Lieberenz v. Board of County Commissioners of the County of Saguache, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-00628-NYW-NRN
SARAH LIEBERENZ, as personal representative of THE ESTATE OF JACKSON
MAES,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SAGUACHE,
COLORADO, in its official capacity,
SAGUACHE COUNTY SHERIFF’S OFFICE,
DAN WARWICK, in his official capacity,
KENNETH WILSON, in his individual capacity, and
MIGUEL MACIAS, in his individual capacity.
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
This matter is before the Court on two post-trial motions:
(1) Plaintiff’s Motion for Attorneys’ Fees and Prejudgment Interest (“Motion for
Attorneys’ Fees”) [Doc. 335, filed May 9, 2025];1 and
(2) Plaintiff’s Motion for Review of Clerk’s Taxation of Macias’ Bill of Costs
(“Motion for Review of Costs”) (Doc. 345) [Doc. 346, filed August 4, 2025].
Upon review of the Motions, associated briefing, and the entire docket, this Court
finds that oral argument will not materially assist in the resolution of these matters. For
1 Where the Court refers to the filings made in Electronic Case Files (“ECF”) system in
this action, it uses the convention [Doc. ____]. When citing to docket entries in the
appellate case, the Court uses the convention [ECF No. ___]. In both instances, the
Court references the page number assigned by the ECF system.
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the reasons set forth below, Plaintiff’s Motion for Attorneys’ Fees is GRANTED in part
and DENIED in part, and Plaintiff’s Motion for Review of Costs is DENIED.
BACKGROUND
The factual background of this case has been previously discussed in detail by
both this Court and the United States Court of Appeals for the Tenth Circuit (“Tenth
Circuit”), see, e.g., [Doc. 187; Doc. 207; Doc. 225], and accordingly, it is discussed only
sparingly here. On November 16, 2019, Jackson Maes (“Mr. Maes”) was arrested for a
warrant for failure to appear on traffic offense, and was transported to Saguache County
Jail (“SCJ”). Upon arrival at SCJ, he was placed in Cell One. Over the course of the
evening, Defendants Kenneth Wilson (“Defendant Wilson”) and Defendant Miguel Macias
(“Defendant Macias”) both interacted with Mr. Maes and heard Mr. Maes indicate that he
was trying to kill himself. At approximately 10:22 p.m., Mr. Maes committed suicide.
Plaintiff Sarah Lieberenz (“Plaintiff” or “the Estate”),2 in her individual capacity and
as personal representative of the Estate of Jackson Maes, initiated this action on March
3, 2021 against Defendants Wilson and Macias, as well as Defendants Board of County
Commissioners (“the Board”); the Saguache County Sheriff’s Office (“SCSO”), and Dan
Warwick, in his official capacity as Sheriff of Saguache County (“Sheriff Warwick”); Elke
Wells, in her individual capacity (“Ms. Wells”); and Shelby Shields, in her individual
capacity (“Ms. Shields”). [Doc. 1]. In her Complaint, Ms. Lieberenz asserted eleven
causes of action: (1) Inadequate Physical Plant – Conditions of Confinement (42 U.S.C.
§ 1983) against the Board (“Count One”); (2) Inadequate Funding – Conditions of
2 Consistent with its practice after its ruling that Ms. Lieberenz only proceeded in her
capacity as personal representative of the Estate of Mr. Maes, the Court refers to Plaintiff
as “Plaintiff” or “the Estate.” See, e.g., [Doc. 207 at 1 n.1].
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Confinement (42 U.S.C. § 1983) against the Board (“Count Two”); (3) Inadequate
Supervision – Policy or Practice (42 U.S.C. § 1983) against Sheriff Warwick in his official
capacity (“Count Three”); (4) Inadequate Training – Policy or Practice (42 U.S.C. § 1983)
against Sheriff Warwick in his official capacity (“Count Four”); (5) Inadequate Staffing –
Policy or Practice (42 U.S.C. § 1983) against Sheriff Warwick in his official capacity
(“Count Five”); (6) Supervisory Liability (42 U.S.C. § 1983) against Defendant Wilson in
his individual capacity (“Count Six”); (7) Individual Liability (42 U.S.C. § 1983) against
Defendant Wilson in his individual capacity (“Count Seven”); (8) Individual Liability (42
U.S.C. § 1983) against Defendant Macias in his individual capacity (“Count Eight”);
(9) Individual Liability (42 U.S.C. § 1983) against Defendant Wells in her individual
capacity (“Count Nine”); (10) Individual Liability (42 U.S.C. § 1983) against Defendant
Shields in her individual capacity (“Count Ten”); and (11) Negligent Supervision of a Jail
(C.R.S. § 24-10-106(1)(b)) against the Board, the SCSO, and Sheriff Warwick (“Count
Eleven”). See [id. at 25–35].
Defendants the Board, SCSO, Warwick, Shields, and Wilson (“County
Defendants”) filed an Answer on April 30, 2021. [Doc. 40]. Defendant Wells also filed an
Answer that same day. [Doc. 41]. Defendant Macias filed his Answer on May 20, 2021.
[Doc. 45]. On June 30, 2025, Defendant Macias filed a Motion for Partial Summary
Judgment.3 [Doc. 101]. The County Defendants and Defendant Wells respectively filed
Motions for Summary Judgment. [Doc. 102; Doc. 104].
3 The County Defendants and Defendant Wells also moved to join Defendant Macias’s
Motion for Partial Summary Judgment. [Doc. 103; Doc. 105].
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The Court granted in part and denied in part Defendant Macias’s Motion for Partial
Summary Judgment. [Doc. 187]. The Court held that Ms. Lieberenz could not bring any
claims in her individual capacity pursuant to 42 U.S.C. § 1983, and therefore, granted
summary judgment in favor of Defendant Macias, the County Defendants, and Defendant
Wells on Counts One through Ten, insofar as they asserted any cause of action or
damages suffered by Ms. Lieberenz as an individual. [Id. at 9]. The Court further
precluded any damages for loss of consortium to Ms. Lieberenz, as opposed to loss of
consortium to Mr. Maes. [Id. at 11]. But the Court declined to grant summary judgment
in favor of Defendants for (1) funeral expenses; (2) Mr. Maes’s mental pain, anguish, and
emotional distress; (3) Mr. Maes’s physical pain and suffering; (4) Mr. Maes’s loss of
enjoyment of life; and (5) Mr. Maes’s loss of life. [Id. at 12–13].
The Court also granted in part and denied in part the County Defendants’ Motion
for Summary Judgment and granted Defendant Wells’ Motion for Summary Judgment.
[Doc. 207]. Specifically, the Court granted summary judgment in favor of the County
Defendants on Counts One, Three, Five, Nine and Ten; on Count Four, insofar as Plaintiff
raised theories of liability based on a lack of training regarding suicide contracts; physical,
funding, and staffing decisions of the SCJ; and mental health clearance for intoxicated
persons expressing acute suicidal ideation. [Id. at 66]. But the Court denied summary
judgment as to Count Two; Counts Six and Seven as to Defendant Wilson; and Count
Four, insofar as Plaintiff raised theories of liability based on failure to train jail staff on
elevating care and removing items that could be used to facilitate suicide. [Id.]. The Court
also granted Defendant Wells’ Motion for Summary Judgment in its entirety. [Id.].
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Defendant Wilson appealed the Court’s denial of qualified immunity, and the Estate
cross-appealed on February 28, 2023, and March 14, 2023, respectively. [Doc. 208; Doc.
216]. After the Tenth Circuit affirmed the denial of summary judgment as to Defendant
Wilson, and dismissed the Estate’s cross-appeal on June 12, 2024, [Doc. 225; Doc. 228],
the Court set the matter for trial, [Doc. 233]. Ultimately, Plaintiff dismissed Count Eleven
for Negligent Jail Operations, [Doc. 266 at 5], and proceeded to trial on five claims: Count
Two for deliberate indifference arising from inadequate funding against the Defendant
Board; Count Four for deliberate indifference arising from inadequate training against
Defendant Warwick in his official capacity; Count Six for supervisory liability against
Defendant Wilson arising from his supervision of Defendant Macias; Count Seven for
deliberate indifference against Defendant Wilson as an individual; and Count Eight for
deliberate indifference against Defendant Macias as an individual.4 [Doc. 329].
After a seven-day trial, the jury found in favor of Plaintiff on its claims of deliberate
indifference against Defendant Wilson as an individual; deliberate indifference arising
from inadequate training against Defendant Warwick in his official capacity; and deliberate
indifference arising from inadequate funding against the Defendant Board. [Id.]. Final
judgment entered on April 11, 2025. [Doc. 330].
On May 9, 2025, Plaintiff filed the instant Motion for Attorneys’ Fees. [Doc. 335].
On July 30, 2025, the Clerk of the Court taxed costs in the amount of $15,409.82 against
Plaintiff in favor of Defendant Macias. [Doc. 345]. Plaintiff’s Motion for Review of Costs
4 The Counts were renumbered and denominated Claims One through Five for the
purpose of trial. See [Doc. 329].
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followed on August 4, 2025. [Doc. 346]. These Motions are fully briefed and ripe for
determination.
