UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

 Case No. 2:09-cv-12224 

 Plaintiff, 

v. Hon. Denise Page Hood 

 

BENNY NAPOLEON, In his Official Magistrate R Steven Whalen 

Capacity as Sheriff of Wayne County 

 Defendant. 

______________________________________/ 

PLAINTIFF’S REPLY IN SUPPORT OF AWARDING ATTORNEY FEES 

AS A PREVAILING PARTY

Plaintiff states in reply to Defendant’s response the following: 

I. ATTORNEY HOURLY RATE 

 Originally MPAS sought an hourly rate of $250.00. [Docket Item No. 15] 

However, in light of a recent decision by U.S. District Judge Patrick Duggan of the 

Eastern District of Michigan, MPAS reduced the hourly rate requested to $200.00 an 

hour. [Docket Item No. 40, p.2.] [Opinion and Order, Exhibit #1] In his decision, Judge 

Duggan relied on the U.S. Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 

424, 103 S.Ct. 1933 (1983). The Court further relied on the State Bar of Michigan 2007 

Survey to determine a reasonable hourly rate of $200.00 for myself. 

 In this case, Plaintiff’s counsel has secured an important outcome for the client by 

clarifying Plaintiff’s rights to obtain records for investigations into allegations of abuse 

and neglect. Furthermore, the decision clarified the rights and responsibilities of the 

P&A system in obtaining records when the Health Insurance Portability and 

Accountability Act of 1996 (HIPAA), Pub.L. 104-191, is invoked as a reason to deny 

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access to records. Determining the rights of the P&A system under the P&A Acts in 

relation to HIPAA is a highly specialized and specific area of the law and further justifies 

the requested hourly rate. 

Given the fact that the Defendant has cited no change in circumstance for

deviating from such a recent decision, the favorable outcome obtained and the specific

legal specialty required to obtain the outcome, Plaintiff would ask the court to find that 

$200.00 to be a reasonable hourly rate in this case. 

II. BILLING ISSUES & CORRECTIONS 

a. The 4/7/10 Phone Calls and Calls with the Court: Defendant’s 

objections to these billing issues are without merit. The 4/7/10 entry notes that “Calls to 

opp counsel” were made. The note does not indicate I spoke with defense counsel or that 

I left any messages for defense counsel. It states that “calls” were made to the opposing

counsel. I do not dispute that defense counsel was out of town that day and that we did 

not speak. But it appears I tried calling at least twice that day and did not get in touch 

with him. As for the length of time spent on the phone calls made on 4/7/10 and the calls 

to the court, when I enter a time entry for a phone call I include time preparing (such as 

reviewing documents or rules) to make the call, hold time, the actual time on the phone

and any time spent making notes or entering time. The time entered is an accurate

statement of all the time I spent that was related to or concerned with making the 

telephone call. 

b. Rescheduling Status Conference – Reduction of $260.00: Plaintiff 

requested this rescheduling of the status conference and agrees with Defendant that they 

should not be billed for this time. The three time entries concerning the rescheduling are 

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being withdrawn. This is indicated on our revised billing by reducing the billing amount

to -0- dollars. [Exhibit #2.] 

c. Alleged “Non Events”: Defendant argues that reviewing an order of 

the Court is a non-event and is therefore not billable. Plaintiff respectfully disagrees. 

When the Court issues an order, counsel is expected to review, docket deadlines and to

otherwise be aware of and mindful of what the court has ordered. Therefore, the time

spent reviewing an order and docketing it is a legitimate billing. 

d. Settlement Conference, Witness List & Sufficiency of Documentation:

Plaintiff believes that Defendant’s arguments in relation to these billings are without 

merit and that these entries reflect the time Plaintiff’s counsel spent on these tasks. Every 

entry has a designated activity category providing the Court with information about what 

task was being done. In addition, more information is provided in the detail section. 

