Petition — Sielaff v. Drew

Jaw 15 1979

| Seine noo, m., CLERK

IN THE

Supreme Court of the United States

OcrosEr Term, 1978

81111 |

No.

ALLYN R. SIELAFF, et al.,

Petitioner,

VS.

SAMUEL DREV, et al.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM J. SCOTT,

Attorney General, State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.,

FRED MONTGOMERY,

Assistant Attorneys General,

188 West Randolph Street, Suite 2200,

Chicago, Illinois 60601, (312) 793-2570,

Counsel for Petitioner.

Printed by Authority of the State of Illinois <> 365

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Constitutional and Statutory Provisions Involved ....

Statement Ol Ge CMe Se eee ccc cece cece

Reasons for Granting the WIit .........sseeeeeeeees

I.

An Award Of Fees Under The Civil Rights

Attorney’s Fees Act Of 1976 Is Not Proper

Unless Plaintiff Prevails On A Constitu-

SE I Seca stue eek bsaveteececeee

Plaintiffs Did Not ‘‘Prevail’’ Over Defend-

ants Within The Meaning Of The Statute ..

Ill. Plaintiffs Waived Their Right To An Award

Of Fees By Failing To Negotiate The Issue

bi ee SCTE LETT REET LEO

IV. The Amount Of Fees Awarded Was Unrea-

sonable Because It Was Not Proportionate

To The Extent To Which Plaintiff Prevailed

V. The District Court Should Not Award The

Payment Of Expenses Which Are Not Pro-

vided For By Statute ..........eeeeeee

COPIER IMEI SRA CRRA SES CURL Ribbed etccrececoens

APPENDICES:

A. Order Of The Court Of Appeals Denying The

pO eee a oe ee a ae

B. Order Of The Court Of Appeals Denying The

Petition For Rehearing ..............s005:

C. Memorandum Decision Of The District Court

Final Settlement Order Entered In The Dis-

CRI ca eee bs va ces vatceceuee isis

10

13

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D1

ii.

TABLE OF AUTHORITIES

PaGE

Alyeska Pipeline Service Co. v. The Wilderness Society,

SET Te TG oki re nth wantin dbase beceobn’ 10, 12

Batiste v. Furnco Construction Corp., 503 I". 2d 447 (7th

Cir. 1974), cert denied, 420 U.S. 928 (1975) ........ 11

Christianburg Garment Co. v. E.E.0.C., —— U.8. ——,

98 S. Ct. 694, 46 U.S.L.W. 4105 (1978) ............ 12

Cruz v. Pacific American Insurance Corp., 337 F. 2d

FED Ce TOD. h Vasiae ind ac pcehs tans vere 10

Gamlen Chemical Co. v. Decar Chemical Products Co.,

§ P.B.D,: 216. CWiDy, Bas TOG) isis vce nds ccccievcve. 10

Keyes v. School District No. 1, 439 F. Supp. 393 (N.D.

Rr Rin akin te aa win a bed We ieee eee 12

Marr v. Rife, 545 F. 2d 554 (6th Cir. 1974) ........... 11

Morton v. Charles County Board of Education, 373 F.

Supp. 394 (D. Md. 1974), aff’d 520 F. 2d 871 (4th

Cir. 1974), cert. denied, 423 U.S. 1034 (1975) ...... 11

Nadeau v. Helgemoe, 581 F. 2d 275 (1st Cir. 1978) 6,8, 11, 12

Pearson v. Electric Co., 542 F. 2d 1150 (10th Cir. 1976) 11

Shaeffer v. San Diego Cabs, Inc., 462 F’. 2d 1002 (9th

Gs TITS), cevensiva sie ad's ve eandbowan ssa Vaio ive’ 11

CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment 4, United States Constitution .......... 3, 4

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a AAR ECan ai a ie aia eee ts lea 3, 4

IN THE

Supreme Court of the United States

Octoser Term, 1978

No.

ALLYN R. SIELAFYF,, et al.,

Petitioner,

vs.

