Petition for Writ of Certiorari — Caruso v. Bazzetta (No. 08-1213)
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In the Supreme Gourtter Cc
of the United States
PAT RICIA L. CARUSO, Director eal Mibliioon ;
Department of Corrections; MICHIGAN
DEPARTMENT OF CORRECTIONS
Petitioners,
-
MICHELLE BAZZETTA,., et al
Re aoe nts.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Michael A. Cox
Attorney General
B. Eric Restuccia
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
(517) 373-1124
James E. Long
Assistant Attorney General
Lisa C. Ward
Special Assistant Attorney General
Attorney for Petitioners
QUESTION PRESENTED
Whether a plaintiff in a 42 U.S.C. § 1983 action
may retain disputed interim attorney fees awarded
during the pendency of the litigation when the plaintiff —
having lost on all claims in a merits decision by this
Court — is plainly not a "prevailing party" under 42
U.S.C. § 1988(b)?
PARTIES TO THE PROCEEDING
Petitioners are the Michigan Department of
Corrections (MDOC) and the Director of the Michigan
Department of Corrections and its Director, Patricia L.
Caruso, who is automatically substituted as a party in
place of the former Director, Kenneth McGinnis,
pursuant to S. Ct. R. 35.3.
Respondents include eleven class representatives
on behalf of themselves and all others similarly situated,
including all inmates incarcerated by MDOC and non-
incarcerated potential visitors of MDOC inmates. The
eleven representative plaintiffs are Michelle Bazzetta,
Stacey Barker, Toni Bunton, Debra King, Shante Allen,
Adrienne Branaugh, Alesia Butler, Tamara Prude,
Susan Fair, Valerie Bunton, and Arturo Bunton, through
his next friend, Valerie Bunton.
-iii-
TABLE OF CONTENTS
QUESTION PREGIIG L Til) ooicseccaseccscsccsocaccsonssosesssenssvesenones J
PARTIES TO THE PROCEEDING ...............ccccceccccossoceeoes fil
py F Pe) Sy y 8 gy | *. Senne mne nem etCnaT IV
OPINIONS BELOW
ee 2s sss ucencaepciemitoueisecsusbocsedaabemavine cane
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED .........
STATEMENT OF THE CASE. .............cccccceccccorss Renee moe? Aas
eR This Court's decision on the Merits :
2. Proceedings on the Interim Attorney Fees....... 4
REASONS FOR GRANTING THE PETITION
I. Respondents are not entitled to any
attorney fees because they are not prevailing
PUNO Oe TIO OE BIW sikivrscscoscecctcccecavesvietenssersnvnncss 6
IT. Petitioners timely raised and preserved
objection to the award of interim attorney fees........... 10
CAFE tes AEN evils tives oa a ene eee 18
-1V-
TABLE OF AUTHORITIES
Cases
Advantage Media, LLC v. City of Hopkins,
511 F.3d 833 (8th Cir. 2008) 9,10
Bazzetta v McGinnis,
430 F.3d 795 (6th Cir. 2005) 3, 16
Bazzetta v. McGinnis,
148 F. Supp. 2d 813 (E.D. Mich. 2001).................... 3
Bazzetta v. McGinnis,
286 F.3d 311 (6th Cir. 2002)
Bazzetta v. McGinnis,
42S FS BST Cthy Cie, BOOB) ccccnncseccoccccevcscsccncceconseess 3
Biodiversity Conservation Alliance v. Stem,
519 F.3d 1226 (10th Cir. 2008)
Center for Biological Diversity v. Marina Point
Development Co,
535 F.3d FOZG (Sth Cin. ZOOG) ........<cccececcosccccsscvscecs 10
Hewitt v. Helms,
482 U.S. 755 (1987)
Overton v. Bazzetta,
539 U.S. 126 (2003)........ ck VEGAS ANUS Re dunbeedsns eeRuneuale 3,8
Radvansky v. City of Olmstead,
496 F.3d 609 (6th Cir. 2007)
Sole v. Wyner, 551 U.S. 74; 127 S. Ct. 2188, 2196
(2007)
Texas State Teachers Assn. v. Garland
Independent School Dist.,
489 U.S. 782 (1989)
Cases (continued)
Weipking v. Prudential-Bache Securities Inc,
940 F.2d 996 (6th Cir. 1991) ....0..0.. 00. occ eee ee cece eee. 15
Zessar V. Keith,
536 F.3d 788 (7th Cir. 2008).................ccccccccccececcecee 9
Statutes
28 U.S.C. § 1254(1)..........
28 USC § 1291
cou crs n cusnvnadvuvntsulcsavaccsuons pocaadanbeemnnean 1
42 U.S.C. § 1988(b) passim
Rules
= @€e. 8 Boo .........<. ROSE ter MAES? AB PRR re SEPT 1]
OPINIONS BELOW
The unpublished opinion of the United States
Court of Appeals for the Sixth Circuit was entered on
August 28, 2008.1 The Court of Appeals affirmed the
order and judgment of the United States District Court
for the Eastern District of Michigan entered on
November 20, 2006, which dismissed the case with
prejudice. But the Court of Appeals denied Petitioners'
motion to vacate an earlier order awarding interim
attorney fees to Respondents.2 The Court of Appeals
denied Petitioners' Motion Rehearing and Suggestion for
Rehearing En Banc in an unpublished order entered on
December 11, 2008.*
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
1 Bazzetta v. McGinnis, (unpublished opinion, 6th Cir. Nos.
06-2643/2644, August 28, 2008: Pet. App. la-9a.)
2 Bazzetta v. McGinnis, (unpublished order, ED Mich No. 95-73540,
November 20, 2006; Pet. App. 10a-14a.) That order denied
Petitioners’ request to vacate a June 27, 2002, order for payment of
interim attorney fees, Pet. App. 10a-14a; and granted Petitioners'
request to vacate an August 19, 2002 order granting Respondents'
attorney fees, Pet. App. 10a-14a. On that same day, the District
Court entered a judgment dismissing the case with prejudice.
RBazzetta v. McGinnis(E.D. Mich. No. 95-73540, November 20, 2006;
Pet. App. 151la.)
3 Bazzetta v. McGinnis, (unpublished order denying rehearing (6th
Cir. Nos. 06-2643/2644, December 11, 2008; Pet. App. 15a-16a.)
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
42 U.S.C. § 1988(b) provides:
In any action or proceeding to enforce a
provision of sections 1977, 1977A, 1978,
1979, 1980, and 1981 of the Revised
Statutes [42 USCS §§ 1981-1983, 1985,
1986], title IX of Public Law 92-318 [20
USCS §§ 1681 et seq.], the Religious
Freedom Restoration Act of 1993, the
Religious Land Use and Institutionalized
Persons Act of 2000, title VI of the Civil
Rights Act of 1964 142 USCS §§ 2000d et
seq.], or section 40302 of the Violence
Against Women Act of 1994, the court, in
its discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney's fee as part of the
costs, except that in any action brought
against a judicial officer for an act or
omission taken in such officer's judicial
capacity such officer shall not be held liable
for any costs, including attorney's fees,
unless such action was clearly in excess of
such officer's jurisdiction.
STATEMENT OF THE CASE
This Court's decision on the Merits
This is a fourteen-year-old controversy brought by
Respondent incarcerated felons and their visitors against
Petitioners challenging prison visitation restrictions.
Respondents initially achieved some injunctive relef
from the District Court and the Court of Appeals,’ but
1 Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir. 2002)
ay
ultimately lost on every claim. In Overton v. Bazzetta,
this Court unanimously reversed the Court of Appeals
and held that the challenged prison visitation
restrictions did not violate the First, Eighth or
Fourteenth Amendments to the United States
Constitution. After further proceedings in the District
Court and the Court of Appeals, a judgment dismissing
the case with prejudice was entered on November 20,
2006.6 Respondents did not appeal the dismissal of their
case with prejudice. Thus, the end result is that,
Respondents lost on every claim, on the merits.
5 Overton v. Bazzetta, 539 U.S. 126 (2003). Rather than repeat the
lengthy and complex procedural history in this case, Petitioner
MDOC relies on the factual and procedural background set forth in
Overton, supra.