LEGAL STANDARDS
Section 1988 of Title 42 of the United States Code provides inter alia that “the
court, in its discretion, may allow the prevailing party . . . a reasonable attorneys’ fee as
part of the costs,” including in suits brought pursuant to 42 U.S.C. § 1983. 42 U.S.C. §
1988(b); Fox v. Vice, 563 U.S. 826, 832–33 (2011). A prevailing plaintiff in a civil rights
action should ordinarily recover attorney’s fees—even if she is not successful on every
claim. See Fox, 563 U.S. at 834. Nevertheless, the fee award should not reimburse the
plaintiff for work unrelated to the grant of relief. Id. The burden of proof as to the
reasonableness of attorney’s fees, costs and expenses falls upon the Estate. See
Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002)
(observing, in context of a fee request under 42 U.S.C. § 1988, that a claimant requesting
attorney’s fees has the burden to prove that the fee is reasonable).
To calculate the reasonable attorney’s fee under § 1988, the Supreme Court has
endorsed the lodestar methodology of multiplying the number of hours reasonably
expended on the litigation by a reasonable hourly rate as “[t]he most useful starting point
for determining the amount of a reasonable fee[.]” Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). While there is a “strong presumption” that the lodestar figure is reasonable,
in some instances, that presumption may be overcome if the lodestar does not adequately
account for a factor that may properly be considered in determining a reasonable fee.
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). In cases of exceptional
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success, an enhanced award may be justified under § 1988. See Hensley, 461 U.S. at
435.
As a general rule, the amount of an attorney’s fees award is within the discretion
of the Court. See, e.g., id. at 433, 437. “Courts need not identify and justify every hour
allowed or disallowed, as doing so would run counter to the Supreme Court’s warning that
a request for attorney’s fees should not result in a second major litigation.” United States
ex rel. Shepard v. Grand Junction Reg’l Airport Auth., No. 13-cv-00736-CMA-CBS, 2017
WL 11556405, at *2 (D. Colo. July 24, 2017) (quotation omitted). In reviewing a fees
request, this Court heeds the Supreme Court’s admonition that “[t]he essential goal in
shifting fees . . . is to do rough justice, not to achieve auditing perfection. So trial courts
may take into account their overall sense of a suit, and may use estimates in calculating
and allocating an attorney’s time.” Fox, 563 U.S. at 838.
ANALYSIS
I. Motion for Attorney’s Fees
A. Reasonable Hours Expended
The Court begins its analysis with consideration of the “reasonable hours”
component of the lodestar calculation. The Estate seeks compensation for 1,060.4 hours
of work performed by J. Spencer Bryan (“Mr. Bryan”) of the law firm Bryan and Terrill Law,
PLLC (“BT Law”) and offers Mr. Bryan’s Declaration in support. [Doc. 335-1 at ¶ 25; Doc.
335-1 at 75–171]. It also seeks compensation for hours expended by attorneys and non-
attorneys associated with the law firm of Dormer Harping (“DH”) as follows:5
5 The Court subsequently refers to each of these professionals by title and last name. It
has attempted to use the appropriate salutation but apologizes in advance if it
inadvertently uses an incorrect one.
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[Doc. 335-2 at 21]. Thus, DH attorneys claim an aggregate of 1,727 hours and non-
attorneys claim an aggregate of 818.7 hours. [Id.]; see also infra note 7. And the Estate
submitted the Declaration of Devi M. Rao (“Ms. Rao”), of the Roderick & Solange
MacArthur Justice Center (“MJC”), in support of the instant Motion, seeking compensation
for hours expended by MJC employees:
[Doc. 335-4 at 8]. Thus, MJC claims an aggregate of 436.47 hours of attorney time and
6.31 hours of non-attorney time. [Id.].
In evaluating whether the hours claimed by counsel are reasonable, the Court
weighs factors such as “(1) whether the amount of time spent on a particular task appears
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reasonable in light of the complexity of the case, the strategies pursued, and the
responses necessitated by an opponent’s maneuvering; (2) whether the amount of time
spent is reasonable in relation to counsel’s experience; and (3) whether the billing entries
are sufficiently detailed, showing how much time was allotted to a specific task.” Franklin
D. Azar & Assocs., P.C. v. Farmers Ins. Exch., No. 13-cv-00658-CMA-CBS, 2013 WL
5430779, at *1 (D. Colo. Sept. 26, 2013).
The County Defendants argue that Plaintiff’s claimed fees reflect a significant
number of duplicate, excessive, or unclear billing entries. [Doc. 342 at 11; Doc. 342-2;
Doc. 342-4]. They further take issue with the practice of block billing, contending such
practice “makes it nearly impossible to determine what portion of an attorney’s time is
compensable, particularly when it includes things that are not compensable or
compensable at a reduced rate, such a travel time.” [Doc. 342 at 11]. Upon review of the
Motion for Attorney’s Fees and the supporting documentation, as well as the entire
docket, this Court finds it appropriate to consider each distinct organization’s fees but
observes that many of the deficiencies are shared across law firms.
1. BT Law
The Court first considers the time entries provided by Mr. Bryan in support of the
1,060.4 hours, and observes that compiling raw totals of hours spent alone is insufficient,
because the amount of time actually expended is not the same as the amount of time
reasonably expended. Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), overruled on
other grounds by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711
(1987). Instead, an attorney must exercise billing judgment in submitting a request for
fees. “Where an attorney has failed to exercise billing judgment, the court may do so for
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him by striking problematic entries or by reducing the hours requested by a percentage
intended to substitute for the exercise of billing judgment.” Varley v. Midland Credit Mgmt.,
Inc., No. 11-cv-02807-REB-MJW, 2012 WL 2107969, at *2 (D. Colo. June 11, 2012). In
its review, the Court has considered each entry insofar as it was provided, and concludes
that there are several categories of hours that aggregate to a significant number of hours
that are not compensable as reasonable attorney’s fees.. Each section reflects
representative examples but is not intended to contain an exhaustive list.
Case Preparation Entries. There appear to be several subcategories of entries
related to the preparation for the case, rather than the actual litigation of the action that
are not recoverable. For example, Mr. Bryan seeks reimbursement for the intake of the
case, as well as for negotiating a co-counsel agreement and internal coordination with
counsel, see, e.g., [Doc. 335-1 at 75 (3/6/20 – 3/19/20 entries)], but provides no
explanation or authority for the proposition that these types of activities are compensable
under § 1988, see Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir. 2000) (observing that
determining whether certain fees are normally absorbed as part of law firm overhead
involves a factual inquiry into the billing practices of law firms in the region who provide
services to fee-paying clients). Indeed, DH has not charged for most similar entries. See
[Doc. 335-2 at 33 (2/3/20 entry; 2/13/20 entry; 3/6/20 entry; 3/20/20 entry)]. Another
example is Mr. Bryan appears to have assisted in the setting up of the Estate. See e.g.,
[Doc. 335-1 at 84 (1/14/21 entry (“EM from SB re: Estate setup decision for Maes
complaint”), 85 (1/22/21 (“[p]reparing estate docs for Maes case”; 1/26/21 (“EM from SB
re: Follow up on estate setup for Maes”), 2/2/21 (“EM from SB re: Finalizing estate docs
for Maes case”)]. While Mr. Bryan may properly bill the Estate for such prefatory work to
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ensure that the claims are brought by the correct entity and/or individual, such fees are
not properly passed on to the opposing party. Similarly, Mr. Bryan has claimed hours for
communications regarding experts prior to their retention. See, e.g., [id. at 93 (regarding
Haynes), 104 (10/25/21 “RR backgrnd re Dr. Donald Misch re: psychiatric expert”)]. In
this Court’s experience, such preparatory work should not be billed to clients, and “[h]ours
that are not properly billed to one’s client are not properly billed to one’s adversary
pursuant to statutory authority.” Ramos, 713 F2d at 553 (quotation omitted).
Engagement with Media. In addition, this Court will not permit recovery of hours
claimed for counsel’s engagement with the media. See [Doc. 335-1 at 83 (documenting
various calls with reporters; emailing co-counsel “re potential story ideas”)]. While the
Estate was certainly at liberty to discuss the underlying incident and the case with
reporters, it is not incumbent upon—nor would it be reasonable to require—the County
Defendants to now compensate Plaintiff for those hours. Such compensation is
particularly unwarranted when the Estate has failed to demonstrate that such media
contacts were necessary to the conduct of the actual litigation or even contributed, directly
and substantially, to the attainment of the Estate’s litigation goals. Cf. Role Models Am.,
Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (“[T]he government cannot be
charged for time spent in discussions with the press.”); Watkins v. Fordice, 7 F.3d 453,
458 (5th Cir. 1993) (finding no abuse of discretion when the district court precluded
recovery of time attributed to press conferences); Davis v. San Francisco, 976 F.2d 1536,
1545 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993);
Thompson v. U.S. Dep’t of Hous. & Urb. Dev., No. CIV.A. MGJ95309, 2001 WL 1636517,
at *11 (D. Md. Dec. 12, 2001) (observing that excluding time for press conferences was
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appropriate). Indeed, Mr. Dormer has appropriately excluded entries associated with
press releases in most instances. See [Doc. 335-2 at 38, 139].
Unclear Billing Entries. This Court also concludes that many entries for Mr.
