable hours billed.” ID# 3115-18. Except for 1.5 hours, the district court did not reduce the Goldstein Firm’s requested rates or hours. The district court further reduced the lodestar amount of both sets of attorneys’ fees requests by 50% to reflect the “minimal” degree of success obta ined. ID# 3118-21. Thus, the Fi eger Firm’s attorneys’ fees were reduced from $176,075.00 to $39,878.80, and its costs were cut from $35,525.43 to $13,077.04. Similarly, the court reduced the Goldst ein Firm’s attorneys’ fees from $89,360.00 to $44,997.00, but did not reduce its costs. ID#3126. On appeal, Plaintiff contends that he was deni ed a fair trial and is entitled to a new one because the district cour t (1) erred in denying his Batson challenge during jury selection; and (2) improperly denigrated his counsel and his cas e through comments and unf avorable evidentiary rulings. Plaintiff also argues that the 50% across- the-board reduction of attorneys’ fees and costs was unreasonable. II. A. Initially we consider Defenda nts’ contention that Plaintiff forfeited his new trial issues because he failed to move for either judgment as a matter of law pursuant to Fed. R. Civ. P. 50 or a new trial pursuant to Fed. R. Civ. P. 59. 2

2 Seeking such relief would have been futile anyway. The material issues in this case involved conflicting witness testimony, which “lies at the core of the jury’s factfinding function.” 9B C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F ED
. P RAC

. & P ROC

. § 2527 (3d ed. & Supp. 2016). “A testimonial conflict of this kind can be resolved only by the jury; this basic principle prevents the grant of a motion for judgment as a matter of law under Rule 50(a) . . . .” Id.No. 16-3333, Hines v. City of Columbus

-4- “Rule 50 is meant to preserve the judge’s power to determine evidentiary sufficiency” and does not govern pure questions of law like evidentiary challenges. Belk, Inc. v. Meyer Corp., U.S ., 679 F.3d 146, 161 (4th Cir. 2012). Purely lega l questions, “as long as they are properly preserved, may be considered on appeal,” in the absence of a Rule 50 motion. Id. ; Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 720 (7th Cir. 2003); 9B C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 2540 (3d ed. 2014 & Supp. 2016) (stating that “[i]f there have been errors at the trial, duly objected to, dea ling with matters other than the sufficiency of the evidence, they may be raised on appeal from the judgment even though there has not been either a renewed motion for judgment as a matte r of law or a motion for a new trial”). Relatedly, the renewal requireme nt of Rule 50(b) applies only to challenges to the sufficiency of the evidence. Doherty v. City of Maryville , 431 F. App’x 381, 385-86 (6th Cir. 2011). Furthermore, a Rule 59 motion is not a pr erequisite to appellate review of contested rulings that were preserved in the trial court. Howe v. City of Akron , 801 F.3d 718, 750 (6th Cir. 2015) (quoting 11 C HARLES A LAN W RIGHT , A RTHUR R. M ILLER , M ARY K AY K ANE , F EDERAL P RACTICE AND P ROCEDURE § 2818 (3d ed. 2015)). This argument is without merit. B. Plaintiff, who is African American, complains that the district cour t erred in denying his
Batson 3 challenge because Defendants did not offer a race-neutral explanation for excluding one of the African-American jurors. “The ‘Constitu tion forbids striking ev en a single prospective juror for a discriminatory purpose.’” Foster v. Chatman , 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v. Louisiana , 552 U.S. 472, 478 (2008)). Batson set up a three-step process for determining whether a juror has been struck fo r a discriminatory purpose. First, the party

3 Batson v. Kentucky , 476 U.S. 79 (1986). Batson challenges apply in civil litigation. Edmonson v. Leesville Concrete Co. Inc. , 500 U.S. 614, 616, 629 (1991).No. 16-3333, Hines v. City of Columbus

-5- asserting the Batson violation must make a prima facie show ing that a peremptory challenge is based on race. If that showing is made, the party who exercised the strike must offer a raceneutral explanation. That explan ation need not rise to the leve l of a challenge for cause, but instead need only be a plausible, race-neutral reason for peremptorily striking the juror. Purkett v. Elem , 514 U.S. 765, 767-68 (1995). Third, the tr ial court must determine whether the opposing party has shown purposeful discrimination. Foster , 514 U.S. at 1747

