Petition for Writ of Certiorari — Ada County v. Webb
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ADA COUNTY, State of Idaho; VAUGHN KILLEEN,
individually and in his capacity of Sheriff of Ada County;
GARY GLENN; VERN BISTERFELT; JOHN BASTIDA,
Ada County Commissioners, each sued in his individual
and official capacities, and RICHARD VERNON,
individually and in his capacity as Director of the Idaho
Department of Corrections; and their successors in office,
Petitioners,
V. 7
ROBERT WEBB, Individually, and for all other persons
similarly situated; TERRY STERKENBURG; TIMOTHY
DRISCOLL; LESA COONTZ; FRANK WALLMULLER;
RUSSELL HOWARD; LESLIE IGOU; JOSEPH UHRICH;
ROBERT FRIEDLY; KENT HALL; PEGGY KNOX;
BILL LOHR; JESSE FULLER; JANE DOE,
Respondents.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
+
PETITION FOR A WRIT OF CERTIORARI
¢
CARY B. COLAIANNI
VALENCIA J. BILYEU
Counsel of Record
ADA COUNTY PROSECUTING
ATTORNEY’S OFFICE
‘Civil Division
200 West Front Street, Rm. 3191
Boise, Idaho 83702
(208) 287-7700
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
r 4 one
ener eonRemneEE: ascent
QUESTION PRESENTED
The Prison Litigation Reform Act of 1995 (PLRA)
expressly prohibits an award of attorney’s fees unless the
fees were directly incurred in enforcing relief ordered for
an actual violation of the plaintiff's rights. The Ninth
Circuit held in this case that Ada County must pay for fees
incurred for enforcing court ordered relief not related to
violations of federal rights. Ada County was also ordered
to pay for fees incurred to monitor conditions and orders
expressly found on the record not to be a violation of civil
rights.
The question presented is whether attorney’s fees are
awardable under the PLRA when they do not directly
relate to actual violations and do not directly relate to
court ordered relief for the actual violations.
ii
TABLE OF CONTENTS
Page
CRUE Ne OUI ao vsicciivscxtskcdsacsaatteccsicdeusinianervenine i
Be OE CI ia iccisasenssseicrcetisnaiceeeeins il
Tee UE BI iicicsitncccincreagiancn nes iv
TERE OE AOI siscecitisicnnienmaamnaee vi
PETITION FOR A WRIT OF CERTIORARI ............. 1
PEPE IES MEI 5 iicnicevcivereieageeetaiiodsaveeaniin 1
STATEMENT OF JURISDICTION ..........................4. 1
STATUTORY PROVISIONS INVOLVED.................. 1
STATEMENT OF THA CARE wvcssessscevscssvsnescscespesnneves 2
L, Goacnerrenl SOGOU iscsi sceveissvecsesaccneninesssvsives 2
A. Facts of Record Establish No Violations
Are Related to Disputed Billings............. 4
1. Post-PLRA Fees Were Awarded for Is-
sues Which Did Not Result in a Viola-
tion of Inmates’ Rights ....................... 4
2. Post-PLRA Fees Were Awarded for
Practices and Policies Not at Issue in
CO CIO oo cicccceatecie eee 5
3. The Consent Decree Was Not Based
upon an Actual Finding of Constitu-
COUR VEEN i sesiccccthcinaniiveccsnserannions 6
4. “Compliance” and “PLRA” Billings
Were Not Tied to a Violation .............. 7
REASONS FOR GRANTING SUI WEUMER vakesencévvsevess 8
I. This Case Presents an Important Question of
POGOER BW so sessscissectndnmeeaaee 9
iil
TABLE OF CONTENTS -— Continued
Page
A. This Question Has Not Been Settled by
this Court..........cccccssecccersssseeeeesennneseeseenens 9
1. Under the Prison Litigation Reform
Act, Only Fees Directly Connected to
a Violation Are Compensable............-- 10
2. The PLRA Expressly Prohibits Fees
Awarded for Enforcing Orders Unre-
lated to Violations ...........::ssseseseeesereees 11
a. The Ninth Circuit Awarded Attor-
neys Fees for Enforcing Relief
Wholly Unrelated to an Actual Viola-
LIOTL ....cccccsccccsccsscccccccscsnsceoosconessooees 11
b. The Ninth Circuit Awarded Attor-
neys Fees for Pursuing Issues
Wholly Unrelated to the Com-
plaint and Unrelated to an Actual
Viclatio#n .........-ssceseseceeececeeseeeeneeeess 12
c. The Ninth Circuit Awarded Attor-
ney’s Fees for Enforcing a Con-
sent Decree Which Was Not Based
Upon Findings of Constitutional
Violations ..........cecseeeeeeeeneeeseeeeneeees 13
B. Interpretation of Section 803(d)(1) Is of
National Importance ........---:sssseeeeeereereeees 15
Il. The Ninth Circuit Decided an Important
Federal Question in a Way That Conflicts
. with a Relevant Decision of this | eee 15
III]. The Ninth Circuit’s Opinion Conflicts with
Case Law of Another Court of Appeals..........- 16
CONCLUSION ...........000sssssssevcssscsenessocesesesonssoscssneers 18
iv
TABLE OF AUTHORITIES
Page
CASES:
Hernandez v. Kalinowski, 146 F.3d 196 (3rd Cir.
Ua shinai si iene sidaehdeccdipdlliaahialaasitanieanteanae agile eat ial 17
Johnson v. Breeden, 2002 U.S. App. LEXIS 1115
Ce TI Meee tiene lisseaciisdicaedccusbiendecddclencdicsebicceaiucinbiianieebeonics 16
Martin v. Hadix, 527 U.S. 343 (1999)... eeeeeeeeeeee 9,15
Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001) ...........00..... 17
Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002) .... passim
Webb v. Ada County, 195 F.3d 524 (9th Cir. 1999)............. 5
STATUTES:
Federal Rule of Evidence 408 ....................sccsccsscsssssssssseseees 6
ae Rs Ee CE vaictcisirhinkchinnipasonigsiacsnsiieidibiblcabaklonsiati 1
Be Sate OF See vienensnkesinchecisnventiiatvanatin ote dbamssiainaas aneamanaae 1
28 U.S.C. § 1343(a)(8)....... cess. ida sian nlite ieieiabndea deme 1
as ES iia tlcsscsatiningemanctsdiitiniciiaunetainaiabadiennk 1
ee ee le Oe anak tnisiasatbuintabciseeunianciinatonnaannieall 8,9, 17
Oe A ne Se I iaricssincniteritisiacaibpasaiecidindaSeicicaceanstas ceecaes 2
I Ca iitticestosndicnistnensia bisa sitiienenanaidaidadnatedatiabeccaded 15
I FI nacececsisnsciicesidtconissencesnssieaicdianarccaotutens 15, 16
NE dk cctiitiscniscenstunsdeaaphesisbanieeicaneate 7, 8,15
SO I Snes stiicicescccncccnnteveveswinecions 8, 11, 14, 17
Vv
TABLE OF AUTHORITIES — Continued
Page
Section 803(d)(1)(B)i) «..----sesssseersreeessseentenseenenensestts 8,17
Section 803(d)(1)(B)(ii) ...----ereseseseersnersessesenees 8, 11, 16, 17
OTHER:
141 ConG. REC. S14317 (daily ed. Sept 26, 1995) ......e++ 10
vi
TABLE OF APPENDICES
Page
Appendix A — Opinion of the United States Court of
Appeals For the Ninth Circuit Dated and De-
CRG IEG, Bie tstnsssitcsstntnintastgainicisermumatinn App. 1
Appendix B — Partial Consent Decree and Order of
the United States District Court for the District
of Idaho Dated and Filed April 14, 1996 .............. App. 24
Appendix C — Order of the United States District
Court for the District of Idaho Dated and Filed
OE TD, TIDUS vcintieniccdicsssatcinnsavteddomaniininsinns App. 42
Appendix D — Order on Supplement Report and
Recommendation of the United States District
Court for the District of Idaho Dated and Filed
GEE Fi, DE Dice nsessenstorstsveinssccantbdasainnianiniastinens App. 54
Appendix E — Judgment of the United States
District Court for the District of Idaho Dated and
EE TEE tig ietiteiscninnnspsssnneisanspseanbeunigunenis App. 66
Appendix F — Order of the United States Court of
Appeals For the Ninth Circuit Dated and De-
SNE HOE TEA, Bes nc eernceciccnssnsnsisashavelnnannieainnans App. 67
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.
4
4
vv
OPINIONS BELOW
The magistrate court’s Order and Recommendation
(per Williams, Mikel D.J.) awarding respondents’ attorney’s
fees (Appellants’ Ex. of Record, Vol. II, p. 99-121) is not
published. The district court’s subsequent opinion adopt-
ing the magistrate’s order (App. 54-65) and Judgment
(App. 66) are not published. The Court of Appeals’ opinion
(per Alarcon, joined by Silverman and Brewster, D.J.) is
published at 285 F.3d 829. (App. 1-23.) The Court of Ap-
peals’ order denying rehearing and rehearing en banc (App.
67-68) is not published.
¢
STATEMENT OF JURISDICTION .
The Court of Appeals entered its opinion on April 4,
2002, and denied rehearing and rehearing en banc on May
21, 2002. Petitioners invoke this Court’s jurisdiction under
28 U.S.C. § 1254(1) (2002). The United States District Court
for the District of Idaho had subject matter jurisdiction of
this case pursuant to 28 U.S.C. §§ 1331, 1343(a\3) and (4).
4
vy
STATUTORY PROVISIONS INVOLVED
Section 803(d)(1) of the Prison Litigation Reform Act
(PLRA) provides:
2
(1) In any action brought by a prisoner who is
confined to any jail, prison, and other correc-
tional facility, in which attorney’ fees are au-
thorized under section 1988 of this title, such
fees shall not be awarded, except to the extent
that —
(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 ti-
tle; and
(B)(i) the amount of the fee is proportionately re-
lated to the court ordered relief for the violation;
or
(ii) the fee was directly and reasonably incurred
in enforcing the relief ordered for the violation.
42 U.S.C. § 1997(e)(d)(1).
¢
STATEMENT OF THE CASE
I. General Background
This case concerns post-judgment post-PLRA attorney’s
fees in a class-action lawsuit over jail conditions.
Filed in May of 1991, Webb’s complaint alleged nu-
merous constitutional violations in the Ada County Jail.
(Appellants’ Ex. of Record, Vol. I, p. 183.) A summary judg-
ment order in April 1993 found in Webb’s favor on one issue.
It found a constitutional violation relating to overcrowding.
(Id. at 184.) The court ordered a series of population caps.
Prior to trial on the other issues, the parties voluntar-
ily entered into a partial consent decree that addressed jail
Ts
3
facilities and policies, including lighting and electrical
systems, sanitation, hygiene, clothing, inmate classifica-
tion, discrimination, communication and mail, and disci-
pline and due process. (App. 24-40.) The partial consent
decree was adopted by the court’s order of April 14, 1995.
Eventually, the trial court would rule that “the over-
whelming majority of items addressed in the Partial
Consent Decree and Order involved policies and proce-
dures already in effect at the Ada County Jail.” (Appel-
lants’ Ex. of Record, Vol. I, p. 188.) The trial court never
made factual findings of violations relating to the issues
addressed in the partial consent decree.
The merits on the remaining issues were heard during
a ten (10) day evidentiary hearing in July and August,
1995.
On March 26, 1996, the trial court delivered its
decision on the issues and found that a total of three
constitutional violations were found in the entire case:
1) overcrowding in the closed custody unit of the jail
decided on summary judgment previously, 2) “update” of
the jail’s law library, and 3) “guidance with respect to
special diets.” (Appellants’ Ex. of Record, Vol. I, p. 189.)
At the end of the merits of the case, the magistrate
court found — and the district court affirmed — that Plain-
tiffs had “cast their net far and wide, yet ensnared within
its grasp only a few practices at the Ada County Jail that
violated the United States Constitution. The vast majority
of practices challenged by the Plaintiffs simply are not
constitutionally infirm.” (Id.)
Billings directly related to enforcing the orders for the
three violations constitute 17 hours and are not in dispute.
4
At dispute are billings not related to the orders and not
related to constitutional violations.
A. Facts of Record Establish No
Violations Are Related to Disputed Billings
Webb billed for — and the lower courts as well as the
Ninth Circuit awarded — time spent that was unrelated to
enforcing the court orders for the three violations. Specifi-
cally, the contested billings can be grouped in three catego-
ries: 1) issues which did not result in a violation of inmates
rights; 2) policies and practices which were not at issue in
the case; and 3) monitoring a consent decree which was not
based upon findings of constitutional violations.
1. Post-PLRA Fees Were Awarded
for Issues Which Did Not Result in
a Violation of Inmates’ Rights
Webb billed post-PLRA time on four areas that the
court found met constitutional standards. The four areas
are staffing, contempt, sanctions, and medical care. First,
relating to staffing, the record reflects that there was no
constitutional violation. The court specifically found that
Webb “failed to establish that any perceived understaffing
is leading to unconstitutional conditions of confinement.”
(Appellants’ Ex. of Record, Vol. I, p. 136.) The court further
stated that “[a]t no time has this Court found that staffing
of the [Ada County Jail] in and of itself was violative of the
United States Constitution.” (Appellees’ Second Supp. Ex.
of Record, p. 162.) Yet, Webb was awarded fees on staffing.
Second, Webb requested 10.2 hours in post-PLRA fees
for a contempt award (regarding staffing) even though the
district court stated that it was a “technical violation and
not a violation that resulted in any inmate’s constitutional
rights being violated.” (Appellants’ Ex. of Record, Vol. I,
p. 275.) Webb v. Ada County, 285 F.3d 829, 839 (9th Cir.
2002). (Webb III.) The fees were awarded by the Ninth
Circuit, which stated: “The record shows, however, that
Webb’s contempt and discovery motions were directly
related to his underlying $ 1983 cause of action.” Id. at 837
(emphasis added).
Third, Webb billed 27.9 hours for post-PLRA discovery
sanctions regarding staffing or discovery records. There
was no violation of constitutional rights regarding staffing
or discovery, but Webb was awarded attorney fees for the
sanction motion. Jd. at 837-841.
Finally, Webb billed for post-PLRA time spent on the
medical care system. The lower courts and the Ninth
Circuit found the system constitutional. Webb v. Ada
County, 195 F.3d 524, 527 (9th Cir. 1999). Yet, Webb was
awarded post-PLRA fees on medical care.
2. Post-PLRA Fees Were Awarded
for Practices and Policies Not at
Issue in the Case
Two issues, cots and abortions, were not at issue in
the case. Webb attempted to contest the use of cots. The
district court stated that “the constitutionality of using
cots is not at issue in the present case, and the court
declines to rule on such questions.” (Appellants’ Ex. of
Record, Vol. I, p. 208; App. 51.) Webb also attempted to
incorporate the jail’s abortion policy in his case. The court
refused to consider the constitutionality of the policy in the
Webb case and explained that a new lawsuit could be filed
6
on the policy. (Dist. Ct. Order Adopting Report and Rec-
ommendation, Mar. 7, 1996, Dkt. 378.) Again, Webb billed
for, and was awarded, post-PLRA time related to cots and
abortion.