Bryan are so cursory and/or unclear that the Court cannot adequately consider whether
they are appropriate or not. For instance, there are a series of entries that refer to “OOJ,”
which is undefined in either Mr. Bryan’s Declaration or the billing entries themselves.6
See [Doc. 335-1 at 95 (billing entries for 8/4/21, 8/5/21), 97 (billing entries for 8/17/21;
8/18/21]. Elsewhere, Mr. Bryan refers to a “list of ‘to do’ items,” which is insufficient for
this Court to determine whether such items stem from legal analysis or administrative
tasks. See [id. at 76 (3/27/20 entries)]. Some entries simply refer to e-mails to an
unidentified “shea” about an undefined “incident”—which could refer to case development
or, given where it is situated within the entries, could refer to communications with the
media. See [id. at 83 (10/22/20 and 10/26/20 entries)]. At other times, it is unclear
whether the “investigator” to whom the entries refer is an investigator for the legal action,
or one associated with news articles. See, e.g., [id. at 83–84]. And while some work
done between the submission of the case to the jury and the return of the verdict may be
compensable, charging multiple hours for simply waiting “on-call” for questions from the
jury and the verdict, without any further description, is not. See [Doc. 335-1 at 169 (4/8/25
and 4/9/25 entries)]. The Tenth Circuit has made clear that “[h]ours that an attorney would
not properly bill to his or her client cannot reasonably be billed to the adverse party,
6 To the extent that “OOJ” refers to an offer of judgment, there is no indication from the
record or the Final Pretrial Order that any offer of judgment was tendered in that
timeframe. See [Doc. 266 at 12–13]. More importantly, this Court should not be required
to guess in order to evaluate a party’s request for attorney’s fees.
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making certain time presumptively unreasonable.” Case v. Unified Sch. Dist. No. 233,
157 F.3d 1243, 1250 (10th Cir. 1998) (citing Ramos, 713 F.2d at 554). And like my
colleague in the United States District Court for the Northern District of Oklahoma, this
Court encourages BT Law to rethink their billing of repetitive .1 entries for tasks that do
not appear would take six minutes. See [Doc. 335-1 at 47, 58–59].
Inconsistent Billing Entries. There are also some instances where Mr. Bryan’s
claimed hours are not consistent with other information on the docket, and there is not
sufficient explanation to justify the additional time claimed. For instance, Mr. Bryan billed
an hour of time for the July 1, 2021 Scheduling Conference minutes before the Honorable
N. Reid Neureiter that lasted 28 minutes. Compare [Doc. 335-1 at 92 (7/1/21 entry)], with
[Doc. 53]. Similarly, Mr. Bryan billed an hour of time for a telephonic status conference
before Judge Neureiter that lasted seven minutes. Compare [Doc. 335-1 at 105 (11/10/21
entry)], with [Doc. 68]. Both of these conferences occurred telephonically, and there is
no indication of other compensable work or even compensable travel associated with
these conferences. And insofar as Mr. Bryan is billing for discussing travel or actual travel
time, see e.g., [Doc. 335-1 at 128 at (7/13/22 entry), 141 (3/8/23 entry)], “reasonable
attorneys’ fees do not include billing for time spent solely in transit,” see Auraria Student
Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, No. 10-cv-02516-WJM-
KLM, 2016 WL 8458776, at *8 (D. Colo. Aug. 5, 2016), vacated after merits appeal, 2017
WL 345664 (D. Colo. Jan. 24, 2017), nor do they encompass the arrangement of such
travel.
Administrative Work. It is well-settled that clerical and administrative tasks, such
as reviewing and organizing documents or preparing for the filing Plaintiff's pleadings and
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motions in this matter, performed by attorneys or others are generally not recoverable as
attorneys’ fees. See, e.g., J & J Sports Prods., Inc. v. Rosales, No. 07-cv-01110-RPM-
MEH, 2008 WL 596104, at *7 (D. Colo. Jan. 30, 2008). Voluminous entries reflect such
work: “EM from JA re: file access,” [Doc. 335-1 at 76 (3/27/20 entries)], 85 (1/28/21 entry
“EM from JMA re: Organizing docs for Maes case filing”)], 124 (5/16/22 (“EM from SMD
re: Preparing for court submission and reviewing documents”))]. And to the extent that
Mr. Bryan is receiving and/or processing checks, [id. at 170 (4/30/25)], this is not
reimbursable legal work. While each of these may only amount to minimal time, they are
not permissible.
Cross-Appeal. BT Law’s time entries also contain many entries dedicated to the
cross-appeal that was filed by the Estate in this action. See e.g. [Doc. 335-1 at 141
(3/14/23 entries), 142 (3/15/23 entries)]. The Estate sought to cross-appeal the portion
of this Court’s February 3, 2023 Order granting qualified immunity to Defendants Wells
and Shields, and this Court’s January 6, 2023 Order denying Plaintiff’s Motion for
Sanctions. [Doc. 216]. It is well settled that, generally, federal courts of appeal have
jurisdiction over all final decisions of district courts, which has been defined as a decision
“by which a district court disassociates itself from the case.” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106 (2009) (quoting Swint v. Chambers County Comm’n, 514
U.S. 35, 42 (1995)). There is only a small category of collateral orders that, although they
do not end the litigation, are appropriately deemed “final.” See id. Decisions subject to
interlocutory appeal must be (1) conclusive; (2) resolve important questions separate from
the merits, and (3) effectively unreviewable on appeal from final judgment in the
underlying action. Id. (citation omitted).
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As an initial matter, the grant of qualified immunity is generally not subject to
interlocutory appeal. The Estate implicitly acknowledges this jurisdictional issue by
arguing that the Tenth Circuit had jurisdiction to hear the Estate’s challenge to the Court’s
grant of qualified immunity to Defendants Shields and Wells based not on direct
jurisdiction, but based on “pendent appellate jurisdiction.” See Lieberenz v. Wilson, No.
23-1075, (10th Cir. Sept. 11, 2023), [ECF No. 41 at 11–14]. The Estate urged the Tenth
Circuit to exercise pendent appellate jurisdiction because the issues of the Court’s grant
of qualified immunity for Defendants Shields and Wells were “inextricably intertwined” with
those of Defendant Wilson. Id. “Pendent appellate jurisdiction is a matter of discretion,
not of right.” Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).
The Tenth Circuit declined to exercise pendent jurisdiction, holding that “[its] review
of Captain Wilson’s entitled to qualified immunity as an individual and as a supervisor
does not require that we resolve Deputy Wells’s or Ms. Shields’s entitlement to qualified
immunity.” [Doc. 225 at 25]. As the Tenth Circuit pointed out, the factual distinctions
between the conduct of the individual Defendants, i.e., “Captain Wilson, Deputy Wells,
and Ms. Shields had different actions (or failed to act) in response to Mr. Maes’s behavior,”
was critical to the qualified immunity analysis. [Id. at 25]. Indeed, Defendant Wells was
not even within Defendant Wilson’s chain of command. As for the Estate’s appeal of the
issue of this Court’s denial of its Motion for Sanctions, such issue was withdrawn before
briefing. See Lieberenz v. Wilson, [ECF No. 41 at 10 n.2].
While the Estate has the prerogative to consider and pursue a cross-appeal, this
Court respectfully concludes that the fees associated with such cross-appeal are not
appropriately shifted to the County Defendants pursuant to § 1988, because the cross-
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appeal “cannot be deemed to have been expended in pursuit of the ultimate result
achieved.” Hensley, 461 U.S. at 435 (citation omitted).
Based on these considerations, this Court reduces the number of hours for BT Law
by 25%, for a total of 795 hours as a base for its lodestar calculation.
2. DH
Unfortunately, DH’s time entries suffer from many of the same deficiencies as
those from BT Law. As an initial matter, this Court notes that the total amount claimed in
the filing with the Court as the “Firm Total Actually Charged” of $1,095,761.50 does not
match the “Firm Total Charged” of $1,077,161.50 reflected in the Excel spreadsheet
provided to the Court at its request for the purpose of reconciliation.7 Plaintiff corrected
itself by acknowledging this error on Reply. [Doc. 343 at 8].
Number of Timekeepers. While the Plaintiff or counsel has the prerogative to
engage multiple law firms or to have multiple timekeepers, this Court finds that in certain
instances, the internal coordination tasks are inappropriately compensated. For example,
insofar as Ms. Altenhofen needed to add co-counsel information to the client matter, that
type of coordination work is not appropriately billed to the client or reimbursed under
§ 1988. See [Doc. 335-2 at 38 (2/23/21 entry)]. Furthermore, in some instances, the
number of individuals performing substantially similar tasks is excessive. For instance, it
is unclear why Mr. Bryan and Mr. Dormer as seasoned attorneys were both required for
7 The discrepancy appears to result from one instance of egregious overbilling. DH
includes an entry on January 28, 2021 for 93 hours for “procedures & forms for estate
opening”—resulting in a whopping fee of $18,600. [Doc. 335-2 at 37 (1/28/21 entry)]. In
the Excel spreadsheet, the entry was deemed “deleted.” But it was not deleted in the
actual filing to the Court, and the “Firm Total Charged” of $1,095,761.50 [Doc. 335-2 at
142; Doc. 335-2 at 21 ¶ 61] appears to include it. As acknowledged on Reply, this charge
of $18,600 would have been clearly unreasonable. [Doc. 343 at 8–9].