. Defendants exercised their firs t peremptory challenge to remove Juror #78, an African American. ID# 3100. Plaintiff did not contempor aneously object to Juror #78’s removal. However, when Defendants used their third pere mptory challenge to strike Juror #37, also an African American, Plaintiff argue d that Defendants were “syste matically excusing members of ethnicity. The first excused wa s somebody of African-American desc ent. . . . And the individual that he has just proposed to be excused, Number 37, is African-American.” ID# 3102. Plaintiff noted again that “Two of the three preemptories were African-American challenges.” ID# 3103. Later he reiterated that “there were only two African-Americans in the entire venire, and the defense has struck them both. And with a Bats on objection, I’m arguing th at, one; they can’t do this because they’re systematically excluding African-Americans.” ID# 3105. In response, the district court said, “Well, they have excuse d one without any objection. And, okay, go ahead now. Do you wish to respond, Mr. Mangan [counsel for Defendants]?” ID# 3105. At that point, defense counsel offered a race-neutral explan ation for striking Juror #37, ID# 3105-06, which the district court accepted, and then overruled the objection. Plain tiff does not challenge this ruling on appeal. See Appellant’s Br. at 27 n.8.; Reply Br. at 3. However, defense counsel did not offer any explanation for peremptorily striking Juror #78, the district co urt did not ask defense counsel to give one, and Plainti ff did not insist that defense c ounsel provide one. The questionNo. 16-3333, Hines v. City of Columbus

-6- on appeal is whether Plaintiff can assert a Batson challenge regarding Juror #78 where Plaintiff did not make a Batson challenge when Juror #78 was pere mptorily dismissed, but before any perceptible “pattern” of race-bas ed challenges had emerged. Plaintiff’s Batson challenge regarding Juror #78 was timely under our precedent. In United States v. Tomlinson , we held that “a strictly contem poraneous objection is not required and that a party’s Batson objection is timely if it is made be fore the jury is sworn and the trial commences.” Tomlinson , 764 F.3d 535, 537 (6th Cir. 2014); see also United States v. Reid , 764 F.3d 528, 533 (6th Cir. 2014) (holding that “a Batson challenge must be raised contemporaneously with the voir dire process or prio r to the time that the venire is dismissed”). Plaintiff timely made the Batson challenge regarding Juror #78 as soon as he perceived what he thought to be “a pattern of strikes against Africa n American jurors.” See Tomlinson , 764 F.3d at 538. Nonetheless, because Plaintiff failed to dema nd that defense counsel give a race-neutral explanation for peremptorily striking Juror #78 on ce Plaintiff perceived a pa ttern, he forfeited his right to seek one for the first time on appeal. Plaintiff’s coun sel was a highly experienced trial attorney who did not hesitate when it came to making a record for appeal on other matters. See,

e.g. , ID# 2168-70, 2436-37. Yet he ine xplicably made no effort to ha ve the district court follow the second and third Batson steps to ensure a proper record for appeal as to Juror #78. 4 While

4 The record reflects why Plaintiff’s counsel probably did not pursue his Batson challenge as to Juror # 78 below. In her jury questionnaire, Juror #78 indicated that she had been involved in a personal injury lawsuit, yet when the district court inquired of the venire whether anyone had been involved in any lawsuits, she did not raise her hand. She explained that “It completely escaped my mind.” ID# 3091. She also stated at a sidebar that the city attorney had charged her husband with domestic violence in 2012 or 2103. ID# 3092-93. She explained that she forgot to mention the incident during the trial cour t’s questioning, because she was “kind of in a fog” that morning due to her diabetes and failure to eat that morning. ID# 3093. In addition, although she did not know him, her son had been represented in a personal injury lawsuit in 2013 by attorn ey Fred Benton, one of the Plaintiff’s defense attorneys in the criminal case arising out of the same incident. ID# 1216, 1239-40, 1263-64, 3093-94 Furthermore, she also failed to mention when asked about contacts with the City A ttorney’s Office that she was criminally charged by that office for passing bad checks in 1992, becau se she didn’t remember. ID# 3094-95.No. 16-3333, Hines v. City of Columbus