38. The Consent Decree Was Not
Based upon an Actual Finding of
Constitutional Violations
The district court recognized that the “overwhelming
majority” of issues “in the consent decree and order in-
volved policies and procedures already in effect at the Ada
County Jail.” (Appellants’ Ex. of Record, Vol. I, p. 188.) The
consent decree was entered in the interest of “avoid[ing]
litigation of the merits of the terms agreed to.” (App. 26.)
The parties specifically agreed the consent decree did not
constitute an admission that any previous or existing
condition, policy, procedure, or act “was or is in any way
improper, negligent, unconstitutional, or in violation of
any right of Plaintiffs.” Jd. It was a settlement negotiation
pursuant to Federal Rule of Evidence 408.
The record reflects that several consent decree sub-
jects were found not to constitute constitutional violations.
For instance, the heating, ventilation and air-conditioning
system was addressed in the consent decree. One year
later, the magistrate explicitly found that “plaintiffs
simply have not shown evidence from which the court can
conclude that the temperatures in the Ada County Jail
amount to cruel and [unJusual punishment by denying
prisoners the ‘minimal civilized measure of life’s necessi-
ties.’” (Appellants’ Ex. of Record, Vol. I, p. 137.) Adopting
the magistrate’s recommendation, the district court found
that there was “no constitutional violation” and that
continued monitoring was not appropriate. (Jd. at 141.)
7
Likewise, staffing was addressed in the consent
decree. (App. 35.) Later the court stated, “At no time has
this Court found that staffing of the [Ada County Jail] in
and of itself was violative of the United States Constitu-
tion.” (Appellees’ Second Supp. Ex. of Record, p. 162.) The
consent decree also addressed postage and supplies for
indigent prisoners, but the court later found on the record
that Webb had “failed to establish a constitutional claim.”
(Appellants’ Ex. of Record, Vol. I, p. 153.)
The record contains no findings of violations related to
issues addressed in the consent decree. Yet, Ada County
was ordered to pay for attorney time spent monitoring the
consent decree.
4. “Compliance” and “PLRA”
- Billings Were Not Tied to a Violation
A substantial portion of Webb’s post-PLRA billings are
generically identified as “compliance” or “PLRA” work. In his
post-judgment post-PLRA fee petitions, Webb requested
approximately 75 hours under the title of “compliance.”
(Appellants’ Ex. of Record, Vol. II, pp. 8-14.) Neither Webb nor
the record tie those billings to an order for a violation.
Also, Webb’s attorney sought 83.1 hours for fees he
referred to as “PLRA Time.” (Jd. at 15-18.) This time was
spent objecting to Ada County's motion to terminate the
partial consent decree brought pursuant to the PLRA. It
includes briefing and arguing the issue of Section
803(d)(1). Once again, neither Webb nor the courts tied
these fees to a violation of Webb’s rights.
The District Court and the Ninth Circuit allowed all of
Webb’s post-PLRA billings (albeit at a discounted rate).
r.
Vv
8
REASONS FOR GRANTING THE WRIT
The main question presented is whether a fee for
enforcing court ordered relief is allowable when the relief
is not related to a finding of an actual violation of an
inmate’s constitutional rights. The question presented also
concerns whether a court must take into account the terms
of a mutually agreed upon consent decree and the actual
findings of fact made in the record.
This petition should be granted for three reasons.
First, this case involves a question of federal law that has
not been, but should be, settled by this Court. The ques-
tion is whether the PLRA prohibits an award of fees where
they are not directly incurred in enforcing relief ordered
for a proven violation. In essence, the Ninth Circuit’s
opinion has taken the words “direct” and “actual violation”
out of Section 803(d)(1). The Circuit’s opinion allows an
award of fees incurred in the absence of a violation directly
related to the fees requested.
Fees awarded to inmates under 42 U.S.C. § 1988 were
drastically changed by the PLRA. Section 803(d)(1) pro-
vides that fees are prohibited unless the fee meets two
requirements. First, the fee must be directly related to an
actual violation. Second, the fee must be either propor-
tionately related to the court ordered relief for the viola-
tion, Section 803(d)(1)(B)(i), or the fee must be directly
incurred in enforcing court ordered relief for the violation,
Section 803(d)(1)(B)(ii). This petition concerns the inter-
pretation and application of Section 803(d)(1)A) and
(B)(ii). It also presents the issue of how a court analyzes
and applies the prohibitions of the PLRA.
Second, the Ninth Circuit decided an important
federal question in a way that conflicts with this Court’s
9
decision in Martin v. Hadix, 527 U.S. 343 (1999). In Hadix,
this Court says that the PLRA sets substantive limits on
attorneys fee awards prohibiting awards “unless those
fees were ‘directly and reasonably incurred’ in the suit,
and unless those fees are ‘proportionately related’ to or
‘directly and reasonably incurred in enforcing’ the relief
ordered.” Id. at 353 (emphasis added). The Ninth Circuit
“disagree[s.]” Webb III, 285 F.3d at 834.
Third, the Ninth Circuit’s decision conflicts with case
law in the Third, Fifth and Eleventh Circuits. Those
Circuits require that the fees be directly related to an
actual violation of record.
The Court should grant the Petition for a Writ of
Certiorari.
I. This Case Presents an Important
Question of Federal Law
A. This Question Has Not Been
Settled by this Court
The Ninth Circuit’s opinion decides an important
question of federal law. It has held that the PLRA’s attor-
ney’s fee prohibition does not preclude an award of fees if
there is so much as a single violation found in a case, even
when that violation has no relation to the fees awarded.
The question has not been settled by this Court. It should
be settled for the simple reason that the Circuit’s decision
will now allow plaintiffs in jail conditions cases to recoup
attorney's fees for conditions not found to be unconstitu-
tional, in direct contravention of the PLRA. The Circuit’s
decision essentially returns prison litigation to a “prevail-
ing party” analysis under 42 U.S.C. § 1988.
10
Congress’ intent in passing the PLRA was to prevent
payment of attorneys fees that were not incurred in
proving an actual violation of an inmate’s rights. Congress
specified that the only fees to be paid by defendants are
those hours directly related to the finding of a violation or
to court ordered relief for a violation. Hours expended on
unsuccessful claims are not to be awarded.
In presenting the legislation, Sen. Abraham stated
that “[p]risoners who succeed in proving a statutory
violation will be reimbursed only for fees directly and
reasonably incurred in proving that violation.” 141 CONG.
REC. $14317 (daily ed. Sept. 26, 1995) (emphasis added).
Sen. Abraham was emphatic that courts not award attor-
ney’ fees “simply because the prison has changed pre-
existing conditions. Only if those conditions violated a
prisoner’s rights will fees be awarded.” Id. Yet, Ada County
was forced to pay for monitoring of “policies and proce-
dures already in effect at the Ada County Jail.” (Appel-
lants’ Ex. of Record, Vol. I, p. 188.) (emphasis added).
1. Under the Prison Litigation Reform
Act, Only Fees Directly Connected to
an Actual Violation Are Compensable
The PLRA requires that all fee awards be directly
linked to actual violations. The only constitutional viola-
tions found in this case were overcrowding, special diets
and the law library. The court ordered relief for all three
violations. Fees incurred in proving these violations — and
in monitoring court ordered relief — are compensable and
not at issue. ‘
Naa LS RONEN ae
:
i
;
;
;
11
2. The PLRA Expressly Prohibits
Fees Awarded for Enforcing Orders
Unrelated to Violations
The statute plainly states that fees incurred for
enforcing relief will only be paid if the relief was ordered
for an actual violation. The pertinent portion of the statute
says the fees must be directly “incurred in enforcing the
relief ordered for the violation.” Section 803(d)(1)(B)ii)
(emphasis added). The words “the violation” refer to an
“sctual violation” of an inmate’s rights found in Section
803(d)(1\(A). The Ninth Circuit’s analysis does not even
discuss a specific violation of record. Rather, it relied upon
one conclusionary statement by the district court that
“violations of Federal rights were found.” (Appellants’ Ex.
of Record, Vol. I, p. 286.) The violations referred to by the
district court were overcrowding, library and special diets.
But the court used those limited violations to justify award-
ing all fees. The Ninth Circuit did not require the fees to be
tied to specific violations as required by the PLRA.
a. The Ninth Circuit Awarded Attorney’s
Fees for Enforcing Relief Wholly Unrelated
to an Actual Violation.
The court awarded fees for enforcing relief for con-
tempt and sanctions completely unrelated to actual
violations. Both the contempt and sanctions related to the
issue of staffing. The district court expressly found that
“lalt no time has this Court found that staffing of the [Ada
County Jail] in and of itself was violative of the United
States Constitution.” (Appellees’ Second Supp. Ex. of Record,
p. 162.)
12
Rather than following the PLRA’s requirement that
the contempt and sanctions be directly related to an actual
violation, the Circuit stated that the contempt and discov-
ery sanctions were related to Webb’s “cause of action.”
Webb III, 285 F.3d at 837. Later, in its Opinion, the Ninth
Circuit relied upon the district court’s finding that the
contempt violation “did not result in any inmate’s constitu-
tional rights being violated.” Id. at 839. Nevertheless, the
Circuit did not deny post PLRA attorney’s fees for con-
_tempt or sanctions. Id. at 837-841.
b. The Ninth Circuit Awarded Attorney’s
Fees for Pursuing Issues Wholly Unrelated
to the Complaint and Unrelated to an
Actual Violation
The district court awarded, and the Ninth Circuit
affirmed, fees for issues not even alleged in the complaint.
For example, neither the use of cots nor the jail’s abortion
policy were at issue. The district court explicitly found
that “the constitutionality of using cots is not at issue.”
(Appellants’ Ex. of Record, Vol. I, p. 208.) (Emphasis in
orig.) Likewise, Webb attempted to attack the constitu-
tionality of the jail’s abortion policy. The court refused to
hear the issue and told Webb to file a new lawsuit to
challenge the policy. Jd. The court, however, awarded
attorneys fees to Webb for post-PLRA work on cots and
abortion. This is clearly prohibited by the PLRA.
13
c. The Ninth Circuit Awarded Attorney’s
Fees for Enforcing a Consent Decree
Which Was Not Based Upon Findings of
Constitutional Violations
The consent decree was not based upon findings of
constitutional violations. The court emphasized that the
“overwhelming majority” of conditions addressed in the
consent decree “involved policies and procedures already
in effect at the Ada County Jail.” (Appellants’ Ex. of Re-
cord, Vol. I, p. 188.) (emphasis added.)
The consent decree was a compromise settlement for
numerous issues that the parties had no interest in taking
to trial. (App. 26.) The parties specifically agreed the
consent decree did not constitute an admission that any
previous or existing condition, policy, procedure, or act
“was, or is, ‘in any way improper, negligent, unconstitu-
tional, or in violation of any right of Plaintiffs.”"Ud. at 27.)
The consent decree issues were never found to be
violative of the Constitution. In fact, the district court
made specific findings that several of the issues were
constitutionally adequate. The heating, ventilation and air
conditioning system was addressed in the consent decree.
Later, the court found “plaintiffs simply have not shown
evidence from which the court can conclude that the
temperatures in the Ada County Jail amount to cruel and
[unJusual punishment by denying prisoners the minimal
civilized measure of life’s necessities.” (Appellants’ Ex. of
Record, Vol. I, p. 137.) Likewise, the court found that staffing
was not violative of Federal rights.
The district court recognized that there were no
findings of record created pertaining to the consent decree.
14
(Appellants’ Ex. of Record, Vol. I, p. 132; 286.) Yet, the
court awarded fees “regardless of the language of the
consent decree.” (App. 63.)
Even Webb admitted there were no findings of viola-
tions relating to the merits of the issues in the consent
decree. Webb claimed, “[iJt is inappropriate and unneces-
sary for purposes of an award of attorney's fees for the court
to decide on the merits of issues which have been settled in
the Consent Decree.” (Appellees’ Second Supp. Ex. of Record,
p. 117.) Webb proclaimed that he did not “have to prove a
constitutional violation” under Section 803(d)(1)(A) to be
paid. (Appellants’ Ex. of Record, Vol. II, p. 43.)
The Ninth Circuit based its opinion on one conclusory
statement written by the district court years after the
merits of the case were over. “Based upon rulings by this
court and the magistrate judge prior to the approval of the
Consent Decree, violations of federal rights were found.”
(Appellants’ Ex. of Record, Vol. I, p. 286.) The record simply
does not support the statement. The only violation found
before the Consent Decree was overcrowding. The court
ordered a series of population caps to address overcrowding.
The Ninth Circuit failed to require that relief (includ-
ing consent decrees) be a result of an actual violation. The
Circuit therefore erred when it concluded that all of
“Webb’s attorney's fees incurred for post-judgment en-
forcement of the district court’s orders and the consent
decree were compensable.” Webb III, 285 F.3d at 835. The
Circuit misinterpreted the PLRA. Congress only provided
for fees incurred in enforcing court ordered relief for the
violation.
ee oe: ee
hh et Wh onl
AAAS AS aie ha ab Talend Wail eS.
15
2B. Interpretation of Section 803(d)(1)
Is of National Importance
This is clearly an issue of national import. The effect
on prisoner litigation in the United States would be
profound in terms of allowing attorney's fees in prisoner
litigation even where the fees were unrelated to a finding
of an unconstitutional condition.
Section 803(d\(1) of the PLRA prohibits any award of
fees where the fees are not “directly and reasonably
incurred” in proving an actual violation of a prisoner’s
constitutional rights or monitoring a condition found to
have violated his constitutional rights.
This Court has not answered the question of whether
the federal courts are prohibited from granting fees for
work in prison litigation where the work is neither directly
incurred in proving an actual violation of a plaintiff’s
rights nor directly incurred in enforcing the relief ordered
for the violation. This case squarely presents the opportu-
nity.
Il. The Ninth Circuit Decided an
Important Federal Question in a Way
That Conflicts with a Relevant Decision
of this Court
The Ninth Circuit’s decision directly conflicts with this
Court’s decision in Martin v. Hadix, 527 U.S. 343 (1999).
In Hadix, this Court said “the fee landscape changed
with the passage of the PLRA on April 26, 1996.” Id. at
349. Hadix held section 803(d) sets “substantive limits on
the award of attorney's fees.” Jd. at 353. This Court ac-
knowledged Congress’ mandate that the fees awarded be
16
“directly incurred” in either proving an actual violation or
directly incurred in enforcing relief ordered for a violation.
In stark contrast, the Ninth Circuit’s decision leaves
the old “landscape” unchanged.
The Ninth Circuit ignored the “substantive limits” on
attorneys fees mandated by the PLRA. Subsection
803(d)1B)ii) requires that the fees be “directly and
reasonably incurred in enforcing the relief ordered for the
violation.” Webb III, 285 F.3d at 834 (emphasis in original).