6 In response to this Court's unanimous decision on August 28, 2003,
the Court of Appeals vacated its decision affirming the District
Court's April 19, 2001 findings of fact and conclusions of law,
Bazzetta v. McCinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001), and
remanded the case back to the District Court for further
consideration in light of this Court's opinion. Pet.App. 59a-60a.
Despite this Court's unanimous decision in Overton on December
23, 2003, the District Court issued an opinion and order agreeing
with Plaintiffs’ claim that MDOC's visitation restriction for inmates
found guilty of substance abuse misconduct violated the procedural
Due Process Clause of the Fourteenth Amendment, and held that it
was still valid. Pet. App. 102a-118a. Petitioners appealed and, the
Court of Appeals reversed, Bazzetta v. McGinnis, 423 F.3d 557 (6th
Cir. 2005). On November 28, 2005, the Court of Appeals issued an
amended opinion, Bazzetta v McGinnis, 430 F.3d 795 (6th Cir.
2005), clarifying that Overton foreclosed Respondents’ procedural
due process claim. Respondents' petition for writ of certiorari was
denied by this Court on October 10, 2006. Pet. App. 137a. After this
Court denied certiorari on October 31, 2006, Petitioner filed in the
District Court a motion for entry of judgment on the basis that all of
the claims at issue in Respondents' third amended complaint had
been decided in favor of Petitioners. On November 20, 2006, the
District Court granted Petitioners’ motion for entry of judgment,
and on that same day the Distnct Court issued 2 judgment
dismissing the case with prejudice; Pet. App. 151la
ie
Proceedings on the Interim Attorney Fees
During the pendency of the litigation—after the
Court of Appeals opinion in 2002 but before this Court
ultimately granted certiorari and unanimously reversed
in 2003—the District Court, over Petitioners’ objection,
eranted interim attorney fees to Respondents' counsel
and ordered immediate payment.
The sole issue presented in this petition 1s
whether Respondents are entitled to retain such
attorneys fess when they are not prevailing parties
under 42 U.S.C. § 1988(b).
Respondents were not prevailing parties under 42
U.S.C. § 1988(b) so Petitioners timely, properly, and
repeatedly objected to any award of attorney fees. Before
this Court granted the initial Petition for Certiorari,
they disputed the factual basis of certain fees claimed by
Respondents' counsel, but did not dispute the
reasonableness of some other calculations of hourly rates
and time spent, as submitted by Respondents' counsel.
On June 27, 2002, the District Court ordered Petitioners
to make immediate payment of the "interim" amount of
$223,991.92 plus interest—the amount of hours and
rates that Petitioners did not dispute: "Defendants shall
make the following payments... within fourteen (14)
days of this order."? Pursuant to that order Petitioners
paid $224,036.92.
Three weeks later, om Auyust 19, 2002, the
District Court held that Respondents were prevailing
p I f
parties and awarded additional attorneys' fees of
i Bazzetta v. McGinnis, (unpublished order, E.D.Mich. No. 95-73540,
June 27, 2002, order for payment of interim attorney fees: Pet.App
35a-36a.)
$570,167.35, plus interest.* The court, however, did not
order immediate payment of that amount and,
accordingly, Petitioners did not pay these additional
attorney fees. Subsequently, after the merits of all
claims had been finally resolved against Respondents,
the District Court entered an order vacating the second
award, but demied Petitioners' request to vacate the
award of interim fees that had already been paid.®
On appeal, the Court of Appeals declined to
determine whether Respondents were a prevailing party
under 42 U.S.C. § 1988(b), but nevertheless affirmed the
District Court decision, unpublished opinion p. 7,
Pet.App. la-Qa:
We make no statement about whether
Plaintiffs are a prevailing party with
respect to the interim fee award. Rather,
we hold only that the district court did not
abuse its discretion under § 1988 by
refusing to vacate a previously granted
award of attorney's fees to which
Defendants not only failed to object, but
agreed were "not in dispute," and which
Defendants paid. '°
The Court of Appeals committed reversible legal
error in reviewing for abuse of discretion instead of
determining the prevailing party issue as a matter of
8 Bazzetta v. McGinnis, (unpublished order, E.D. Mich. No. 95
73540, August 19, 2002, order granting plaintiffs’ motion for
attorney fees, pp. 14°15, 21: Pet.App. 37a-58a_.)
% Bazzetta v. McGinnis, (unpublished order, E.D. Mich. No
95-73540, November 20, 2006; Pet.App. 10a-14a.)
10 Bazzetta v. McGinnis, (unpublisned opinion 6th Cir. Nos
06-2643/2644, August 28, Z008; Pet.App. la-9a_.)
alfve
law, and it was simply wrong on the facts in concluding
that Petitioners "failed to object" and did not dispute the
award of interim attorney fees. '
REASONS FOR GRANTING THE PETITION
42 U.S.C. § 1988(b) gives the court discretion to
allow a "reasonable attorney's fee" to a "prevailing
party." In this case, there has been a dispositive
adjudication of the merits in Petitioners’ favor after
almost 14 years of vigorous litigation, and the parties
who brought the lawsuit lost on every claim.
Nevertheless, the Court of Appeals has permitted these
non-prevailing parties to retain almost one quarter of a
million dollars in attorneys' fees. That result is contrary
to the text of 42 U.S.C. § 1988(b), the intent of Congress,
and decisions of this Court and other circuits. If allowed
to stand, the Court of Appeals decision below will
encourage the litigation of dubious claims in the hope of
venerating interim fee awards regardless of whether the
party ultimately prevails. Of equal concern is that the
Court of Appeals decision has the untoward effect of
promoting, rather than discouraging, piecemeal appeals
since a party who does not immediately appeal an
interim order awarding attorneys fees does so at their
own perl.
I. Respondents are not entitled to any attorney fees
because they are not prevailing parties as a
matter of law.
The general American Rule is that a prevailing
party is not entitled to collect attorneys' fees from the
'' The Court of Appeals denied Respondent's motion for rehearing
with suggestion for rehearing en banc. Sazzetta v. McGinnis,
(unpublished order denying rehearing, 6th Cir. Nos. 06-2643/2644,
December 11, 2008; Pet.App. 15a-16a_)
loser. In 42 U.S.C. § 1988(b), Congress modified that
rule for certain types of civil rights actions, including the
present litigation, and has authorized federal district
courts to award a "reasonable attorney's fee" to a
"prevailing party" in certain circumstances. But the
irreducible minimum requirement for this statutory fee
is that there must have been a "material alteration of the
legal relationship of the parties"!? and the plaintiff must
"receive at least some relicf on the merits of his claim
before he can be said to prevail."'* Temporary relief
during the course of the litigation is not sufficient
If there was any doubt on this point, it was put to
rest by this Court in So/e v. Wyner,: "|F]lecting success"
by way of an injunction during trial does not “establish
that [plaintiff] prevailed on the gravamen of her plea for
injunctive relief."
Prevailing party status, we hold, does not
attend achievement of a_ preliminary
injunction that is reversed, dissolved, or
otherwise undone by the final decision in
the same case.
Of controlling importance to our decision,
the eventual ruling on the merits for
defendants, after both sides considered the
case fit for final adjudication, superseded
the preliminary ruling. [Plaintiff's]
temporary success rested on a premise that
the District Court ultimately rejected. !
12 Texas State Teachers Assn. v. Garland Independent School Dist
189 U.S. 782, 792-793 (1989)
13 Hewitt v. Hlelms, 482 U.S. 755, 760 (1987)
1 Sole v. Wyner, 551 U.S. 74: 127 S. Ct. 2188, 2196 (2007)
-g-
In 2002 — before the merits of the claims had been
ultimately resolved by this Court in Overton, the District
Court concluded that Respondents were prevailing
parties and ordered Petitioners to immediately pay
interim attorney fees. However, the Court of Appeals
decision below was made after the merits had been fully
resolved in Petitioners’ favor, and after this Court's
decision in Sole v. Wyner, which clarified the definition
of "prevailing party." Thus, the Court of Appeals should
have held that Respondents were not prevailing parties
as a matter of law, and therefore, not entitled to collect
attorney fess under 42 U.S.C. § 1988(b). Instead, the
Court of Appeals failed to apply the law and determine
whether Respondents were prevailing parties within the
meaning of § 1988(b), and further compounded its error
hy misapprehending the record and characterizing the
issue as a factual dispute.!5
15 The United States Court of Appeals for the Sixth Circuit, like
other circuits, has held that "prevailing party” status is a question of
law. Jtadvansky v. City of Olmstead, 496 F.3d 609, 619 (6th Cir.