SAMUEL DREW, et al.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Allyn R. Sielaff, et al., respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Seventh Circuit,

which affirmed the decision of the United States District

Court for the North District of Ilinois, Eastern Division.

OPINIONS BELOW

The order of the Court of Appeals is unpublished, and

a copy of it is attached as ‘‘ Appendix ‘‘A”. The order of

the Court of Appeals denying a petition for rehearing

and suggestion for rehearing en banc is attached as Appen-

dix ‘‘B’’, The memorandum decision of the District Court,

reported as 443 F. Supp. 389 (1978), is attached as Ap-

pendix 66Q?,

JURISDICTION

The order of the Court of Appeals denying the petition

for rehearing was entered on December 5, 1978. The juris-

diction of the Court is invoked under 28 U.S.C, § 1254(1).

QUESTION PRESENTED

Was it an abuse of discretion to find that plaintiffs were

the prevailing party and to award attorney’s fees under

the Civil Rights Attorneys Fees Awards Act of 1976 for the

entry of a consent decree in which plaintiffs did not receive

any of the relief prayed for, and where the relief they did

obtain, as the trial court found, was not required by the

United States Constitution?

3

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Fourth Amendment to the United States Constitution:

‘*The right of the people to be secure .. . against unreason-

able searches and seizures, shall not be violated... .”

42 U.S.C. § 1988: ‘‘In any action or proceeding to en-

force a provision of ... [42 U.S.C. § 1983] .. . the court,

in its discretion, may allow the prevailing party ... a rea-

sonable attorney’s fee as part of the costs.”

4

STATEMENT OF THE CASE

On November 15, 1973, Samuel Drew filed a pro se com-

plaint alleging violations of his Fourth Amendment rights

_ and 42 U.S.C. § 1983 while he was a prisoner at Stateville

Correctional Center in Illinois. He alleged that during

a search of his cell, legal documents and personal corres-

pondence were destroyed and a radio, wristwatch, and art

supplies were seized by defendants. Plaintiff asked for the

return of his personal property, monetary damages, the

right to be present during ali future cell searches, and

a declaratory judgment. Counsel was appointed to repre-

sent Drew, and an amended complaint was subsequently

filed which sought the same relief for all residents and

former residents at Stateville who have been or may be

subjected to violations of their Fourth Amendment rights.

The action was settled by the entry of a Settlement

Order (Appendix ‘‘D”) which stated that nothing in the

order constituted an admission by defendants as to the

facts alleged in the amended complaint; that even assuming

the facts alleged by the plaintiffs to be true, the Court

would find the current Administrative Regulation, if en-

forced, was adequate to prevent the types of abuses alleged

by plaintiffs; that defendants were enjoined to observe

and enforce their Administrative Regulation and the Fourth

Amendment rights of plaintiffs; and that each resident

whose cell is searched is to be provided with the date, time,

and identity of each officer participating in the search and

a list of any property seized during the search.

Depositions of four defendants indicated that written

records were kept as to the date, time, and officers in-

volved in each cell search, and that the resident was not

given a copy of the record unless contraband was seized

from the cell, This method of notice to the resident regard-

ing the confiscation of property reflected the administrative

regulation then in force.

Counsel for plaintiffs filed a petition for attorney’s fees

and costs requesting $18,191.25 (computed at $75 per hour)

in attorney’s fees and $183.21 in costs. Defendants filed

a memorandum in opposition. The District Court (Appendix

“‘©O”) found that the consented-to relief of giving a resident

written notice of a cell search, as opposed to merely giving

written notice of a seizure, was substantial and that plain-

tiffs were the prevailing party in the lawsuit. The Court

awarded $7,900 in fees and excluded compensation for the

time in which counsel was associated with a law firm

which had a reputation for not seeking or accepting awards

of attorney’s fees in cases of this type.

The Court of Appeals for the Seventh Circuit affirmed

the District Court decision in an unpublished order (Ap-

pendix ‘‘A”) and it denied a petition for rehearing

(Appendix ‘‘B’’.) Plaintiffs’ counsel then filed a verified

bill of costs for $5,670.76 to cover costs and attorney’s fees

for appellate work.