The Ninth Circuit’s decision takes out the substantive
language of 803(d)(i) that the fee be “directly . . . incurred
in enforcing the relief ordered for the violation.” Section
803(d)(1)(BXii) (emphasis added).
Ill. The Ninth Circuit’s Opinion
Conflicts with Case Law of Another
Court of Appeals
The Ninth Circuit’s decision is directly in conflict with
cases decided by the Third, Fifth and Eleventh Circuits.
In Johnson v. Breeden, 2002 U.S. App. LEXIS 1115
(llth Cir. 2002), plaintiff filed a variety of claims under
§ 1983. A jury found that plaintiff proved only a violation
of his rights under the Eighth Amendment. Plaintiff
submitted documentation that his attorneys had spent
over 1000 hours on the case. The district court found the
hours were “reasonable” and awarded all of the hours,
including those spent on unsuccessful claims (where
plaintiff did not prove an actual violation). The Eleventh
Circuit held that the district court abused its discretion
when it awarded fees not directly incurred in successfully
proving the excessive force claim. In contrast, the Ninth
Rat Pai oe ent
17
Circuit approved fees not directly incurred in proving an
actual violation of record.
In Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001), the
Fifth Circuit emphasized that the PLRA “expressly pre-
cludes the recovery of any and all attorney’s fees otherwise
authorized by § 1988 that are not ‘directly and reasonably
incurred in proving an actual violation of the plaintiff’s
rights.’” Id. at 536. The Ninth Circuit awarded fees in the
absence of an actual violation related to the fees.
In Hernandez v. Kalinowski, 146 F.3d 196 (3rd Cir.
1998), the inmate sought damages for, and proved, a
violation of his Eighth Amendment rights. Thereafter, he
sought fees. The Third Circuit examined the PLRA and
stated that it provides fees which meet both 803(d)(1)A)
and (B\ji) or B(ii). Id. at 199. It recognized that the Con-
gressional intent behind the PLRA was to pay fees for
meritorious claims. In the case at bar, Ada County argued
that a fee request must satisfy both 803(d)(1)(A) and (B)(i)
or B(ii). The Ninth Circuit stated, “we disagree.” Webb III,
285 F.3d at 834.
18
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
Cary B. COLAIANNI
VALENCIA J. BILYEU
Counsel of Record
ADA COUNTY PROSECUTING
ATTORNEY'S OFFICE
Civil Division
200 West Front Street, Rm. 3191
Boise, Idaho 83702
(208) 287-7700
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT WEBB, Individually, and
for all other persons similarly
situated; TERRY STERKENBURG;
TIMOTHY DRISCOLL; LESA COONTZ;
FRANK WALLMULLER; RUSSELL
HOWARD; LESLIE IGOU; JOSEPH
UHRICH; ROBERT FRIEDLY; KENT
HALL; PEGGY KNOx; BILL LOHR;
JESSE FULLER; JANE DOE,
Plaintiffs-Appellees,
V.
ADA Counrtry, State of Idaho;
VAUGHN KILLEEN, individually and
in his capacity of Sheriff of Ada
County; GARY GLENN; VERN BIs-
TERFELT; JOHN BASTIDA, Ada
County Commissioners, each sued
in his individual and official
capacities,
Defendants-Appellants.
and
RICHARD VERNON, individually and
in his capacity as Director of the
Idaho Department of Corrections;
and their successors in office,
Defendant.
No. 00-35338
D.C. No.
CV-91-00204-EJL
App. 2
ROBERT WEBB, Individually, and
for all other persons similarly
situated; TERRY STERKENBURG;
TIMOTHY DRISCOLL; LESA COONTZ;
FRANK WALLMULLER; LESLIE IGOU;
JOSEPH UHRICH; ROBERT FRIEDLY;
KENT HALL; PEGGY KNox; BILL
LOHR; JESSE FULLER; JANE DOE;
RUSSELL HOWARD,
Plaintiffs-Appellants,
v.
ADA COUNTY, State of Idaho;
VAUGHN KILLEEN, individually and
in his capacity of Sheriff of Ada
County; GARY GLENN; VERN BIs-
TERFELT; JOHN BASTIDA, Ada
County Commissioners, each sued
in his individual and official
capacities,
Defendants-Appellees.
No. 00-35787
D.C. No.
CV-91-00204-EJL
PORN Te ae ne ce ERE
App. 3
ROBERT WEBB, Individually, and
for all other persons similarly
situated; TERRY STERKENBURG;
TIMOTHY DRISCOLL; LESA COONTZ;
FRANK WALLMULLER; LESLIE IGOU;
JOSEPH UHRICH; ROBERT FRIEDLY;
KENT HALL; PEGGY KNOx; BILL
LOHR; JESSE FULLER; JANE DOE;
RUSSELL HOWARD,
Plaintiffs-Appellees,
V.
ADA COUNTY, State of Idaho;
VAUGHN KILLEEN, individually and
in his capacity of Sheriff of Ada
County; GARY GLENN; VERN BISs-
TERFELT; JOHN BASTIDA, Ada
County Commissioners, each sued
in his individual and official
capacities,
Defendants-Appellants.
No. 00-35842
D.C. No.
CV-91-00204-EJL
OPINION
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
March 6, 2002 — Seattle, Washington
Filed April 4, 2002
App. 4
Before: Arthur L. Alarcon, and Barry G. Silverman,
Circuit Judges, and Rudi M. Brewster, District Judge.
Opinion by Judge Alarcon
COUNSEL
Howard A. Belodoff, Belodoff Law Office, Boise, Idaho, for
the plaintiffs/appellees/appellants.
Cary B. Colaianni, Deputy Prosecuting Attorney, and
Valencia J. Bilyeu, Deputy Prosecuting Attorney, Boise,
Idaho, for the defendants/appellants/appellees.
OPINION
ALARCON, Circuit Judge:
Robert Webb and several plaintiffs in this civil rights
class action (“Webb”) appeal from the district court’s
judgment awarding only a percentage of the postjudgment
attorney's fees Webb requested. Ada County, Idaho (“Ada
County”) separately appeals, arguing that the district
court should not have awarded any of these attorney's fees
as they were not “directly and reasonably incurred in
proving an actual violation” of Webb’s rights, as is required
by the Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, 110 Stat. 1321 (1996) (“PLRA”). We affirm the
district court’s determination that the postjudgment
attorney's fees Webb requested were compensable under
the PLRA, because* the fees were directly incurred in
* Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
(RS allan Rhea Ale aes adits BES
App. 5
enforcing court ordered relief instituted to correct viola-
tions of Webb’s constitutional rights. We vacate and
remand a portion of the district court’s fee award, however,
because we find it erred in determining the applicable
PLRA hourly rate and abused its discretion in not provid-
ing an adequate explanation for its substantial reduction
of Webb’s fee requests on three matters.
I
In 1991, Webb brought a class action pursuant to 42
U.S.C. § 1983 alleging unconstitutional conditions for
prisoners in the Ada County Jail. The district court
granted Webb partial summary judgment, finding that the
jail’s overcrowding was unconstitutional and was a major
cause of Webb’s other complaints. Through court orders
and a partial consent decree, Webb prevailed on many of
his claims. Pursuant to 42 U.S.C. § 1988, the court
awarded Webb $244,308.00 in attorneys fees for his
attorneys’ work on the merits of the § 1983 action. In an
unpublished order, we affirmed the district court’s disposi-
tion of the merits of Webb’s claims. Webb v. Ada County,
Idaho, 145 F.3d 1843, 1998 WL 246521 (9th Cir. 1998)
(“Webb I”).
After the district court’s judgment on the merits,
Webb’s attorneys performed legal services to enforce the
court’s orders and the terms of the consent decree. Webb
requested an award of attorney's fees for this service. The
district court found that Webb was partially successful in
his postjudgment efforts and awarded him $9,495.00 in
attorney's fees. Webb filed an appeal in which he chal-
lenged the amount of the award. Webb v. Ada County,
Idaho, 195 F.3d 524, 525 (9th Cir. 1999) (“Webb II”). In
App. 6
Webb II, we affirmed in part the district court’s award of
post-judgment attorney's fees but remanded so that the
district court could apply the rate cap provisions of the
PLRA to the portion of postjudgment attorney’s fees
earned after the effective date of the statute. Id. at 528.
On remand, Ada County objected to the award of any
post-judgment attorney's fees, arguing that they were not
compensable under the PLRA because they were not
reasonably and directly incurred in proving an actual
violation of Webb’s constitutional rights. In rejecting Ada
County's argument, the district court concluded that the
postjudgment fees were related to the enforcement of
court-ordered relief for violations of Webb’s constitutional
rights. After applying the PLRA, the district court reduced
the amount of attorney’s fees to $6,036.25. The district
court also awarded Webb an additional $17,290.50 for the
services performed by Webb’s attorneys since the first
award of attorneys fees for enforcing and monitoring
compliance with the judgment on the merits and the entry
of the consent decree.
Ada County and Webb filed separate appeals from the
district court’s award of postjudgment attorney’s fees. We
have consolidated their appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II
Ada County’s Appeal
Ada County argues that the district court erred in
awarding attorneys fees for the services rendered by
App. 7
Webb’s attorneys subsequent to the PLRA’s effective date
of April 26, 1996.’ We review the district court’s award of
attorneys fees for abuse of discretion. Native Vill. of
Venetie Ira Council v. Alaska, 155 F.3d 1150, 1151 (9th Cir.
1998). We review a district court’s interpretation of the law
de novo. Id. at 1151-52.
The PLRA limits the amount of attorney’s fees that
can be awarded for services performed in actions brought
on behalf of prisoners. The portion of the PLRA relevant to
this appeal provides:
(1) In any action brought by a prisoner who
is con fined to any jail, prison, or other correc-
tional facility, in which attorney's fees are au-
thorized under section 1988 of this title, such
fees shall not be awarded, except to the extent
that —
(A) the fee was directly and reasonably in-
curred in proving an actual violation of the plain-
tiff’s rights protected by a statute pursuant to
which a fee may be awarded under section 1988
of this title; and
(BXi) the amount of the fee is proportion-
ately related to the court ordered relief for the
violation; or
* Ada County is challenging Webb’s award of postjudgment
attorney’s fees that were incurred for the following tasks: bringing
contempt and sanctions motions to enforce the district court’s orders,
monitoring Ada County’s compliance with the consent decree, opposing
application of the PLRA to the fee requests, briefing the district court
on the retroactive application of the PLRA, replying to Ada County’s
objection to the fee award, replying to Ada County’s motion to termi-
nate the consent decree, and fees-on-fees.
App. 8
(ii) the fee was directly and reasonably
incurred in enforcing the relief ordered for
the violation.
42 U.S.C. § 1997e(d).
Ada County argues that “[a] fee request must satisfy
(A) and (B)(i) or (BXii).” Ada County contends that Webb
did not demonstrate that any constitutional violations
occurred after the judgment and consent decree were
entered. Ada County maintains that Webb is not entitled
to attorney’s fees incurred in monitoring and enforcing the
judgment and consent decree pursuant to the PLRA
because Webb failed to demonstrate that the postjudgment
fees were incurred in proving an actual violation of the
Constitution. We disagree. Ada County’s interpretation of
the PLRA would render the language of subsection (B)(ii)
superfluous. Subsection (B)(ii) requires that the fees be
“directly and reasonably incurred in enforcing the relief
ordered for the violation.” 42 U.S.C. § 1997e(d)\(1)(B\ii)
(emphasis added). If a postjudgment fee request could only
be granted if the attorney’s services were directly linked to
a discrete constitutional violation, fees incurred “in enforc-
ing the relief” that the court had ordered because of
demonstrated previous constitutional violations, could not
be awarded. To the contrary, when subsections (A) and (B)
are read together, it is apparent that Congress intended
that a plaintiff is entitled to fees incurred in enforcing a
judgment entered upon proof that the plaintiff’s constitu-
tional rights had been violated. The PLRA defines relief as
“all relief in any form that may be granted or approved by
the court, and includes consent decrees.” 18 U.S.C.
§ 3626(g)(9). Therefore, Webb’s attorney's fees incurred for
postjudgment enforcement of the district court’s orders
App. 9
and the consent decree were compensable under the
PLRA.
Ada County’s argument that Webb is not entitled to
attorney's fees incurred in enforcing the consent decree
ignores findings by the district court that it corrected
violations of Webb’s rights. After the enactment of the
PLRA, Ada County brought a motion to terminate the
consent decree. It asserted that the consent decree did not
comply with the requirements of the PLRA. The PLRA
provides for the immediate termination of any consent
decree unless
the court makes written findings based on the
record that prospective relief remains necessary
to correct a current or ongoing violation of the
Federal right, extends no further than necessary
to correct the violation of the Federal right, and
that the prospective relief is narrowly drawn and
the least intrusive means to correct the violation.
18 U.S.C. § 3626(b\(3). The district court denied Ada
County’s motion to terminate the consent decree. It rea-
soned as follows:
Based upon the rulings by this Court and the
magistrate judge prior to the approval of the Par-
tial Consent Decree, violations of Federal rights
were found. Additionally, the relief set forth in
the Partial Consent Decree was narrowly drawn
and extended no further than necessary to cor-
rect the violation of the Federal rights.
Thus, in holding that the consent decree met the require-
ments of the PLRA, the district court found that the
consent decree corrected violations of Webb’s constitu-
tional rights.
App. 10
The district court’s judgment and the consent decree
were instituted to correct federal constitutional violations
of Webb’s rights. The attorney's fees Webb requested for
post-judgment work were incurred in enforcing and
monitoring the court’s judgment and the consent decree, or
were directly related to the services performed in Webb’s
litigating requests for attorney’s fees under the PLRA. The
district court did not err in ruling that Webb’s attorney's
fees were compensable under the PLRA.
III
Webb’s Appeal
A.
Webb contends that the district court erred in calcu-
lating the award of attorney's fees. Ada County asserts
that we have no jurisdiction to consider the merits of
Webb’s appeal because it was filed beyond the 30-day
deadline prescribed by Fed. R. App. P. 4(a).’ Therefore, as a
* Rule 4(a) provides as follows:
(1A) In a civil case, except as provided in Rules 4(a)(1)(B),
4(a)(4), and 4(c), the notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after the
judgment or order appealed from is entered.
(4)(A) If a party timely files in the district court any of the
following motions under the Federal Rules of Civil Proce-
dure, the time to file an appeal runs for all parties from the
entry of the order disposing of the last such remaining mo-
tion:
.
(iv) to alter or amend the judgment under Rule 59;
Fed. R. App. P. 4(a).
App. 11
threshold matter, we must determine whether we have
jurisdiction over Webb’s appeal. See Browder v. Dir., Dept.
of Corr, 434 U.S. 257, 264 (1978) (stating 30-day time
limit is “mandatory and jurisdictional”).
After our remand in Webb II, the district court filed its
judgment regarding Webb’s request for postjudgment
attorney's fees on April 13, 2000. Webb timely filed a
motion to alter or amend the judgment under Fed. R. Civ.