2007):
A district court's determination of prevailing-party
status for awards under attorney-fee-shifting
statutes -- such as 42 U.S.C. § 1988 -- is a legal
question that we review de novo. See Bridgeport
Music, Inc. v. London Music, U.K., No. 05-5045, 226
Fed. Appx. 491, 2007 U.S. App. LEXIS 7847, 2007
WL 930409, at *2 (6th Cir. Mar. 28, 2007) (citing
Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir.
2005), for the proposition that after Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L.
Ed. 2d 855 (2001), "every Circuit to address the
issue has determined that the characterization of
prevailing-party status for awards under fee-
shifting statutes . . .1s a legal question subject to de
novo review"); see also Sole v. Wyner, 127 S. Ct.
2188, 2194-97, 167 L. Ed. 2d 1069 (2007) (reviewing
de novo prevailing-party status without explcitly
-9-
The text of 42 U.S.C. § 1988(b) demonstrates
Congress's intention that only a "prevailing party" is
eligible to recover attorneys’ fees. Sole v. Wynerplainly
holds that a party who obtains injunctive relief during
litigation, but ultimately loses on the merits, is not a
prevailing party. Thus, asa matter of law, Respondents
are not prevailing parties... Just as in Sole v. Wyner,
Respondents' "initial victory was ephemeral"; they may
have won a battle during the trial, but they ultimately
lost all their claims on the merits so they lost the war.!6
Here, just asin So/e, the same result has occurred since
at the end of the litigation the parties' legal relationship
was unchanged:
At the end of the fray, [Michigan's prison
visitation regulations] remained intact, and
[Respondent Bazzetta] had gained no
enduring "changle] fin] the legal
relationship" between herself and the state
officials she sued. !7
Although the Court of Appeals misapplied the law
in its review of the interim attorney fee award, other
Circuit Courts have faithfully applied So/e and reversed
attorney fee awards when plaintiffs have lost the war on
the merits of their case.!8 "We have previously stated
that ‘a judicial pronouncement that the defendant has
violated the Constitution, without more, does not make a
plaintiff a prevailing party.' ... Because the final
judgment resulted in a finding of no constitutional
stating the standard of review); Toms v. Taft, 338
F.3d 519, 528-30 (6th Cir. 2003) (same).
16 Sole, 127 S. Ct. at 2196.
17 Sole, 127 S. Ct. at 2196
18 See Zessar v. Keith, 536 F.3d 788 (7th Cir. 2008); and Advantage
Media, LLC v. City of Hopkins, 511 F.3d 833 (8th Cir. 2008).
-10-
violation as to [plaintiff], it would be wrong to find
[plaintiff] a prevailing party."!9
The effect of the erroneous Court of Appeals
decision below extends beyond this case, as it will
undoubtedly be freely cited to as persuasive authority
supporting a plaintiff's claim to interim attorney fees. If
a plaintiff succeeds on any interim aspect of its case,
regardless of the ultimate result, such decisions will
encourage a plaintiff to seek awards of interim attorney's
fees, secure in the knowledge that the money will not
have to be reimbursed even if it ultimately loses every
claim on the merits. A defendant will then be forced to
pursue interlocutory appeals in order to protect itself
against later claims that it did not resist sufficiently.
If a plaintiff ultimately succeeds to some extent on
the merits—i.e., if the legal relationship of the parties is
changed after the merits have been resolved—then an
interim attorney fee may be appropriate. But that
simply is not the case here as Respondents have not
prevailed on any issue.
IT. Petitioners timely raised and preserved objection
to the award of interim attorney fees.
The Court of Appeals committed legal error when
it declined to determine whether Respondents were a
prevailing party under 42 U.S.C. § 1988(b), but
nevertheless affirmed the District Court decision, finding
no abuse of discretion. [t compounded that error when it
mischaracterized the record and concluded that
Petitioners "failed to object" and did not dispute the
\9 Advantage Media, LLC, 511 F.3d at 838-839. See also Center for
Biological Diversity v. Marina Point Development Co, 535 F.3d 1026
(9th Cir. 2008); and Biodiversity Conservation Alliance v. Stem, 519
F.3d 1226 (10th Cir. 2008).
Bo
award of interim attorney fees.2° The record conclusively
demonstrates that in this vigorously-contested case
Petitioners timely, properly, and continuously challenged
Respondents’ entitlement to any attorney fee.
While Petitioners did not object to some of the
calculations regarding the number of hours and
reasonable rate for some elements of Respondents'
claims, Petitioners challenged many of the assertions.
Thus, although some parts of the factual calculations
were undisputed, Petitioners’ objection to any legal
entitlement by Respondents to attorneys fees under 42
U.S.C. § 1988(b) was an unyielding constant.
After the Court of Appeals decision in
Respondents' favor in 2002, but before this Court
granted certiorari and ultimately reversed on the mcrits,
it became clear that the District Court intended to make
an award of interim attorney fees, payable immediately,
for an amount as to which Petitioners did not dispute the
calculation of the hourly rate and number of hours.
For example, during the course of a telephone
conference discussing an upcoming hearing on disputed
aspects of the fee request, the Court said:
THE COURT: Well, it seems to me, Ms.
Ward [counsel for Petitioners] ... that the
State should be ordered to pay an interim
attorney fee. I mean, I'm thinking that
that's appropriate anyway. Once you pay
an interim attorney fee, I don't really care
how long this drags out. 2!
20 Bazzetta .v McGinnis, (unpublished opinion, p. 7, 6th Cir. Nos.
06-2643/2644, August 28, 2008; Pet.App. 1la-9a.)
21 Transcript of telephone conference, June 13, 2002, p. 7; Pet.App.
22a-28a.
Petitioners’, now prophetic, concern was that
because the ltigation was ongoing, the State of Michigan
would be unable to recover an award of interim attorney
fees ifthe Petitioners ultimately prevailed on the merits.
As early as August 6, 2001, Petitioners requested that
the District Court stay any award for interim attorney
fees, or place the money in escrow, because if Petitioners
prevailed on appeal it would be difficult for them to get
reimbursement for any attorneys fees awarded to
Respondents.22 Respondent, however, opposed placing
the money in an escrow account. The court denied
Petitioners’ request to place interim attorney fees in an
escrow account at a hearing on June 17, 2002 and
ordered that the State make an immediate interim
payment, pending final resolution of all disputed items:
THE COURT: I'm going to make an
interim award of attorney fees here, and I'd
like to know, Ms. LaBelle [Respondents’
counsel], what your position is with respect
to the proposed escrow that the state has
asked for.
MS LABELLE: You know, Your Honor, I
would — I mean, we would oppose it.
MS. WARD [counsel for Petitioners]: Okay.
First of all, I don't think we're talking
about a grant or denial of cert two vears
down the road. The Supreme Court's
pattern is to address this issue early in the
fall. We are intending to file our cert
22 August 6, 2001 Defendants' motion and brief to hold in abeyance
Plaintiffs' motion for attorney fees. Pet.App. 17a-20a.
-]3-
petition and it 1s due July 10th and will be
timely filed on or before that date. Second
of all, the problem, Your Honor, is, first of
all, there is no case support for the premise
that if we go up on appeal, and if, a:
defendants have contended all along, there
is no constitutional authority for this court,
to make the awards that it has, to give the
relief that it has, then plaintiffs are
entitled to, to hang onto their attorney fees,
and the problem is there's no assurances to
the taxpayers of the State of Michigan that
once they're awarded they're going to get
money back. We're not asking for escrow
forever, we're asking for escrow in the
event that cert's denied, this will be a moot
point by presumably fairly early in October.
If cert is granted, then we can revisit this
issue at that time.
THE COURT: Well, I think they're entitled
to their attorney fees, to an interim
attorney fee now, and if you want to seek a
stay of my order, you know how to do that.
| agree with you that there are amounts
contested, but | am going to make an
award, an interim award in the amount
suggested by the state; that is, $223,991.92,
payable within the next two weeks to the
plaintiffs.
MS. WARD: Your Honor, you're denying
our request for escrow by this?
THE COURT: I'm denying the request for
escrow. And that's an interim order
pending resolution of all of the outstanding
até.
issues with respect to the hourly rate, the
recoverable costs, et cetera, and Ms.