Plaintiff’s counsel has not added any detail that was not in our original entry with two 

exceptions.1

 Not a single entry is made without documenting the general category or 

activity being performed. There are more than one hundred time entries and less than ten 

are without a detail entry in addition to the general activity entry. One of these actually

relates to an appearance in court. For these reasons, Plaintiff asks the court to allow these 

billing entries. 

e. Corrections – Reduction $60.00 : Plaintiff’s counsel conducted a review 

of its billing entries due to Defendant’s allegations. There were a few corrections that 

needed to be made. The entry for 3/29/10, “E-mails w/ opp counsel,” this entry should be 

dated 3/28/10 [this has been noted in Exhibit #2.]. Two entries on 4/15/10, “e-mails w/ 

 

1

 In time entries dated 6/8/09 and 6/9/09, I added the detail “complaint” in reference to what “LegalWriting” was being done. This is based on my case notes and the fact that the complaint was the only 

“writing” that was being done at that time in relation to this case. 

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sara” and “e-mails w/ Elmer”, should be dated 4/14/10 and the correction has been noted 

in the attached exhibit. The entry dated 4/15/10, “E-mail w/ JS re settlement,” is being

removed because we do not have copy of the e-mail. Finally, entries on 3/25/10 and 

4/14/10, “Met w/ James,” should read “spoke w/” not “met.” The general activity 

column clearly states these were telephone calls and not meetings so these entries were 

corrected to reflect this. 

III. SPLITING TIME BETWEEN THE TWO INMATE CASES 

Defendant agrees that Plaintiff’s solution of reducing by half the billing entry for 

billing in regard to both inmates is a fair way to bill. [Defendant’s Response, p. 13.] 

Defendant, however, argues Plaintiff is inconsistent and that everything prior to the 

Plaintiff’s Reply brief dated July 7, 2010, should be halved. Plaintiff proposes that time

entries prior to June 21, 2010, be split, with some noted exceptions. June 21, 2010 was 

the date of our status conference with the Court, and it is my recollection that I informed 

the Court and opposing counsel that we were not proceeding any further as to Inmate #2, 

because we had not obtained consent from the personal representative of his estate. 

Additionally, those time entries prior to June 21, 2010, that clearly relate to 

Inmate #1 only, should not be reduced by half. These entries are as follows: 10/19/09 

and 10/21/10 – these are calls to attorneys that the Defendant told MPAS represented 

Inmate #1’s estate. Entries on 2/2/10, 3/29/10, 3/31/10 and 4/1/10 relate to reviewing 

documents produced by Defendant for Inmate #1 and are separate from time spent 

reviewing documents for Inmate #2. Finally, the entry on 4/14/10 regarding research on 

HIPAA was for Inmate #1 only. MPAS had agreed to seek the consent of the personal 

representative of the estate of Inmate #2, so HIPAA related only to Inmate #1 where there 

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Case 2:09-cv-12224-DPH-RSW ECF No. 42, PageID.430 Filed 12/27/10 Page 4 of 5
was no personal representative to contact. This research therefore relates only to Inmate

#1. This clarification simplifies things as Defendant suggested. It also results in a 

reduction of nearly $4,000.00 of MPAS’ attorney fee request. In our revised billing, the 

time entries that were previously billed at the full amount, have been split and are noted 

with an asterisk next to the “Y” in the “Shared” column. 

In conclusion, with the changes noted above, Michigan Protection and Advocacy

Service, Inc. respectfully requests the Court to award it attorney fees in the amount of 

$12,440.00. This is a reduction from $16,520.00 as requested in Plaintiff’s Supplemental

submission on October 28, 2010. 

Respectfully submitted, 

Dated: December 27, 2010 s/Chris E. Davis

 MICHIGAN PROTECTION & 

 ADVOCACY SERVICE, INC. 

 Attorney for Plaintiff 

 29200 Vassar Blvd., Suite 200 

 Livonia, MI 48152 

 (248) 473-2990 

 cdavis@mpas.org

 P52159 

CERTIFICATE OF SERVICE

I hereby certify that on December 27, 2010, I electronically filed the foregoing Plaintiff’s 

Reply in Support of Awarding Attorney Fees as a Prevailing Party with the Clerk of the 

Court using the ECF system which will send notification of such filing to the following: 

James M. Surowiec. 

s/Chris E. Davis

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

248-473-2990 

cdavis@mpas.org

P52159 

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