P. 59e).* The district court granted in part and denied in
part Webb’s Rule 59(e) motion in an order filed June 26,
2000. The district court entered a final judgment regard-
ing the Rule 59(e) motion on August 18, 2000. Webb filed
his notice of appeal on August 29, 2000.
The 30-day period for Webb’s appeal began to run
“from the entry of the order disposing of” his Rule 59(e)
motion. Fed. R. App. P. 4(a)(4)(A)(iv). An order is entered
for the purposes of Rule 4(a)(4)(A)(iv) when it is entered in
compliance with Fed. R. Civ. P. 58. Rule 58 requires that
“[e]very judgment shall be set forth on a separate docu-
ment.” Ada County contends that the 30-day period began
to run from the district court’s June 26, 2000 order grant-
ing in part and denying in part Webb’s Rule 59(e) motion
rather than the judgment entered on the Rule 59(e) motion
on August 18, 2000. In support of this contention, Ada
County relies upon Hollywood v. City of Santa Maria, 886
F2d 1228 (9th Cir. 1989). In Hollywood, we held that
* Rule 59(e) provides:
Any motion to alter or amend a judgment shall be filed no
later than 10 days after entry of the judgment.
Fed.R.Civ.P. 59(e).
App. 12
when a district court properly enters an order on the
docket denying a party’s Rule 59 motion for a new trial, it
is not required to enter a separate document labeled
“judgment” to start the 30-day period for the filing of a
notice of appeal. 886 F.2d at 1231-32. We reasoned in
Hollywood that the Rule 58 requirement that a separate
document be filed
serves to eliminate confusion as to which order
ends the litigation .... No comparable risk of
confusion exists with respect to an order denying
a motion for new trial where the order is properly
entered on the docket sheet. In this case, as is
generally the case in the Rule 59 context, the or-
der denying the motion for new trial definitively
signaled the end of the litigation.
Id. at 1232. We held in Hollywood that the 30-day period
begins to run when the district court enters a final order
denying a Rule 59 motion. Id.
In Hollywood, however, we distinguished a Second
Circuit case that held where a district court grants a Rule
59(e) motion and subsequently enters a new judgment, the
30-day period begins to run from the entry of the new
judgment, not from the order granting the Rule 59(e)
motion. Id. at 1232 n.8. In the instant matter, in its June
26, 2000 order, the district court granted in part and
denied in part Webb’s Rule 59(e) motion to alter or amend
the judgment. The court ordered the parties to submit a
proposed amended judgment within 14 days. Thus, this
case is distinguishable from the factual scenario in Holly-
wood. Here, the district court did not simply deny Webb’s
motion to alter or amend the judgment. Instead, the
district court ordered the parties to submit a final judg-
ment for the court’s approval within 14 days. Webb timely
App. 13
filed his appeal because the 30-day period began to run
when the court filed its amended judgment on August 18,
2000.
B.
Turning to the merits of Webb’s appeal, Webb argues
that the district court made several errors in calculating
the final award of attorney’s fees. A district court’s award
of attorney’s fees is reviewed for abuse of discretion.
Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895,
900 (9th Cir. 1995). “[A]Jny elements of legal analysis and
statutory interpretation which figure in the district court’s
decision are reviewable de novo. A district court’s fee
award does not constitute an abuse of discretion unless it
is based on an inaccurate view of the law or a clearly
erroneous finding of fact.” Jd. (quotations and citations
omitted).
1.
Webb first contends that the district court erred in
applying the PLRA’s rate cap to attorney's fees relating to
motions for contempt and discovery sanctions. He argues
that since the contempt and discovery sanctions fees were
awarded under 18 U.S.C. § 401 and Fed. R. Civ. P. 37,
these fees should not be limited by the PLRA rate cap
because the PLRA applies only to fees awarded pursuant
to 42 U.S.C. § 1988.‘ The record shows, however, that
* The PLRA provides in relevant part:
In any action brought by a prisoner who is confined to any
jail, prison, or other correctional facility, in which attorney's
(Continued on following page)
App. 14
Webb’s contempt and discovery motions were directly
related to his underlying § 1983 cause of action. The
discovery sanctions were ordered against Ada County for
refusing to turn over documents related to the jail’s
staffing levels. The purpose of the PLRA “was apparently
to curtail frivolous prisoners’ suits and to minimize the
costs — which are borne by taxpayers — associated with
those suits.” Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.
1999). Given this purpose, it is unlikely that Congress
intended that only part of the attorney’s fees awarded in a
prisoner lawsuit be subject to the PLRA rate cap. Con-
gress’ desire to reduce the costs of these lawsuits would
not be furthered by awarding attorney’ fees piecemeal;
Webb’s interpretation of the PLRA’s scope would increase
litigation over which fees should be paid at which rate.
The district court did not abuse its discretion by applying
the PLRA rates to fees related to motions for contempt and
discovery sanctions.
2.
The district court applied the PLRA rate cap to all fees
relating to work that Webb’s attorneys performed after the
PLRA’s effective date of April 26, 1996. Webb contends
that a portion of these post-PLRA attorney's fees were not
incurred in postjudgment monitoring services, but rather
related to the merits of the case. Webb asserts that the
PLRA rate cap should not apply to the portion of fees
fees are authorized under section 1988 of this title, such fees
shall not be awarded, except to the extent that... .
42 U.S.C. § 1997e(d)(1).
App. 15
related to the merits of the case because this would create
an “impermissible effect on counsels’ expectation as to
their compensation when they undertook the representa-
tion.” In Martin v. Hadix, 527 U.S. 343 (1999), the Su-
preme Court held that the PLRA rate cap does not apply to
postjudgment monitoring work performed before the
PLRA’s effective date, but that “[w]ith respect to post-
judgment monitoring performed after the effective date...
there is no retroactive effect, and the PLRA fees cap
applies to such work.” 527 U.S. at 361-62. Webb argues
that Martin did not foreclose his argument because Martin
only discussed fees earned for postjudgment monitoring,
as opposed to fees earned relating to the merits of a case.
Webb’s reading of Martin, however, is too narrow. In
reaching its holding, the Martin Court reasoned that the
PLRA put attorneys
on notice that their hourly rate had been ad-
justed ... . After April 26, 1996, any expectation
of compensation at the pre-PLRA rates was un-
reasonable. There is no manifest injustice in
telling an attorney performing postjudgment
monitoring services that, going forward, she will
earn a lower hourly rate than she had earned in
the past. If the attorney does not wish to perform
services at this new, lower pay rate, she can
choose not to work. In other words, as applied to
work performed after the effective date of the
PLRA, the PLRA has future effect on future
work; this does not raise retroactivity concerns.
Id. at 360.
In holding that the PLRA has no retroactive effect on
work performed after the effective date, the Martin Court
rejected “the assumption that the attorney’s initial deci-
sion to file a case on behalf of a client is an irrevocable
App. 16
one” or “that once an attorney files suit, she must continue
working on that case until the decree is terminated.” Id. at
361. Webb maintains that this case is distinguishable from
the situation presented in Martin because his “counsel was
practically and ethically prevented from withdrawing prior
to the final determination on the merits” of the case. The
Idaho Rules of Professional Conduct, however, allow an
attorney to withdraw from a case if “the representation
will result in an unreason able financial burden on the
lawyer.” Idaho R. Prof’] Conduct 1.16(b)(5). The attorneys
here neither requested withdrawal nor evidenced any
desire to withdraw from the case. See Martin, 527 U.S. at
361 (“[Respondents] do not seriously contend that the
attorneys were prohibited from withdrawing from the
case.”).
The Court’s reasoning in Martin regarding the retro-
active effect of the PLRA was not limited to fees relating to
postjudgment monitoring. “It cannot be said that the
PLRA changes the legal consequences of the attorneys’
pre-PLRA decision to file the case.” Id. Therefore, all fees
incurred for attorney’s services performed after the PLRA’s
effective date of April 26, 1996 are subject to the PLRA
rate cap. The district court did not err in applying the
PLRA rate cap to all fees, whether related to the merits or
postjudgment monitoring, earned after the PLRA’s effec-
tive date.
3.
Webb also contends that the district court erred by
applying an incorrect hourly rate in calculating attorney's
fees under the PLRA. We agree. Webb asked the district
court to apply a baseline hourly rate of $75, as authorized
i
ae gee lt ee eee eee ee
App. 17
by the Judicial Conference pursuant to the Civil Justice
Reform Act, 18 U.S.C. § 3006A. The district court rejected
Webb’s argument and determined that the baseline rate
should be $65 for in-court time and $45 for out-of-court
time, which are the rates actually paid to court-appointed
counsel in the District of Idaho under § 3006A.
The PLRA prohibits a district court from awarding
fees at an hourly rate “greater than 150 percent of the
hourly rate established under section 3006A of Title 18, for
payment of court-appointed counsel.” 42 U.S.C.
§ 1997e(d)(3). Title 18 U.S.C. § 3006A provides that court-
appointed counsel shall
be compensated at a rate not exceeding $60 per
hour for time expended in court or before a
United States magistrate judge and $40 per hour
for time reasonably expended out of court, unless
the Judicial Conference determines that a higher
rate of not in excess of $75 per hour is justified
for a circuit or for particular districts within a
circuit.
18 U.S.C. § 3006A(d)\(1). At the time Webb's attorneys
earned their postjudgment fees, the Judicial Conference
had approved that a rate of $75 per hour was justified for
all district courts except for the District of Rhode Island.
This approved rate had not been implemented in the
District of Idaho, however, due to a lack of congressional
funding.
In rejecting Webb’s argument that $75 was the
appropriate baseline rate, the district court reasoned that
the use of the word “established” in § 1997e(d\(3) when
considered with the words “for payment of court-appointed
counsel” evidences a “Congressional intent ... to link
App. 18
payment to PLRA counsel to the amount actually paid to
CJA counsel in each district, not to what might be paid in
the future.” We disagree. The PLRA expressly provides for
payment at the rate “established” under 18 U.S.C.
§ 3006A. 42 U.S.C. § 1997e(d)(3). The Judicial Conference
determined that a rate of $75 per hour for the District of
Idaho was justified. Section 1997e(d)(3) makes no distinc-
tion between the amount authorized by the Judicial
Conference and the amount actually appropriated by
Congress to compensate court-appointed counsel in crimi-
nal proceedings. We conclude, therefore, that the district
court erred as a matter of law in construing 42 U.S.C.
§ 1997e(d)(3) and 18 U.S.C. § 3006A.
4,
Webb maintains that the district court abused its
discretion by not adequately explaining why it substan-
tially reduced his requested postjudgment attorney’s fees
on three matters. “The district court has a great deal of
discretion in determining the reasonableness of the fee
and, as a general rule, we defer to its determination,
including its decision regarding the reasonableness of the
hours claimed by the prevailing party.” Gates v. Deuk-
mejian, 987 F.2d 1392, 1398 (9th Cir. 1992). In exercising
this discretion, however, the district court must “give at
least some indication of how it arrived at the amount of
compensable hours for which fees were awarded to allow
for meaningful appellate review.” Id.
We agree with Webb that the district court did not
adequately explain its substantial reduction in Webb’s
requested hours. With respect to the motion for contempt,
the court awarded only 15 of the over 80 hours that Webb
App. 19
requested because the contempt violation was “technical”
and did not result “in any inmate’s constitutional rights
being violated.” For work performed on the motion for
discovery sanctions, the court awarded only 9 hours
because Webb’s request for 27.4 hours was “excessive.”
With respect to Webb’s opposition to Ada County’s objec-
tions to fees, the district court awarded only 21 hours,
finding Webb’s request for 32.9 hours “excessive especially
in light of the fact that Plaintiffs did not prevail on all
objections.” The terms “excessive” and “technical” are
conclusions that are unsupported by any articulation of
the basis for the court’s substantial reduction of Webb’s
request. While we do not require the district court “to set
forth an hour-by-hour analysis of the fee request,” Gates,
987 F.2d at 1399, we cannot determine from the present
record the basis for the court’s determination that the
- hours claimed by Webb were excessive. Accordingly, we
must order a remand for the development of a record that
* The difference between the amount of time Webb represented to
the court that was expended in performing legal services and the
amount of hours the court found were compensable is illustrated in the
following chart:
Hours Hours Percentage
Motion Requested Awarded Awarded
Contempt 80.2 15 19%
Sanctions 27.4 9 33%
Opposing
Ada County’s
Objections to
Fees 36.4 21 58%
Total 144 45 31%
App. 20
will permit us to review the question whether the district
court properly exercised its discretion.
5.
A portion of the postjudgment monitoring fees that the
district court awarded Webb related to work his attorneys
performed before the PLRA’s effective date of April 26,
1996. With respect to these pre-PLRA fees, the district
court awarded an hourly rate of $125 per hour. Webb
contends that the district court erred in applying a lower
hourly rate to compensate him for the services performed
by his attorneys on pre-PLRA postjudgment matters than
the court applied for work on the merits in Webb I. The
district court found that an hourly rate of $125 was
justified because the postjudgment issues “have not been
complex and the risks associated with such motions does
not justify the hourly rate of $140 per hour” that Webb’s
attorneys received during the merits phase in Webb I.
Prior to the enactment of the PLRA, we held that “[iJn
determining a reasonable hourly rate, the district court
should be guided by the rate prevailing in the community
for similar work performed by attorneys of comparable
skill, experience, and reputation.” Chalmers v. City of L.A.,
796 F.2d 1205, 1210-11 (9th Cir. 1986).° The record reveals
* The method of calculating a reasonable hourly rate for attorney's
fees, as discussed in Chalmers, is still applicable in non-prisoner suits.
In law suits brought by prisoners, however, the method of calculating
the hourly rate for attorney’s fees is dictated by the PLRA. See 42
U.S.C. § 1997e(dX3) (“No award of attorney’s fees in an action ...
[brought by a prisoner] shall be based on an hourly rate greater than
150 percent of the hourly rate established under section 3006A of Title
18, for payment of court-appointed counsel.”). The PLRA only applies to
(Continued on following page)
App. 21
that the district court considered evidence submitted by |
both parties in determining a reasonable hourly rate based
on the relevant community for services performed before
the effective date of the PLRA. The district court ade-
quately explained its-reasons and did not abuse its discre-
tion in setting a different hourly rate for pre-PLRA
postjudgment matters than it had applied in Webb I. See
Gates v. Rowland, 39 F.3d 1439, 1451 (9th Cir. 1994) (a
district court has discretion to determine whether same
expertise that supports high rate for merits portion of case
justifies using the same high rate for postjudgment phase).
6.
Finally, Webb argues that the district court erred in
awarding Ada County interest on its overpayment of
attorney's fees. The district court originally awarded Webb
$9,495.00 in attorney's fees related to postjudgment
matters. Ada County paid that amount in full on October
3, 1997. On remand from this court in Webb II, the district
court recalculated Webb’s award, and after applying 42
U.S.C. §1997e(d), reduced the award to $6,036.25. It
concluded that Ada County was entitled to an offset in the
amount of $3,458.75. In addition, the court awarded Ada
County 5.6% interest on that amount from October 3,
1997, the date Ada County satisfied the judgment. A
- fees incurred for attorneys’ services performed after the PLRA’s
effective date of April 26, 1996. Martin, 527 U.S. at 361-62. The fees
Webb is challenging here relate to work his attorneys performed before
April 26, 1996. Thus, we apply the pre-PLRA analysis found in
Chalmers to review the district court’s determination of a reasonable
hourly rate to apply to these pre-PLRA fees.