LaBelle, would you please prepare the
order.2
Subsequently, on July 23, 2002, during another
hearing on Respondents' motion for attorney fees, the
District Court acknowledged that Petitioners' payment of
interim attorney fees was involuntary and due to the
District Court's order:
MS. WARD: Secondly, I'd also lke the
record to reflect we've already sent
attorney fees to counsel for a portion of the
award.
THE COURT: Well, I ordered you to.
MS. WARD: Correct, we did it at this
court's direction. Again, I've been
requested to state for the record, in the
event that the sur [sic; cert] petition is
eranted, we wan! to contemplate what’s
going to happen to those fees. We did it
under court order, we were required to, it
was involuntary.
THE COURT: All right, I'll consider the
matter submitted. 24
Although Petitioners made the interim payments
as required by the District Court, they were under a
court order to do so, and they could have been held in
23 Transcript of motion hearing, June 17, 2002, pp. 4-6; Pet.App
22a-28a
24'Transcript of motion hearing, July 23, 2002, p. 71; Pet.App. 29a-
34a.
ee
contempt if they had not complied. But that award of
interim attorney fees was not a final order appealable by
right under 28U.S.C. § 1291, and Petitioners’
compliance with the order does not waive their right to
later contest it by appealing the final judgment.?5
The order that was entered on June 27, 2002,
confirmed this interim award, "pending resolution of
Plaintiffs’ petition for fees and costs."2 A subsequent
order was entered on August 19, 2002, granting an
additional attorney fee of $570,167.35, plus interest.?7
The Court did not order Petitioners to pay that
additional amount immediately and, accordingly,
Petitioners did not pay it. The Court subsequently
vacated that portion of the fee award in the November
20, 2006, order.28
After this Court unanimously reversed the lower
courts' rulings in this case, on November 4, 2003,
Petitioners filed a second motion to place the attorney
fees in escrow, which the District Court denied on
December 23, 2003.29 And after the Court of Appeals
25 Weipking v. Prudential-Bache Securities Inc, 940 F.2d 996, 999
(6th Cir. 1991). “One hesitates to contemplate the avalanche of
motions for discretionary review that would burden the courts if
parties were required to seek relief from clearly interlocutory orders
or forfeit their right to appeal the matter when the litigation is
concluded. /dat 1000.
26 Bazzetta v. McGinnis, (unpublished order, E.D. Mich. No
95-73540, June 27, 2002 order for payment of interim attorncy fees;
Pet.App. 35a-36a.)
27 Bazzetta v. McCinnis, (unpublished order, E.D. Mich. No
95-73540, August 19, 2002 order granting plaintiffs’ motion for
attorney fees, pp. 14-15, 21; Pet.App. 37a-58a.)
28 Bazzetta v. McGinnis, (unpublished order, E.D. Mich. No.
95-73540, November 20, 2006; Pet.App. 151la.)
29° Bazzetta v. McGinnis, (unpublished order E.D. Mich. No
95-73540, December 23, 2003, Order denying motion to place
attorney fees in escrow: Pet.App. 102a-118a.)
-16-
issued its decision on November 28, 2005, Petitioners
filed a third motion to place attorney fees in escrow on
January 6, 2006, which the District Court denied on
September 20, 2006.3!
On appeal, the Court of Appeals erroneously found
that Petitioners had "agreed" that the fees were "not in
dispute," referring to the June 17, 2002 letter of
Petitioners, which summarized the verbal ruling of the
District Court. (Court of Appeals Opinion, Pet. App. la-
9a) (June 17, 2002 letter; Pet. App. 68a). Contrary to
this appellate finding of fact, at no time did Petitioners
concede that Respondents were legally entitled to the
interim attorney fees. Rather, what the ietter was
referring to was that the calculation and the amount of
the interim fees were not in dispute, and that Petitioners
were to comply with the District Court's order requiring
payment. The Court of Appeals' finding of fact in this
regard is patently wrong, for two reasons.
First, the June 17, 2002 letter itself conflicts with
the Court of Appeals' finding. In that letter, Petitioners
specifically asked that payment for the interim fees be
escrowed "in the event Defendants prevail in their
appeal to the Supreme Court" so that the "taxpayers of
the State of Michigan are reimbursed for any attorneys
fees and costs wrongly paid to Plaintiffs." (June 17, 2002
Letter; Pet. App. 68a). It makes no sense to find, as the
Court of Appeals did, that Petitioners "agreed" that
Respondents were legally entitled to interim attorneys
fees, when in the same letter the Petitioners asked that
0 Bazzetta v McGinnis, 430 F.3d 795 (6th Cir. 2005), clarifying that
Overton foreclosed Respondents’ procedural due process claim
3} ~Bazzetta v McGinnis, (unpublished order E.D. Mich. No
95-73540, September 20, 2006, order denying motion to place
attorney fees in escrow; Pet. App. 136a.)
“y
7
/
the fees be escrowed so Michigan's taxpayers could be
reimbursed in the event that Petitioners prevailed.
Second, the Court of Appeals' finding is
contradicted by Petitioners' actions throughout the
history of this lawsuit. As the record forcefully
demonstrates, this case has been vigorously contested by
both parties. Under these circumstances, it was plainly
unreasonable for the Court of Appeals to determine that
the Petitioners, in their June 17, 2002 letter, were
renouncing or waiving any future claim regarding the
payment of these interim attorneys fees.
The record is clear: Petitioners timely, properly,
and consistently opposed the award of any attorney fee.
Because Respondents are not "prevailing parties," they
are not entitled to any attorney fees under 42 U.S.C. §
1988(b).
-18-
CONCLUSION
The petition for a writ of certiorari should be
eranted.
Alternatively, this Court should grant the
petition, vacate the decision below and remand the case
to the Court of Appeals with instructions that it
determine whether Respondents are "prevailing parties"
under 42 U.S.C. § 1988(b), and, if not, it should enter an
order directing Respondents to reimburse the award,
with interest, to Petitioners.
Respectfully submitted
Michael A. Cox
Attorney General
B. Eric Restuccia
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
Telephone: (517) 373-1124
James E. Long
Assistant Attorney General
Lisa C. Ward
Special Assistant Attorney Gencral
Attorney for Petitioners
Dated: March 2009
APPENDIX
TABLE OF CONTENTS
United States Sixth Circuit Court of Appeals
Opinion dated August 28, 2008
United States District Court Order Denying
Defendants’ Request to Vacate June 27,
2002 Order for Payment of Interim
Attorney Fees; Granting Defendants’
Request to Vacate August 29, 2009 Order
Granting Plaintiffs’ Motion for Attorney
Fees; and Vacating August 19, 2002 Order
Granting Plaintiffs’ Attorney Fees
dated November 20, 2006............ 10a-l4a
United States Sixth Circuit Court of Appeals
Order dated December 11, 2008
Defendants’ Motion and Brief to Hold in
Abeyance Plaintiffs’ Motion for
Attorney fees dated August 6, 2001
United States District Court Order Granting
Motion to Hold in Abeyance dated
August 21, 20U]
Motion Hearing Transcript dated
June 17, 2002
Motion for Attorney Fees Transcript
dated July 23, 2002
United States District Court Order for
Payment of Interim Attorney Fees
dated June 27, 2002
United States District Court Order Granting
Plaintiffs’ Motion for Attorney Fees
dated August 19, 2002 dla-db8a
United States Sixth Circuit Court of Appeals
Order Vacating and Remanding dated
PARMMUAGE BO, BS csecccceccccvccccosccccsccceccscccencess OOM
Defendants’ Motion to Place Attorney Fees in
Escrow and Brief in Support dated
October 31, 2008.......... amends a b6la-/8a
Defendants’ Reply in Support of Motion to
Place Attorney Fees in Escrow dated
ou ge a. |. Se wivpecees CO
~e
a
Defendants’ Brief Regarding the [ssue of
Prevailing Party dated
December 28, 2003....... .. 84a-95a
Motion Hearing Transcript dated
December 4, 2003.. 96a°10la
United States District Court Opinion and
Order (1) Denying Defendants’ Motion
for Summary Judgment; (2) Granting
Plaintiffs’ Motion to Enforce Compliance:
and (3) Denying Defendants’ Motion to
Place Attorney Fees in Escrow dated
December 23, 2003...................... lO2a-118a
Defendants Second Motion to Place
Attorney Fees in Escrow and Brief
in Support dated January 6, 2006 ... 119a-135a
United States District Court Order Denying
Defendants’ Second Motion to Place
Attorney Fees in Escrow [397]
dated September 20, 2006 136a
United States Supreme Court Letter Denying
Petition for Writ of Certiorari dated
October 10, 2006
Defendants’ Reply in Opposition to
Plaintiffs’ Request for Attorney
Fees dated October 13, 2006
United States District Court Judgment
dated November 20, 2006
-la-
NOT RECOMMENDED FOR FULL-TEXT
PUBLICATION
Case Nos. 06-2643, 06-2644
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL BAZZETTA, et al.,
ON APPEAL FROM
THE UNITED
STATES DISTRICT
COURT FOR THE
EASTERN DISTRICT
)
)
Plaintiffs-Appellees/ )
)
)
)
)
KEITH MCGINNIS, Director ) OF MICHIGAN
)
)
)
)
)
)
)
Cross-Appellants,
Vv.
