Graves, et al v. Arpaio, et al, No. 2:1977cv00479 - Document 1799 (D. Ariz. 2009)
Court Description: ORDER granting 1640 Motion for Attorney Fees: ORDERED that Plaintiffs Motion for Attorneys Fees and Non-taxable Costs (doc. #1640) is granted in the amount of $1,239,491.63 and nontaxable costs in the amount of $123,221.77. Additional fee s and expenses accrued since December 5, 2008, may be claimed by May 6, 2009. Defendants may file a response within the time permitted by LRCiv 7.2(c). No reply may be filed unless invited by the Court. The Court will then direct entry of judgment in the total amount awarded, with interest from October 22, 2008. See text of attached order for full details. Signed by Judge Neil V Wake on 4/20/09.(SJF)
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Graves, et al v. Arpaio, et al 1 Doc. 1799 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Fred Graves, Isaac Popoca, on their own behalf and on behalf of a class of all pretrial detainees in the Maricopa County Jails, 11 Plaintiffs, 12 vs. 13 14 15 16 Joseph Arpaio, Sheriff of Maricopa County; Fulton Brock, Don Stapley, Andrew Kunasek, Max W. Wilson, and Mary Rose Wilcox, Maricopa County Supervisors; Defendants. 17 18 No. CV-77-0479-PHX-NVW ORDER Pending before the Court is Plaintiffs’ Motion for Attorneys’ Fees and Non- 19 20 taxable Costs. (Doc. #1640.) 21 I. 22 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Background In 1977 this class action was brought against the Maricopa County Sheriff and the 23 Maricopa County Board of Supervisors alleging that the civil rights of pretrial detainees 24 held in the Maricopa County, Arizona, jail system had been violated. (Doc. #1.) In 1981 25 the parties entered into a consent decree that addressed and regulated aspects of County 26 jail operations as they applied to pretrial detainees. (Doc. #166.) 27 28 In 1995 the initial consent decree was superseded by an Amended Judgment entered by stipulation of the parties. (Doc. #705.) The Amended Judgment provided Dockets.Justia.com 1 relief regarding the following: population/housing limitations, dayroom access, natural 2 light and windows, artificial lighting, temperature, noise, access to reading materials, 3 access to religious services, mail, telephone privileges, clothes and towels, sanitation, 4 safety, hygiene, toilet facilities, access to law library, medical care, dental care, 5 psychiatric care, intake areas, mechanical restraints, segregation, outdoor recreation, 6 inmate classification, visitation, food, visual observation by detention officers, training 7 and screening of staff members, facilities for the handicapped, disciplinary policy and 8 procedures, inmate grievance policy and procedures, reports and record keeping, security 9 override, and dispute resolution. 10 In 1998 Defendants filed a motion to terminate the Amended Judgment pursuant to 11 the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626 and 42 U.S.C. § 1997e. 12 (Doc. #755.) Judge Earl H. Carroll denied the motion to terminate, relying on Taylor v. 13 United States, 143 F.3d 1178 (9th Cir. 1998), which held the decree termination provisions 14 of the PLRA to be unconstitutional. (Doc. #774.) Defendants appealed from the denial 15 of their motion for termination. (Doc. #777.) The Taylor panel opinion subsequently was 16 withdrawn. 17 On January 25, 2001, the Ninth Circuit issued a memorandum decision reviewing 18 the denial of Defendants’ motion to terminate the Amended Judgment. (Doc. #799.) 19 Acknowledging that Gilmore v. California, 220 F.3d 987 (9th Cir.2000), held the PLRA 20 decree termination provision constitutional and controlled the appeal, it reversed and 21 remanded for proceedings consistent with Gilmore. (Doc. #799.) 22 On September 25, 2001, Defendants renewed their motion to terminate. (Doc. 23 #821). On September 12, 2002, Judge Carroll denied Defendants’ renewed motion to 24 terminate without prejudice subject to findings to be entered following an evidentiary 25 hearing. (Doc. #840.) On November 14, 2003, Defendants filed a pre-hearing 26 memorandum in support of a renewed motion to terminate, which operated as a second 27 renewed motion to terminate the Amended Judgment. (Doc. #906.) 28 -2- 1 On November 25, 2003, and January 22, 2004, Judge Carroll began hearing 2 evidence on Defendants’ motion. (Doc. ##918, 939.) The parties engaged in further 3 discovery, but the hearing was not completed. On April 3, 2008, Judge Carroll caused the 4 case to be reassigned, and it subsequently was assigned to the undersigned judge. (Doc. 5 ##1222, 1234.) On April 25, 2008, this Court set Defendants’ motion to terminate the 6 Amended Judgment for evidentiary hearing commencing August 12, 2008. (Doc. #1241.) 7 Evidence was received and argument heard on August 12-15, 19-22, 28-29, 2008, and 8 September 3-5, 2008. From May to August 2008, the parties conducted a substantial 9 amount of discovery, including tours of five jail facilities with experts, review of medical 10 11 records at each facility, and numerous depositions of fact and expert witnesses. Based upon the pre-hearing and post-hearing briefing, oral argument, and the 12 evidence presented, the Court made findings of fact and conclusions of law on October 13 22, 2008. (Doc. #1634.) With respect to the Amended Judgment, the Court found some 14 provisions exceeded constitutional minimums, some provisions did not exceed 15 constitutional minimums but are no longer necessary to correct current and ongoing 16 violations of federal rights, and some provisions did not exceed constitutional minimums 17 and continue to be necessary to correct current and ongoing violations of federal rights of 18 pretrial detainees. The Court expressly found: 19 20 21 475. . . . . Plaintiffs have proven, or Defendants failed to disprove, current and ongoing violations of constitutional right and of the Amended Judgment as originally written or as narrowed by the Second Amended Judgment. Defendants are in breach of the Amended Judgment as found in these findings and conclusions and as it is restated and narrowed by the Second Amended Judgment entered this day. 22 .... 23 24 478. Pursuant to 42 U.S.C. § 1988(b) for the award of attorney fees, Plaintiffs are the prevailing parties on Defendants’ Renewed Motion to Terminate the Amended Judgment (doc. #906) and its predecessors. 