App. 22
district court’s award of interest is reviewed for abuse of
discretion. AT & T v. United Computer Sys., Inc., 98 F.3d
1206, 1209 (9th Cir. 1996).
Webb argues that this award of interest was improper
because 28 U.S.C. § 1961’ only allows postjudgment
interest to accrue from the date of entry of judgment.
Webb’s argument is without merit. Section 1961 does not
apply under these circumstances. Ada County was not
awarded interest after receiving a judgment. Rather, it
was awarded interest because it promptly paid the total
amount awarded by the court that was subsequently
determined to have been erroneously calculated. See Webb
II, 195 F.3d at 527-28. Therefore, since Ada County was
deprived of the use of its money because of the miscalcula-
tion, the district court did not abuse its discretion in
awarding interest to Ada County for the use of its money.
Cf. Air Separation, Inc. v. Underwriters at Lloyd's of
London, 45 F.3d 288, 290 (9th Cir. 1995) (“The purpose of
awarding interest to a party recovering a money judgment
is to compensate the wronged person for being deprived of
the monetary value of the loss.” (quotation and alterations
omitted)).
" Section 1961 provides: -
Interest shall be allowed on any money judgment in a civil
case recovered in a district court.... Such interest shall be
calculated from the date of the entry of judgment....
28 U.S.C. § 1961(a).
App. 23
Conclusion
We AFFIRM the district court’s determination that
Webb’s postjudgment attorney's fees are compensable
under the PLRA. We VACATE and REMAND those por-
tions of the district court’s judgment awarding attorney's
fees with instructions that it use a baseline of $75 in
calculating and awarding PLRA-authorized fees and set
forth its reasons for reducing the compensable hours
requested by Webb’s counsel.
We grant Webb’s request for attorney's fees on appeal
pursuant to 42 U.S.C. §§ 1988 and 1997e(d)(1) because his
attorneys’ services were directly related to his appeal
concerning attorney's fees under the PLRA. See Hewitt v.
Joyner, 940 F.2d 1561, 1571 (9th Cir. 1991) (“‘A prevailing
[civil rights] plaintiff should ordinarily recover an attor-
ney’s fee unless special circumstances would render such
an award unjust.’” (alteration in original) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983))). The determination of the amount of
the attorney's fees is transferred to the district court. See
9th Cir. R. 39-1.8; Am. Jewish Cong. v. City of Beverly
Hills, 90 F.3d 379, 386 (9th Cir. 1996) (en banc).
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
Each party shall bear its own costs on appeal.
IN THE UNITED STATES DISTRICT COURT
App. 24 :
FOR THE DISTRICT OF IDAHO
ROBERT WEBB, TERRY ) Case No.
STERKENBURG, TIMOTHY ) CIV 91-0204S EJL
DRISCOLL, KENT HALL, ) PARTIAL CONSENT
FRANK WALLMULLER, ) DECREE AND ORDER
RUSSELL HOWARD, )
ROBERT FRIEDLY, PEGGY ) (Filed April 14, 1995)
KNOX, BILL LOHR, JESSE _)
FULLER, individually, and for )
all other persons similarly
situated,
‘ Plaintiffs,
Vs.
ADA COUNTY, STATE OF
IDAHO; VAUGHN KILLEEN,
individually and in his capac-
ity as Sheriff of Ada County;
GARY GLENN, VERN BIS-
TERFELT, and JOHN BAS-
TIDA, Ada County
Commissioners each sued in
his or her individual and
official capacities; RICHARD
VERNON, individually and in
his capacity as Director of the
Idaho Department of Correc-
tions; and their successors in
office,
ee ee a ae a ee ae a a a ee a a a a ee ee a ee
Defendants.
The Court, upon stipulation of the parties for the
approval and entry of a Partial Consent Decree and
Order (hereinafter Consent Decree), and having reviewed
App. 25
the proposed Partial Consent Decree and Order being of
the opinion that it is a fair and reasonable resolution of
the issues in this action, hereby approves the Consent
Decree and directs the entry thereof as follows:
PRELIMINARY STATEMENT
1. The Plaintiffs are pre-trial detainees and sen-
tenced inmates who filed a Complaint seeking declara-
tory and injunctive relief for claimed unconstitutional
jail conditions and policies pursuant to 42 USC section
1983 due to their incarceration in the Ada County jail
(hereinafter ACJ), Boise, Idaho. The Defendants include
Ada County, the County Commissioners and the Ada
County Sheriff. The individual Defendants consent to
this Consent Decree in their official capacities only and
such consent shall be binding upon their successors in
office.
2. The Court has previously certified a Plaintiff
class composed of all current and future inmates con-
fined in the ACJ. The parties agree that all present and
future inmates confined in the entire ACJ are covered
by this Consent Decree.
3. This Consent Decree does not affect the previous
Partial Summary Judgment or the Interim Orders
unless modified by the Court as necessary to effectuate
the intent of the parties to this Partial Consent Decree
and Order. Nothing in this paragraph or in paragraph
six shall preclude either party from appealing or asking
for a modification of the Court’s Order on Partial Sum-
mary Judgment, and any interim Orders or the Court's
final Orders in this action.
App. 26
4. This Consent Decree is intended to partially
resolve the pending issues which are scheduled to be
heard by the Court. The parties specifically reserve the
right to present any unresolved issues to the court at a
future date, and reserve all rights regarding those
issues.
5. The parties have, in this Consent Decree, agreed
to partially resolve the Plaintiffs’ claims in order to save
time, expense and risk of litigation of trying these
issues. The parties agreement is based upon a complete
understanding of the law and constitutional obligations
and their right to have the Court hear the evidence and
issue legal relief, if appropriate.
6. The parties have an overriding interest in
finality of the terms agreed to herein and expressly
waive any claims or defenses they may have or could
have raised to avoid litigation of the merits of the terms
agreed to herein. The parties agree that the terms of the
Consent Decree are constitutionally adequate. The
parties agree to waive any right to appeal the terms of
the Consent Decree.
7. The parties agree that the terms of the Consent
Decree are workable, reasonable and can be imple-
mented by Defendants.
8. The terms of this Consent Decree were voluntar-
ily and mutually agreed upon by the parties as a com-
promise settlement of thé dispute between the parties.
Neither this settlement nor this Consent Decree consti-
tute admissions by Defendants that any previous or
existing condition, policy, procedure, act or omission of
Ada County, the Ada County Sheriff, the Ada County
Commissioners, their officials, employees, agents and
App. 27
representatives was, or is, in any way improper, negli-
gent, unconstitutional, or in violation of any right of
Plaintiffs. Nothing in the settlement between the par-
ties or in the provisions of this Consent Decree shall be
deemed to constitute findings of fact or conclusions of
law with respect to the claims or defenses of the parties
to this action. This Consent Decree and the negotiations
which culminated in this Consent Decree shall be
considered settlement negotiations and a settlement
pursuant to Rule 408, Federal Rules of Evidence.
9. Unless otherwise specified by the terms of this
Consent Decree, said Consent Decree shall be effective
and enforceable by the Court from the date it is ap-
proved by the Honorable Mikel H. Williams, Magistrate.
10. If a dispute arises concerning compliance with
this Consent Decree, the complaining party shall notify
counsel for Defendants in writing. The parties shall
have fifteen days to resolve any such dispute and, at the
end of said fifteen day period, if the parties are unable
to reach agreement, the issue may be submitted to the
Court.
11. This Consent Decree may be modified by the
written agreement of the parties. In addition, either
party may request that the court modify this Consent
Decree if there is a significant and substantial change in
circumstances which was not or could not have been
anticipated by the parties. The moving party bears the
burden of establishing the necessity for the modifica-
tion. Any modification must be specifically tailored to
the issue created by the change in circumstance.
12. Notice of this Consent Decree shall be given to
the plaintiff class by posting notice of the Consent
App. 28
Decree conspicuously in the ACJ and the Law Library
and by reference in the inmate handbook. A copy shall
be maintained in the Law Library.
13. This Consent Decree shall continue in full force
and effect for a period of three years from and after the
date of the final approval hereof by the District Court.
The Court shall have continuing jurisdiction over this
Consent Decree for that period of time unless the Court
determines that a longer fixed period of time is neces-
sary.
14. The Defendants recognize and anticipate that
future compliance with an implementation of the Con-
sent Decree may require the expenditure of funds.
15. This Consent Decree does not affect any claim
for or objection to past, present or future attorney fees
and costs.
I.
PHYSICAL FACILITIES
16. All plumbing, lighting, ventilation, heating and
cooling equipment, including thermostats, furnishings
and security hardware in the inmate living areas shall
be kept in good working order. Any broken fixture,
equipment, furnishings, or hardware which concern
health, safety or security shall be promptly repaired or
replaced as-soon as possible unless there are circum-
stances beyond the control of the jail staff. The jail shall
have a minimum of three full time staff dedicated to mainte-
nance duties. A maintenance person(s) shall be designated to
conduct a daily walk through of all physical facilities in the
App. 29
cell areas and note any deficiencies or repairs which are
necessary.
17. Staff, upon observing or learning of a break-
down or needed repair, shall make a maintenance request
or log the problem as soon as possible, but in no event
later than 24 hours from the discovery.
18. The Defendants agree to maintain a mainte-
| nance log system which allows the staff to properly
| maintain the jail by identifying fixtures, equipment,
furnishings, or hardware requiring repair and docu-
menting the action taken with regard to those repairs.
19. If emergencies arise, attempts to contact mainte-
nance personnel will be the priority, however, if unable
to locate maintenance personnel, private contractors
may be requested to respond.
20. A licensed plumber, who may be a county
employee, will inspect the facility and prepare an in-
spection report on the condition of all plumbing in the
Ada County Jail. Plaintiffs’ counsel may be present
during the inspection and shall be provided a copy of the
inspection report within 30 days of the signing of this
Consent Decree. The licensed plumber will inspect and
check all plumbing, including all toilets, showers,
exhaust fans and sinks for malfunctions and leaks.
Repairs, including replacing fixtures, shall be made
within 30 days of inspection unless the nature of the
repairs requires more time.
21. All surfaces, including showers, shall be
maintained so that they are free from fungus, rust,
mildew, soap scum, or any other substances that are
App. 30
either adhering to or causing deterioration of the sur-
face.
22. The jail will provide non-skid surfaces inside
and outside all showers, which will be maintained in a
sanitary condition and replaced as needed.
23. A _ sufficient number of shower and toilet
facilities and areas shall be handicap accessible and
shall comply with the Americans With Disabilities Act
(ADA). Any renovation of the existing jail shall conform
to the ADA.
24. If the toilet and sink facilities become inoper-
able, the jail staff will provide alternative facilities upon
an inmate request until the repairs can be made. The
jail will maintain an inventory of toilets for completing
repairs.
25. The jail shall implement, within 60 days of the
signing of this Consent Decree, a written preventative
maintenance program that includes regularly scheduled
inspections, by jail staff or other county employees, of
lighting, heating, cooling, ventilation, electrical, plumb-
ing, and fixtures for malfunctions, repairs, and replace-
ment.
II.
HEATING, COOLING, AND
VENTILATION SYSTEMS
26. Ventilation systems shall provide circulation of
at least 10 cubic feet of fresh, filtered air per minute per
inmate. The Ada County Jail’s ventilation systems shall
be balanced and tested.
App. 31
27. Copies of all inspections conducted by public or
private persons or entities shall be provided to plaintiffs’
counsel, upon request.
28. Defendants agree to clean the duct system
every two years and to inspect filters monthly and
change when needed.
29. A private heating, cooling and ventilation
expert(s) will inspect and test the functioning of the
heating, cooling and ventilation systems to insure
compliance with this Consent Decree. A report on the
inspection will be provided to Plaintiffs’ counsel within
60 days of the signing of this Consent Decree. All re-
quired repairs shall be made within 90 days of signing
this Consent Decree. Major redesigns and system up-
grades will be planned and budgeted through the nor-
mal Ada County purchasing procedure.
Ii.
LIGHTING AND ELECTRICAL SYSTEMS
30. Light levels in all inmate housing areas shall
be between 18 and 20 lumens/foot candles measured at
desk level. Night lighting levels shall provide adequate
illumination for supervision, but shall not hinder restful
sleep and will therefore be dimmed to approximately 5
lumens or less during lights out. Burned out light bulbs
shall be replaced as soon as possible.
31. All electrical outlets shall be tested and any
necessary repairs made. All electrical outlets shall have
GFI protection if required by applicable electrical codes.
32. A licensed electrician, who may be a county
employee, shall inspect and test the functioning of all
App. 32
lights and electrical devices to insure compliance with
this Consent Decree. Plaintiffs’ counsel maybe present
during the inspection and shall be provided a copy of the
inspection report within 30 days of the signing of this
Consent Decree. All required repairs shall be made
within 60 days of the signing of this Consent Decree.
IV.
SANITATION
33. The jail administrator or designee shall con-
duct a weekly sanitation and maintenance inspection of
all areas of the facility.
34. The jail shall have a written housekeeping
plan for all areas of the physical plant which provides
for daily housekeeping and maintenance by assigning
specific duties to inmates and staff.
35. Defendant shall provide, on a daily basis,
cleaning supplies and materials so that inmates may
maintain sanitary conditions in the cells and sanitize
their eating utensils.
36. If lice or crabs are found on an inmate, the
infected inmate shall be immediately deloused and
sprayed, and the inmates clothes and bedding shall be
exchanged. If necessary, all other inmates in areas of
the cell shall will be disinfected and clothing and bed-
ding will be exchanged. .
37. Defendants shall provide a program for the
control of vermin and pests. This will include monthly insect
fumigation of the jail. Jail staff shall report any presence of
insect, vermin or pest infestation. A licensed pest control
App. 33
professional shall be notified and appropriate fumigation
measures shall be taken within a reasonable time.
38. Shower curtains shall be exchanged and laun-
dered every month and replaced as necessary.
V.
INMATE HYGIENE, CLOTHING
AND BEDDING
38. Inmates, prior to being placed in any housing
area, shall be showered, deloused and issued a clean
jump suit, towel and bedding, including mattress cover, |
blanket, mattress, pillow and pillow case. Inmates will
be permitted to wear their personal underwear and
socks if they comply with jail policy. The jail shall
provide inmates with one clean pair of underwear if they
have none. Female inmates shall be permitted to retain
their personal bra and shall be provided with a clean
bra if they have been housed longer than three days.
40. Laundry services shall be sufficient to allow
required clothing, bedding and towel exchanges. A set
schedule shall be implemented and a record shall be
made of exchanges. The laundry shall be monitored to
insure that the laundry is properly cleaned.