of Michigan Department of
Corrections; MICHIGAN
DEPARTMENT OF
CORRECTIONS,
Defendants-Appellants/
Cross-Appellees.
BEFORE: MARTIN and BATCHELDER, Circuit
Judges; JORDAN,* District Judge.
ALICE M. BATCHELDER, Circuit Judge.
Plaintiffs-Appellees/Cross Appellants (“Plaintiffs”), a
class of prisoners and their potential visitors, ‘first
sued Defendants Appellants/Cross the Michigan
Department of Corrections (““MDOC”) and its director
(collectively “Defendants”) in 1995 to prevent the
“The Honorable R. Leon Jordan, United States
District Judge for the Eastern District of Tennessee,
sitting by designation.
-2a-
enforcement of newly passed regulations regarding
prison visitation. The case has been back and forth
among the district court, this court, and the Supreme
Court and is now back before us to decide whether the
district court abused its discretion in upholding an
award to Plaintiffs of $223,991.92 in interim attorney’s
fees but vacating an award to Plaintiffs of $570,1 67.35
in additional attorney’s fees. Because we conclude that
the district court did not abuse its discretion, we
AFFIRM.
I. BACKGROUND
The Supreme Court, in Overton v. Bazzetta, 539
U.S. 126, 129-31 (2003), and this court, in Bazzetta v.
McGinnis, 430 F.3d 795, 797-98 (6th Cir. 2005)
(“Bazzetta If), sufficiently recounted the substantive
facts of this case. Nonetheless, we wil: briefly highlight
some of the facts figurirg substantially in our analysis.
In 1995 MDOC enacted regulations regarding
both contact and noncontact inmate visits, requiring
each prisoner to provide a hst of potential visitors
(other than attorneys on official business and qualified
members of the clergy) and to receive prior prison
approval for those visits. Overton, 539 U.S. at 130. The
regulations also put restrictions on the visitation
privileges of minors, non-custodial children, and
former prisoners, and put a two-year ban on visitors
for all inmates found guilty administratively of two or
more substance abuse offenses. /d. Reinstatement of
visitation privileges for prisoners who committed
substance-abuse violations was svuiely within the
discretion of the warden. Bazzetta l/I, 430 F.3d at 797.
Throughout the torturous litigation MDOC hited
certain regulations and revised still others. Moreover,
Plaintiffs obtained temporary injunctive relief that
prevented MDOC from enforcing its regulations from
-sa-
May 2002 until August 2003 and then again from
January 2004 until October 2006.
Of particular importance to our analysis is the
procedural history of this case, which has now gone on
for 13 years. Plaintiffs initially brought suit to prevent
MDOC from enforcing its prison-visit regulations. The
district court denied Plaintiffs rehef, Pazzetta v.
McGinnis, 902 F. Supp. 765 (E.D. Mich. 1995), because
the new regulations apphed only to contact visits. We
affirmed, Bazzetta v. McGinnis, 124 F.3d 774 (6th Cir.
1997) (“Bazzetta I), but issued a supplemental
opinion, Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir.
1998), to make clear that we concluded only that the
regulations were constitutional as applied to contact
visits. After it became clear that MDOC was applying
the new regulations to noncontact visits, Plaintiffs
moved to reinstate the case; the district court granted
the motion on July 2, 1998. The district court, after a
bench trial, ruled in favor of Plaintiffs, holding that
the regulations were unconstitutional as applied to
noncontact visits, Bazzetta v. McGinnis, 148 F.
Supp.2d 813 (E.D. Mich. 2001). We affirmed that
decision, Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir,
2002) (“Bazzetta 17”), and the district court issued an
order of compliance enjoining Defendants from
implementing the new regulations. Thereafter, we
denied Defendants’ motion to stay the injunction and
the Supreme Court affirmed. Ultimately, however, the
Supreme Court overruled our decision in Bazzetta II,
holding that MDOC’s regulations did not violate
Plaintiffs’ substantive due process rights or their
rights under the First and Eighth Amendments.!
Overton, 539 U.S. at 131; 137.
'The court did not address the district court’s
determination that the regulations also violated
Plaintiffs’ procedural due process rights.
“49°
On June 27, 2002, between our ruling in
Bazzetta II and the Supreme Court’s decision in
Overton, the district court issued an order granting
Plaintiffs’ request for interim attorney’s fees in the
amount of $223,991.92.2 Defendants paid those fees
without seeking a rehearing or appealing the district
court’s order. Instead, Defendants sent Plaintiffs’
attorney a letter stating 1n relevant part:
Defendants are prepared to agree to the
following:
1. Defendants will send the Ceurt a check
in the amount of $223,991.92, which
represents the attorney fees and costs
that are not in dispute.
2. Defendants request that this money be
placed in an escrow account by the Court
until such time as the United States
Supreme Court has ruled on Defendants’
Petition for Writ of Certiorari.
Defendants submit that this
proposal is the only way to insure that, in
the event Defendants prevail in their
appeal to the Supreme Court, the
taxpayers of the State of Michigan are
reimbursed for any attorney fees and
costs wrongly paid to Plaintiffs. Please let
me know immediately if this proposal is
satisfactory to Plaintiffs.
Plaintiffs never responded to Defendants’ proposal and
Defendants never filed with the district court a motion
to put the money in escrow. Nonetheless, Defendants
paid those fees on July 8, 2002. On August 19, 2002,
*These fees are the subject Defendants' appeal.
-5a-
the district court issued another order granting to
Plaintiffs additional attorney's fees in the amount of
$570,167.35.3 Instead of simply paying this additional
fee award, Defendanis posted a bond and appealed.
After the Supreme Court’s Overton ruling Defendants
moved this court for peremptory reversal of the order
to pay the additional fees. A panel of this court denied
that motion so that the district court could consider
the question, Bazzetta v. McGinnis, 79 Fed. App'x 161
(6th Cir. 2003), and a separate panel remanded the
case to the district court for further proceedings in
light of the Supreme Court’s decision, Bazzetta v.
McGinnis, 73 Fed. App’x 842 (6th Cir. 2003). Bazzetta
If, 430 F3d at 799-800. On remand, the district court
denied Defendants’ motions for summary judgment
and to dissolve the injunctive order of compliance,
holding that Plaintiffs were still a “prevailing party”
and were entitled to some attorney’s fees, and
concluding that the Supreme Court’s decision in
Overton did not disturb the district court’s procedural
due process conclusion. Defendants appealed and we
reverse? holding that the district court’s procedural
due process ruling was inconsistent with Overton.
Bazzetta If, 430 F.3d at 805.
On November 20, 2006, the district court issued
an opinion and order denying Defendants’ request to
vacate its June 27, 2002, order granting Plaintiffs
interim attorney’s fees — the $223,991.92 — but
granting Defendants’ request to vacate, its August 19,
3 These fees are the subject of Plaintiffs' cross
appeal.
4 There appears to be some disagreement about
the total of the interim fees, as the district court at
least once stated that it awarded to Plaintiffs
$224,036.92. The difference is a mere $45 and is not
material to our decision.
-6a-
2002, order awarding Plaintiffs additional attorney’s
fees — the 570,167.35. Defendants timely appealed to
this court the first part of the ruling, and Plaintiffs
timely appealed the second part of the ruling.