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the depositions of various witnesses, including Ms. Lieberenz and Ava Radigan. See
e.g., [Doc. 335-1 at 110 (2/4/22 entry), 120 (4/7/22 entry); Doc. 335-2 at 63 (2/4/22 entry),
76 (4/7/22 entry)]. And although this Court does not doubt that Mr. Harpring’s
contributions to this case were beneficial, it is also unclear why any of his hours, such as
his strategy session with Mr. Dormer, or observation of trial practice with Ms. Lieberenz,
are appropriately shifted to the County Defendants when Mr. Bryan was available for such
input. [Doc. 335-2 at 127 (3/13/25 entry)].
Unclear Billing Entries. This Court also concludes that many entries for DH are
sufficiently unclear that the Court cannot adequately consider whether they are
appropriate or not. Flying J Inc. v. Comdata Network, Inc., 322 F. App’x 610, 617 (10th
Cir. 2009) (noting that while block billing is permitted, it is left to the district court’s sound
discretion to determine the reasonableness of the fee). For instance, on April 10, 2025,
Mr. Garvey billed 4.2 hours to “[r]eviewing and analyzing case and results; preparing
press release.” [Doc. 335-2 at 139 (4/10/25 entry)]. While reviewing and analyzing case
and results might be appropriate, drafting a press release is not, as discussed above.
Similarly, like Mr. Bryan, the multiple DH attorneys and paralegals who billed entries for
“waiting” for the verdict—without more—are also not compensable. See [id. at 139
(4/8/25 and 4/9/25 entries)]. Similarly, time for drafting an attorney’s fees motion may be
appropriate, but charging opposing counsel for time spent in exercising appropriate billing
judgment is not as this Court cannot imagine counsel charging its own client for such
routine billing work. See [id. at 140 (multiple undated entries)]; Case, 157 F.3d at 1250.
Likewise, setting up audio/visual for trial is appropriate, but packing for trial is not. See
[id. at 134 (3/26/25 entry)]. And similarly to Mr. Bryan, DH attorneys and
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paraprofessionals should not be billing for travel time when individuals are solely engaged
in transit or arranging for such travel. See supra at 13; [Doc. 335-2 at 123 (2/26/25 entry),
133 (3/25/25 entry), 134 (3/26/25 entries), 137 (3/31/25 entries)].
Engagement with Media. As discussed above, this Court will not permit recovery
of hours claimed for counsel’s engagement with the media. This includes, but is not
limited to, Mr. Garvey’s time entry as discussed above, see supra, or his later review of a
press release. [Doc. 335-2 at 140 (undated entry 45766)]. Mr. Harpring’s publishing of a
press release similarly is not compensable. [id. at 39 (3/3/21 entry)].
Administrative Work. The County Defendants argue that all 197.7 hours of DH’s
administrative legal assistants, Ms. Nelson and Ms. Morales, should be excluded because
such work should be absorbed into attorney overhead. [Doc. 342 at 7]. This Court
respectfully declines to make such a blanket ruling. The Tenth Circuit has recognized that
“under the rubric of 42 U.S.C. § 1988 ‘attorney’s fees,’” the fees for attorneys, law clerks,
and legal assistants are all determined in the same fashion: multiplying reasonable hours
by reasonable rates to reach a lodestar amount. Case, 157 F.3d at 1249. Indeed, it
makes little sense to disallow compensation for attorneys from performing administrative
tasks, and then penalize attorneys for using legal assistants with a lower rate than
paralegals to do such tasks.
But even the number of hours claimed by DH for administrative work adjusted to
remove the 93 hours discussed above appears excessive. See supra note 7. Beyond
the sheer number of hours by the paralegals and legal assistants—amounting to
approximately 911.7 hours, [Doc. 335-2 at 21]—some of such work is not appropriately
charged to this matter, or is otherwise unnecessary and/or duplicative. Like BT Law, DH
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has numerous entries dedicated to creating and preparing the Estate, and dealing with
probate issues including time entries from Mr. Dormer and Ms. Emch. See, e.g., [Doc.
335-2 at 38 (2/9/21, 2/10/21, 2/22/21 entries)]. In another instance, Ms. Emch claims time
for updating the address for the representative of the Estate. [Id. (2/9/21 entry)]. The
Court further finds that the multiple entries claiming time for bookkeeping purposes are
not compensable as attorney’s fees because they are not for legal purposes, and these
are the type of charges that would typically be subsumed into law firm overhead in the
Denver market. See, e.g., [id. at 39 (3/8/21 entry); 40 (3/22/21 entry); 41 (3/26/21); 43
(4/22/21 entry)]. For the same reason, time spent reminding experts to submit invoices
is similarly not compensable. See e.g., [id. at 75 (4/4/22 entry)].
It is also unclear to the Court why multiple paralegals/legal assistants were
observing each day of trial. See, e.g. [id. at 137 (3/31/25 entries), 138 (4/1/25 entries)].
And while certain administrative work is compensable pursuant to § 1988, entries
attributed to packing and unpacking for trial are simply not. See, e.g. [Doc. 335-2 at 134
(3/26/25 entry), 139 (4/9/25 entry)]. In that same vein, hours billed by any timekeeper—
attorney or otherwise—simply for “waiting” for a verdict, or “debriefing” from a completed
trial, is not reasonable. See [id. at 139 (4/9/25 entries)]. Indeed, the Court neither
requires nor requests counsel to be at the courthouse during deliberations and counsel
was not required to return until the verdict because the jury did not have any questions.
See [Doc. 323]. This Court is hard pressed to imagine that counsel would charge Ms.
Lieberenz, as the representative of the Estate, approximately 30 hours on a single day of
“waiting,” totaling thousands of dollars, and deem it to be “reasonable billing judgment.”
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Accordingly, these hours are not appropriately recovered from the County Defendants
pursuant to § 1988. Ramos, 713 F.2d at 553.
Firm Work. It is also not proper to charge opposing counsel for work for the Firm
to clear its own conflicts arising representing two individuals who may have had divergent
interests, such as Ms. Lieberenz and Ms. Radigan. See [Doc. 335-2 at 75 (4/6/22 entry,
47/22 entry), 76 (4/7/22 entries)]. Similarly, to the extent that some timekeepers were
engaged to participate in team practice sessions because the trial team valued feedback
that could not be adequately provided by the trial team because of their “close connection
with Ms. Lieberenz,” see, e.g., [Doc. 335-2 at 9 ¶ 33], i.e., Mr. Harpring, Ms. Mauser, Ms.
Alvarez, Mr. Garber, and Ms. Morales, this work is duplicative of the work of the jury
consultants, and/or is simply a luxury that should have been excluded pursuant to
reasonable billing judgment.
Based on these considerations, this Court finds that it is appropriate for the Court
to reduce the amount of reasonable hours for the remaining DH lawyers by 25% and DH
administrative staff by 50% as follows:
Timekeeper Compensable Hours
Sean Dormer 853.2
K.C. Harpring 0
Amy Rogers 239.78
Tim Garvey 150.53
Greg Bentley 12.75
Jessica Mauser 0
Blaire Bayliss 23.25
Erik Moya 4.8
Brittany Freeman 163.4
Marcie Emch 114.38
Donivan Tarpley 1.1
Julie Altenhofen 27.75
8 This calculation uses 228.6 hours as its base, derived from 321.6–93. See supra note
7.
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Nancy Alvarez 0
David Garber 0
Ella Nelson 96.9
Carla Morales 0
3. MJC
The Estate seeks MJC attorney’s fees for its appeal. [Doc. 335-4 at ¶ 5]. In her
Declaration, Ms. Rao broadly claims that “[a]ll of the hours included in the[] totals were
related to and necessary for this appeal.” [Id. at ¶ 18]. But “an attorney’s ipse dixit,
standing alone, is insufficient to demonstrate that the requested rates are reasonable.”
Actalent, Inc. v. Evergreen Rsch. US, LLC, No. 24-cv-02839-REB-CYC, 2025 WL
2418531, at *3 (D. Colo. June 20, 2025). And the Estate fails to provide sufficient
information for this Court to determine how many of the hours are dedicated to the issues
raised by the County Defendants’ appeal of this Court’s denial of qualified immunity as to
Defendant Wilson versus those raised through the Estate’s cross-appeal, which as
discussed above, was not well-taken. Ms. Rao’s Declaration does not address it, and
although the Declaration refers to an “Exhibit 1” reflecting time entries, [Doc. 335-4 at
¶ 16], this Court could not find such an exhibit. A party seeking fees for hours worked
must submit “meticulous, contemporaneous time records” showing “how those hours
were allotted to specific tasks.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205
F.3d 1219, 1233 (10th Cir. 2000) (quotation omitted).
As discussed in detail above, this Court finds that fees associated with Plaintiff’s
cross-appeal is not compensable. See supra at 14–16. In addition, even half the total
number of 436.47 hours, i.e., approximately 218 hours, for an interlocutory appeal on a
singular, discrete issue on the denial of qualified immunity is on the high side of
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reasonable hours for an interlocutory appeal that this Court could find—particularly in light
of the fact that the trial attorneys are also charging fees for the interlocutory appeal. Cf.