41. Inmate clothing shall be exchanged at least
twice each week. At no time shall inmates be without
clothing while it is being laundered.
42. Bedding shall be exchanged at least once a
week, or more often, as necessary.
43. Blankets in use shall be exchanged every two
weeks, or before reissue to another inmate.
App. 34
44. Towels shall be exchanged at least twice each
week.
45. Sandals, sneakers or other footwear shall be
cleaned and sanitized before being reissued to another
inmate.
46. All clothing, bedding, and towels issued to
inmates shall be in sanitary and serviceable condition.
47. Defendants will maintain a sanitary facility
and provide serviceable mattresses, pillows, mattress
‘covers and pillow covers to inmates.
48. Inmate cups and utensils shall be exchanged
and cleaned and sanitized on a weekly basis.
49. Inmates who are placed in the housing area
shall, within 24 hours, be provided, without charge,
sufficient soap, disposable razor, comb, tooth powder or
toothpaste and tooth brush. The disposable razor shall
be provided three times a week and shampoo will be
available for purchase in the commissary. Hygienic
supplies shall be made available on a daily basis. Hygi-
enic supplies for female inmates shall be provided as
needed.
- 50. Inmates will be given access to showers on a
daily basis.
51. All inmates will be provided with seating at a
table to eat their meals.
App. 35
VI.
STAFF, TRAINING AND SUPERVISION
52. Defendant shall provide a sufficient number of
jail staff to comply with their obligations set forth in the
Consent Decree.
53. There shall, at all times, be a staff of qualified
jail deputies, sufficient in number and properly trained
in all jail procedures and operations, to provide for
adequate security and safety, supervision, inside and
outside exercise, legal access to court and counsel,
delivery of medical care and transportation, and visita-
tion (both legal and personal) for the inmates.
54. Defendants agree that they will have at least one
female deputy on every shift to provide for the female
inmate population as well as performing the other usual
and customary duties.
55. Defendants will document discovered instances
of inmate violence, including injuries, bodily assaults,
sexual assaults, suicides and deaths.
56. All security personnel shall be trained in ap-
proved methods of applying the minimal amount of physi-
cal force necessary to control inmates. All personnel
authorized to use any mechanical restraints, weapons, or
chemical agents shall be thoroughly trained in the use of
such.
57. Consistent with Equal Opportunity Employment
Standards, jail personnel may supervise inmates of the
opposite sex. The privacy needs of the inmates must be
respected in the searching and supervising of inmates and
jail staff must be carefully selected and trained in this
if
ij
App. 36
regard. Unless circumstances dictate otherwise, whenever
jail staff of the opposite gender enter a living area, he or
she shall first orally announce their presence and provide
sufficient opportunity for inmates to protect their privacy.
Unless circumstances dictate otherwise, whenever jail
staff of the opposite gender enter the toilet and shower
areas of the dormitory, he or she shall orally announce
their presence and provide sufficient opportunity for
inmates to protect their privacy.
VII.
CLASSIFICATION
58. A plan for classification of inmates shall be in
written form and shall include entry level and revisions of
custody level and required housing assignments. The
written plan for inmate classification in the jail shall be
[sic] compliance with state law and afford due process
protection.
ITX.
DISCRIMINATION
59. Female and non-English speaking inmates shall
be provided with equal treatment, conditions, parody [sic]
and work assignments and reasonable efforts for access in
all jail programs and activities.
60. The jail policies and procedures shall prohibit
discrimination (i.e., sex, race, religion etc.) in any form,
concerning treatment of inmates.
App. 37
61. All jail inmate request forms and handbooks
available to inmates shall be provided in English and
Spanish.
62. The Defendants agree to make reasonable efforts
to explain the jail policies and procedures, delivery of
medical care, and communicate with jail staff regarding
daily jail activities to non-English speaking inmates.
63. The Defendants will obtain a sufficient number
of books for leisure reading by non-English speaking
inmates.
64. Female inmates shall be provided equal and
sufficient opportunities to participate in the Jail Trustee,
Work Release and SILD programs.
65. The jail shall not confine persons who are sen-
tenced to pay fines or for non-payment of fines because of
their inability to pay and shall comply with the Order
heretofore entered by the Honorable Judge Edward J.
Lodge, United States District Judge for the District of
Idaho.
IX.
COMMUNICATION AND MAIL
66. The facility shall have a written policy and
procedure to govern inmate mail.
67. The defendants will follow State and Federal law
with regard to reading or rejecting incoming and outgoing
inmate mail.
68. Cash and money orders shall be removed from
incoming mail and promptly credited to the inmates
account.
App. 38
69. The defendants will follow State and Federal law
with regard to opening and inspecting incoming and
outgoing inmate mail for contraband.
70. The defendants will follow State and Federal law
with regard to the rejection of any publication, correspon-
dence or any contents of a package or any other form of
mail, and further with regard to the retention of illegal
tangible items contained in any publication, correspon-
dence or package.
71. Legal mail will be opened in the presence of the
inmate. Legal mail is defined as writing between you and:
a Judge, clerk, or other officer of the court; a lawyer who is
a member of the State Bar Association, Idaho Legal Aid or
the American Civil Liberties Union; an elected official; the
Ada County Sheriff, the Security Services Division Direc-
tor, the Department Legal Advisor, or the jail commander.
72. The defendants will follow State and Federal law
with regard to incoming/outgoing correspondence from/to
attorneys, courts, government officials or offices.
73. Inmates may have photographs of immediate
family (husband, wife, mother, father, son, daughter,
brother, sister, or other live-ins) in their cells. Sheriff
reserves the right to manage the location and placement of
photographs. Polaroid photographs are not acceptable.
74. Inmates are entitled to receive daily newspapers
from the publishers and said newspapers will be collected
and disposed of daily. :
75. The defendants will follow State and Federal law
with regard to providing indigent inmates with writing
supplies and postage for letters to their attorneys, the
courts, government officials and jail staff.
App. 39
76. Indigent inmates shall be provided with writing
supplies and postage for a minimum of three (3) one ounce
non legal letters per week to maintain family and commu-
nity ties. Incoming mail shall be delivered to inmates
within 24 hours, excluding weekends and holidays. Out
going mail shall be delivered to the postal service daily,
excluding weekends and holidays.
xX.
INMATE DISCIPLINE AND
DUE PROCESS PROCEDURE
77. All policies and procedures for the disciplining
and segregation of inmates shall be written and strictly
adhered to by jail staff. The policies and procedures for
discipline and segregation shall provide for procedural
protection as set forth by the United States Supreme
Court, the Ninth Circuit Court of Appeals, the United
States District Court for the District of Idaho and the
Idaho Supreme Court. The policies and procedures to be
followed by the inmates and the disciplinary hearing
procedures will be outlined in the inmate handbook.
78. The policy of the ACJ shall be that personnel are
required to use the least restrictive means available to
control and discipline inmates, and physical force shall
always be the last alternative.
79. In the event of an incident constituting an
immediate threat to the welfare of an inmate or to the
security of the jail, jail personnel may immediately segre-
gate the inmate prior to the provision of due process
procedures. A written report of such action with the
reasons which require pre-hearing detention shall be submit-
ted within 24 hours and reviewed by the jail Supervisor to
App. 40
determine if segregation is necessary prior to hearing. The
pre-hearing detention shall be reviewed every 24 hours
until the hearing and decision have been completed. These
reports shall be maintained and made available for inspec-
tion for Plaintiffs’ counsel.
80. When a violation of the rules or the reason for
the segregation do not involve an immediate threat to
safety or security, inmates may not be disciplined or
placed or kept in segregation unless the jail has complied
with the procedural protection set forth by the United
States Supreme Court, the Ninth Circuit Court of Appeals,
the United State District Court for the District of Idaho
and the Idaho Supreme Court.
DATED This 3rd day of April, 1995.
BOWEN, BRASSEY,
GARDNER, WETHERELL &
CRAWFORD
By: /s/ Andrew C. Brassey
ANDREW C. BRASSEY
Attorneys for Defendants
ADA COUNTY COMMISSIONERS
DATED This 3 day of April, 1995.
By: /s/ Vernon L. Bisterfeldt
VERN BISTERFELDT
DATED This 3 day of April, 1995.
By: /s* Roger Simmons
ROGER SIMMONS
App. 41
DATED This 6th day of April, 1995.
By: /s/ Gary Glenn
GARY GLENN
DATED This 3rd day of April, 1995.
By: /s/ Vaughn Killeen
ADA COUNTY SHERIFF
DATED This 3rd day of April, 1995.
IDAHO LEGAL AID
SERVICES, INC.
By: /s/ Howard Belodoff
HOWARD BELODOFF
Attorneys for Plaintiffs
DATED This 4th day of April, 1995.
By: /s/ Lea Cooper
LEA COOPER
Attorneys for Plaintiffs
IT IS SO ORDERED.
DATED This 14 day of April, 1995.
By: /s/ Mikel H. Williams
MIKEL H. WILLIAMS
U.S. MAGISTRATE JUDGE
DATED This 14TH day of April, 1995.
By: /s/ Edward J. Lodge
EDWARD J. LODGE
U.S. DISTRICT JUDGE
App. 42
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WEBB, TERRY
STERKENBURG, TIMOTHY
DRISCOLL, KENT HALL,
FRANK WALLMULLER,
RUSSELL HOWARD, ROBERT
FRIEDLY, PEGGY KNOX,
BILL LOHR, JESSE FULLER,
individually and for all other
persons similarly situated,
oe Case No.
sneaetee Cv 91-0204-S-EJL
ORDER
(Filed Sep. 29, 1997)
vs.
ADA COUNTY, STATE OF
IDAHO; VAUGHN KILLEEN,
individually and in his capacity
as Sheriff of Ada County; GARY
GLENN, VERN BISTERFELT
and JOHN BASTIDA, Ada
County Commissioners each
sued in his or her individually
and official capacities;
RICHARD VERNON,
individually and in his capacity
as Director of the Idaho
Department of Corrections;
and their successors in office,
i a a a ae a Le Le Le ee, Le, Le, Lae Le, e444, L444 4, 444 eh
Defendants.
This matter is currently on appeal to the Ninth
Circuit. However, pending before the Court in the above-
entitled matter are a number of post-judgment motions
filed by the Plaintiffs. The Court will address three of the
motions and refer the motions related to compliance under
the Partial Consent Decree to U.S. Magistrate Judge
App. 43
Mikel H. Williams for the issuance of a Report and Rec-
ommendation.
Having fully reviewed the record, the Court finds that
the facts and legal arguments are adequately presented in
the briefs and record. Accordingly, in the interest of
avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly
aided by oral argument, these matters shall be decided on
the record before this Court without oral argument.
MOTION TO ALTER OR AMEND
Plaintiffs seek to have the Court alter or amend its
judgment in two areas: 1) to allow the Plaintiffs to respond
to the sufficiency of the jail library materials as referenced
in Defendants’ October 30, 1997 letter to the Court and 2)
to claim attorneys fees related to the motion for contempt
which the Court indicated Plaintiffs were entitled to in the
Order Adopting the Report and Recommendation. By
separate order, the Court allowed Plaintiffs to file their
specific objections to the library inventory (filed as Docket
No. 432) and has received two letters from counsel in this
case regarding the library materials which the Court will
have docketed.’
In the Report and Recommendation issued by Judge
Williams and adopted by this Court, Judge Williams sets
* The clerk of the court is instructed to file as Supplemental
Notices Regarding Library Materials the January 24, 1997 letter from
Mr. Brassey and the January 10, 1997 letter from Mr. Belodoff which
were received by the Court.
App. 44
forth on pages 121-129 that the following materials should
be available in the county jail library:
Idaho Reports; Supreme Court Reporter; Pacific
Digest; Federal Digest (4th); Shepards (Idaho Ci-
tations); Corpus Juris Secundum; Idaho Code;
Federal Code titles 18, 28 and 42 (annotated);
state and federal jury instructions; state and fed-
eral local rules; Criminal Practice Series (or simi-
lar to West Publishing’s series); Nutshells on
subjects such as criminal procedure, legal re-
search, prisoners’ rights and constitutional law;
updated Federal Rules of Civil and Criminal Pro-
cedure; Federal Civil Rule Handbook (optional
recommendation); Federal Forms; Post Convic-
tion Remedies; Rights of Prisoners; and a law dic-
tionary.
The Court notes that at the time Judge Williams
made his recommendations for the library, he was relying
on the Supreme Court case of Bounds v. Smith, 430 U.S.
817 (1977). Since then the Supreme Court has issued its
opinion in Lewis v. Casey, __ U.S. __, 116 S.Ct. 2174
(1996) which redefined prisoners’ rights of access to the
courts and ability to challenge inadequate law libraries. In
light of the language in Lewis v. Casey, the Court is
inclined to limit the required library materials that the
Ada County Jail must maintain since there has been no
actual injury established related to the law library.”
* The Court notes that baged upon Lewis v. Casey, the Arizona
Department of Corrections will close state prison libraries and provide
only 16 items as legal resources to support prisoners’ access to the
courts. While it appears to the Court that the Arizona approach is
unduly restrictive, the Court finds that the publications recommended
(Continued on following page)
App. 45
The Court has reviewed the October 30, 1996 inven-
tory filed by the Defendants as well as the January 24,
1997 letter regarding supplementation of certain materials
and obtaining missing volumes. In reviewing the inven-
tory, the Court notes the following deficiencies or modifi-
cations to the recommended publications in the report and
recommendation:
1. Standard jury instructions for state and federal
courts — Defendants are ordered to order these mate-
rials and supplement such instructions in the future.
2. Federal local rules — these will be provided by the
Court to Defendants to place in the library. (Supple-
mentation is the responsibility of Defendants.)
3. Nutshells on corrections and prisoners’ rights — the
Court deems these are not required based on other
materials on the same subject that currently exist or
will be ordered by the Court.
4. Updated Federal Sentencing Law and Practice — The
Court does agree with the Plaintiffs that a recent
publication regarding the Federal Sentencing Guide-
lines should be available as many federal defendants
are housed at the Ada County Jail pending sentenc-
ing. The Court will direct the Defendants to either
properly supplement the Criminal Practice Series
volume on Federal Sentencing Law and Practice or to
purchase the “Federal Sentencing Guidelines Hand-
book” published by Lawyers Cooperative Publishing
which is updated annually.
ee ee
in this Order will provide a constitutionally adequate law library for a
county jail.
App. 46
West’ Criminal Practice Series (on topics other than
federal sentencing) should be properly supplemented
by the Defendants and such supplementation is not
included in the January 24, 1997 letter.
Supplementation and Missing Volumes — The Court
agrees with the Plaintiffs that missing volumes
should be purchased and the Court ordered materials
should be properly supplemented. It appears from
the January 24, 1997 letter to the Court that Defen-
dants are taking steps to replace missing volumes
and to properly supplement required materials. The
Court will require verification that the supplementa-
tion and replacement of missing volumes has been
completed in all areas noted in the January 24, 1997
letter (and attachments) and this Order or state why
such supplementation has not taken place. This no-
tice will be filed with the Court on or before October
30, 1997. No responses to such notice are to be filed
by the parties. The Court will review the notice and
determine if any additional action regarding the li-
brary inventory needs to be taken in light of the in-
structions to the Defendants in this Order.