6

REASONS FOR GRANTING THE WRIT

AN AWARD OF FEES UNDER THE CIVIL RIGHTS

ATTORNEYS FEES ACT OF 1976 IS NOT PROPER

UNLESS PLAINTIFF PREVAILS ON A CONSTITU-

TIONAL ISSUE.

The Court of Appeals decided that, because plaintiff class

in a civil rights action gained ‘‘matters of substance’’ in a

consent decree, the trial court could, in its discretion, treat

them as a prevailing party under the new statute and award

$7,900.00 in attorney’s fees plus expenses. It is undisputed

that plaintiffs did not obtain any of the relief originally

prayed for, and the relief they did obtain, as the trial court

noted, was not required by the Constitution. The award of

attorney’s fees for relief which is not of constitutional

magnitude is unwarranted, Nadeau v. Helgemoe, 581 F. 2d

275 (1st Cir. 1978).

The decision by the Court of Appeals will encourage

the filing of both meritless and de minimus lawsuits on

behalf of prisoners; it will raise the cost of settlement

in every prisoner case by $8,000 (or by $13,800 if fees and

costs for litigating the appeal are allowed); and it will

force the Department of Corrections to obtain a judicial

determination of the constitutionality of all attacks upon

its Administrative Regulations.

The parties agreed to the entry of a Settlement Order

in which the Departmeat of Corrections was enjoined to

observe and enforce the rights of inmates as guaranteed

under the Fourth Amendment and the Department’s Ad-

ministrative Regulations. This is an acknowledgment of

a pre-existing duty which the Department will, and must,

7

agree to at any time. This does not resolve an issue of con-

stitutional law. Absent a finding by the Court that these

rights were not observed and enforced in the past, and

the Court did not enter such a finding, this portion of a

settlement agreement should not be used as a basis for

the award of attorney fees. If such an agreement is the

basis for the award of fees, and this is one of two as-

sumptions which must be drawn from the Panel’s decision,

the Department of Corrections will be forced to seek a

judicial determination of all attacks on past practices

rather than to resolve lawsuits through negotiation and a

consent decree.

The second assumption implicit in the Panel’s decision

is that the modification of an Administrative Regulation,

despite a finding by the trial court that the modification is

not a constitutional requirement, is a basis for the award

of attorney’s fees. The parties did not dispute the fact

that every time contraband was seized from an inmate’s

cell, he was given written notice of the seizure pursuant

to Administrative Rule 401. The Settlement Order pro-

vided for a modification of this Regulation so that each

time a cell was searched, the inmates were to be given

written notice of the date, time and identity of the officers

who conducted the search. This Petitioner argues that

absent a finding that the Fourth Amendment is violated

by the failure to give inmates written notice after a cell

search, plaintiffs have not prevailed and their attorney is

not entitled to an award of fees. The District Court is un-

able to make such a finding because the Final Settlement

' Order expressly states:

This Court finds, with the consent and agreement of

the parties herein, that even assuming the facts al-

leged by plaintiff to be true, which this Court does here-

by assume for purposes of this order, that the Court

would nevertheless find the Administrative Regulation

401, if enforced, is adequate to protect the types of

abuses alleged by the plaintiff as described above. (em-

phasis added)

The Panel’s decision failed to consider the First Circuit’s

unassailable opinion on this issue. ‘‘If it has been judicially

determined that defandants’ conduct, however beneficial

it may be to plaintiffs’ interests, is not required by law,

then defendants must be held to have acted gratuitously

and plaintiffs have not prevailed in a legal sense.’’ Nadeau

v. Helgemoe, 581 F. 2d at 281. The conclusion which the

Panel should have drawn is that the subsequent change

in the Administrative Regulation was a gratuitous act

by defendants and that plaintiffs did not prevail in a legal

sense.

II,

PLAINTIFFS DID NOT “PREVAIL” OVER DEFEND.

ANTS WITHIN THE MEANING OF THE STATUTE.

Plaintiffs sought the following relief in their complaint:

the return of personal property, money damages, the right

to be present during all cell searches, and declaratory

relief, Plaintiffs did not attain any of the relief requested.