25 26 27 28 479. Subject to the limitations of 42 U.S.C. § 1997e(d), Plaintiffs are entitled to award of attorney fees incurred in defending against the motion. Fees may be claimed under the procedures in Fed. R. Civ. P. 54(d)(2) and LRCiv 54.2 upon entry of this order. If enforcement proceedings become necessary, future fees may be claimed and will be determined and awarded at appropriate intervals during the enforcement proceedings. -3- 1 On October 22, 2008, the Court also entered the Second Amended Judgment, 2 which vacated the Amended Judgment as to future effect and restated the portions of the 3 Amended Judgment that continue in effect, as originally written or as modified. (Doc. 4 #1635.) The Second Amended Judgment ordered prospective relief regarding the 5 numbers of pretrial detainees housed in cells and placed in holding cells; the maximum 6 temperature in housing of pretrial detainees taking prescribed psychotropic medications; 7 cleaning supplies and sanitization of cells prior to occupancy by pretrial detainees; toilets, 8 sinks, toilet paper, and soap in intake areas and court holding cells; receiving screenings; 9 access to care for serious medical and mental health needs; continuity of prescription 10 medications; continuous monitoring in intake areas; access to toilet and wash basin 11 facilities in intake areas; provision of a blanket and a bed or mattress for pretrial detainees 12 held in an intake area for more than twenty-four hours; outdoor exercise; food; visual 13 observation of pretrial detainees in intake areas, court holding cells, the psychiatric unit, 14 and segregation units; incident reports; and compliance records and quarterly summaries. 15 On October 28, 2008, Plaintiffs filed their Motion for Attorneys’ Fees and Non- 16 taxable Costs. (Doc. #1640.) Oral argument on the motion was held on March 27, 2009. 17 (Doc. #1791.) 18 II. 19 Legal Standard Any award of attorneys’ fees and non-taxable costs in this civil rights action by 20 pretrial detainees must be authorized by 42 U.S.C. § 1988 and comply with limits 21 imposed by 42 U.S.C. § 1997e(d). Section § 1997e(d)(1) begins: 22 23 In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that. . . . 24 The Tenth Circuit has described the relationship between § 1988 and § 1997e(d) as 25 follows: 26 27 28 It is worth remembering that the American Rule is that the losing party in litigation is not required to reimburse the prevailing party’s attorney fees. An award of attorney fees under 42 U.S.C. § 1988 is a departure from general practice, presumably designed as an incentive to plaintiffs to engage -4- 1 2 3 in litigation to vindicate civil rights. Section 1997e(d) reduces that incentive in civil-rights suits by prisoners. . . . Robbins v. Chronister, 435 F.3d 1238, 1244 (10th Cir. 2006) (citation omitted). See also Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003) (a reasonable fee award 4 under § 1997e(d) required consideration of the degree of success analyzed under § 1988 5 principles); Siripongs v. Davis, 282 F.3d 755, 757 (9th Cir. 2002) (where prisoner sought 6 fees under § 1988, his recovery was restricted by the PLRA); Johnson v. Daley, 339 F.3d 7 582, 593-94 (7th Cir. 2003) (en banc) (award of fees under § 1997e(d) required 8 satisfaction of the reasonableness requirement in § 1988). 9 A. Section 1988 10 In any action or proceeding to enforce a provision of 42 U.S.C. § 1983, “the court, 11 in its discretion, may allow the prevailing party, other than the United States, a reasonable 12 attorney’s fee as part of the costs.” 42 U.S.C. § 1988. Prevailing parties in civil rights 13 litigation “should ordinarily recover an attorney’s fee unless special circumstances would 14 render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal 15 quotations and citation omitted). To qualify as a “prevailing party”: 16 17 18 19 . . . a civil rights plaintiff must obtain at least some relief on the merits of his claims. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. . . . In short, a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff. 20 Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (citations omitted). The magnitude of the 21 relief does not affect a plaintiff’s eligibility for a fee award under § 1988. Id. at 114. 22 After determining the plaintiff is the prevailing party, the court must calculate a 23 reasonable fee award, which usually involves a two-step process: 24 25 26 First, the court must calculate the “lodestar figure” by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate. Second, the court must decide whether to enhance or reduce the lodestar figure based on an evaluation of the Kerr factors that are not already subsumed in the initial lodestar calculation. 27 28 -5- 1 Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citations and footnote 2 omitted). The Kerr factors are: 3 7 (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 8 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Morales v. City of San 9 Rafael, 96 F.3d 359, 363-64 & n.8 (9th Cir. 1996); see LRCiv 54.2(c)(3). Factors (1) 4 5 6 10 through (4) and (6) are taken into account in either the reasonable hours component or the 11 reasonable rate component of the lodestar calculation. Morales, 96 F.3d at 364 n.9. 12 Factors (5) and (7) through (12) are considered in determining whether to adjust the 13 presumably reasonable lodestar figure. Id. 14 Under § 1988, a district court may, in its discretion, reduce a fee award based on 15 “limited success” achieved by applying another two-step process. Hensley, 461 U.S. at 16 434-437; Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001). First, the court 17 determines whether the plaintiff failed to prevail on claims unrelated to claims on which 18 he succeeded. Id. (both). To be “unrelated,” claims must be “entirely distinct and 19 separate” from claims on which the plaintiff prevailed. Sorenson, 239 F.3d at 1147; 20 Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir. 1995). Work on related 21 claims are deemed to have been “expended in pursuit of the ultimate result achieved.” 22 Hensley, 461 U.S. at 435. The final fee award may not include time expended on 23 unrelated, unsuccessful claims. Id. As a general rule, under § 1988: 24 25 26 [P]laintiffs are to be compensated for attorneys’ fees incurred for services that contribute to the ultimate victory in the lawsuit. Thus, even if a specific claim fails, the time spent on that claim may be compensable, in full or in part, if it contributes to the success of other claims. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991). 