-7- not exactly “invited e rror,” Plaintiff should not be allowed to use the appellate process “to profit from the legal consequences of having the ruling set aside” when he could have corrected the error contemporaneously. In re Bayer Healthcare & Merial Ltd. Flea Control Prods. Mktg. & Sales Litig. , 752 F.3d 1065, 1072 (6th Cir. 2014) (quoting Harvis v. Roadway Exp., Inc. , 923 F.2d 59, 61 (6th Cir. 1991)). Thus, we hold that although Plainti ff properly raised the Batson issue with respect to Juror #78 once the purporte d pattern of race-based peremptory challenges occurred (even though the challeng e was not made at the time Juror #78 was struck), Plaintiff failed to make a record in the district court sufficient to preserve the issue for appeal. C. Plaintiff asserts that the district cour t’s comments and rulings “improperly and unnecessarily denigrated Plaintiff’s counsel,” depriving him of a fair trial. Appellant’s Br. at 30. 1. Plaintiff claims on appeal that the district court “repeate dly and unnecessarily chastised Plaintiff’s counsel, often in the presence of the jury.” Appellant’s Br. at 31. We typically review a distri ct court’s conduct during a tr ial for abuse of discretion. United States v. McAllister , 693 F.3d 572, 584 (6th Cir. 2012). Plaintiff did not seek to recuse the district judge and di d not object at trial to the district court’s allegedly objectionable statements. We therefore revi ew the district court’s conduc t simply for plain error. Id. Plain error requires Plaintiff to “show (1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” Id.No. 16-3333, Hines v. City of Columbus

-8- Plaintiff offers only four examples of alleged bias. 5 But none of these isolated comments were anything more than “ordinary e fforts at courtroom administration.” Liteky v. United States , 510 U.S. 540, 556 (1994). At worst, the court disp layed irritation with Pl aintiff counsel’s “habit of arguing with the Court after it’s made a ruling.” ID# 2381-82 (emphasis added). Even so, the remark was made outside of the jury’s earshot, at a sidebar. In short, Plaintiff has not shown bias denying him a fair trial. Cf. United States v. Hickman , 592 F.2d 931, 936 (6th Cir. 1979) (bias shown where the trial judge repeatedly interrupted the proceedings in a manner that favored the government). Consequently, we find no plain error. 2. Plaintiff further claims that his case wa s “undermined by [evidentiary] rulings.” Appellant’s Br. at 32. This court reviews a dist rict court’s evidentiary rulings for abuse of discretion. Burley v. Gagacki , 834 F.3d 606, 617 (6th Cir. 2016). A district court abuses its discretion when it relies on clea rly erroneous facts, improperly applies the law, employs an erroneous legal standard, or comm its a clear error of judgment. Id. (citations omitted). Even if the district court errs, we will reverse only if the error affected the outcome of the trial. Id. Stated differently, if an evidentiary error did not substantially sway the jury and thus did not materially affect the verdict, reversal is not required. Id. (citations omitted). On appeal, Plaintiff lists ten examples of allegedly erroneous evidentiary rulings. See Appellant’s Br. at 32-36. None of these rulings are based on clea rly erroneous facts or improper application of the law. Rather, all were rout ine evidentiary rulings, well within the district court’s proper exercise of its di scretion in evidentiary matters.

5 These included an admonition against stating the grounds for an objection until asked; a decision to withhold ruling on the admission of Plaintiff’s exhibits until the end of the case (in which Plaintiff concurred); irritation with plaintiff counsel’s habit of arguing with the court after its ruling; and a direction to avoid using an exemplar without first seeking permission.No. 16-3333, Hines v. City of Columbus

-9- First, the district court refused to allow Plaintiff to use a skull during Dr. Shiener’s testimony to demonstrate a brain injury. That was not an abuse of discretion. As the court noted, Dr. Shiener “only saw [Plaintiff] for a psyc hiatric counsel,” and th e exhibit could have been “confusing and prejudicial ” to the jury. ID# 2135. Second, it was not an abuse of discretion to bar Plaintiff from introducing during Dr. Shiener’s redirect examination pho tographs of Plaintiff’s facial abrasions because they were not discussed during direct or cross-examination. See United States v. Pope , 335 F. App’x 598, 603 (6th Cir. 2009) (stating that “[t] he tradition in the federal courts has been to limit the scope of redirect examination to the subj ect matter brought out on cross-ex amination”) (internal quotation marks and citation omitted). Third, the district court di d not err in allowing Dr. Sh iener to testify about the metabolizing effects of alcohol in response to questions by defense counsel. Although not a toxicologist, Dr. Shiener is a medical doctor, boa rd-certified in psychiat ry with expertise in addiction psychiatry and theref ore arguably qualified by educati on and experience to understand the metabolizing of alcohol. See Fed. R. Evid. 702. In any event, his testimony was actually favorable to Plaintiff. See ID# 2172-73 (“Q. Now, when we talk about alcohol, based on your knowledge and experience, you know that if a .07 is taken at some point sometime earlier when it actually happened, it would probab ly be higher because of metabol ization, correct? A. No. That’s incorrect. We don’t know, unless we have two blood alcohol levels spaced apart, whether the blood alcohol level is going up or down. . . . What governs alcohol is how much food is onboard and by the higher concentration. . . . As regards Four L oko, it’s around six percent alcohol, and it’s possible, even li kely, that the alcohol was in his stomach, and his blood alcohol level kept going up after this incident.”).No. 16-3333, Hines v. City of Columbus