In their negotiations, defendants were successful on each of

these points. The only change required of them was to give

each inmate written notice after his cell had been searched.

This change was of negligible importance because the in-

formation was already maintained and available and the

defendants’ right to search a cell in the absence of the

inmate remained unqualified. (Written notice was already

given after a seizure of contraband, and four correctional

officers stated in depositions that written records were |

9

maintained as to each cell search. By not requiring the

residents to be present during the search of a cell, the

search does not have to be scheduled around the work

assignment and out-of-cell activities of the inmates and

it avoids unnecessary confrontation between staff and

inmates on a matter which could quickly became very per-

sonal. )

In an abstract sense, the right to be informed in writing

of the date, time, and identity of persons who searched

a cell is a reasonable and practical alternative to allowing

an inmate to be present during the search of his cell and,

thus, may be considered an advancement in human rights.

In the context of the adversary setting in which this law-

suit was litigated, the right is de minimus. After comparing

the relief sought by the plaintiffs, the defendants’ denial

of any entitlement to that relief, and the ultimate resolu-

tion of the controversy, it was an abuse of discretion to

find that plaintiffs ‘‘prevailed’’ over defendants. Nonethe-

less, counsel was awarded $7,900 in attorneys’ fees (or

$13,800 if fees and costs for litigating the appeal are

allowed) under a statute which requires that one party

‘*prevail’’ over the other.

IIl.

PLAINTIFFS WAIVED THEIR RIGHT TO AN AWARD

OF FEES BY FAILING TO NEGOTIATE THE ISSUE

WITH DEFENDANTS.

Basic notions of fairness indicate that it was an abuse of

discretion for the trial court to interfere and materially

alter an agreement reached between the parties. The Set-

tlement Order did not provide for attorney’s fees, and this

case would not have been settled if a demand for fees had

10

been made during negotiations. Defendants were under the

impression that plaintiffs’ counsel was rendering services

pro bono. The trial partially shared this impression be-

cause it denied the request for fees for the time period

in which counsel was employed by Schiff, Hardin and

Waite. At the time counsel left the employment of the law

firm and went into private practice in January, 1976 the

fact that legal services were no longer performed pro bono

was never mentioned and, under the prevailing law, any ex-

pectation of fees was unwarranted. Alyeska Pipeline Serv-

ice Co. v. The Wilderness Society, 421 U.S. 240 (1975).

The Panel’s decision overlooked this argument, and it did

not reconcile its opinion with the case law which has dealt

with the issue. Even when a statute provides for the

payment of attorney’s fees, the parties are held to the

agreement they reached through negotiation, and the court

will not award attorney’s fees if the parties did not include

it in their agreement. Crue v. Pacific American Insurance

Corp., 337 F. 2d 746 (9th Cir. 1964); Gamlen Chemical

Co. v. Dacar Chemical Products Co., 5 F.R.D. 215 (W.D.

Pa, 1946). It is significant to note that in both Cruz and

Gamlen, unlike this case, there was no doubt but that plain-

tiff was the prevailing party.

IV.

THE AMOUNT OF FEES AWARDED WAS UNREA.

SONABLE BECAUSE IT WAS NOT PROPORTION.

ATE TO THE EXTENT TO WHICH PLAINTIFF

PREVAILED.

The trial court’s award of fees was based upon all of the

time expended on the litigation while counsel was in private

practice. Every circuit which has considered the issue agrees

11

that an award of attorneys fees should be proportionate

to the relative success of the litigation. Batiste v. Furnco

Construction Corp., 503 F. 2d 447 (7th Cir. 1974), cert.

den., 420 U.S. 928 (1975) ; Nadeau v. Helgemoe, supra; Pear-

son v, Electric Co., 542 F. 2d 1150 (10th Cir. 1976) ; Morton

v. Charles County Board of Education, 373 F. Supp. 394

(D. Md, 1974) aff’d 520 F. 2d 871 (4th Cir. 1974), cert.

denied, 423 U.S. 1034 (1975); Shaeffer v. San Diego Cabs,

Inc., 462 F. 2d 1002 (9th Cir. 1972) and Marr v. Rife,

545 F. 2d 554 (6th Cir. 1974).

‘*.,. an award of attorney’s fees can only be made to

a prevailing party and as a general guideline the

amount of the award should be proportionate to the

extent the party has prevailed in the suit. Batiste,

supra at 451.