27 28 -6- 1 Second, the court determines whether the hours reasonably expended on the 2 litigation are commensurate with the significance of the overall relief plaintiff obtained. 3 Hensley, 461 U.S. at 435; Sorenson, 239 F.3d at 1147. “Where a plaintiff has obtained 4 excellent results, his attorney should recover a fully compensatory fee.” Hensley, 461 5 U.S. at 435; Sorenson, 239 F.3d at 1147. “A plaintiff may obtain excellent results 6 without receiving all the relief requested.” Sorenson, 239 F.3d at 1147; see Friend v. 7 Kolodzieczak, 72 F.3d 1386, 1390-91 (9th Cir. 1995) (inmate plaintiffs prevailed on a 8 significant portion of relief sought by gaining expanded access to Roman Catholic 9 services and sacraments and explicit, written acknowledgment of the right to at least 10 limited use of rosaries and scapulars even though the district court granted defendants’ 11 motion for summary judgment on the issue of whether jail officials were required to 12 permit inmates unlimited access to rosaries and scapulars at all times). In determining the 13 extent of a plaintiff’s success, a district court should consider significant nonmonetary 14 results achieved not only for the plaintiff, but also for other members of society. Morales, 15 96 F.3d at 365. 16 B. Section 1997e(d) 17 Under the PLRA, 18 In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that-- 19 20 21 (A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and 22 23 (B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or 24 (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. 25 42 U.S.C. § 1997e(d)(1) (footnote omitted). “[W]hen subsections (A) and (B) are read 26 together, it is apparent that a plaintiff is entitled to fees incurred in enforcing a judgment 27 entered upon proof that the plaintiff’s constitutional rights had been violated.” Webb v. 28 -7- 1 Ada County, 285 F.3d 829, 834 (9th Cir. 2002). Moreover, the PLRA defines relief as “all 2 relief in any form that may be granted or approved by the court, and includes consent 3 decrees.” Id. at 834-35 (quoting 18 U.S.C. § 3626(g)(9)). Thus, the PLRA permits 4 compensation for attorneys’ fees incurred for postjudgment enforcement of court orders 5 and a consent decree as well as for “proving an actual violation of the plaintiff’s rights.” 6 Id. at 835. See also Cody v. Hillard, 304 F.3d 767, 776 (8th Cir. 2002) (subsection (A) 7 must permit some fee awards for enforcement work to allow some effect to (B)(ii)). 8 Further, postjudgment enforcement includes defending against efforts to terminate a 9 consent decree. Id. at 777. 10 Section 1997e(d)’s limitation of a fee award to fees “directly and reasonably 11 incurred in proving an actual violation” and “proportionately related to the court ordered 12 relief for the violation,” in effect, codifies Hensley requirements that district courts award 13 only fees related to successful claims and commensurate with the extent of success. See, 14 e.g., Riley v. Kurtz, 361 F.3d 906, 916 (6th Cir. 2004): 15 16 17 To this court’s mind, the “related claim” limitation set out in Hensley has been incorporated into the fee limitation section of the PLRA. Although stated differently, this limitation on attorney’s fees is like the limitation in the PLRA—attorney’s fees are only available if “the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights. . . .” 42 U.S.C. § 1997e(d)(1)(A). 18 During oral argument, counsel for the Board Defendants argued that after 19 enactment of the PLRA, Hensley no longer applies in prisoner civil rights cases. Because 20 this argument had not been briefed, both parties were permitted to submit supplemental 21 briefing on the legislative history of § 1997e(d)(1) and the intended effect of 22 § 1997e(d)(1) on application of the Hensley standards. The legislative history submitted 23 shows that Congress intended the PLRA to deter frivolous prisoner litigation and to 24 prevent states from being forced to pay excessive amounts for attorneys’ fees incurred 25 proving minimal violations of prisoners’ rights. None of the legislative history submitted 26 refers to Hensley or indicates legislative intent to overrule judicial law on fee awards 27 under § 1988. A House Report regarding a draft bill that included most of § 1997e(d)(1) 28 -8- 1 except for (d)(1)(B)(ii), which permits fees for enforcement, indicates the fee subsection 2 is intended to “narrow” the circumstances in which fees may be awarded: 3 8 [I]t narrows the judicially created view of a “prevailing party” so that a prisoner’s attorney will be reimbursed only for those fees reasonably and directly incurred in proving an actual violation of a federal right. Narrowing the definition of “prevailing party” will eliminate both attorney fees that penalize voluntary improvements in prison conditions and attorney fees incurred in litigating unsuccessful claims, regardless of whether they are related to meritorious claims. While this provision eliminates the financial incentive for prisoners to include numerous non-meritorious claims in sweeping institutional litigation, it retains the financial incentive to bring lawsuits properly focused on prison conditions that actually violate federal law. 9 (Doc. # 1794-2, Exh. A, H.R. Rep. No. 104-21 at 28 (Feb. 6, 1995)). See Riley, 361 F.3d 10 at 914. Reviewing this House Report in Riley, the Sixth Circuit concluded that Congress 11 intended, in prisoner civil rights litigation, to limit the definition of prevailing party to 12 prisoners who satisfy the conditions of § 1997e(d)(1), but also held § 1997e(d)(1)(A) 13 incorporated Hensley’s “related claim” limitation. Id. at 915-16. 4 5 6 7 14 The only apparent contradiction between the House Report and Hensley relates to 15 whether fees incurred on unsuccessful claims related to successful claims are 16 compensable. Under Hensley, fees incurred for unsuccessful claims may be awarded if 17 the unsuccessful claims are related to the successful claims, but the House Report 18 suggests otherwise. The Ninth Circuit, however, ordered a district court deciding a fee 19 award under § 1997e(d)(1) to consider the “degree of success” under Farrar and Hensley 20 where the plaintiff lost two claims on summary judgment and prevailed against four of 21 eight defendants on another claim. Dannenberg v. Valadez, 338 F.3d 1070, 1075-76 (9th 22 Cir. 2003). The Ninth Circuit did not direct the district court to deviate from Hensley and 23 its progeny, and its summary description of the claims suggests the unsuccessful claims 24 were distinct and separate from the successful claims. This Court must follow Ninth 25 Circuit precedent. 