-10- Fourth, the testimony of Plai ntiff’s friend Anthony Clark re garding Plaintiff’s use of marijuana and related troubles in 2011 was rele vant to challenge Dr. Shiener’s opinion that Plaintiff suffered cognitive and mood impairment due to a secondary tr aumatic brain injury caused by the incident. See ID# 2152. Plaintiff had downplay ed his marijuana usage to Dr. Shiener and told him that he ha d never been in troubl e with the po lice. ID# 2167-68. As the district court observed, heavy mar ijuana usage could be relevant to Dr. Shiener’s diagnosis of his alleged disabilities. ID# 2380-81. See Fed. R. Evid. 403. And Plainti ff testified later in the trial that he had smoked marijuana. ID# 2546. Defe ndants’ failure to obt ain FBI Agent Latisha Hartsough’s testimony about Clark’s prior incons istent statements concerning Plaintiff’s marijuana usage and related trouble became unnece ssary when Clark admitted that Plaintiff had gotten into trouble in 2011 for po ssessing marijuana. ID# 2383.
Fifth, the district court did not abuse its disc retion in telling Plaintiff’s counsel to “move things along” during the di rect examination of Plaintiff, when counsel was atte mpting to elicit testimony on such irrelevant topics as Plaintiff’ s parents’ jobs, his coll ege application process, and his roommates’ majors. See ID# 2492-2501. Even if it wasn’t entirely irrelevant, any probative value of the testimony was substantia lly outweighed by considerations of undue delay or waste of time and was therefore wi thin the district court’s discretion. See Fed. R. Evid. 403.
Sixth, the district court pr operly prohibited Plaintiff from asking defense witness Columbus Police Officer Thomas Page (Page) to offer an opinion as to the appropriateness of the degree of force used on Plaintiff. Page was cal led as a fact witness to explain the officer’s training and was not disclosed as an expert witness. See ID# 2734, 2773. Moreover, from the record it appears that Pl aintiff was attempting to suggest that Page was not asked to provide an opinion regarding Defendants’ use of force because Page found it unreasonable

. See ID# 2773No. 16-3333, Hines v. City of Columbus

-11- (“Q. You don’t have any opinions as to whet her or not the force used on [Plaintiff] was appropriate, correct? A. Well – [Defense c ounsel]: Objection. THE C OURT: Sustained.”). Allowing such testimony would have confused th e jury and unfairly prejudiced Defendants, and was therefore properly excluded under Fed. R. Evid. 403. Seventh, the district court co rrectly stopped Plaintiff’s c ounsel from asking Page on cross-examination about a Department of Justic e review of the City of Columbus’s police department records, because Plai ntiff was referring to an unre lated 1999 lawsuit involving the United States and the City of Columbus that had nothing to do with the City’s striking training. ID# 2801-02. Eighth, the district court prop erly limited Plaintiff from asking Defendant Paxton on cross-examination about her Action Response Report until Plaintiff had elicited inconsistent statements from the witness. See ID# 2277-82. Plaintiff also comp lains that the district court sustained Defendants’ objection to his question to Defendant Pa xton that she was asked to be interviewed by the FBI after the incident at issue. ID# 2276-77. On appeal Plaintiff suggests that he was attempting to show that Paxt on had invoked her Fifth Amendment rights. Appellant’s Br. at 35. However, he told the district court mere ly that it was “relevant because she didn’t give a statement to the FBI, but all the witnesses di d.” ID# 2777. In any event, the probative value was substantiall y outweighed by the danger of unf air prejudice and confusion of the issues. Ninth, the district court prope rly allowed Defendants to impeach Clark with statements he made to FBI Agent Hartsough. See ID# 2726-28. The record refl ects that this questioning was properly done under Fed. R. Evid. 613(b).No. 16-3333, Hines v. City of Columbus