As to the United States Code, the Court believes that
as to title 42, the jail is not required to maintain the
entire contents of title 42. Instead, the jail need only
maintain the required volumes that include sections
1981 through 1988 of title 42.
The Pacific Reporter (weekly) is not a mandatory
publication to be maintained by the library. Addi-
tionally, the Idaho Cases in the weekly reports for at
least 1989 through -1994 would be included in the
cases in the Idaho Reports and a synopsis of other
states’ cases would be included in Pacific Digests and
their pocket parts. The Court does not know how
expensive this weekly service is and leaves it to the
en SE he ge ce ow Bi CT ot aes EB y a Ag TORS Sh dP ea. cat oaks OEE tat Ey ik Ses ee i oe as
SEAR REEL PRAT PAL ELE CBU MEENA O SALI,
hee hare Lt PLAT es Pot WAL et ea RTS, Cae Cot eh ea ta hoes oe ee
tt Mes ey
App. 47
discretion of the Defendants to determine if this pub-
lication should be continued.
9. The Court does not require the Federal Supplements
to be maintained, however, if such are being received
at no cost and the library has space for such then the
Federal Supplements should be continued.
10. The Federal Civil Rule Handbook, optionally recom-
mended by Judge Williams, is not required by the
Court and it is in the discretion of the Defendants on
whether or not to purchase this publication.
As to the Plaintiffs’ requests for additional materials,
the Court makes the following findings. As stated by
Judge Williams in the Report and Recommendation, this
is a county jail and not a state prison. Eighty percent of
the inmates are housed at the county jail for ten days or
less. Therefore, the library need not be as extensive as a
state prison library were [sic] the inmates are in custody
for long periods of time. The goal should be an effective
library at a minimal cost. The Court cannot believe that
the cost of maintaining the Federal Reporters is justified
in a county jail in light of the fact that the Federal Digest
is available. Furthermore, the Defendants have indicated
in their January 24, 1997 letter that the librarian is
attempting to purchase a publication which would sum-
marize recent Ninth Circuit decisions. While not providing
a complete set of federal law to the inmates, such a publi-
cation when combined with the Federal Digest would
allow the inmates to be aware of new case law. The Court
leaves the decision of whether or not to purchase such a
publication to the discretion of the Defendants.
The additional volumes of Federal Practice related to
evidence, civil procedure and federal courts are not
deemed necessary based on the other materials regarding
App. 48
the same subjects which are available in other library
materials.
The Court finds that the requested publications
entitled “A Jailhouse Lawyer’s Manual” (Fourth Edition)
would be a helpful publication for inmates and such
publication has a minimal cost. Therefore, the Defendants
are instructed to order such publication. The Court will
provide a copy of the District of Idaho’s Pro Se Handbook
to include in the jail library.
The Court reminds the parties that the Magistrate
Judge’s recommendations do not limit what the Defen-
dants may maintain in the library. The recommendations
provide a floor of minimum requirements, but the Defen-
dants are free to include additional materials in the
library that they believe are relevant to the inmates’
needs. The “filler” legal materials should be removed as
recommended by Judge Williams. The Court declines to
order Plaintiffs’ request of annual verification that the
materials being supplemented. The requirements of the
Court are clearly stated in the rulings in this case and to
the extent, the Defendants are not complying, Plaintiffs
are free to file a separate action related to the Defendant’s
responsibility of maintaining an adequate county jail
library.
The issue of attorneys fees regarding the motion for
contempt will be addressed below. In light of the above
rulings, the motion to alter or amend judgment is granted
in part and denied in part.”
App. 49
MOTION FOR POST-JUDGMENT ATTORNEYS FEES
The Plaintiffs request additional post-judgment
attorneys fees for the following areas: motion to compel,
motion for sanctions, Dr. Doke motion, briefing regarding
the PLRA and objections by Defendants, compliance, post-
judgment matters and request for attorneys fees. The
Court has reviewed the objections to attorneys fees filed by
Defendants and Plaintiffs’ reply briefing. The amount of
attorneys fees to be awarded under § 1988 of the Civil
Rights Act must be determined by the facts of each case.
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983).
In determining the amount of fees the court is entitled to
consider the results obtained by the plaintiff and if the
plaintiff is only partially successful, the hours may be
reduced to avoid an excessive award. Id.
As to the hourly rate for attorney fees, the Court finds
that the issues related to the current request for attorney
fees have not been complex and the risks associated with
such motions does not justify the hourly rate of $140 per
hour for Mr. Belodoff (which was reluctantly adopted by
this Court in its Order Adopting Report and Recommenda-
tion). The Court finds an hourly rate of $125 more accu-
rately reflects the going market rate for the type of legal
issues presented to the Court in the current request for
additional attorney fees.
With regards to the motion to compel, the Court finds
that the requested hours by the Plaintiffs are excessive
(total of 80.20 hours requested) based upon the result
achieved ($250 contempt award against the sheriff) and
the fact that the violation was a technical violation and
not a violation that resuited in any inmate’s constitutional
rights being violated. The Court finds that reasonable
App. 50
attorneys fees regarding the motion to compel and in -
court time for such motion would be 10 hours for Mr.
Belodoff at $125 per hour and 5 hours for Ms. Cooper at
$100 per hour for a total of $1,750.00.
With regards to the motion for sanctions, the Court
again finds that the hours requested for this motion are
excessive. The Court did grant sanctions in the amount of
$1,000 but the Plaintiffs are requesting 27.4 hours to be
reimbursed. The Court finds that reasonable attorneys
fees related to the motion for sanctions regarding discov-
ery would be 2 hours for Mr. Belodoff at $125 per hour and
7 hours for Ms. Cooper at $100 for a total of $950.00.
With regards to the 11.1 hours requested regarding
Dr. Doke motion, the Court finds that the Plaintiffs did
not prevail on this issue and are not entitled to any attor-
neys fees related to such.
With regards to the 32.9 hours for responding to
Defendant’s Objections, the Court finds that the hours are
again excessive especially in light of the fact that Plaintiffs
did not prevail on all objections. The Court will award
reasonable attorneys fees in the amount of 20 hours for
Mr. Belodoff at $125 per hour and 1 hour for Ms. Cooper at
$100 per hour for a total of $2,600.
With regards to requested attorneys fees for briefing
regarding the PLRA, the Court acknowledges that it was
the Court that requested supplemental briefing from the
parties. The Court determined that the PLRA was not
applicable regarding capping the hourly rate for attorneys
fees, so it is possible to argue that Plaintiffs were the
prevailing party on this issue. However, the issue was
limited that the Court requested briefing on and the Court
App. 51
finds that reasonable attorneys fees would be 20 hours at
$125 for Mr. Belodoff for a total of $2,500.
With regards to Post-Judgment time and Attorneys
Fees request for a total of 9 hours the Court finds that the
Plaintiffs are entitled to this time in full. Mr. Belodoff is
awarded $850 (6.8 hours at $125 per hour) and Ms. Cooper
is awarded $220 (2.2 at $100 per hour) for a total of
$1,070.
In order to avoid an additional motion regarding
attorneys fees on the library objections which were not
filed with the Court until after the petition for further
attorneys fees was filed, the Court finds that certain
objections raised by the Plaintiffs to the library materials
were valid and that some attorneys fees for this legal work
should be awarded. Accordingly, the Court will award 5
hours of attorneys fees at $125 for a total of $625 to Mr.
Belodoff related to the library objections. No further award
for attorneys fees regarding this issue will be entertained
by the Court.
Finally, as to attorneys fees relating to compliance,
this issue will be addressed by Judge Williams when he
issues his report and recommendation on the compliance
motions.
MOTION TO ENTERTAIN A MOTION
FOR RELIEF FROM JUDGMENT
Plaintiffs seek leave from the Court to entertain a
motion to address the jail’s alleged use of cots. The Court
believes that the alleged facts are new and should not be
addressed in the present case as such were not at issue
when the Court issued its Order Adopting the Report and
App. 52
Recommendation and such Order is on appeal with the
Ninth Circuit. Additionally, the Plaintiffs are not prohib-
ited from filing any claim related to the use of cots at the
jail in a separate action. The motion is denied.
ORDER
Being fully advised in the premises, the Court hereby
orders that:
1) Plaintiffs’ Motion to Alter or Amend Judgment
(Docket No. 423) is GRANTED IN PART AND DENIED
IN PART as explained in this Order. Defendants are to
comply with the library inventory requirements noted in
this Order and to provide notice of compliance and an
updated library inventory and any necessary explanation
of non-compliance on or before October 30, 1997.
2) Plaintiffs’ Motion for Post-Judgment Attorneys
Fees (Docket No. 426) is GRANTED IN PART AND
DENIED IN PART. The attorneys fees requested are
reduced as indicated in this Order for a total award to
Plaintiffs in the amount of $9,495.00 ($7,975.00 for Mr.
Belodoff and $1,520.00 for Ms. Cooper). Any attorneys fees
awarded related to compliance with the Partial Consent
Decree shall be addressed by Judge Williams.
3) Plaintiffs’ Motion to Entertain a Motion for Relief
of Judgment (Docket No. 453) is DENIED.
4) Because the case is currently on appeal, the Court
is going to prohibit additional motions from being filed
with the District Court, except for any notice of appeal
regarding the Judgment on Post-Judgment Attorney Fees,
until the motions regarding compliance with the Partial
Consent Decree are ruled upon by Judge Williams.
App. 53
5) All remaining post-judgment motions shall be
referred to the Honorable Mikel H. Williams.
6) Clerk of the Court is instructed to file the letters
from counsel regarding library materials as noted in
footnote 1.
7) Clerk of the Court is instructed to provide to
Defendant’s counsel along with this Order a hardcopy of
the District of Idaho’s newly revised Civil and Criminal
Local Rules as well as the District’s Pro Se Handbook.
Defendants’ counsel is to provide these materials to the
jail librarian in a timely manner and such shall be in-
cluded in the inventory submitted to the Court at the end
of October.
Dated this 26th day of September, 1997.
/s/ Edward J. Lodge
EDWARD J. LODGE
UNITED STATES
DISTRICT JUDGE
App. 54
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WEBB, et al., CASE NO:
Plaintiffs, CV91-204-S-EJL
- ORDER ON SUPPLE-
: MENT REPORT AND
ADA COUNTY, et al, RECOMMENDATION
Defendants. (Filed March 24, 2000)
Pending before the Court in the above-entitled matter
is the Ninth Circuit's Mandate (Docket No. 540) dismiss-
ing in part, affirming in part and remanding in part this
court’s Judgment entered on September 29, 1997 (Docket
No. 489) relating to post-judgment attorneys fees. See,
Webb v. Ada County, 195 F.3d 524 (9th Cir. 1999). Since
the issuance of the Judgment, there have been additional
legal matters and additional motions for attorneys fees
were filed by the Plaintiffs. This Court referred the re-
quest for compliance attorneys fees contained in the
motion docketed as No. 426 and attorneys fees motions
filed subsequent to the September 29, 1997 Judgment
(Docket Nos. 440 and 519) to Chief United States Magis-
trate Mikel H. Williams. On December 23, 1999, Judge
Williams issued his Order, Report and Recommendation in
this matter. Judge Williams issued a Supplemental Report
and Recommendation on February 4, 2000, after it was
determined that certain attorneys fees requests had not
been addressed in December 23, 1999 Order, Report and
Recommendation. Pursuant to 28 U.S.C. § 636(b)(1), the
parties had ten (10) days in which to file written objections
to the proposed findings and report and recommendation.
Both the Plaintiffs and the Defendants filed objections to
the report and recommendations. The Court will now
App. 55
address the remand, the report and recommendations, and
Plaintiff's new motion for fees related to the reports and
recommendations in an effort to bring closure to this
litigation.
Ninth Circuit Remand
In this Court’s Order dated September 29, 1997, the
Court determined that the Plaintiffs were entitled to
certain reasonable attorneys fees and that the fees caps of
the Prison Reform Litigation Act (PLRA) did not apply. On
appeal, the Ninth Circuit determined the Court had erred
in allowing an hourly rate of $125 instead of the PLRA cap
rate of 150% of 18 U.S.C. § 3006A. The Ninth Circuit was
applying the recent Supreme Court ruling that held
attorneys fees awarded for post-judgment activities that
occur after the effective date of the PLRA (April 26, 1996)
are to be calculated using the PLRA cap rates. See, Martin
v. Hadix, 527 U.S. 348, 119 S. Ct. 1998 (1999). The Ninth
Circuit remanded the case for proceedings consistent with
Martin. The Ninth Circuit also suggested in footnote 2
that this Court revisit its fees on fees analysis consistent
with Schwarz v. Secretary of Health & Human Services, 73
F.3d 895 (1995).
The Ninth Circuit found the number of hours deter-
mined to be reasonable for the legal work and success
achieved by the Plaintiffs were within this Court’s discre-
tion. However, the Ninth Circuit found the hourly rate
was not properly calculated. Therefore, the Court adopts
by reference the number of hours previously determined to
be reasonable for the following legal issues:
1) Contempt — 10 hours for Mr. Belodoff and 5 hours
for Ms. Cooper. Based upon the itemizations of attorneys
App. 56
fees, the Court will allow 5 of the 10 hours for Mr. Belodoff
to be in-court hours since this is the amount of time listed
to attend the hearing on April 17, 1996. The Court did not
find an itemization for Ms. Cooper attending the hearing,
so all of her hours are considered to be out-of-court time.
2) Sanctions — 2 hours for Mr. Belodoff and 7 hours
for Ms. Cooper. All time out-of-court as any court time
would be included in the previous hearing time.
3) Compliance — will be addressed in the report and
recommendations of Judge Williams. The Ninth Circuit
did not decide whether attorneys fees for consent decree
monitoring were proper in this case and dismissed the
Plaintiffs’ appeal on this matter. See, Webb v. Ada County,
195 F.3d 524 (9th Cir. 1999).
4) Dr. Doke — 0 hours as Plaintiffs did not prevail on
this issue.
5) Reply to Defendants Objection — 20 hours for Mr.
Belodoff and 1 hour for Ms. Cooper. all time was out-of-
court time as no hearing was held on the objections.
6) Opposition to PLRA — 20 hours to Mr. Belodoff.
All time was out-of-court time as no hearing was held on
the PLRA arguments.
As to the Plaintiffs request for fees-on-fees, the Court
is compelled by the Ninth Circuit opinion to revisit the
total hours allowed. The Court finds that the allowed
hours should be reduced from 9 to 6.5 hours.
7) Post Judgment Time and Petition for Attorneys
Fees — 5.0 hours allowed for Mr. Belodoff and 1.5 hours
allowed for Ms. Cooper. All time was out-of-court time. In
light of the footnote in the Ninth Circuit opinion, the
i i
App. 57
number of hours is reduced from the original 9.0 hours
awarded to 6.5 hours based upon Schwarz v. Secretary of
Health & Human Services, 73 F.3d 895 (1995) (district
court has discretion to reduce fees-on-fees to same extent
applicants ultimately fail to prevail on fees request itself).