26 Moreover, Plaintiffs were not required to prove violations or to defeat Defendants’ 27 motion (which they did) in order to obtain a fee award. They would be entitled to a fee 28 award even if all they did was to enforce relief previously ordered by defending against -9- 1 Defendants’ motion. It was Defendants’ burden to prove the absence of constitutional 2 violations for each provision of the Amended Judgment they sought to be terminated. 3 Although § 1997e(d)(1) may not restrict a fee award beyond limitations imposed 4 by Farrar and Hensley, § 1997e(d)(3) limits the fee award by establishing a maximum 5 hourly rate for attorneys’ fees. The maximum hourly rate upon which an award for 6 attorneys’ fees may be based is 150 percent of the hourly rate established for payment of 7 court-appointed counsel under 18 U.S.C. § 3006A. The parties agree the rate applicable 8 here is $169.50 per hour. 9 III. Analysis 10 A. Prevailing Party Under § 1988 11 To succeed on their motion to terminate the Amended Judgment, Defendants were 12 required to prove the relief granted by the Amended Judgment is not narrowly drawn, 13 extends further than necessary to correct the violation of a federal right, or is not the least 14 intrusive means necessary to correct a violation of a federal right and that prospective 15 relief is not necessary to correct a current and ongoing violation. Gilmore v. California, 16 220 F.3d 987, 1007-08 (9th Cir. 2000); 18 U.S.C. § 3626(b)(2). Defendants failed to 17 satisfy their burden of proof in each of the categories of disputed provisions (e.g., food, 18 outdoor recreation, sanitation, medical care), and Plaintiffs succeeded in proving at least 19 one constitutional violation in each of the categories except food. Most of the prospective 20 relief Plaintiffs obtained was substantial. 21 Defendants contend that Plaintiffs are not the prevailing party as to all issues 22 because Plaintiffs withdrew their opposition to the termination of certain paragraphs of 23 the Amended Judgment shortly before or during the evidentiary hearing and Plaintiffs did 24 not obtain all of the relief they sought regarding other areas of dispute. Although 25 Defendants’ contentions are relevant to whether the fee award should be reduced for 26 limited success, failure to obtain all of the relief sought does not prevent or deprive 27 Plaintiffs of prevailing party status under § 1988. 28 - 10 - 1 Plaintiffs successfully defended against the termination of substantial portions of 2 the Amended Judgment. Further, Plaintiffs obtained a new enforceable judgment that 3 provided relief on the merits of their claims and materially altered the legal relationship 4 between the parties by modifying the Defendants’ behavior in a way that directly 5 benefited the Plaintiffs. Therefore, under § 1988, Plaintiffs qualify as the prevailing party 6 for award of attorneys’ fees. See Farrar, 506 U.S. at 111-12. 7 B. The Initial Lodestar Figure With Hourly Rate Limited by § 1997e(d) 8 The initial lodestar figure is calculated by multiplying the number of hours 9 reasonably expended on the litigation by a reasonable hourly rate. The parties agree that 10 § 1997e(d)(3) caps the hourly rate at $169.50, a rate that is far below reasonable and 11 market value in light of the qualifications and experience of Plaintiffs’ lead counsel. 12 Plaintiffs have submitted itemized billing statements to support their request of 13 $1,239,491.63 in attorneys’ fees, not exceeding the hourly rate of $169.50.1 14 To determine the reasonableness of the award, the Court considers the following 15 Kerr (Hensley) factors: (1) the time and labor required; (2) the novelty and difficulty of 16 the questions; (3) the skill requisite to perform the legal service properly; (4) the 17 preclusion of other employment by the attorney due to acceptance of the case; and (6) 18 whether the fee is fixed or contingent. See Kerr, 526 F.2d at 70; Hensley, 461 U.S. at 430 19 n.3; Morales, 96 F.3d at 364 n.9; LRCiv. 54.2(c)(3). 20 Representing the class of all pretrial detainees in the Maricopa County Jails, which 21 includes five different facilities, a centralized intake area, court holding cells, medical 22 facilities, and a psychiatric unit, to defend and enforce the Amended Judgment for more 23 than five years and to obtain the prospective relief ordered in the Second Amended 24 Judgment required substantial time and labor. Given PLRA’s intent that motions to 25 terminate prospective relief regarding prison conditions be resolved quickly, that 26 27 28 1 Plaintiffs reduced their initial request to adjust for clerical errors in their billing statements. - 11 - 1 resolution of Defendants’ motion to terminate the Amended Judgment had been delayed 2 for more than seven years, and that Plaintiffs had been deprived of relief during the 3 automatic stay of the Amended Judgment during that period, it was necessary for the 4 parties to conduct substantial discovery and preparation for an evidentiary hearing in less 5 than four months. 6 Although most of the questions presented were not novel, many were difficult and 7 complex. Determining the constitutionality of jail conditions requires weighing risk to a 8 pretrial detainee’s health and safety against the need for restrictions to protect the security 9 of all pretrial detainees, detention officers, and the community. Procedural issues in this 10 case tended to be complex and included some that were novel. Conducting discovery, 11 marshaling evidence on a wide range of complex issues, and presenting evidence during a 12 thirteen-day evidentiary hearing required considerable skill. 13 Representing Plaintiffs as described above required virtually full-time work by 14 four attorneys for a period of four months. Further, the commitment of these attorneys’ 15 time and the advancement of costs limited their ability to take on new cases. Plaintiffs’ 16 counsel will not receive any compensation for their work in this case except as awarded 17 by the Court. 18 The initial lodestar figure requested by Plaintiffs, which does not exceed the 19 maximum hourly rate permitted by the PLRA, is reasonable in light of the foregoing 20 consideration of Kerr factors. 21 C. Adjustment of the Lodestar Figure 22 To determine whether the presumptively reasonable lodestar figure, capped under 23 § 1997e(d), should be adjusted upward or downward, the Court considers the remaining 24 Kerr factors, the degree of Plaintiffs’ success, and compliance with conditions imposed 25 by § 1997e(d). 