The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
ORDER ADOPTING REPORT AND RECOMMENDATION
On February 14, 2012, Chief United States Magistrate Judge Candy W. Dale issued a Report and Recommendation (Docket No. 247) in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. Plaintiff filed an objection on March 2, 2012 (Dkt. 248) and Defendant Donald Blair filed a response to the objection on March 12, 2012. The matter is now ripe for the Court's review.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39(clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).
Judge Dale determined Plaintiff Kevin Mays ("Mays") was the prevailing party in his claims against Defendant Blair and recommended awarding $84,791.41 in attorneys fees and costs to Mays. Mays objects to the magistrate judge's failure to include in the award of attorneys fees the attorneys fees incurred defending the related criminal charges against Mays and the seventy-five percent (75%) reduction based on Plaintiff's limited success. The Court will address each of these objections.
The Court is very familiar with this case since it ruled on the dispositive pre-trial motions and conducted the jury trial on Mays' claim of excessive force by both city and county law enforcement officers. The Court adopts the factual background set forth in the Report and Recommendation and incorporates the same by reference.
1. Failure to Include Attorneys Fees Incurred for Related Criminal Charges
Plaintiff argues it was error for the magistrate judge not to include the attorneys fees related to the criminal charges that resulted when Mays was arrested. The Court respectfully disagrees. The Court finds this request for attorneys fees as damages was previously rejected by the Court.
While it is possible for the costs of certain related criminal charges to be included as damages in a § 1983 claim, that is not what occurred in this case. Plaintiff did not timely disclose his "damages" comprised of attorneys fees to successfully defend the criminal charges Mays faced as a result of his arrest on December 23, 2006: resisting arrest and obstruction of justice. See motions in limine filed by Defendants, Dkts. 137 and 138. The Court heard oral argument on this motion in limine and allowed Plaintiff to make an offer of proof as to the alleged damages. The Court orally ruled Plaintiff would not be allowed to submit such "damages" to the jury on the excessive force claim.
Now, Plaintiff is trying to include the same damages as "attorneys fees" under § 1988. When the claim for damages was rejected by this Court, this did not open the door for Plaintiff to ignore the Court's prior ruling and re-characterize the damages as "§ 1988 attorneys fees." Borunda v. Richmond, 885 F.2d 1384, 1389-90 (9th Cir. 1989) is controlling on this issue that these criminal defense attorneys fees are compensable damages, not attorneys fees under § 1988. The Borunda court cited Kerr v City of Chicago, 424 F.2d 1134, 1141 (7th Cir. 1970) for the specific proposition that a "plaintiff in a civil rights action is allowed to recover the attorneys' fees in a state criminal action where the expenditure is a foreseeable result of the acts of the defendant." Id. In this case, the Court determined these economic harm damages were not timely disclosed by Plaintiff (since such were known before the civil complaint was filed and such were not provided to defendants until shortly before the start of the trial) and Plaintiff offered the Court no legal authority for the submission of the damages at the time of trial.
Moreover, Plaintiff did not seek these criminal attorneys fees in his prayer for relief in his Second Amended Complaint. The Court finds the § 1983 claim of excessive force did not require that Plaintiff successfully defend the criminal charges received on the same date as the alleged excessive force ...