Kan. Jud. Watch v. Stout, No. 06-cv-4056-JAR, 2012 WL 1033634, at *5 (D. Kan. Mar.
27, 2012) (finding that the 59 hours claimed for work on the interlocutory appeal was
reasonable in light of a reduction of 77.1 hours based on appropriate billing judgment);
Flitton v. Primary Residential Mortg., Inc., No. 2:03-cv-00481-DAK, 2009 WL 1357206, at
*5 (D. Utah May 7, 2009), aff’d, 614 F.3d 1173 (10th Cir. 2010) (observing that the plaintiff
sought fees for 424.10 hours after a full trial in Title VII case). And unlike her work with
Mr. Bryan in Lance v. Morris in which the court found that 232.79 hours was reasonable,
this case was not “dead in the water,” when she was brought in for the appeal; rather, the
Tenth Circuit was reviewing this Court’s denial of qualified immunity. Cf. [Doc. 335-1 at
56–57].
It is well-settled that a district court is justified in reducing the reasonable number
of hours when the attorney’s time records fail to document adequately how he or she
utilized the time. See Case, 157 F.3d at 1250. Although Ms. Rao filed a Supplemental
Declaration in support of Plaintiff’s Reply, it does not appear she included any timekeeper
entries. See [Doc.343-4]. Instead of simply declining to award attorney’s fees for MJC’s
role in the interlocutory appeal given the lack of any specific time entries,9 this Court
reduces the amount of reasonable hours by 75%, to account for the unsuccessful cross-
9 The Court notes that the allocation of these hours may not reflect the distribution of work
between the various attorneys for the affirmative appeal versus the cross appeal. But
because this Court was not provided any specific entries, a more precise allocation was
not possible and thus, the Court uses its discretion to do rough justice. See Fox, 563
U.S. at 838.
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appeal and the straightforward nature of responding to the affirmative appeal, for a total
number of reasonable hours for the MJC attorneys as follows:
Timekeeper Compensable Hours
Megha Ram 37
Ben Gunning 61.26
George Mills 10.85
The Court does not find a basis for reducing the number of hours for MJC’s
paralegal, Emily Clark, and finds that the 6.31 hours claimed for her work is reasonable.
B. Reasonable Hourly Rates
The Court next turns to the reasonableness of the hourly rates claimed by counsel.
The relevant standard requires the Court to “consider[] the ‘prevailing market rate’ in the
community in order to determine what constitutes a reasonable rate for attorneys.”
Preitauer v. Am. Fam. Mut. Ins. Co., S.I., 741 F. Supp. 3d 934, 942 (D. Colo. 2024)
(quoting Lippoldt v. Cole, 468 F.3d 1204, 1224 (10th Cir. 2006)). Generally, to justify a
fee award, the party seeking fees must produce “satisfactory evidence—in addition to the
attorney's own affidavits—that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
1. BT Law
BT Law claims an hourly rate of $650 per hour for Mr. Bryan. [Doc. 335-1 at ¶ 31].
Mr. Bryan obtained his law license in September 2002 in Oklahoma, and March 2018 in
Colorado. [Id. at ¶ 1]. His practice focuses upon civil rights litigation, with a subspecialty
in jail and prison litigation, and he provides many examples of similar cases he has
litigated in his career both on the defensive and affirmative side. [Id. at ¶¶ 1–6, 8–9, 14].
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Mr. Bryan submits the Declaration of Darold Killmer (“Mr. Killmer”) to support his
request for a rate of $650 per hour. [Doc. 335-1 at 172–76]. Mr. Killmer references his
own Firm’s rates, as well as a number of cases where Colorado courts relied upon his
expert opinion in determining a reasonable rate. See [Doc. 335-1 at 173–74 ¶¶ 7, 9–10].
Mr. Killmer opines that based on his research and expertise in the area, a range of hourly
rates for experience litigation counsel in civil rights disputes such as this one is between
$400 and $750 per hour. [Id. at ¶ 16]. He indicates that the increases in his own hourly
rate represent increases of 2–3% a year. [Id. at ¶10]. The Court notes that both Mr. Bryan
and Mr. Killmer have been practicing since 2002—approximately 23 years.
Most recently, in September 2023, the United States District Court for the
Northern District of Oklahoma determined that Mr. Bryan’s reasonable rate was $425 per
hour. See [Doc. 335-1 at 55]. Assuming that a 2.5% increase is compounded annually
from 2023 to 2024, with an increase effective January 1 of each year, Mr. Bryan’s
reasonable rate would be approximately $458 per hour for Oklahoma. Wolters Kluwer
ELM Solutions publishes an annual Real Rate Report. [Doc. 355-1]. For Denver,
Colorado, the Real Rate Report reflects the median rate for a litigation partner in 2022 as
$495 per hour. [Id. at 3]. Compounding that median rate by 2.5% per year, median hourly
rate for a Denver partner would be approximately $546. The Real Rate Report also
reflects a three-year trend for average hourly rates of $451 in 2020, $512 in 2021, and
$553 in 2022—i.e., an approximately 13.5% increase between 2020 and 2021, and
another 8% increase between 2021 and 2022. [Id.].
According to the National Law Journal’s (“NLJ”) survey for 2019 billing rates, the
average hourly billing rate for a Colorado partner in 2019 was $456. See [Doc. 355-2 at
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5]. Compounding the NLJ median rate by 2.5% per year since 2019, the average
Colorado hourly rate would be approximately $542. Finally, when the Colorado Bar
Association last published its Economics of Law Practice Survey (“CBA Economic
Survey”) in 2017, the median hourly rate for an attorney with 20–29 years of experience
in a law firm with 2–4 individuals was between $250–$275 per hour. [Doc. 355-3 at 4].
Compounding those rates for the intervening nine years, the average hourly rate would
be between approximately $312–$343 per hour.
And while this Court is not bound by the findings of other district courts, see
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011), this Court finds it appropriate to
consider other district courts’ determinations of reasonable rates as relevant to
establishing the prevailing market rate, see Guides, 295 F.3d at 1079 (holding that a
district court may use other relevant factors, including its own knowledge, to establish the
reasonable rate); see also, e.g., Valdez v. Macdonald, 66 F.4th 796, 838 (10th Cir. 2023)
(affirming rates of $595 and $575 per hour for two partners; $375 per hour for four
associates; $100 per hour for one law clerk; $200 per hour for three senior paralegals;
and $100 per hour for two paralegals).
Given these data points, this Court concludes that a reasonable rate for Mr. Bryan
is $550 per hour. Applying this reasonable rate to the reasonable hours of 795 hours as
determined by the Court, the lodestar amount for BT Law is $437,250.
2. DH
For its part, DH seeks rates for its attorneys and paraprofessionals as follows:
Timekeeper Hourly Rate
Sean Dormer $600
Amy Rogers $450
Tim Garvey $500
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Greg Bentley $500
Blaire Bayliss $375
Erik Moya $375
Brittany Freeman $180
Marcie Emch $200
Donivan Tarpley $175
Julie Altenhofen $180
Ella Nelson $100
In support of DH’s request, the Estate provides an Order from the Bounty County
District Court, in which the court determined that $600 per hour was a reasonable hourly
rate for Mr. Dormer with respect to a discovery dispute, and $180 per hour was a
reasonable hourly rate for Ms. Freeman. [Doc. 335-2 at 29–32]. The Estate has also
submitted the Declaration of Michael Harris (“Mr. Harris”) to support its request with
respect to DH attorneys. See [Doc. 335-3]. Defendants challenge these rates, because
of Mr. Dormer and his team’s “limited experience in civil rights litigation.” [Doc. 342 at 6].
This Court respectfully agrees in part.
It is well-settled that a moving party “must provide evidence of the prevailing
market rate for similar services,” charged by lawyers with comparable skill and
experience, Lippoldt, 468 F.3d at 1224 (citation omitted). Mr. Harris makes clear that his
experience is limited to personal injury work. [Doc. 335-3 at ¶ 1]. While the Tenth Circuit
has made clear that the work need not be identical and may simply be analogous, Valdez,
66 F.4th at 840, here, DH specifically engaged Mr. Bryan as a “subject matter expert for
this area of law,” and Mr. Dormer conceded that he “did not feel competent to address all
of the novel, high-risk issues in this case.” [Doc. 335-2 at ¶ 38].
This Court accounts for all the data set forth above in determining Mr. Bryan’s
reasonable hourly rate, and notes that Mr. Dormer has approximately 12.5 years of
experience. [Id. at ¶ 1]. The CBA Economic Survey has consistently demonstrated that
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hourly rates generally increase with more relevant experience; in 2017, the difference
between average hourly rates for attorneys with 20–29 years of experience and 10–19
years of experience was 10%. [Doc. 355-3 at 4]. Consistent with the analysis above, this
Court finds that an appropriate hourly rate for Mr. Dormer is $500 per hour.10
As for the DH associates, this Court notes that as of 2025, Ms. Rogers had 10
years’ experience, [Doc. 335-2 at ¶ 18]; Mr. Garvey has 15 years’ experience, [id. at ¶ 23];
Mr. Bentley has 15 years’ experience, [id. at ¶ 29]; and Mx. Bayliss and Mr. Moya each
had five years’ experience, [id. at ¶ 34]. The CBA Survey would include Ms. Rogers, Mr.