The argument has already been stated that plaintiffs

did not prevail with respect to the claims raised in the com-

plaint—declaratory relief, return of personal property,

money damages and the right to be present during a cell

search—and that the relief obtained, written notice of the

fact that a cell was searched, is not of constitutional magni-

tude. In light of the plaintiffs’ relative success, or failure,

in this litigation, the lower court should not have awarded

any attorney’s fees.

If plaintiffs had prevailed on all issues raised in the

complaint, the calculation of the amount of fees would un-

doubtedly have been the same—number of hours worked

times the hourly rate. The award of $7,900.00 in attorney’s

fees is unreasonable and clearly erroneous.

If this Court does not agree that the lower court opinion

should be reversed, then this case should be remanded for

further proceedings to determine the extent to which plain-

12

tiffs were the prevailing party. As a part of the determina-

tion, the lower court should bear in mind the standard

by which defendants are entitled to attorney’s fees. The

standard, enunciated in Christianburg Garment Co. v.

E.E.0.C., —— U.S. ——, 98 S. Ct. 694, 46 L.W. 4105 (1978)

and applied to cases decided under the Civil Rights At-

torney’s Fees Awards Act in Nadeau v. Helgemoe, supra,

is whether the litigation of any of plaintiffs’ claims was

‘‘frivolous, unreasonable or groundless, or that plaintiff

continued to litigate after it clearly became so.’’ 98 S. Ct.

at 701. Clearly plaintiffs’ inability to obtain any of the

relief prayed for in either their original or amended com-

plaint should entitle defendants to present their position

to the lower court. (Both Christianburg and Nadeau were

decided after defendants submitted their Memorandum

in Opposition to Plaintiffs’ Petition for Attorney’s Fees

and Costs).

V.

THE DISTRICT COURT SHOULD NOT AWARD THE

PAYMENT OF EXPENSES WHICH ARE NOT PRO.

VIDED FOR BY STATUTE.

Taxable costs may only include those items authorized

by statute, Alyeska Pipeline Service Co. v. The Wilderness

Society, supra, and there exists no statutory right to the

payment of out-of-pocket expenses in an award of fees.

Keyes v. School District No. 1, 439 F. Supp. 393 (N.D. Cal.

1977). All of the ‘‘costs” claimed by plaintiffs-appellees

are out-of-pocket expenses which are not provided for by

28 U.S.C. § 1920. One exception is the cost for duplication

of papers and an award of this cost is purely discretionary,

assuming that one of the parties prevailed.

13

CONCLUSION

For the reasons stated above, it is respectfully requested

that the Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit be granted.

Respectfully submitted,

WiuiaM J. Scort,

Attorney General, State of Illinois,

Donatp B. Mackay,

Mexpourne A. Nokt, JR.,

Frep Montcomery,

Assistant Attorneys General,

188 West Randolph Street, Suite 2200,

Chicago, Illinois 60601, (312) 793-2570,

Counsel for Petitioner.

Al

APPENDIX “A”

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Unpublished Order Not To Be Cited Per Circuit Rule 35

(Argued October 25, 1978)

October 25, 1978

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Appeal from the

SAMUEL DREW, et al., United States

Plaintiffs-Appellees,| istrict Court

for the Northern

vs. . District of Illinois,

Eastern Division.

No. 78-1281 No. 73-C-2911

ALLYN R. SIELAFF,, et al., Prentice H

Defendants-A ppellants.

Marshall, Judge.

4

A2

RDER

The Court, having read the briefs, addressed itself to

the record, and heard oral arguments by counsel on behalf

of the appellants, announced in open court that the judg-

ment appealed from is AFFIRMED.