Il. STANDARD OF REVIEW
We review for abuse of discretion a district
court’s award of attorney’s fees under 42 U.S.C. §
1988. Hadix v. Johnson, 65 F.3d 532, 534 (6th Cir
1995). The abuse of discretion standard applies to both
a denial and a grant of attorney’s fees under § 1988.
Dubuc v. Green Oak Township, 312 F.3d 736, 744 (6th
Cir. 2002).
lit. ANALYSIS
After Bazzetta IT Plaintiffs moved for attorney’s
fees under § 1988, which allows a district court in its
discretion, “[iln any action, to enforce a provision of”
section 1983 to award “the prevailing party, other than
the United States, a reasonable attorney’s fee as part
of the costs.” 42 U.S.C. § 1988 (2008); Texas State
Teachers Ass‘r v. Garland Independent School
District, 489 U.S. 782, 788 (1989) (Garland’).
Congress intended that courts use § 1988 to award
attorney’s fees “only when a party has prevailed on the
merits.” Hanrahan v. Hampton, 446 U.S. 754, 758
(1980) (per curiam).
A plaintiff is a “prevailing party’ for attorney’s
fees purposes if [he] succeed[s] on any significant issue
in litigation which achieves some of the benefit sought
in bringing sunt.” Farrar v. Hobby, 506 U.S. 103, 109
(1992) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)). “[The] plaintiff must be able to point to a
resolution of the dispute which changes the legal
relationship between itself and the defendant.”
Garland, 489 U.S. at 792 (citing Hewrtt v. Helms, 482
ot lw
U.S. 755, 760-61 (1987)). A plaintiff who wins on any
significant issue achieving a benefit it sought in
bringing suit but loses on other issues is still a
prevailing party and may be entitled to some kind of
fee award. J/d. at 791-92. Moreover, a_ plaintiff
obtaining injunctive relef may be a prevailing party as
long as the injunction indicates probable success on
the merits and is not merely procedural or a
maintaining of the status quo. Dubuc, 312 F.3d at 753.
But, a “plaintiff who achieves a transient victory at the
threshold of an action can gain no award under
[§ 1988] if, at the end of the litigation, her initial
success is undone and she leaves the courthouse
empty.” Sole v. Wyner, 127 S. Ct. 2188, 2192 (2007).
Moreover, in passing § 1988 it is clear “that
Congress contemplated the award of fees pendente Lite
in some cases.” Hampton, 446 U.S. at 757 (emphasis
original). A district court may award interim
attorney’s fees during the pendency of litigation when
that court has “entered a concrete order that
determines substantial rights of the parties, meaning
when a party has prevailed on the merits of at least
some of his claims” Webster v. Sowders, 846 F.2d
1032, 1036 (6th Cir. 1988) (quoting Hampton, 446 U.S.
at 757-58) (internal quotation marks omitted).
The district court determined that Plaintiffs
prevailed — in terms of the interim attorney’s fees —
even though Overton and Bazzetta I/II reversed the
entire legal victory Plaintiffs obtained in Bazzetta I/.
It reasoned that the injunctive relief Plaintiffs
obtained altered the status quo and that numerous
Plaintiffs received “positive, lasting results.” The
district court further found that, given the decisions in
Overton and Bazzetta /Ill, Plaintiffs could not qualify
as a prevailing party for the pendency of litigation and
were therefore not entitled to the additional attorney’s
-$a-
fees. We review each of those decisions for abuse of
discretion.
A. The interim fees
Defendants contend that the district court
abused its discretion by upholding its award of
attorney’s fees to a party that did not prevail on the
merits. As the district court properly pointed out,
however, Defendants did not appeal or even protest
the initial order awarding to Plaintiffs interim
attorney’s fees. Nor did Defendants file a motion in the
district court to put the money in an escrow account
until the resolution of the appeal. Instead, Defendants
paid what they labeled “the attorney fees and costs
that are not in dispute.” Defendants now claim that
their proposal to have the district court put the money
in an escrow account until the resolution of their
appeal of Bazzetta Jl] qualifies as an objection to the
order. This argument has no merit. If Defendants
believed the interim fees were in any way in dispute
they could have sought an immediate appeal.
Defendants did not do so, but now ask this court to
cure their complacency. We will not do so.
We make no statement about whether Plaintiffs
are a prevailing party with respect to the interim fee
award. Rather, we hold, only that. the district court
did not abuse its discretion under § 1988 by refusing to
vacate a previously granted award of attorney’s fees to
which Defendants not only failed to object, but agreed
were “not in dispute,” and which Defendants paid.
B. The additional fees
Plaintiffs, maintaining that they were a
prevailing party even after Bazzetta //, argue that the
district court abused its discretion in vacating its
August 19, 2002, award of additional attorney’s fees.
9a-
Unlike their response to the district court’s award of
interim attorney’s fees, Defendants protested the
award of additional attorney’s fees, posted a bond, and
immediately appealed the district court’s decision. It is
clear to us as it was to the district court in vacating
the award that Overton and Bazzetta III make it
impossible to label Plaintiffs a prevailing party, as
they achieved only a transient victory in Bazzetta [Jif
and eventually left the courthouse empty. See Sole,
127 S. Ct. at 2192. Therefore, the district court did not
abuse its discretion.
IV. CONCLUSION
For the foregoing reasons, we hold that the
district court did not abuse its discretion in vacating
the award of additional attorney’s fees but failing to
vacate the award of interim attorney’s fees. Therefore,
we AFFIRM the decision of the district court.
-10a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, et al.,
Plaintiffs, Case No. 95-73540
V. Honorable Nancy G.
Edmunds
KENNETH McGINNIS, et al.,
Defendants.
/
ORDER DENYING DEFENDANTS’ REQUEST
TO VACATE JUNE 27, 2002 ORDER FOR
PAYMENT OF INTERIM ATTORNEY FEES;
GRANTING DEFENDANTS’ REQUEST TO VACATE
AUGUST 19, 2002 ORDER
GRANTING PLAINTIFFS’ MOTION FOR
ATTORNEY FEES; AND VACATING
AUGUST 19, 2002 ORDER GRANTING PLAINTIFFS
ATTORNEY FEES
This matter is before the Court to address
Defendants’ request to have this Court vacate its June
27, 2002 Order awarding $224,036.92 in interim
attorney fees to Plaintiffs! and this Court’s August 19,
2002 Order granting Plaintiffs’ motion for an additional
$570,167.35 in attorney fees and costs. Defendants did
not appeal the June 27, 2002 Order, but did appeal the
August 19, 2002 Order.
'This represents attorney fees that Defendants did
not contest as unreasonable. See 6/27/02 Order.
lla
The Court finds that the facts and legal
arguments are adequately presented in the motion and
briefs and that the decision process will not be
significantly aided by oral argument. Thus, pursuant to
E.D. Mich. L. R. 7.1(e)(2), it is hereby ORDERED that
the Defendants’ requests shall be resolved as submitted
For the reasons stated below, this Court DENIES
Defendants’ request to vacate its June 27, 2002 Order
awarding interim attorney fees to Plaintiffs, but
GRANTS Defendants’ request to vacate its August 19,
2002 Order awarding Plaintiffs an additional
$570,167.35 1n attorney fees
A. June 27, 2002 Order Awarding Interim
Attorney Fees
[t is not disputed that, at the time they were
awarded, this Court had the authority to award interim
attorney fees to Plaintiffs in this matter. As of June 27,
2002, this Court had entered an order determining the
substantial rights of the parties, and Plaintiffs were the
prevailing party on the merits of their claims. Thus, an
award of interim attorney fees was appropriate. See
Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980):
Webster v. Sowders, 846 F.2d 1032, 1036 (6th Cir. 1988).
See also Frazier v. Bd. of Trustees of Northwest
Mississipp!1 Regional Medical Center, 765 F.2d 1278,
1293-94 (5th Cir. 1985) (affirming the district court’s
interim award of attorney fees to a plaintiff who had
obtained substantive relief and a preliminary injunction
against the defendants and observing that even though
“a plaintiff eventually loses on the merits of a section
1983 claim” this “does not automatically undermine the
validity of an interim attorney’s fee award based on
substantial rehef ....A plaintiffs prevailing-party
status requires the district court to have passed
L2a
favorably on the merits of the civil rights claim and to
have granted relief that would not have been gained but
for the litigation.”)