Garvey, and Mr. Bentley all within the same band of experience, i.e., 10–19 years. [Doc.
355-3 at 4]. For litigation associates in 2022, the Real Rate Report reports a median rate
of $345 per hour, with a 75th percentile hourly rate of $415. [Doc. 355-1 at 3]. The
average hourly rate for a litigation associate in 2022 was $348. [Id.]. The NLJ Survey
reported an average hourly billing rate for associates was $292, with a 75th percentile
hourly rate of $310, and a 90th percentile hourly rate of $315. [Doc. 355-2 at 5]. Applying
a 2.5% compound rate to these figures, the average hourly rate for associates would fall
between $347–$384. In recognition that associates within this market generally
command a lower billable rate than partners given the responsibilities and risks attendant
to partnership, but that Mr. Garvey and Mr. Bentley have significantly more experience
than an “average” associate, this Court finds that a reasonable blended hourly rate for
them is $425, and for Ms. Rogers is $400. With respect to Mx. Bayliss and Mr. Mora, this
Court finds that an hourly rate of $350 is consistent with market rates.
10 Similar to the Boulder County district court, this Court finds that accounting for DH’s
ability to secure a higher hourly rate from its contingency work is not relevant to
determining a reasonable hourly rate within the lodestar calculation. [Doc. 335-2 at 31].
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With respect to the hourly rates claimed by the paraprofessionals, this Court finds
that they are well within the reasonable rates as set by courts in this District. See, e.g.,
Let’s Go Aero, Inc. v. Forcome Co., No. 23-cv-00045-RMR, 2024 WL 4068758, at *4 (D.
Colo. Sept. 5, 2024) ($150 and $180 per hour for paralegals and $75 for administrative
assistants); Valdez v. Motyka, No. 15-cv-00109-WJM-STV, 2022 WL 1092182, at *3 (D.
Colo. Apr. 12, 2022) ($100–$200 per hour for paralegals), aff’d in part, rev’d in part on
other grounds sub nom., Valdez v. Macdonald, 66 F.4th 796 (10th Cir. 2023); and $180
per hour, Edwards v. Edwards, No. 20-cv-02843-CMA-SKC, 2021 WL 130690, at *2 (D.
Colo. Jan. 14, 2021) ($180 per hour for a paralegal).
Accordingly, taking the reasonable hours and multiplying it by the reasonable
hourly rate for each timekeeper, the Court concludes that the lodestar amount for DH is
as follows:
Timekeeper Compensable
Hours
Hourly Rate Total
Sean Dormer 853.2 $500 $426,600.00
Amy Rogers 239.78 $400 $95,912.00
Tim Garvey 150.53 $425 $63,975.25
Greg Bentley 12.75 $425 $5,418.75
Blaire Bayliss 23.25 $350 $8,137.50
Erik Moya 4.8 $350 $1,680.00
Brittany Freeman 163.4 $180 $29,412.00
Marcie Emch 114.311 $200 $22,860.00
Donivan Tarpley 1.1 $175 $192.50
Julie Altenhofen 27.75 $180 $4,995.00
Ella Nelson 96.9 $100 $9,690.00
Total $668,873.00
11 This calculation uses 228.6 hours as its base, derived from 321.6 hours—93 hours.
See supra note 7.
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3. MJC
MJC seeks an hourly rate of $500 for Ms. Ram; $300 for Mr. Gunning, $300 for Mr.
Mills, as well as $250 per hour for Ms. Clark, the paralegal. [Doc. 335-4 at 8]. Ms. Ram
graduated from law school in 2018, giving her five years of experience, including one year
of a federal clerkship, by 2023—the timeframe of the appeal. [Id. at ¶ 19]. Mr. Gunning
graduated from law school in 2020, giving him three years of experience, including two
years of federal clerkships, by 2023. [Id. at ¶ 22]. Mr. Mills graduated law school in May
2021, giving him two years of experience by 2023. [Id. at ¶ 24]. Based on the data set
forth above, this Court finds that a reasonable hourly rate for Ms. Ram is $350 and for
Messrs. Gunning and Mills is $300. Accordingly, taking the reasonable hours and
multiplying it by the reasonable hourly rate for each timekeeper, the Court concludes that
the lodestar amount for MJC is as follows:
Timekeeper Compensable
Hours
Hourly Rate Total
Megha Ram 37 $350 $12,950.00
Ben Gunning 61.26 $300 $18,378.00
George Mills 10.85 $300 $3,255.00
Total $34,583.00
C. Jury Consultants
The Estate claims 40.14 hours, at a hourly rate of $575 per hour rendered by
attorney and jury consultant Jessica Brylo (“Ms. Brylo”), and her colleague Jennifer LaRue
(“Ms. LaRue”) for a total of $33,030.50. [Doc. 335 at 10; Doc. 335-2 at 18 ¶¶ 53, 63]. Mr.
Dormer describes their work as follows:
Ms. Brylo coordinated two focus groups and a “big data” survey of
approximately 400 members of the relevant jury pool to help with case
framing, communication strategy, and settlement advice to our client.
Ms. LaRue helped us perform background checks on prospective jurors,
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in direct communication with me, during jury selection. She also helped
me evaluate and advise my client on her own testimony.
[Doc. 335-2 at 12 ¶ 45]. In support of its request, Plaintiff has submitted invoices to the
Court the curriculum vitae of Ms. Brylo and Ms. LaRue, see [id. at 24–28, 143–49], and
Mr. Harris’s expert opinion.
Courts have observed that recovery of litigation consulting fees under § 1988 may
be appropriate in cases where the claims are not straightforward.12 See, e.g., Phillips v.
Duane Morris, LLP, No. 13-cv-01105-REB-MJW, 2014 WL 7051722, at *4 (D. Colo. Dec.
12, 2014). The County Defendants do not challenge the recovery of such expenses as
part of attorney’s fee award under § 1988. See [Doc. 342 at 7–8]. The Court notes that
trial in this case was required because there was a genuine issue of material fact as to
whether Defendants Wilson and Macias acted with deliberate indifference, and the jury’s
determination of those facts was dependent, in part, upon the jury’s assessment of
witness credibility. See [Doc. 207]. Indeed, the split verdict at trial, i.e., a finding of liability
as to Defendant Wilson and a finding of non-liability as to Defendant Macias, further
underscores that the facts did not present a straightforward case.
12 As observed by Plaintiff, there is some ambiguity whether litigation consultant fees
should be categorized as “attorney’s fees” or “expenses incidental to the award of
attorneys’ fees,” where such expenses must be reasonably warranted by the case. [Doc.
335-2 at 22 n.7]. This Court finds that the cost of litigation consultants is more
appropriately categorized as an expense incidental to the award of attorney’s fees, only
recoverable under § 1988 when a prevailing party carries it burden to prove that such
expenses are “inseparably intertwined as equally vital components of the costs of
litigation” and not “normally observed as part of law firm overhead.” Brown, 227 F.3d at
1297 (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1190 (11th Cir.1983)). But such
fees, even when warranted, must be reasonable. Id. at 1297.
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Nor do the County Defendants challenge any certain work performed by the jury
consultants. But the County Defendants contend that their hourly rates are not
reasonably based in civil rights litigation or grounded within the Denver market. [Doc.
342 at 7]. They further argue that Plaintiff has failed to provide an adequate basis for the
Court to conclude that the consultants have any specialized knowledge in civil rights
cases, and their fees should be reduced by 25%. [Id.].
In Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC,
the plaintiff sought $41,925.82 in expenses paid to a litigation consultant for work on a
pre-trial focus group and as a jury consultant. 2016 WL 8458776, at *7. According to
invoice, the consultants billed 120 hours at an hourly rate of $200. See Auraria Student
Hous., No. 10-cv-2516-WJM-KLM, [ECF No. 302-7]. That court ultimately reduced the
expense by 50% based on the party’s lack of sufficient detail. Auraria Student Hous,
2016 WL 8458776, at *8.
Here, the entries by the jury consultants do not suffer from the same type of
infirmities. But insofar as Ms. Brylo consulted on drafts of voir dire or the verdict form,
such expense is not reasonably warranted in a case staffed with multiple attorneys who
are also drafting and reviewing the proposed voir dire and verdict form.
Plaintiff’s expert, Mr. Harris, indicates that rates for jury consultants are “perhaps
among the most varying rates within our field of personal injury practice.” [Doc. 335-3 at
¶ 16(f)]. He indicates that he personally has retained such experts between $250 and
$800 per hour. [Id.]. He states that Ms. Brylo is “known to the undersigned and has been
regarded for quite some time as having a national reputation for her work in assisting in
achieving successful trial results.” [Id.]. But he points to no other evidence—such as
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surveys regarding the costs of jury consultants or court cases where these or similar
consultants have been paid—to support his conclusion that the requested $575 per hour
is within the Denver market rate. See generally [Doc. 335-3].
This Court could not independently find any rate associated with Ms. Brylo or Ms.