Appellants have conceded two points addressed in their

opening briefs by reason of the Supreme Court’s decision

in Hutto v. Finney, 46 U.S.L.W. 4817 (June 23, 1978). With

respect to appellants’ remaining points, it appears that

plaintiffs gained matters of substance through the con-

sent decree, even though they did not receive types of re-

lief originally prayed for. It was within the court’s dis-

cretion to treat plaintiffs as prevailing under Civil Rights

Attorney’s Fees Awards Act of 1976. Inclusion, along with

the attorney fees, of certain expenses incurred as incidents

of services rendered by counsel is reasonable.

According, the Clerk of this Court is directed to enter

judgment AFFIRMING the judgment appealed from.

Bl

APPENDIX “B”

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 5, 1978

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

‘) Appeal from the

SAMUEL DREW, et al., ~ a States

Plaintiffs-Appellees, District Court

for the Northern

os > District of Illinois,

No. 78-1281 Eastern Division.

ALLYN R. SIELAFF, et al., is lag

i ll ‘ rentice ‘

Defendants-A ppellants sasdhall: Hiidioe.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-en-

titled cause by defendants-appellants, no judge in regular

active service has requested a vote thereon, and all of

the judges on the original panel have voted to DENY a

rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.

C1

APPENDIX “O”

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMUEL DREW, individually and

on behalf of all other persons simi-

larly situated,

Plaintiffs) | wo. 73.0 2911

v.

ALLYN R. SIELAFFP, et al.,

Defendants.

MEMORANDUM DECISION

Plaintiff Samuel Drew is a resident of the Illinois Cor-

rectional Institution at Stateville, ‘Tllinois. He commenced

this action pro se alleging violations of his Fourth Amend-

ment rights and 42 U.S.C. § 1983. Jurisdiction is here un-

der 28 U.S.C. § 1343. We appointed Ms, Martha M. Jenkins

of the Chicago bar to represent Drew. An amended com-

plaint was filed in which plaintiff sought relief for a class

of all residents and former residents of Stateville who

have been subjected, continue to be subjected or may be

subjected in the future to searches of their cells by officers,

employees or agents of the Illinois Department of Correc-

tions in violation of their Fourth Amendment rights.

After extensive pre-trial preparation and negotiation,

the action was settled by the entry of a consent decree on

April 22, 1977, in which defendants and their successors

were enjoined to observe and enforce the rights of residents

C2

under the Fourth Amendments, to observe and strictly en-

force the provisions of Administrative Regulation 491 of

the Department of Corrections and to provide each resi-

dent whose cell is searched, the identity of each officer par-

ticipating in the search and a list of any items seized as a

result of the search, The consent decree also required that

it be conspicuously posted at Stateville.

Ms. Jenkins has now petitioned for an award of attor-

neys’ fees. Defendants do not challenge our authority to

make such an award under the Civil Rights Attorney's

Fees Awards Act of 1976, P.L. 94-559. Bond v. Stanton,

555 F, 2d 172 (7th Cir. 1977); Finney v. Hutto, 548 F. 2d

740 (8th Cir. 1977), Rather defendants assert the plain-

tiff class was not a prevailing party under the Attorney’s

Fees Act; the relief obtained was de minimus; in our dis-

cretion we should not divert funds needed for prison reha-

bilitation to the award of attorneys’ fees; and in any event

Ms. Jenkins should not be compensated at the rate she re-

quests ($75 per hour) nor should she be compensated for

the time she devoted to the matter while she was asso-

ciated in the practice with the firm of Schiff Hardin &

Waite.

We find that the plaintiff class was a prevailing party.

True the consent decree did not find nor did defendants

concede the constitutional violations alleged by plaintiff.

But it is undisputed that a controversy existed over how

cells of residents can be searched consistent with the

Fourth Amendment and the Department of Correction’ Ad-

ministrative Regulation 401. Plaintiff sought a decree ‘that

a resident must be present when his cell is searched. In

settlement negotiations which were conducted in our pres-

ensce, it emerged that the request was impracticable in cer-

tain situations. Emergencies arise which must be dealt with

C3

immediately. Considerations of safety for staff and resi-

dents may dictate the search of a cell in the absence of its

resident.