-12- Tenth, Plaintiff’s questioning of Blair Patm on on redirect examination went beyond the scope of cross-examination. Thus, the district c ourt did not abuse its discretion in excluding it. ID# 2011. Furthermore, Plaintiff fails to explain how or why these allegedly erroneous rulings, viewed individually or cumulatively, materially affected the jury’s verdict so as to warrant a new trial. This court has consistently held that “[a] party may not raise an issue on appeal by mentioning it in the most skeletal way, l eaving the court to put flesh on its bones.” Bickerstaff v. Lucarelli , 830 F.3d 388, 396 (6th Cir. 2016) (quoting United States v. Hendrickson , 822 F.3d 812, 829 n.10 (6th Cir. 2016)). “Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argum entation, are deemed waived.” Id. (quoting McPherson v

. Kelsey , 125 F.3d 989, 995 (6th Ci r. 1997). In fact, we do not see how any of these rulings could have had a materially adverse impact on Plai ntiff’s case and find no abuse of discretion. D. Plaintiff challenges the district court’s significant reduction of his requeste d attorney’s fees and costs. We review the cour t’s ruling for abuse of discretion. See Imwalle v. Reliance Med. Prods., Inc ., 515 F.3d 531, 551 (6th Cir. 2008). We gi ve considerable deference to the district court, in light of its “superior unders tanding of the litigation a nd the desirability of avoiding frequent appellate review of wh at essentially are factual matters.” Hensley v. Eckerhart , 461 U.S. 424, 437 (1983). 1. Plaintiff argues that the dist rict court’s 50% across-the-boa rd reduction of the lodestar after already reducing the Fieger Firm’s attorney ’s fees by 136.2 hours and its hourly rates by an average of 36% was an abuse of discretion. Initially, Pl aintiff suggests that the district court’sNo. 16-3333, Hines v. City of Columbus

-13- “animus” against the “out-of-forum” Fieger Firm is the reason for the significant reduction in fees. However, the record reflects that the distri ct court simply applied the well-established rule in this circuit that renown alone is not compensable under fee-shifting statutes, see Coulter v.
Tennessee , 805 F.2d 146, 149 (6th Cir. 1986), abrogated on other grounds by Ne. Ohio Coal. for the Homeless (NEOCH) v. Husted , 831 F.3d 686 (6th Cir. 2016), and that there was no special need for the Fieger Firm “because local counsel, Mr. Goldstein, could have tried this case.” ID# 3118. See NEOCH , 831 F.3d at 716 (stating that “the mere fact that a particular attorney has a national reputation for expertise in the relevant kind of litigation does not constitu te proof that the attorney’s expertise was neces sary to the litigati on”) (internal quotation marks, brackets, and citation omitted). Plaintiff claims that Harringt on and Goldstein “took a team approach to this litigation,” pointing out that Ha rrington conducted voir dire, gave opening statements and closing arguments, and handled most of the witness examinations. Appellant’s Br. at 37-38. But Plaintiff does not dispute the di strict court’s finding that Goldst ein “did most of the work in discovery and examined witnesses at trial,” ID # 3118, or its finding that “Mr. Harrington’s trial preparation was excessive, possibly the result of his lack of involvement in the case until after the summary-judgment stage.” ID# 3117. Plaintiff has failed to show that the district court’s rulings were animated by out-of-forum animus rath er than application of settled law in this circuit regarding out-of-town counsel. See NEOCH , 831 F.3d at 716; Hadix v. Johnson , 65 F.3d 532, 535-36 (6th Cir. 1995); Coulter , 805 F.2d at 149; see generally McKelvey v. Sec’y of U.S. Army , 768 F.3d 491, 494 (6th Cir. 2014) (stating that co urt of appeals must “be mindful of the trial court’s ring-side view of the proceedings”). Insisting that “the verdict is against the great weight of the evidence” and that “the evidence supported a much larger verdict,” Plaintiff claims th at the district court wronglyNo. 16-3333, Hines v. City of Columbus