LaRue, nor could it find many cases in which a court in this District granted jury consultant
fees. But to the extent that Ms. Brylo is “organizing case files” and “finding names for
screener,” those administrative tasks at a full rate of $575 are not appropriately billed, just
as they are not appropriately billed by an attorney.13 And while this Court finds that the
conduct of big data surveys and focus groups are not within the ordinary skills of an
attorney and may command a premium, background checks on prospective jurors during
jury selection do not.
Accordingly, the Court finds that reducing the jury consultant fees by 25% is
appropriate to account for the excludable entries and a reduced fee for services that
should not command a premium fee, resulting in a reasonable expense of $24,772.88.
Aggregating all reasonable fees and expenses, the total lodestar amount is
$1,165,478.95.
D. Enhancement or Reduction to Lodestar Calculation
Finally, the Court considers Plaintiff’s request for a 1.6x enhancement multiplier.
The Tenth Circuit recognizes after the calculation of the lodestar, a court may “adjust the
lodestar upward or downward to account for the particularities of the suit and its outcome.”
Zinna v. Congrove, 680 F.3d 1236, 1242 (10th Cir. 2012) (quotation omitted). The
Supreme Court has recognized that enhancements only apply in rare and exceptional
13 The total amount of the excludable entries amounts to approximately $4,657.50.
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circumstances. See Perdue, 559 U.S. at 554. In addition, there must be “specific
evidence that the lodestar fee would not have been adequate to attract competent
counsel.” Id. (internal quotations omitted).
1. Enhancement
Based on the record before it, this Court cannot conclude that the lodestar amount
does not adequately account for the performance of Plaintiff’s counsel. Plaintiff suggests
that an enhancement is appropriate because the “litigation spanned more than four years,
including about a year and a half on interlocutory appeal,” and “to encourage competent
counsel to accept meritorious cases despite the significant work required.” [Doc. 335 at
8].
Length of Litigation. In this case, Defendant Wilson appealed this Court’s Order
granting in part and denying in part the County Defendants’ Motion for Partial Summary
Judgment, challenging the Court’s denial of qualified immunity. [Doc. 207; Doc. 208].
Plaintiff cross-appealed that same Order granting qualified immunity as to Defendants
Wells and Shields, as well as an Order denying sanctions [Doc. 200; Doc. 216].14 The
Parties then all agreed to administrative closure of the case pending appeal to the Tenth
Circuit. [Doc. 212]. Given that “qualified immunity establishes immunity from suit rather
than a mere defense to liability,” this Court's denial of a claim of qualified immunity was
immediately appealable under 28 U.S.C. § 1291, Callahan v. Unified Gov’t of Wyandotte
Cnty., 806 F.3d 1022, 1026 (10th Cir. 2015) (quotation omitted), and this Court does not
fault Defendant Wilson for exercising his ability to appeal, cf. Perdue, 559 U.S. at 556
14 Ultimately, it appears that Plaintiff only pursued her cross-appeal as to the application
of qualified immunity to Defendants Wells and Shields, and the Tenth Circuit dismissed
that cross-appeal for lack of jurisdiction. See [Doc. 225].
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(recognizing that an enhancement may be appropriate where there are unanticipated
delays, particularly ones unjustifiably caused by defense). And once the Tenth Circuit
issued its Mandate returning the case to this Court on July 5, 2024, [Doc. 228], this Court
convened the Parties within three weeks to set an 8-day jury trial, [Doc. 233]. While courts
in this District always strive to bring cases to trial in an expeditious manner, the reality is
that given the District of Colorado has the sixth-highest weighted civil case load per
judge,15 and on average, it takes 39 months from inception of a civil case to trial.16 Even
with the 16-month delay due to the interlocutory appeal, this case was tried within 48
months of its inception. Cf. Stella v. Davis Cnty., No. 1:18-cv-00002-JNP, 2023 WL
5334427, at *12 (D. Utah Aug. 18, 2023) (applying an enhancement based, in part, on a
five-year delay). There is also no evidence that counsel bore the expenses of this action
during this case, and in any case, the Clerk of Court has already assessed costs and
expenses against the County Defendants. See [Doc. 345]. Accordingly, given the
particular circumstances in this case, this Court does not find that the length of the case
is exceptionally protracted to warrant an enhancement.
Competent Counsel. Nor is this Court persuaded that there is a need to
encourage competent counsel to accept meritorious cases despite requirement of
significant work is adequate justification for an enhancement. Plaintiff cites no authority
to support that proposition, see [Doc. 335 at 8], and it is a misstatement of the standard
set forth by the Supreme Court that requires “specific evidence that the lodestar fee would
15 N. Reid Neureiter, 2024: The Year in Review, U.S. District Court, District of Colorado,
at 9,
https://www.cod.uscourts.gov/Portals/0/Documents/DistrictStats/District_Facts_Figures_
2024.pdf (last visited Mar. 31, 2025).
16 Id. at 27.
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not have been adequate to attract competent counsel,” Perdue, 559 U.S. at 554
(quotation omitted). There is simply not adequate evidence to suggest the lodestar fee
would not be adequate to attract competent counsel to justify such a multiplier. There is
no testimony from Ms. Lieberenz indicating that she had difficulty finding competent
counsel, and the record reflects that only three months elapsed from Mr. Maes’s untimely
death on or about November 17, 2019, to the intake of this case by Dormer Harpring in
mid-February 2020. Compare [Doc. 1 at ¶ 1], with [Doc. 335-2 at 33]. And as the Ramos
court observed, “[b]ecause civil rights cases now comprise a large part of all federal trial
and appellate litigation, a significant portion of the bar is regularly participating in civil
rights litigation; thus, no real stigma remains associated with these cases.” Ramos, 713
F.2d at 557–58.
In addition, Counsel’s own statements regarding the complexity of this case or the
risks involved are insufficient, particularly because “novelty and complexity of a case
generally [should] not be used to justify an enhancement because these factors
presumably are fully reflected in the number of billable hours by counsel.” Perdue, 559
U.S. at 553 (cleaned up). Nor is this Court persuaded by the Declarations of either Mr.
Killmer, who does not address the appropriateness of an enhancement at all, [Doc. 335-
1 at 172–76], or Mr. Harris, who concedes that he is “not a specialist in civil rights,” and
does not address how the lodestar fee would not be adequate to attract competent
counsel, see [Doc. 335-3]. This Court is also not persuaded that an enhancement to the
lodestar is justified due to the rates that may be achieved through contingency fee cases.
And while Mr. Dormer represents “[s]uccessful, in-demand law firms that are hired by
sophisticated clients now charge above $2,000,” [Doc. 335-1 at ¶ 54 & n.4], this fee is not
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for corporate restructuring, and Mr. Dormer identifies no case—and this Court did not
independently find any—where a court (let alone a Colorado one) has found a hourly rate
of anywhere near $2,000 per hour as reasonable in awarding attorney’s fees.
Finally, as the Tenth Circuit observed in Ramos, “the greater the number of
attorneys involved on a side, the less likely it is that an extraordinary performance bonus
is appropriate.” See Ramos, 713 F.2d at 557. Here, there were 12 attorneys working on
a case involving one client. Cf. supra at 16–17 (discussing staffing practices).
There is no question that civil rights are critical to a fair and just society, and civil
rights litigation is an important tool for individuals to vindicate those rights when violated.
Cf. [Doc. 335 at 3]. And this Court in no way minimizes the jury’s verdict or the efforts
undertaken by Plaintiff’s counsel to secure that verdict. But based on the record before
it, the Court respectfully concludes that a multiplier on an attorney’s fee award is not
appropriate. The Court has an obligation “to be fair to the taxpayers who will fund the
attorney’s fee award,” Veasey v. Abbott, No. 2:13-cv-00193, 2020 WL 9888360, at *19
(S.D. Tex. May 27, 2020), aff’d, 13 F.4th 362 (5th Cir. 2021), even if it is indirectly through
insurance premiums. And the Court recognizes that unwarranted enhancement may be
counterproductive “because state and local governments have limited budgets, money
that is used to pay attorney’s fees is money that cannot be used for programs that provide
vital public services.” Perdue, 559 U.S. at 559.
2. Reduction
The Court next considers whether a reduction to the lodestar amount is
appropriate. The County Defendants argue that a 50% reduction is appropriate due to
Plaintiff’s “limited success” in the case. [Doc. 342 at 12–16]. To support that argument,
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the County Defendants point to the following: (1) Plaintiff only prevailed on two out of
eleven original claims; (2) Plaintiff’s recovery was only 5.33% of its demand, [id. at 15];
and (3) Plaintiff’s unsuccessful claims did not share a common core of facts to the
successful ones, see [id. at 14–15]. On Reply, Plaintiff argues that the County Defendants
fail to provide any evidence to support their request for reduction of the lodestar, [Doc.
343 at 2–3], and that the outcome of this case was exceptional, as it was the largest and
only plaintiff’s verdict in a jail suicide case in Colorado in two decades, [id. at 10].