26 1. Kerr Factors Not Subsumed in the Initial Lodestar Calculation 27 In deciding whether to adjust the initial lodestar figure, the Court considers: (5) 28 the customary fee; (7) time limitations imposed by the client or the circumstances; (8) the - 12 - 1 amount involved and the results obtained; (9) the experience, reputation and ability of the 2 attorneys; (10) the “undesirability” of the case; (11) the nature and length of the 3 professional relationship with the client; and (12) awards in similar cases. See Kerr, 526 4 F.2d at 70; Hensley, 461 U.S. at 430 n.3; Morales, 96 F.3d at 364 n.9; LRCiv. 54.2(c)(3). 5 The hourly rate requested by Plaintiffs and mandated by the PLRA is far less than 6 the customary hourly rate. The circumstances imposed significant time limitations on 7 counsel for all parties. Plaintiffs’ lead counsel are extremely experienced and capable 8 attorneys. Written work and oral advocacy performed on behalf of Plaintiffs were of very 9 high quality. This case is considered “undesirable” because § 1983 class actions on 10 behalf of prisoners involving the conditions of confinement are exceedingly fact- 11 intensive, time-consuming, and expensive to litigate, and the PLRA restricts the hourly 12 rate for attorneys’ fees below market. Counsel’s professional relationship with Plaintiffs 13 began more than five years ago. The amount sought here is reasonable in light of awards 14 in similar cases. 15 Plaintiffs successfully defended against Defendants’ motion to terminate the 16 Amended Judgment and obtained significant prospective relief in every major area in 17 which they sought relief. Plaintiffs did not seek monetary damages. 18 Plaintiffs do not request that the initial lodestar figure be adjusted upward, and the 19 Court finds no basis for adjusting the initial lodestar figure downward in consideration of 20 the remaining Kerr factors. 21 22 2. Degree of Success Defendants contend that Plaintiffs’ fee award should be reduced for limited 23 success on their claims. However, Defendants bore the burden of proof on their motion 24 to terminate the Amended Judgment and they failed to carry their burden on some or all 25 issues in every major area litigated. Applying the Hensley two-step process for reducing 26 a fee award for “limited success,” the Court finds (1) Plaintiffs did not fail to prevail on 27 any claims unrelated to claims on which they succeeded, and (2) the hours reasonably 28 - 13 - 1 expended on the litigation are commensurate with the significance of the overall relief 2 Plaintiffs obtained. 3 Defendants carried their burden of proof on overcrowding in some areas of the 4 Towers jail, the Estrella jail, and the Durango Housing Units D8 and D9, but they did not 5 on overcrowding in the Towers segregation cells, Madison court holding cells, or 4th 6 Avenue Intake holding cells. Defendants did not carry their burden on proving portable 7 beds will not be used routinely in some jail facilities. Plaintiffs did not contend that 8 pretrial detainees’ access to dayrooms is constitutionally required, but they did prove that, 9 under the current conditions, access to dayrooms does not compensate for insufficient 10 11 outdoor recreation. Defendants proved they provide inmates with cleaning supplies, but not that they 12 consistently provide sufficient supplies for effective cleaning to avoid unconstitutional 13 health risks to pretrial detainees. Defendants failed to prove they provide administrative 14 segregation pretrial detainees with adequate opportunity to clean their cells to avoid 15 unconstitutional health risks to pretrial detainees. Defendants failed to prove cells are 16 consistently cleaned and sanitized prior to occupancy by pretrial detainees to avoid 17 causing unconstitutional health risks. 18 Defendants proved that ambient temperatures in housing areas generally do not 19 exceed constitutional limits, but did not prove the temperatures in which pretrial detainees 20 taking prescribed psychotropic medications are housed are safe. Defendants proved fire 21 protection equipment and procedures meet constitutional requirements and that the 22 Maricopa County Jails are not constitutionally required to conduct fire drills involving 23 pretrial detainees. Defendants proved that although barriers separating detention officers 24 in control towers at the Towers and Estrella jails may delay detention officers in 25 responding to calls for help, the barriers are reasonably related to legitimate governmental 26 objectives of safety and security. However, Plaintiffs proved that detention officers do 27 not adequately monitor pretrial detainees in intake and court holding cells. 28 - 14 - 1 Defendants failed to prove they prepare incident reports of all instances of inmate 2 or officer abuse, injuries, violence, assaults, sexual assaults, suicides, deaths, and inmate 3 riots and demonstrations. Plaintiffs proved that incident reports are not always prepared 4 even when a pretrial detainee requires medical treatment as a result of an incident. 5 Defendants proved that Defendants’ current provision of functioning toilets, 6 showers, and sinks does not violate pretrial detainees’ constitutional rights in housing 7 units, but did not prove the provision of toilets, sinks, toilet paper, and soap is 8 constitutionally adequate in the 4th Avenue Intake holding cells and the Madison court 9 holding cells. Further, Plaintiffs proved prospective relief remained necessary to ensure 10 that pretrial detainees have access to toilet and wash basin facilities in the holding cells in 11 intake areas and pretrial detainees incarcerated in the intake area for more than twenty- 12 four hours are provided with a blanket and a bed or mattress on which to sleep. 