However, the practice and procedure which obtained

prior to the entry of the consent decree did not give a resi-

dent any notice that his cell had been searched unless con-

traband was seized, Nor was he advised of the identity of

the staff who searched the cell. Thus, a resident who be-

lieved himself the victim of an unreasonable search and

perhaps the seizure and confiscation of non-contraband had

no sure way of ascertaining when the search occurred or

what staff members had been participants in it. In these

circumstances, he was virtually helpless to seek any relief

from an unlawful search.

These shortcomings in defendants’ practice and pro-

cedure were remedied by the decre etailed post-search

notice is now required. The ra “NE know the time

of any search of his cell and the persons against whom he

should complain if he is of the belief that the search or its

consequences were unlawful.

We find that this consented-to relief is substantial. Fur-

thermore, we infer from the absence of any objections to

the consent decree by members of the plaintiff class that

the residents of Stateville regard the decree as providing

them with substantial relief. Accordingly, we find that the

plaintiff class was a prevailing party.

Nor can the relief obtained be characterized as de mini-

mus. Defendants now suggest that the new notice prac-

tice imposed by the decree was in existence prior to the

decree. But those facts were not disclosed in settlement ne-

gotiations conducted in our presence and in our chambers.

All that existed prior to the decree was notice of seizure.

C4

Notice of search qua search was not served upon the resi-

dent, nor was he advised as to the participants of the

search. The post-search notice described by the decree was

a reasonable substitute for resident presence at all

searches. While the remedy was a simple one, it was not a

minimal advance in the preservation of those Fourth

Amendment rights which residents of correctional insti-

tutions enjoy. It was a substantial step toward the preser-

vation of those rights.

We know from our handling of this case and other cases

pending before us dealing with the conditions at the State-

ville Correctional Facility that the Dlinois Department of

Corrections has substantial budgetary problems. We also

recognize that residents of correctional institutions initiate

many civil rights actions against the administrators of

those institutions complaining of alleged violations of con-

stitutional rights. Some of those actions are frivolous.

Others, such as this one, appear to be meritorious, While the

benefits conferred by the Civil Rights Attorney’s Fees

Awards Act of 1976 should not be a windfall for the bar,

neither should the bar be expected to prosecute an action

which results in substantial relief for the plaintiff class

without compensation merely because defendants such as

those in the case at bar have budgetary problems and are

faced with large numbers of frivolous actions. In the cir-

cumstances of this case, just as in any other case where

attorney’s fees are an appropriate portion of the remedy

granted, each case should turn on its own merits and

awards should be made which are fair and equitable under

all of the circumstances.

Ms. Jenkins is a lawyer of extraordinary ability. She

has had extensive experience in all types of litigation in-

C5

cluding civil rights litigation. Today she is enaged in

the individual private practice. However, during a portion

of her representation of the plaintiff class she was asso-

ciated with the Chicago firm of Schiff Hardin & Waite. It

is our understanding from other civil rights litigation

which we have heard in which members or associates of

that firm represented prevailing parties that the firm does

not seek or accept awards of attorney's fees in cases of

this type. Accordingly, as defendants urge we have ex-

cluded from our consideration the 137.25 hours which Ms.

Jenkins devoted to this action while she was associated

with Schiff Hardin & Waite.

The materials which she has presented in support of

her fee petition demonstrate that she worked assiduously

on this matter. She took six depositions. She interviewed

over sixty residents and staff members of Stateville. She

conducted a survey by mail of the departments of corree-

tions of all fifty states to ascertain how they handled cell

searches. That mail survey was followed up by extensive

telephone interviews with supervisory personnel of many

of the departments of corrections. She submitted briefs

of high quality in behalf of her clients. She readied the case

for trial and put herself and her clients in the strongest

possible position for negotiation of a settlement. Had the

case not been settled, she was ready to proceed to an ad-

versary trial which would have been lengthy and complex.

Her detailed time records throughout her engagement

show that she has devoted only 242.5 hours of time to this

case, Of that, 137.5 hours occurred while she was with

Schiff Hardin & Waite. The remaining 105.25 have been

devoted since she entered the individual private practice.