Defendants did not appeal that June 27, 2002
Order and paid Plaintiffs $224,036.92 without first
requiring that Plaintiffs post bond in that amount.
Despite these facts and their failure to provide authority
on point, Defendants ask this Court to vacate its earlier
Order and to enter a new order forcing Plaintiffs to
disgorge the $224,036.92 in interim attorney fees
properly paid to Plaintiffs over four years ago. The
Court denies Defendants’ request. ‘The injunctive relief
Plaintiffs obtained prior to the June 27, 2002 Order did
not maintain the status quo; it altered it. As a
consequence of this Court’s orders lifting the permanent
bans at issue here, numerous Plaintiffs obtained
positive, lasting results. Many had the permanent ban
due to substantive abuse violations lifted before their
release or parole. These Plaintiffs, as well as their
families, were able to enjoy visits previously banned.
Moreover, as the Sixth Circuit recently observed, “the
issues presented” in this case “posed significant public
policy concerns and presented difficult and close legal
issues to the courts” where “(t]he prisoners and their
visitors initially prevailed” in the district court and the
Sixth Circuit “but lost in the Supreme Court.” Bazzetta
v. Caruso, 183 Fed. App’x 514, 515 (6th Cir. May 23,
2006) (rejecting a request that Plaintiffs be taxed costs
in the amount of $16,208.25 because “[t]he litigation was
taken in good faith, the case was difficult, and there is
no necessity on the part of the prevailing party, the
Michigan prison system, for a cost award” and observing
that “the plaintiffs here are all prisoners and their
visitors” who “will possess few resources with which to
meet an award of costs.”).
L3a
B. August 19, 2002 Order Awarding Attorney
Fees to Plaintiffs as Prevailing Parties
After the award and payment of undisputed
interim attorney fees, this Court considered Plaintiffs’
additional request for disputed attorney fees and costs
incurred through May 2002. On August 19, 2002, this
Court ruled that Plaintiffs were prevailing parties and
awarded Plaintiffs reasonable attorney fees and costs in
the amount of $570,167.35. Defendants posted a bond
for these fees and appealed.
The appeal was stayed pending a ruling in
Overton v. Bazzetta, 539 U.S. 126 (2003). After Overton
was decided in Defendants’ favor, Defendants filed a
motion in the Sixth Circuit seeking a peremptory
reversal of this Court’s August 19, 2002 decision. The
Sixth Circuit denied Defendants’ motion and remanded
the matter to this Court so that it may reconsider the
Plaintiffs’ status as a prevailing party in light of the
Supreme Court’s decision in Overton. SBazzella v.
McGinnis, 79 Fed. App’x 161 (6th Cir. Oct. 24, 2003)
In a December 23, 2003 Order, this Court determined
that Plaintiffs had prevailed on a number of significant
issues including their request for injunctive relief,
expanded visits for minor children, and their claim of a
procedural due process violation. Given the decision by
the Supreme Court in Overton, however, this Court
ordered further briefing before’ resolving’ the
reasonableness of attorney fees previously awarded. The
matter has now been fully briefed. As discussed above,
this Court will not disturb its prior, unappealed June 27,
2002 order and Defendants’ payment to Plaintiffs of
$224,036.92 in attorneys fees. Given the decision by the
Supreme Court in Overton and the Sixth Circuit’s
decision holding the there was no facial procedural due
process violation, Bazzetta v. McGinnis, 423 F.3d 557
(6th Cir. 2005), this Court vacates its August 19, 2002
-14a-
Order awarding Plaintiffs additional attorney fees in the
amount of $570,167.35.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 20, 2006
I hereby certify that a copy of the foregoing document
was served upon the parties and/or counsel of record on
November 20, 2006 by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager
-15a-
Nos. 06°2643/2644
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHELLE BAZZETTA, ET AL.,
FILED
Dec 11, 2008
LEONARD
GREEN, Clerk
Plaintiffs-Appellees/
Cross-Appellants,
Wa
KENNETH MCGINNIS, DIRECTOR ORDER
OF MICHIGAN DEPARTMENT
OF CORRECTIONS, ET AL.,
Defendants-Appellees/
Cross-Appellees.
. Nae Sed Staal ed
BEFORE: MARTIN and BATCHELDER, Circuit
Judges; and JORDAN, * District Judge.
The court having received a _ petition for
rehearing en banc, and the petition having been
circulated not only to the original panel members but
also to all other active judges of this court, and no
judge of this court having requested a vote on the
suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised tn the
petition were fully considered upon the original
submission and decision of the cases. Accordingly, the
petition is denied.
-16a-
ENTERED BY ORDER OF THE COURT
Leonard Green
Clerk
“Hon. R. Leon Jordan, Senior United Sates
District Judge for the Eastern District of Tennessee,
sitting by designation.
17a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON,
DEBRA KING, SHANTE ALLEN,
ADRIENNE BRANAUGH, ALESIA
BUTLER, TAMARA PRULE, SUSAN
FAIR, VALERIE BUNTON and ARTURO
BUNTON, through his Next Friend
VALERIE BUNTON,
Case No. 95-73540
Plaintiffs,
HON. NANCY G.
EDMUNDS
Ve
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
DEFENDANTS’ MOTION AND BRIEF TO
HOLD IN ABEYANCE
PLAINTIFFS’ MOTION FOR ATTORNEY FEES
Defendants, Bill Martin and the Michigan
Department of Corrections (““MDOC”), through their
attorney, Lisa C. Ward, and pursuant to Fed. R. Civ.
P. 7, hereby move this Court to hold Plaintiffs’ Motion
For Attorney Fees in abeyance pending disposition of
the appeal of this matter. In support of their motion,
Defendants state as follows:
-18a-
On April 25, 2001, this Court entered a
Judgment in this case, wherein it adopted its Apnil 19,
2001 Findings Of Fact And Conclusions Of Law. In its
April 25, 2001 Judgment, this Court found in favor of
Plaintiffs and against Defendants as to all claims,
along with interest, costs and attorneys’ fees as
provided by law. Defendants’ Notice of Appeal with
regard to this Court’s April 25, 2001 Judgment and
April 19, 2001 Findings Of Fact And Conclusions Of
Law was filed on April 27, 2001.
Defendants’ motion to stay enforcement of
judgment was denied by this Court on May 15, 2001.
On May 18, 2001, Defendants filed an emergency
motion for stay 1n the Sixth Circuit Court of Appeals,
and on that same day a single-judge Order was
entered granting Defendants’ motion. After Plaintiffs
filed a motion requesting that the Sixth Circuit review
issuance of the May 18, 2001 Order granting a stay in
this case, on June 8, 2001, a three-judge motions panel
entered an order denying Plaintiffs’ motion. In their
June 8, 2001 Order, the Sixth Circuit discussed the
limited role that federal courts should play in the
administration of state penal systems and noted that
“the district court’s ruling, by its very nature, raises
serious questions going to the merits.” /d. at p. 2.
Subsequently, on June 11, 2001, Plaintiffs filed
a motion requesting that the Sixth Circuit reconsider
its June 8, 200* Order, or in the alternative requesting
en banc review of the entire stay. Plaintiffs’ motion
was denied by the Sixth Circuit on July 19, 2001. In
its July 19, 2001 Order, the Sixth Circuit determined
that the June 8, 2001 stay should remain in place with
regard to the 1995 prison visitation rules as well as
the substance abuse visitation restriction:
Neither are we persuaded that the June
8, stay should be lifted as it pertains to
-19a-
the permanent ban on visitation for any
prisoner convicted of two or more in-
prison substance abuse misconducts. At
trial, the defendants testified that the
permanent restriction was developed in
order to reduce substance abuse within
the prison system and was implemented
as part of a “zero tolerance” policy.
= =F
The defendants’ rationale is, however,
encompassed by their claim that the
district court failed to accord the
Michigan Department of Corrections the
deference required by 7Jurner v. Safely,
482 U.S. 78 (1987), and improperly placed
the burden of proof on the defendants.
The elimination of alcohol and drug use
within the prison system is a legitimate
penological objective. /d. at p. 2.
Thus, although the Sixth Circuit has not determined
that Defendants will ultimately prevail on the merits
of their appeal, in three separate orders dealing with
Defendants’ motion for stay, the Sixth Circuit has
ruled that Defendants have demonstrated a likelihood
of success on the merits of their appeal.