-14- focused on the amount of the verdict. Appellant’s Br. at 47. The district court observed that Plaintiff’s overall relief “was slight in rela tion to the hours expended on the litigation,” noting that Plaintiff “prevailed on only one of his many claims against only one of the five officers he sued.” ID# 3120. The court compared the size of the jury verdict ($30,000) to Plaintiff’s last settlement demand ($5,000,000), and Defendants’ last settlement offer ($10,000). Id. The verdict was .6% of what Plaintiff asked for, and th e requested attorneys’ f ees were ten times that

amount. Id. The district court did exactly what Hensley requires—it looked to the degree of success obtained. See Hensley , 461 U.S. at 434-36 (holding that the lodestar calculation “does not end the inquiry,” and that the court al so must look to “other considera tions,” including “the important factor of the ‘results obtained’”). “[T]he most critical factor is the degree of success obtained.” Id . at 436. Indeed, a trial court abuses its discretion when it does not consider the relationship between the fee awarded and the success obtained. See Dean v. F.P. Allega Concrete Const. Corp. , 622 F. App’x 557, 559 (6th Cir. 2015). Consider ing a rejected settlement offer is one way of measuring the degree of success. McKelvey , 768 F.3d at 495 (quoting Farrar v Hobby , 506 U.S. 103, 114 (1992)). 6 “Few, if any, reasonable litigants would call a monetary judgment that comes in well under the money offered to settle the case a success.” Id. Moreover, when a plaintiff achieves limited success, a fee awar d based on the lodestar calculation may be excessive, even if the claims are interrelated and nonfrivolous. Hensley , 461 U.S. at 436. Plaintiff argues that McKelvey is inapposite because it involv ed an award of attorney’s fees under the Fed. R. Civ. P. 68 and not § 1988. This is incorrect. McKelvey involved the

6 In McKelvey , the focus was on the defendant’s settlement offer, wh ich was higher than the jury award. Here, the jury verdict was higher than Defendants’ last settlement offer, but not by much. The district court compared the award to Plaintiff’s final settlement demand, which we be lieve is an equally valid measure of lack of success obtained.No. 16-3333, Hines v. City of Columbus

-15- award of attorney’s fees under 29 U.S.C. § 794a(b) of the Rehabilitation Act of 1973. See McKelvey , 768 F.3d at 494. McKelvey rejected the argument that the existence of Rule 68 prevents district courts applying fee-shifting statutes from consider ing rejected settlement offers. See id. at 496 (stating that the “overlapping function” of Rule 68 and reductions to the lodestar based on prior settlement offers “does not divest di strict courts of discre tion to consider those offers when setting a reasonable attorney’s f ee under § 794a(b) and othe r similar fee-shifting statutes that treat fees as part of costs”). Plaintiff also gets it wrong when he claims that McKelvey “never analyzed § 1988 and never cited Hensley .” Appellant’s Br. at 48. 7 McKelvey cites Hensley , the seminal case on attorney’s fees under 42 U.S.C. § 1988, for its key proposition that “‘the most critical factor’ to a reasona ble fee ‘is the degree of success obtained.’” McKelvey , 768 F.3d at 495 (quoting Hensley , 461 U.S. at 436) (alteration omitted). McKelvey ’s reliance on Hensley is not remarkable since, as McKelvey obviously recognized, the two statutes contain virtually id entical language. Compare § 794a(b) (stating that under the Rehabilitation Act “the court, in its discreti on, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs”), with § 1988(b) (stating that under § 1983 and similar statutes “the court, in its discretion, ma y allow the prevailing party, other than the United States, a reasonable attorney’s f ee as part of the costs”). Plaintiff asserts that this case in analogous to DiLaura v. Township of Ann Arbor , 471 F.3d 666 (6th Cir. 2006), where the district c ourt reduced by 60% the requested attorneys’ fee award because the plaintiffs ultimately prevailed on only one of their claims. Id. at 669. We held that was an abuse of discretion because the case involved a common core of facts. Id. at 672-73. The lower court therefore erred in treating the various claims as distinct, reducing the

7 Plaintiff also points out that McKelvey did not cite Perdue v. Kenny A ex rel. Winn , 559 U.S. 542 (2010). But in Perdue the Supreme Court was troubled by the district court’ s failure to properly justify why it had increased the requested fees by 75 per cent rather than by some other arbitrary figure. Id. at 557.No. 16-3333, Hines v. City of Columbus