13 Defendants attempted to prove, but did not, that they provide general population 14 pretrial detainees opportunity for outdoor exercise one hour per day, six days per week at 15 the Towers, Durango, and Estrella jails. Defendants also attempted to prove, but did not, 16 that pretrial detainees can do physical exercise in their cells, or in their cells and 17 dayrooms, sufficient to meet their constitutional entitlement. Although Plaintiffs sought 18 to obtain opportunity for outdoor exercise at least one hour per day, six days per week, 19 the Court found that one hour per day, four days per week, would satisfy the 20 constitutional minimum. However, Defendants failed to prove they offer general 21 population pretrial detainees opportunity for outdoor exercise at least one hour per day, 22 four days per week, and prospective relief remained necessary to correct a current and 23 ongoing violation of the pretrial detainees’ federal right to outdoor exercise. The Court 24 further found that the 4th Avenue jail recreation yards do not provide sufficient space to 25 satisfy pretrial detainees’ constitutional right to outdoor exercise one hour per day, four 26 days per week, and permitting pretrial detainees to exercise outdoors without drinking 27 water when the outside temperature exceeds 85° F. does not satisfy the constitutionally 28 required opportunity for outdoor exercise. Defendants also failed to prove that pretrial - 15 - 1 detainees classified as administrative segregation were provided with constitutionally 2 adequate opportunity for outdoor exercise. 3 4 5 6 7 8 Defendants did not carry their burden of proving that they provide pretrial detainees adequate nutrition. The Court expressly found: 406. Defendant Arpaio cannot establish what edible food inmates actually received during much of the relevant period. 407. Defendant Arpaio cannot establish that pretrial detainees are served adequate nutrition. 408. The Maricopa County Jails dietician’s opinion that pretrial detainees are served adequate nutrition is not supported by the evidence, is contrary to evidence, and is unworthy of belief. The Court does not believe it. 9 (Doc. #1634.) 10 Defendants carried their burden of proving pretrial detainees are not deprived of 11 their constitutional right to emergency dental care and that the jail facilities have adequate 12 emergency medical equipment. However, Defendants did not carry their burden in 13 proving that pretrial detainees’ access to medical, dental, and mental health care meets 14 constitutional minimums. Among other things, Plaintiffs proved: 15 16 177. Systemic deficiencies in the screening process significantly impair continuity of care and result in failure to identify pretrial detainees with immediate medical needs. 17 18 19 20 216. . . .Defendants do not ensure that pretrial detainees receive access to adequate medical and mental health care because Correctional Health Services does not provide timely in-person assessment of the urgency of their need for treatment, is not able to readily retrieve information from pretrial detainees’ medical and mental health records and housing records, and does not identify and appropriately treat many pretrial detainees with serious mental illness. 21 22 23 24 25 233. In addition to inconsistencies in obtaining necessary prescription information during the intake process, Correctional Health Services does not consistently ensure that all pretrial detainees actually receive all prescribed medications as ordered. (Doc. #1634.) Therefore, Defendants did not satisfy their burden of proof on any disputed issue 26 that was entirely distinct and separate from the issues on which Plaintiffs successfully 27 defended. The Second Amended Judgment provides significant relief to protect the 28 safety and physical and mental health of pretrial detainees held in one of the largest jail - 16 - 1 systems in the United States, and the hours reasonably expended on the litigation are 2 commensurate with the significance of the overall relief Plaintiffs obtained. 3 4 3. Compliance with § 1997e(d) Conditions Plaintiffs may receive an award of attorneys’ fees under § 1997e(d)(1) for fees 5 directly and reasonably incurred in either proving a violation of Plaintiffs’ rights or 6 enforcing relief ordered for a violation in an amount that is proportional to the relief 7 ordered for the violation. Plaintiffs’ efforts to prolong the efficacy of the Amended 8 Judgment by defending against Defendants’ motion to terminate it was time spent 9 “enforcing” that decree and is fully compensable. See Cody v. Hillard, 304 F.3d 767, 777 10 (8th Cir. 2002). Moreover, Plaintiffs not only successfully defended against termination 11 of most of the disputed areas of relief, they also proved numerous current and ongoing 12 violations of their rights. As found above, the amount of attorneys’ fees requested is 13 proportional to the relief ordered for the violation. 14 The Court finds that the corrected amount requested for reimbursement of 15 attorneys’ fees, $1,239,491.63, was directly and reasonably incurred in proving an actual 16 violation of Plaintiffs’ rights or in enforcing the relief ordered for a violation. 17 D. Fees Incurred Before Appointment as Class Counsel 18 Defendants contend that Plaintiffs are not entitled to attorneys’ fees and non- 19 taxable costs prior to their appointment as class counsel on April 1, 2008. The PLRA 20 does not require appointment as class counsel for award of attorneys’ fees and non- 21 taxable costs. See 42 U.S.C. § 1997e. 22 In April 2008 the Court addressed this issue when Defendants moved for 23 reconsideration of the appointment of counsel for the Plaintiff class. (Doc. ##1231, 24 1239.) In 1998 Plaintiffs and Defendants had stipulated to the appointment of Theodore 25 C. Jarvi to represent the Plaintiff class for consent decree termination issues under 26 18 U.S.C. § 3626(b) of the PLRA. Under the stipulation, the County agreed to pay 27 Jarvi’s reasonable fees at the rate of $150 per hour and to pay Jarvi for the assistance of 28 - 17 - 1 paralegals at $65 per hour and other attorneys at their actual rates, not to exceed $150 per 2 hour. The stipulation also provided: 3 4 5 Mr. Jarvi may utilize his own staff or retain contract attorneys or paralegals to assist him in the representation; provided, however, the County shall have no obligation to compensate (and no obligation to reimburse Mr. Jarvi for compensation of) any attorney, paralegal or law firm that is, becomes or has been involved in any other prisoner rights, prison conditions or similar cases involving the County and/or the MCSO. 6 On April 1, 2008, Judge Carroll terminated Jarvi’s appointment as Plaintiff class 7 counsel and granted the motion for appointment of attorney Debra Hill of Osborn 8 Maledon, P.A., and attorney Margaret Winter of the ACLU National Prison Project as 9 class counsel. (Doc. #1221.) Judge Carroll further ordered that Hill and Winter “may 10 request reimbursement of fees pending further Order of the Court at an hourly rate no 11 greater than that set by the Prison Litigation Reform Act (150% of the prevailing CJA 12 rate at