In the present case, the Plaintiffs requested 157.8 hours
(177.8 — 20 hours for compliance addressed in report and
recommendations and not counting library compliance) for
Mr. Belodoff and 39.2 hours (49.9 — 10.7 hours for compli-
ance addressed in report and recommendations) for Ms.
Cooper. The total hours awarded regarding this motion for
fees are 57 hours for Mr. Belodoff and 14.5 for Ms. Cooper.
The Court’s reductions in the fees-on-fees requested hours
is related to the success of the Plaintiffs on their motion
for attorneys fees. While the reduction for fee-on-fees
hours is substantially less than the reductions to the other
areas of requested fees in the motion, the Court finds that
6.5 hours is reasonable amount of time for post-judgment
time and the fees-on-fees request.
8) Library compliance -— The Court previously
awarded 5.0 hours for Mr. Belodoff related to library
compliance issues. In the subsequent motion the Plaintiffs
requested 14.7 hours for library compliance. In the reports
and recommendations, Judge Williams does not recom-
mend allowing any further recovery for library compliance
based upon this Court’s statement that no further request
would be entertained. Since the Court made its determina-
tion of a reasonable amount of time to be spent on the
issue before counsel had calculated their time, the Court
finds it would be fair to revisit the number of hours al-
lowed to determine if 5 hours is reasonable. In reviewing
the submitted hours, the Court finds that 7 hours is a
reasonable amount of time since the library issues were
App. 58
not complex and the Plaintiffs did not prevail on all of
their claims or requests regarding the law library. All time
would be out-of-court time as no hearings were held on the
library compliance issues.
Total hours allowed (except for compliance) is 64
hours for Mr. Belodoff and 14.5 hours for Ms. Cooper. The
Court must now apply the PLRA cap rates for attorney
services after April 26, 1996. As discussed in more detail
below in the Court’s rulings on the objections, the Court is
going to apply an in-court rate of $65 times 150% for an
hourly rate of $97.50 and an out-of-court rate of $45 times
150% for an hourly rate of $67.50. In applying these rates,
Mr. Belodoff would be entitled to $487.50 for 5 hours in-
court time and $3,982.50 for 59 hours of out-of-court time.
Ms. Cooper would be entitled to $978.75 for 14.5 hours of
out-of-court time. Therefore, the total fees recalculated per
the remand would be $5,448.75. The previous judgment of
September 29, 1997, awarding attorney fees of $9.495.00
will be amended to award $5,448.75.
Report and Recommendations
Pursuant to 28 U.S.C. §636(b)\(1), a district court
judge may reconsider any pretrial matter where it has
been shown that the magistrate’s order is clearly errone-
ous or contrary to law. Furthermore, a district court judge
shall make a de novo determination of those portions of
the report or specified proposed findings or recommenda-
tions to which objection is made. The Court may accept,
reject or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.
Plaintiffs do not object to the number of hours deter-
mined to be reasonable by the magistrate judge, but do
App. 59
challenge the calculation of the capped rates under the
PLRA. The Plaintiffs claim the cap should be based on the
$75 per hour cited in § 3006A and not on the actual
approved rates which are currently $65 for in-court time
and $45 for out-of-court time. Plaintiffs also request
interest on the attorneys fees. The Defendant objects to
any award of compliance attorneys fees as such are in
violation of the PLRA since the fees are not directly
related to proving a constitutional violation. Based on
these objections, this Court must conduct a de novo review
of the record. It is a statutory and constitutional obligation
of the district court “to arrive at its own independent
conclusion about those portions of the magistrate’s report
to which objections are made.” U.S. v. Ramsing, 874 F.2d
614, 618 (9th Cir. 1989).
1. Hourly Rate Objection.
Pursuant to the PLRA, no award of attorneys fees in a
prisoner civil rights actions “shall be based upon an hourly
rate greater than 150 percent of the hourly rate estab-
lished under 18 U.S.C. 3006A. 42 U.S.C. § 1997e(d)(3).
Title 18 U.S.C. 3006A(d) provides in part:
Any attorney appointed pursuant to this section
... Shall, at the conclusion of the representation
for any segment thereof, be compensated at a
rate not exceeding $60 per hour for the time ex-
pended in court ... and $40 per hour for time
reasonably expended out of court, unless the Ju-
dicial Conference determines that a higher rate
of not in excess of $75 is justified for a circuit or
for particular districts within a circuit. ...
Effective January 1, 1996, the Judicial Conference ap-
proved a five dollar increase in the hourly rates to $65 for
App. 60
in-court time and $45 for out-of-court time. While the
Judicial Conference has approved an hourly rate of $75 for
in and out of court time for all federal judicial districts
except Rhode Island, the rate ahs not been funded in the
majority of districts. Specifically, the $75 amount has not
been implemented in Idaho.
The appropriate hourly rate based upon the statutory
language has not been determined by the Ninth Circuit.
Footnote 2 of Madrid v. Gomez, 190 F.3d 990 (9th Cir.
1999) appears to support the magistrate’s conclusion that
the Ninth Circuit has recognized that the rate would be
based on $65 and $45 if the Judicial Conference had not
approved and funded the $75 rate for the particular
district. In Madrid, the Ninth Circuit stated that the
Judicial Conference had approved end Congress was
funding the $75 per hour rate for Northern California and
so that rate was applied. At the time the Judicial confer-
ence approved the $75 rate for Northern California and
some other districts, the Judicial Conference only author-
ized payment at $65 and $45 rates for the District of
Idaho. While it is true that the Judicial Conference rec-
ommended a rate of $75 for all districts (except Rhode
Island), such recommendation has not been funded by
Congress and the $65 and $45 rates remain in effect for
Criminal Justice Act (CJA) work in the District of Idaho.
The Court has reviewed the decision cited by Plain-
tiffs in Jllick v. Miller, ___ F. Supp. __, No. CVN 94-0314
DWH, 1999 WL 781654. The Nevada court determined the
approved (but not fundéd) rate of $75 rate should be
applied as the base rate to provide for a final rate of
$112.50. However, the court noted that the issue may well
be moot as the attorney seeking fees practiced in Washing-
ton, D.C., which is one of districts in which the $75 rate is
App. 61
paid to CJA attorneys. The court focused on the word
“established” in § 803(d)(3) of the PLRA to conclude the
recommended and approved, but unfunded rate should
apply. This Court respectfully disagrees with the JIllick
court. The rates “established” by the Judicial Conference
for Idaho CJA attorneys are $65 and $45.
The Court also adopts the more detailed analysis of
Judge Williams on this issue. The Court agrees with the
only circuit court to specifically address the issue. See,
Hernandez v. Kalinowski, 146 F.3d 196, 201 (3rd Cir.
1998) (the applicable rate for PLRA work should be based
upon the actual hourly rates paid in the District for CJA
work). The Court finds that it would be unfair to require a
defendant to pay legal fees at a higher rate based upon
rate that is not in actual use by the District of Idaho.
Further, to allow a recommended rate that has never been
funded by Congress to be used as the base rate seems to be
in contravention to Congressional intent in passing the
PLRA. Congress was well aware of the appropriated
hourly rate for CJA attorneys when it passed the PLRA. In
making this funding, the Court acknowledges that the
CJA hourly rates used by this district are low in compari-
son to the hourly rate approved for pre-PLRA work in this
case of $140 per hour or to private practice criminal
defense rates. However, the district has ample attorneys
that accept criminal cases at the CJA rates of $65 and $45
and it is reasonable to believe there are ample attorneys
that would take on civil prisoner litigation for a fee of
150% of the current CJA rates in the District of Idaho.
Plaintiffs’ objection to the base rate for hourly is overruled.
App. 62
2. Request for Interest on Fees.
At the end of their objections, Plaintiffs request
interest on their attorneys fees award since it has taken
awhile for the award to be determined. Defendants prop-
erly objected to the request for interest. The law is well-
settled that interest is not awardable until the amount is
secured with a judgment. Friend v. Kolodzieczak, 65 F.3d
1514, 1519 (9th Cir. 1995). The Plaintiffs’ request is
denied as far as the compliance fees addressed in the
report and recommendations. The Court finds that Plain-
tiffs should be entitled to post-judgment interest calcu-
lated at the rate stated in the Judgment dated September
27, 1997 (Docket No. 489) on the reduced attorneys fees
related to the remand by the Ninth Circuit. The judgment
in favor of the Plaintiffs for attorneys fees was not over-
turned by the Ninth Circuit, only the rate at which hours
were compensated.
3. Fees Related to Constitutional Violation.
Defendants object that the fees requested are not
directly and reasonably incurred in proving a violation of
prisoners’ rights as required by § 803(d)(1) of the PLRA.
Defendants contend Plaintiffs’ compliance efforts were not
tied to any constitutional violation. Defendants maintain
that Plaintiffs failed to prove a constitutional violation and
that the Consent Decree specifically states that Defendant
does not admit conditions created a violation of rights. The
issue was not addressed by the Ninth Circuit in the appeal
App. 63
by Plaintiffs.’ This Court has previously ruled that Plain-
tiffs did establish limited violations of Plaintiffs’ rights
regardless of the language in the Consent Decree. See,
Order dated March 11, 1998 (Docket No. 493). The Court
will not revisit this argument and adopts by reference the
analysis of Judge Williams in the report and recommenda-
tions regarding this argument. Defendants’ objection is
overruled.
4. Defendants’ Other Objections.
Defendants renewed its objections as to the overall
reasonableness of the requested hours by the Plaintiffs.
The Court adopts the magistrate judge’s analysis and
findings regarding the reasonableness of the hours re-
quested and overrules Defendants objections based upon
billing for clerical tasks, billing in insufficient detail and
billing for time with Defendants’ former attorney.
Motion for Attorney Fees Relating
to Report and Recommendations
Plaintiffs move the Court to award attorneys fees and
costs that Plaintiff's counsel incurred related to the
reports and recommendations. This Petition was filed On
January 25, 2000, and the docket does not reflect a re-
sponse to the petition by Defendant. In the Petition,
Plaintiffs request 10.4 hours of time and $10.49 in costs.
1 “We do not have jurisdiction over fees for consent decree monitor-
ing. The district court declined to rule on whether attorney's fees were
warranted because the matter was still pending before the magistrate
judge.” Webb v. Ada County, 195 F.3d 524 (9th Cir. 1999).
App. 64
The Court finds the requested hours excessive in that
Plaintiffs were mainly restating arguments previously
made to the magistrate judge. The Court finds that 6
hours is reasonable and all hours would be at the out-of-
court rate. Effective January 1, 2000, the actual CJA
hourly rates were increased to $70 (in-court) and $50 (out-
of-court). Because all but .5 hours being requested were
incurred in 2000, the Court will apply the $50 out-of-court
rate to these hours. Six hours times ($50 times 150%)
equals a total fee award of $450.00 The costs of $10.49 are
approved as reasonable.
Order
Acting in part on the recommendations of Chief
Magistrate Judge Williams, based on the foregoing, and
this Court being fully advised in the premises,
IT IS HEREBY ORDERED:
1) The Court’s Judgment of September 29, 1997 as to
attorneys fees is amended. The Plaintiffs’ Motion for
Attorneys Fees (Docket No. 426) is GRANTED IN PART
AND DENIED IN PART. The attorneys fees requested
are reduced as indicated in this Order for a total award to
Plaintiffs in the amount of $5,448.75, but interest on this
amount shall accrue from September 29, 1997 at a rate of
5.6%.
2. Plaintiffs’ Supplemental Post Judgment Petition
for Attorneys Fees (Docket No. 440) is GRANTED IN
PART AND DENIED IN PART; Plaintiffs’ Second Post
Judgment Petition for Attorneys Fees (Docket No. 519) is
GRANTED IN PART AND DENIED IN PART and
Plaintiffs Motion for Attorneys Fees (Docket No. 426)
App. 65
relating to compliance are GRANTED IN PART AND
DENIED IN PART. The attorneys fees requested for
post-judgment compliance are granted for the hours
recommended by Magistrate Judge Williams in the two
report and recommendations for a total award to Plaintiffs
in the amount of $16,960.50. The Plaintiffs shall also be
awarded $348.41 in costs.
3. Plaintiffs’ Petition to Award Attorney Fees and
Costs for Report and Recommendation (Docket No. 548) is
GRANTED IN PART AND DENIED IN PART. The
attorneys fees requested are reduced as indicated in this
Order for a total award to Plaintiffs in the amount of $450.
The Plaintiffs shall also be awarded $10.49 in costs.
4. Defendant’s Motion to Strike Affidavits of David
Lloyd (Docket No. 522) is DENIED.
5. Plaintiffs shall submit a proposed judgment
consistent with this Order within ten (10) days.
Dated this 24th day of March, 2000.
/s/ Edward J. Lodge
EDWARD J. LODGE
UNITED STATES DISTRICT
JUDGE
App. 66
IN THE UNITED STATES DISTRICT COURT
ADA COUNTY, et al.,
Defendants.
(Filed April 13, 2000)
FOR THE DISTRICT OF IDAHO
ROBERT WEBB, et al., )
Plaintiffs, } CIV 91-0906 8 BIL
v8. ‘ JUDGMENT
)
Based upon the Court’s Order on Supplemental
Report and Recommendation, dated March 24, 2000, IT
IS HEREBY ADJUDGED AND DECREED:
That the Plaintiffs are awarded Judgment on
Plaintiffs Motion for Attorney Fees (Docket No. 426) in
the amount of $5,448.75, comprised of $4,470.00 for Mr.
Belodoff and $978.75 for Ms. Cooper, with interest
which shall accrue from September 29, 1997, at a rate of
5.6% per annum until paid in full;
That the Plaintiffs are awarded a Judgment on
Plaintiffs’ Supplemental Post Judgment Petition for
Attorney Fees (Docket No. 440), Plaintiffs’ Motion for
Attorney Fees (Docket No. 426), in the amount of
$17,290.50 and costs of $348.41, plus a rate of 66%
[6.197% EJL] per annum until paid in full from the
entry of this Judgment.
DATED this 13th day of April, 2000.
/s{ Edward J. Lodge
Edward J. Lodge
United States
District Judge
App. 67
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT WEBB, et al. No. 00-35338
— No. 00-35787
Plaintiffs-Appellees, No. 00-35842
i D.C. No. CV-91-00204-
ADA COUNTY, et al., EJL
Defendants-Appellants. District of Idaho
ORDER
(Filed May 21, 2002)
Before: ALARCON, and SILVERMAN, Circuit Judges,
and BREWSTER,’ District Judge.
The panel as constituted above, has voted unani-
mously to deny the petition for rehearing. Judge
Silverman has voted to deny the petition for rehearing
en banc, and Judges Alarcén and Drewster have recom-
mended the same.
The full court has been advised of the petition for
rehearing en banc and no judge of the court has re-
quested a vote on the petition for rehearing en banc.
Fed. R. App. P. 35.
? Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.