We think this time expenditure to be exceptionally reason-

C6

able. It demonstrates an exceptionally efficient utilization

of time.

Ms. Jenkins asks for an award at the rate of $75 per

hour which she represents to be her current charging rate.

That is a reasonable rate for a lawyer of her outstanding

background and experience. Its reasonableness is enhanced

in our judgment by the modest amount of time which she

has reported in respect to this engagement.

Accordingly, we have concluded that Ms. Jeuhkius is en-

titled to be compensated at her regular hourly rate of $75

per hour for the 105.25 hours of time which she has de-

voted to this engagement since entering the individual pri-

vate practice. In addition, she is entitled to recover her

out-of-pocket expenses totalling $183.21 which she has item-

ized. In respect to the latter item, we note that certain of

those expenses were incurred while she was associated with

Schiff Hardin & Waite. We would expect that she would

reimburse that firm for those expenses.

Accordingly, it is ordered and adjudged that Martha M.

Jenkins, attorney for plaintiff Samuel Drew and the plain-

tiff class, have and recover from defendants attorney’s fees

in the amount of $7,900.00 and out-of-pocket expenses in the

amount of $183.21, for a total of $8,083.21.

ENTER:

/8/ Judge Prentice H. Marshall

DATED: January 16, 1978,

No. 73 © 2911

D1

APPENDIX “D”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

‘

SAMUEL DREW,

Plaintiff,

ox | No. 73 0 2911

ALLYN R. SIELAFF, et al.,

Defendants.

4

FINAL SETTLEMENT ORDER

The plaintiff in this proceeding has alleged that when

cell searches are conducted at the Stateville Branch of the

Illinois Department of Corrections, that frequent abuses

oceur, in particular :

(a) Destruction of personal and legal property;

(b) Unnecessary confiscation, theft or disappearance

of personal property for which a resident has a permit or

is otherwise entitled under the rules, regulations and ad-

ministrative bulletins of the Illinois Department of Cor-

rections to possession; and

(c) Leaving the cell in a substantially worse condition

than it was found.

Nothing in this order shall constitute an admission by

the defendants of any of the facts alleged in the Segond

Amended Complaint, or that the facts therein stated are

sufficient to state a claim for relief.

D2

This Court finds, with the consent and agreement of the

plaintiff and defendants herein, that even assuming the

facts alleged by the plaintiff to be true, which the Court

does hereby assume for purposes of this order, that the

Court would nevertheless find the Administrative Regula-

tion 401, if enforced, is adequate to prevent the types of

abuses alleged by the plaintiff as described above.

Therefore, by agreement of the parties, this Court or-

ders that the Illinois Department of Corrections by and

through its officers, employees and agents, be enjoined to

observe and enforce the rights of residents under the

Fourth Amendment to the United States Constitution as

those rights may be from time to time be defined by the

courts of this jurisdiction, but, for the purposes of this

order, not retroactively, and to observe and strictly en-

force the provisions of Administrative Regulation 401.

The Illinois Department of Corrections shall further

amend its regulation to provide that, in every instance in

which a resident’s cell is searched, a form shall be filled

out indicating the date and time of search and the identity

of each officer participating in the search, together with a

list of property confiscated, if any. A copy of such report

shall be given, in every instance, to the resident within a

reasonable time after the search. It is recommended that

the remedy for individual instances of cell search abuse

should be through the Illinois Department of Corrections’

grievance or claims procedure and through the Illinois

Court of Claims. Inadvertant or isolated deviations from

Administrative Regulation 401 shall not be deemed con-

temptuous violation of this order, provided, however, that

frequent and widespread abuse of this order may be

brought to the attention of this Court.

D3

IT IS FURTHER ORDERED that a copy of this order

shall be conspicuously posted at the Stateville Branch of

the Illinois Department of Corrections and that the con-

tents of this order shall be communicated to each and

every employee or agent of the Illinois Department of Cor-

rections who may have occasion to conduct or participate

in cell searches.

ENTERED this 22nd day of April, 1977.