the time the work is done).” (Id.) 13 On April 8, 2008, Defendants moved for reconsideration of the order appointing 14 new class counsel. (Doc. #1231.) Defendants urged the Court to “determine now rather 15 than later that Defendants should not be responsible for any attorneys’ fees and costs, if at 16 all, that were incurred by Hill and Winter (and Winter’s predecessor, David Fathi) prior to 17 the time of their appointment” and “reconsider whether Hill and Winter should be 18 compensated under the PLRA or the same fee structure obtained by Ted Jarvi.” (Id.) On 19 April 10, 2008, the case was assigned to this judge. The April 17, 2008 order ruling on 20 Defendants’ motion for reconsideration states in part: 21 22 23 24 25 26 27 28 Defendants object to compensating Ms. Hill and Ms. Winter under the Prison Litigation Reform Act (“PLRA”) and contend it is unclear when Ms. Hill and Ms. Winter would be compensated. However, Fed. R. Civ. P. 23(h) provides,“In a certified class action, the court may award reasonable attorneys’ fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Absent an agreement between parties regarding compensation for Ms. Hill and Ms. Winter, any attorneys’ fee award will be made as authorized by law. Under Rule 23(h) and in the context of the January 24, 2008 hearing (doc. #1208) before Judge Earl H. Carroll regarding the appointment of Plaintiffs’ class counsel and papers the parties have filed, the April 1, 2008 Order means that Ms. Hill’s and Ms. Winter’s compensation will be determined under the governing statutory authority, i.e., 18 U.S.C. § 3626 and 42 U.S.C. §§ 1997(e), 1983, 1988, unless the parties reach a different agreement. Under § 1988, the court may award a - 18 - 1 2 3 4 reasonable attorney’s fee to the prevailing party. Under § 1997e, the court may not award fees except to the extent the fee was directly and reasonably incurred in proving an actual violation of Plaintiffs’ rights protected by a statute pursuant to which a fee may be awarded under § 1988 and the fee was directly and reasonably incurred in enforcing the relief ordered for the violation. Section 1997e also limits the hourly rate to 150 percent of the hourly rate established for payment of court-appointed criminal defense counsel. 5 (Doc. #1239.) 6 The agreement between the County and Jarvi that the County would pay Jarvi, but 7 would not pay associated counsel who had “been involved in any other prisoner rights, 8 prison conditions or similar cases involving the County and/or the MCSO,” does not bind 9 the Court, Plaintiffs, or Plaintiffs’ current counsel. Neither the agreement nor the date on 10 which Plaintiffs’ counsel were appointed as class counsel limits award of attorneys’ fees 11 and non-taxable costs under §§ 1988 and 1997e(d). 12 D. Fees Requested by the Arizona Chapter of the ACLU 13 Defendants contend that fees incurred by the Arizona Chapter of the ACLU should 14 be excluded from the award because the Arizona Chapter of the ACLU was not appointed 15 as Plaintiffs’ class counsel. As stated above, appointment as class counsel is not a 16 prerequisite to award of attorneys’ fees under §§ 1988 and 1997e(d). 17 E. Hourly Rates for Paralegals and Law Clerks Under the PLRA 18 Section 1997e(d)(3) establishes a maximum hourly rate for attorneys’ fees. 19 Defendants incorrectly view the statute as establishing a discount, rather than a 20 maximum. They urge the Court to calculate the discounts the PLRA imposes on the lead 21 attorneys in this case, whose customary hourly rates exceed the PLRA maximum, and 22 apply those discounts to the hourly rates for their paralegals and law clerks. Following 23 that reasoning, Defendants contend that the rates for paralegals and law clerks employed 24 by Osborn Maledon should be discounted to 45% of their customary rates and those 25 employed by the ACLU should be discounted to 26% of their customary rates. The 26 PLRA limits fee awards to fees “reasonably incurred” and the amount of a fee award to 27 that which is “proportionately related to the court ordered relief,” but it does not provide 28 - 19 - 1 any basis for arbitrarily discounting fees incurred by paralegals and law clerks based on 2 the effect of the PLRA maximum on the lead attorneys’ hourly rates. 3 F. Non-taxable Costs 4 Defendants object to Plaintiffs’ requested non-taxable costs in the following 5 categories: CD duplication charge, DVD duplication charges, color print charges, 6 photocopying charges, collect jail calls, delivery charges, federal express delivery 7 charges, computerized legal research, and individual hard costs. Defendants contend the 8 amounts requested are unreasonable and that some of the expenses were unnecessary. 9 Plaintiffs reduced their request to adjust for charges improperly included in their 10 initial request for individual hard costs, including expert witness expenses. Plaintiffs 11 have submitted affidavits and documentation to support all of their non-taxable costs. 12 The Court requested additional information regarding the charges for computerized 13 research and is satisfied that the amount sought is a close approximation of the cost 14 actually incurred by Osborn Maledon. 15 The Court finds that the corrected amount requested for reimbursement of non- 16 taxable costs, $123,221.77, was directly and reasonably incurred in proving an action 17 violation of Plaintiffs’ rights or in enforcing the relief ordered for a violation. 18 G. Clerical Errors 19 Defendants identified in Plaintiffs’ request for attorneys’ fees and non-taxable 20 costs several clerical errors, some of which were substantial. In their Reply, Plaintiffs 21 reduced the amounts requested accordingly. During oral argument, Plaintiffs’ counsel 22 avowed they had scrutinized their itemized billing statements and were confident of the 23 accuracy of their revised request. Defendants do not dispute this avowal. 