The Supreme Court has made clear that “the extent of a plaintiff’s success is a
crucial factor in determining the proper amount of an award of attorney’s fees under 42
U.S.C. § 1988.” Hensley, 461 U.S. at 440. But an assessment of success is not simply
tallying up the winning claims versus the non-winning claims. Instead, this Court
considers the overall complexion of the case. The core of this action is whether some or
all of the Defendants who encountered Mr. Maes on his way to and at the Saguache
County Jail on November 16, 2019 were deliberately indifferent to a substantial risk of
suicide. The jury answered this question “yes,” and awarded $4,000,000. [Doc. 329].
Regardless of whether this is the largest and only in-custody suicide verdict in Colorado
in 22 years, [Doc.343 at 10], it is clear that the verdict was out of the ordinary in the District
of Colorado. Based on the totality of the circumstances, this Court finds that a reduction
of the lodestar is not warranted, because the Court has accounted for the success of
Plaintiff through its analysis of reasonable hours.
That is not to say that counsel’s exercise of billing judgment did not cause concern
and consternation on the part of the Court, resulting in this forty-page opinion. The sheer
amount of time and effort that this Court expended in reviewing the Parties’ papers,
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examining the requested fees and expenses, and drafting this Order, was itself troubling.
In reviewing the instant Motion, as with other requests for attorney’s fees, this Court was
not bound by the arguments of the opposing party, but rather is guided by the principle
that:
Section 1988 serves an important public purpose by making it possible for
persons without means to bring suit to vindicate their rights. But unjustified
enhancements that serve only to enrich attorneys are not consistent with
the statute's aim.
Perdue, 559 U.S. at 559. This Court encourages counsel to heed the principles regarding
billing judgment set forth in this Order as they move forward in other cases.
D. Prejudgment Interest
It is well-settled that an award of prejudgment interest is not recoverable as a
matter of right but lies within the sound discretion of the district court. See White v. Chafin,
862 F.3d 1065, 1067 (10th Cir. 2017) (citing Zuchel v. City & Cnty. of Denver, 997 F.2d
730, 746 (10th Cir. 1993)). To determine whether to award prejudgment interest, the
Tenth Circuit applies a two-step test considering: (1) whether such an award would
compensate the injured party; and (2) if so, whether the equities would preclude an award.
Id. at 1068. Plaintiff recognizes that the weight of authority in this District—and indeed,
within the Tenth Circuit—holds that prejudgment interest should not be applied to
noneconomic damages. [Doc. 335 at 11 (citing Clawson v. Mountain Coal Co., L.L.C.,
No. 01-cv-02199-MSK-MEH, 2007 WL 201253 (D. Colo. Jan. 24, 2007); White v. Wycoff,
No. 13-cv-01761-CMA-MJW, 2016 WL 9632932 (D. Colo. July 7, 2016))]; see also [Doc.
335-1 at 71–73]. This Court is unpersuaded by Plaintiff’s arguments that these
determinations rest on “unsound interpretation of the underlying legal concepts,” [id. at
12–14], or that the County Defendants’ argument “misconstrues the law.” [Doc. 343 at
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11–12]. Even if this Court were to ignore the Clawson and White decisions—which it is
not inclined to do—the court in Echon v. Sackett analyzes the issue exhaustively under
the two-step framework contemplated by Zuchel. See No. 14-cv-03420-PAB-NYW, 2019
WL 8275344, at *9–10 (D. Colo. Feb. 12, 2019) (collecting cases), aff’d sub nom.,
Villanueva Echon v. Sackett, 809 F. App’x 468 (10th Cir. 2020). This Court need not
repeat the analysis here, and observes that despite the County Defendant’s citation of
Echon, [Doc. 342 at 22], Plaintiff fails entirely to respond to it on Reply, see [Doc. 343 at
11–12]. The Court further declines Plaintiff’s invitation to speculate that the jury’s $4
million award somehow reflects some type of compensatory damage calculation tied to
the “four days Mr. Maes had left to live.” [Doc. 335 at 15].
Instead, this Court concurs with the weight of authority and concludes that
prejudgment interest on the noneconomic damages awarded by the jury in this case is
not warranted because, as Justice Blackmun observed:
Arguably, damages for pain and suffering are themselves not truly
compensatory. Certainly, such awards are of a different character. They
are inherently noneconomic and are established through the subjective
discretion of the jury. Prejudgment interest on these speculative awards
does not make up for the lost use of money and cannot be considered
compensatory in any realistic sense.
Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 348 n.5 (1988) (Blackmun, J., concurring
in part and dissenting in part) (internal citations omitted); see also Coates v. Bd. of Cnty.
Comm’rs for Cnty. of Adams, No. 20-cv-01936-STV, 2025 WL 2061915, at *3 (D. Colo.
July 23, 2025) (collecting cases); Stella v. Davis Cnty., No. 1:18-cv-00002-JNP, 2023 WL
5334189, at *2 (D. Utah Aug. 18, 2023) (collecting cases).
Accordingly, Plaintiff’s request for prejudgment interest is respectfully DENIED.
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II. Motion for Review of Costs
Plaintiff next seeks a review of the costs claimed by Defendant Macias. [Doc. 346].
Rule 54(d) allows a prevailing party to recover its costs. Fed. R. Civ. P. 54(d)(1). Once a
clerk taxes costs, a party has seven days to file a motion for review with the Court. Id.
“[T]he taxing of costs rests in the sound judicial discretion of the trial court.” Gobbo Farms
& Orchards v. Poole Chem. Co., 81 F.3d 122, 124 (10th Cir. 1996). Here, Defendant
Macias bears the burden to establish the amount of compensable costs and expenses.
See Kulasa v. Wyndham Vacation Rentals N. Am., LLC, No. 19-cv-00561-NRN, 2020 WL
7640869, at *2 (D. Colo. Dec. 23, 2020) (citing Mares v. Credit Bureau of Raton, 801 F.2d
1197, 1208 (10th Cir. 1986)).
Recoverable costs are enumerated by 28 U.S.C. § 1920, which has been
interpreted to include demonstrative models. See, e.g., Wade v. Union Pac. R.R., No.
12-cv-01772-RM-CBS, 2014 WL 1909666, at *4 (D. Colo. May 13, 2014). Here, Plaintiff
suggests that Defendant Macias did not establish that the costs of a model subject jail
were actually incurred by him, rather than the County Defendants. [Doc. 346 at 4].
Plaintiff further contends that imposing costs in the context of civil rights litigation may
impose a chilling effect, arguing that the “Estate made a strategic decision to pursue
Defendant Macias because the facts were so egregious the case presented a good
vehicle for setting circuit-wide precedent. Defendant Macias thwarted that opportunity by
never requesting qualified immunity . . . .” [Id. at 6].
The Court has reviewed the invoice from Elite Trial Consultants and notes that it is
billed to the law firm representing Defendant Macias. See [Doc. 334-3]. The Court is not
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persuaded that the location for the storage of the model overrides the clear evidence that
counsel for Defendant Macias incurred such costs.
Nor is this Court persuaded that Defendant Macias is not entitled to costs as the
prevailing party simply because the Estate included him in an attempt to establish circuit-
wide case law. First, the jury decided that Defendant Macias did not, in fact, violate Mr.
Maes’s Eighth Amendment constitutional rights. [Doc. 329]. Second, it is entirely unclear
that the inclusion of Defendant Macias was necessary to establish the parameters of
deliberate indifference in the context of a jail suicide, particularly given the fact that
Plaintiff argued, and this Court agreed, that such right was already clearly established.
As noted in this Court’s ruling on the County Defendants’ Motion for Partial Summary
Judgment, it was clearly established that as of November 2019, prison officials are
deliberately indifferent if they fail to take reasonable steps to protect a pretrial detainee or
an inmate from suicide when they have subjective knowledge that person is a substantial
suicide risk. [Doc. 207 at 27]. This principle was affirmed by the Tenth Circuit on
interlocutory appeal. See Lieberenz v. Wilson, No. 23-1055, 2024 WL 2952150, at *7
(10th Cir. June 12, 2024) (“Our precedent on November 16, 2019, clearly established that
Captain Wilson’s failure to take any steps to assist Mr. Maes despite his awareness of the
risk of Mr. Maes’s death constituted deliberate indifference to his serious medical need.”).
Third, there was no guarantee that, had such right not been already clearly established,
this Court or the Tenth Circuit would have proceeded to establish such a constitutional
right in the context of this case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“[D]istrict courts and the courts of appeals should be permitted to exercise their sound
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discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.”).
The Estate provides no authority that suggests Defendant Macias should be
deprived costs due to a unilateral, strategic decision on its part, and this Court respectfully
declines to do so. Accordingly, Plaintiff’s Motion for Review of Costs is respectfully
DENIED.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1) Plaintiff’s Motion for Attorneys’ Fees and Prejudgment Interest [Doc. 335] is
GRANTED in part and DENIED in part;
(2) Attorney’s fees in the amount of $1,165,478.95 are AWARDED to Plaintiff
Sarah Lieberenz, as personal representative of the Estate of Jackson Maes, and against
Defendant Kenneth Wilson, in his individual and supervisory capacity, and Defendant Dan
Warwick, in his official capacity, with no prejudgment interest; and
(3) Plaintiff’s Motion for Review of Clerk’s Taxation of Macias’ Bill of Costs [Doc.
346] is DENIED.
DATED: March 31, 2026 BY THE COURT:
Nina Y. Wang
United States District Court
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