-16- fees based on a strict win- loss ratio, in violation of Hensley

. See id. at 673. Although the district court in this case remarked that Plaintiff “f ail[ed] to prevail” on unrelated claims, and “remain[ed] mindful” that Plaintiff succeeded on only one claim, it nonetheless focused on the significance of the overall relief obt ained rather than dividing hours, in part because the billing statements made it difficult to divide the hour s expended on a claim-by-claim basis. ID# 3119- 20. In essence, Plaintiff is claiming that because the jury should have returned a higher damages award, the district court should not have used that amount in a ssessing the degree of success obtained. In other words, he is basically asking us to override the jury’s evaluation of the merits of the case—at least to the extent of measuring reasonable attorneys’ fees. But credibility determinations, weight to be given th e evidence, and inferences to be drawn from the facts are quintessentia lly jury functions, see Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 255 (1986), and the Supreme Court has told us that the measure of reasonable attorneys’ fees goes hand-in-hand with the damages award, see Hensley , 461 U.S. at 435-36. We decline to circumvent the Court’s directive. Second, Plaintiff contends that the district court failed to e xplain adequately its award. Hensley also requires that a district court “provide a concise but cl ear explanation of its reasons for the fee award.” Id . at 437. The district cour t did that as well. The district court noted that Plaintiff brought multiple claims against multiple defendants, but prevailed on only one claim against one defendant. Moreover, the monetary relief awarded was slight compared to Plaintiff’s projection of the case in his settlement offer. As the district court correctly noted, “although important,” the verdict was “only a sliver of the m onetary success [Plaintiff] soughtNo. 16-3333, Hines v. City of Columbus

-17- and only slightly more than Defendant offere d to settle the case.” ID# 3121. The court’s analysis easily satisfies Hensley’s requirement of a “clear bu t concise explanation.” Plaintiff also claims that the district court did not explain why it chose 50%. Cf. Perdue v. Kenney A ex rel. Winn , 559 U.S. 542, 557 (2010). But as the district court explained, Plaintiff’s monetary success was “slight,” and only a “sliver” of the monetary j udgment Plaintiff sought. Nonetheless, the court did not reduce the attorneys’ fees award by a commensurate

amount. 2. Plaintiff also objects to the 40% across-the-board reduction of the Fieger Firm’s costs. Section 1988 permits the award of “those inci dental and necessary expenses incurred in furnishing effective and competent representation.” Ohio Right to Life Soc., Inc. , v. Ohio Elections Comm’n , 590 F. App’x 597, 605 (6th Cir. 2014) (quoting Waldo v. Consumers Energy Co. , 726 F.3d 802, 827 (6th Cir. 2013)). This in cludes photocopying, paralegal expenses, and travel and telephone charges. Id. The district court disallowed a ll expert-witness fees and trav el expenses for out-of-town counsel 8 and applied a 40% reduction to the Fieger Fi rm’s remaining bill of costs, after noting that some of the costs appeared excessive; e.g. , more than $8,000 in phone and copying costs alone (including $158 for three phone calls, and the Fieger Firm’s rates for document reproduction, which included a $920 charge to repr oduce exhibits before trial). ID# 3125. The court did not reduce the Goldstein Fi rm’s bill of costs. ID# 3126. Plaintiff maintains that “out-of-forum” animus also motivated the district court’s decision to reduce costs. Appellant’s Br. at 53. We reject this argumen t for a second time. Because the district court found that out-of-fo rum counsel’s efforts were unnecessary, it was not irrational or

8 Plaintiff does not challenge e ither of these two rulings.No. 16-3333, Hines v. City of Columbus

-18- unreasonable to conclude that the associated co sts were somewhat duplicative and in the same proportion as the attorney s’ fees reduction. Cf. Coulter , 805 F.2d at 152 (stating that where duplication, which is difficult to measure, is a problem, the district court may have to make across-the-board reductions by re ducing certain items by a percen tage figure). Moreover, his appeal brief fails to provide any citations to au thority or the record to support his argument. See Fed. R. App. P. 28(a)(8)(A) (requiring appellant’ s brief to provide “cont entions and the reasons for them, with citations to authorities and parts of the record on which the appellant relies”). III. For the foregoing reasons we AFFIRM the distri ct court’s entry of judgment and the fees award.