24 H. Interest 25 Plaintiffs initially sought award of interest on the award of attorneys’ fees and non- 26 taxable costs pursuant to 28 U.S.C. § 1961(a) from October 28, 2008, the date they filed 27 their motion for award of attorneys’ fees. In their Reply Brief they sought award of 28 interest from October 22, 2008, which they described as “the date of the order - 20 - 1 establishing their entitlement to the award.” Defendants contend that interest awarded 2 under § 1961(a) does not begin to accrue until either the Court orders a fee award or 3 Defendants stipulate to one. 4 Section 1961(a) provides, “[I]nterest shall be allowed on any money judgment in a 5 civil case recovered in a district court” and “shall be calculated from the date of the entry 6 of the judgment.” Although there is no consensus among the Courts of Appeals that have 7 addressed the issue, the Fifth, Eighth, Ninth, Eleventh and Federal Circuits have adopted 8 the view that “post-judgment interest on an attorneys’ fee award runs from the date that 9 the district court enters a judgment finding that the prevailing party is entitled to such an 10 award, or from the date that, by operation of law, the prevailing party becomes entitled to 11 fees, even if the amount of the award is not fixed in that judgment.” Eaves v. County of 12 Cape May, 239 F.3d 527, 531 (3d Cir. 2001). 13 In Friend v. Kolodzieczak, the Ninth Circuit stated: 14 Interest runs from the date the entitlement to fees is secured, rather than from the date that the exact quantity of fees is set. Finkelstein v. Bergna, 804 F. Supp. 125, 1239-40 (N.D. Cal. 1992); see also Perkins v. Standard Oil Co., 487 F.2d 672, 674-76 (9th Cir. 1973) (post-judgment interest runs from date attorneys’ fees are first awarded even though the fee award is later reduced on appeal). 15 16 17 72 F.3d 1386, 1391-92 (9th Cir. 1995) (en banc) (awarding fees under § 1988). In Friend, 18 the Ninth Circuit identified “the date on which the entitlement to fees was secured” as the 19 date the Ninth Circuit entered an order for a specified amount of fees and costs related to 20 the litigation on the merits and awarded an unspecified amount of fees and costs related to 21 the fee award litigation. Id. at 1392. The Ninth Circuit explained that interest would run 22 on both components of the fee award from the date of the order for fees and costs related 23 to the merits litigation, even though the second portion was not fixed until twenty days 24 later, because plaintiffs’ entitlement to fees was secured by the order awarding fees on the 25 merits litigation. Id. 26 In support of its declaration that “[i]nterest runs from the date the entitlement to 27 fees is secured,” the Ninth Circuit cited Finkelstein v. Bergna, 804 F. Supp. 125, 1239-40 28 - 21 - 1 (N.D. Cal. 1992). In Finkelstein, the district court awarded interest on fees from the date 2 of an initial judgment finding the plaintiff was entitled to recover reasonable attorneys’ 3 fees and costs under § 1988 and referring the determination of those fees and costs to a 4 magistrate judge. Id. at 1237, 1239-40. The district court relied on Jenkins by Agyei v. 5 Missouri, 931 F.2d 1273 (8th Cir. 1991), which affirmed interest on a fee award under 6 § 1988 from “the date the court recognizes the right to such fees in a judgment.” Id. at 7 1277. Jenkins applied the Fifth Circuit’s test from Copper Liquor, Inc. v. Adolph Coors 8 Co., 701 F.2d 542 (5th Cir. 1983), summarized as: “interest accrues from the date that the 9 party becomes unconditionally entitled to fees, even if those fees are not yet quantified.” 10 931 F.2d at 1276; see Associated Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482, 11 492, 495 (6th Cir. 2001) (interest on a fee award runs from the date of entry of the 12 judgment that unconditionally entitles the prevailing party to reasonable attorneys’ fees, 13 albeit unquantified). But see MidAmerica Federal Sav. & Loan Ass’n v. 14 Shearson/American Express, Inc., 962 F.2d 1470, 1476 (10th Cir. 1992) (rejecting Copper 15 Liquor and holding postjudgment interest began to accrue “the date fees were 16 meaningfully ascertained and included in a final, appealable judgment”); Eaves, 239 F.3d 17 at 531-32 (adopting minority view that “where the district court enters an order stating 18 that the prevailing party is entitled to a fee award but does not quantify the amount of the 19 award until a later date, post-judgment interest does not accrue until the Court fixes the 20 amount of the award”). 21 Applying the Ninth Circuit rule and the majority rule to this case requires 22 understanding the real procedural character of Plaintiffs’ request for attorney fees. This 23 Court made extensive findings of fact and conclusions of law for the benefit of the 24 parties, any reviewing court, and the public. For the convenience of all, the provisions of 25 the 1995 Amended Judgment that remain in effect, as originally drawn or as modified, 26 were restated in a Second Amended Judgment. These artifacts of the process may give an 27 impression that this was a prosecution of a new claim, requiring a separate judgment 28 document to fix an entitlement to fees. In truth, this was a motion, one to lift the 1995 - 22 - 1 consent Amended Judgment, not a new action. As a motion, it was decided when the 2 Court ruled on it. As a post-judgment motion, it was final and appealable upon entry. 28 3 U.S.C. § 1291; see Hilao v. Estate of Marcos, 103 F.3d 762, 764 (9th Cir. 1996). Nothing 4 in the separate order restating the modified Amended Judgment as a Second Amended 5 Judgment (doc. # 1635) needed to address entitlement to attorney fees. The findings of 6 fact, conclusions of law, and order determined Plaintiffs’ entitlement to attorney fees, 7 subject to quantifying the amount, in the same sense as a judgment in a fresh action so 8 providing but leaving quantification to future proceedings. October 22, 2008, is “the 9 date the entitlement to fees is secured,” Friend v. Kolodzieczak, 72 F.3d at 1391, in this 10 atypical procedural context. Therefore, Plaintiffs are entitled to interest on the fee award 11 from that day. 12 IV. Conclusion 13 Under 42 U.S.C. §§ 1988 and 1997e(d), Plaintiffs are entitled to award of 14 attorneys’ fees in the amount of $1,239,491.63 and non-taxable costs in the amount of 15 $123,221.77. Plaintiffs are entitled to interest on this award at the federal judgment rate 16 that will accrue from October 22, 2008. 17 IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Attorneys’ Fees and 18 Non-taxable Costs (doc. #1640) is granted in the amount of $1,239,491.63 and non- 19 taxable costs in the amount of $123,221.77. Additional fees and expenses accrued since 20 December 5, 2008, may be claimed by May 6, 2009. Defendants may file a response 21 within the time permitted by LRCiv 7.2(c). No reply may be filed unless invited by the 22 Court. The Court will then direct entry of judgment in the total amount awarded, with 23 interest from October 22, 2008. 24 DATED this 20th day of April, 2009. 25 26 27 28 - 23 -
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