In their motion, Plaintiffs are requesting that
this Court award them over $660,000.00 in attorney
fees and costs. Should Defendants prevail on appeal,
Plaintiffs will no longer be the prevailing parties in
this litigation, and thus, not entitled to attorney fees
and costs pursuant to 42 U.S.C. § 1988. In addition, it
will be almost impossible for Defendants to recoup
from Plaintiffs any money awarded by this Court years
after Defendants’ appeal has been decided by the Sixth
Circuit. Therefore, in order to protect the treasury of
the State of Michigan, Defendants are requesting that
this Court hold Plaintiffs’ motion for attorney fees in
-20a-
abeyance until the Sixth Circuit has decided the
merits of Defendants’ appeal.
WHEREFORE, for the above-stated reasons,
Defendants, Bill Martin and the Michigan Department
Of Corrections, respectfully request that this Court
grant their motion and hold Plaintiffs’ Motion For
Attorney Fees in abeyance pending disposition of the
appeal of this matter.
Respectfully submitted,
JENNIFER M. GRANHOLM
Attorney General
s/Lisa C. Ward
Lisa C. Ward (P38933)
Special Assistant Attorney General
1300 North Waverly, #1
Lansing, Michigan 48917
517/323-0300
Dated: August 6, 2001
PROOF OF SERVICE
The undersigned certifies that a copy of the above
document(s) was served upon the attorneys of record
or parties appearing in pro per in the above cause by
mailing the same to them at their respective address,
with first class postage fully prepaid thercon, on
August 6, 2001.
Legal Secretary
Friedman/ 1995052460A / Pleadings Mot.Abey.AttryFees
-21la-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, et al,
Plaintiff(s)
¥. CASE NO. 95-73540
HON. NANCY G.
EDMUNDS
KENNETH McGINNIS, et a!
Defendant(s).
/
ORDER GRANTING MOTION
TO HOLD IN ABEYANCE
This matter having come before the Court on
Defendants’ Motion To Hold In Abeyance Plaintiffs’
Motion For Attorney Fees filed August 7, 2001. The
Court having read the motion and brief and Plaintiffs’
Response and being fully advised in the premises;
IT IS HEREBY ORDERED that Defendants’
Motion is GRANTED.
SO ORDERED:
s/Nancy G. Edmunds
NANCY G. EDMUNDS
United States District Judge
Date: Aug 21, 2001
-22a°
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, ET AL,
Plaintiffs,
CIVIL ACTION
NO. 95-73540
KENNETH MCGINNIS, ET AL,
Defendants.
MOTION HEARING
BEFORE THE HONORABLE JUDGE NANCY G.
EDMUNDS
United States District Judge
Theodore Levin U.S. Courthouse
231 West Lafayette Boulevard, Room 226
Detroit, Michigan
June 17, 2002
APPEARANCES :
MS. DEBORAH A. LaBELLE, ESQ.
In behalf of Plaintiff.
MS. LISA WARD, ESQ.
In behalf of Defendant.
l'o obtain an official transcript, contact
Suzanne Jacques, CSR, RMR
Official Court Reporter - U.S. District Court
313°964°5121
Proceeding
Motion hearing via phone conference call
EXHIBITS
Exhibit No. Offered _
-24a-
Detroit, Michigan
dune 17, 2002
4:40 p.m.
MS. WARD: Lisa Ward, and with me is Amy
Reed, assisting me on discovery, paralegal.
MS. LABELLE: Deborah LaBelle.
MS. WARD: Is this telephone conference on the
record?
THE COURT: It is.
I saw the state's proposal with respect to
an interim order of attorney fees. I've read all of your
submissions on this.
MS. WARD: Your Honor, since the last
submission by Ms. LaBelle was faxed to me at around
4:00, may I make a couple of comments as to that?
THE COURT: Well, I don't know what the
fact that it was submitted to you at 4:00 has to do with
it, but go ahead.
MS. WARD: I'd just point out to the cases that
she cites, the Grega(sp) versus Gordon(sp), and that's
the Second Circuit case. In that particular case, the
litigation was brought by an individual that was no
longer a prisoner at the time that he filed the
complaint, so therefore, we feel it is not relevant to the
issues before the Court with regard to this case. No
dispute that approximately 44 to 47,000 of plaintiff's
zlass members are incarcerated felons.
“20a°
THE COURT: Well, you also have a
number of plaintiffs who are not incarcerated felons
who are members of the public who are former
prisoners, who are family members.
I mean, I don't know that there's a
dispositive answer to this question, but I don't think
it's so clear cut that the fee is limited by the PLRA.
Also, your calculation is correct under the
PLRA.
MS. WARD: That was my second point, Your
Ilonor. Ms. LaBelle cites a rate in the PLRA that
started I believe October 1 of last year. Now, we can
argue about what rate should apply, but clearly we
would object to applying that rate, the increased rate,
to any fees that were incurred prior to the date that
the rate was imposed, and I think there's support for
that reading of the statute under Martin versus Hadix,
527 U.S. 343 1999 with regard to that, but it's my
understanding that these were the kinds of issues that
are supposed to be at issue in our hearing in July 23rd.
THE COURT: I'm going to make an interim
award of attorney fees here, and I'd like to know, Ms.
LaBelle, what your position is with respect to the
proposed escrow that the state has asked for
MS. LABELLE: You know, Your Honor, |!
would -- | mean, we would oppose it. Even in the
unlikely event that they file -- I mean, they haven't
filed a cert petition yet, but in the event that they in
the future do file a cert petition and it's granted, and
two years down the line the Supreme Court overturns
this, I think it's pretty clear that what we're — I mean,
they can contest our fees in responding to that cert
petition, but up to this point we have gotten -- we have
yotten the relief that we requested, which is really one
of the tests is whether the fees we've spent to date, the
26a
hours we've spent to date are reasonably related to the
kinds of relief we've gotten.
And even if two, three years from now
people who are now visiting have their visits in some
way restricted, I think it's fairly strong in terms of the
cases that, you know, after seven years of people not
visiting, for them to be able to visit for three years is a
significant relief for what we asked for, and I don't
think that whatever happens with a future cert
petition that hasn't even been filed, given that the
stays have both been denied, whatever happens in the
future is not relevant to our having prevailed and
people getting their visits now
MS. WARD: May I respond to those points
briefly?
THE COURT: Yes
MS. WARD: Okay. First of all, I don't think
we're talking about a grant or denial of cert two years
down the road. The Supreme Court's pattern is to
address this issue early in the fall. We are intending
to file our cert petition and it is due July 10th and will
be timely filed on or before that date. Second of all,
the problem, Your Honor, is, first of all, there is no
case support for the premise that if we go up on
appeal, and if, as defendants have contended all along,
there is no constitutional authority for this court, to
make the awards that it has, to give the rehef that it
has, then plaintiffs are entitled to, to hang onto their
attorney fees, and the problem is there's no assurances
to the taxpayers of the State of Michigan that once
they're awarded they're going to get money back
We're not asking for escrow forever, we're asking for
escrow 1n the event that cert's denied, this will be a
moot point by presumably fairly early in October. If
oOo”
-O7a-
cert is granted, then we can revisit this issue at that
time.
THE COURT: Well, I think they're entitled
to their attorney fees, to an interim attorney fee now,
and if you want to seek a stay of my order, you know
how to do that. I agree with you that there are
amounts contested, but I am going to make an award,
an interim award in the amount suggested by the
state; that is, $223,991.92, payable within the next two
weeks to the plaintiffs
MS. WARD: Your Honor, you're denying our
request for escrow by this?
THE COURT: I'm denying the request for
escrow And that's an interim order’ pending
resolution of all of the outstanding issues with respect
to the hourly rate, the recoverable costs, et cetera, and
Ms. LaBelle, would you please prepare the order.
-28a-
CERTIFICATE OF COURT REPORTER
I certify that the foregoing is a correct transcript from
reported proceedinys in the above-entitled matter.
s/Suzanne Jacques 04-20-2007
SUZANNE JACQUES, CSR, RMR Date
Official Court Reporter
Eastern District of Michigan
29a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, et al,
Plaintiffs,
CIVIL ACTION
NO. 95-73540
KENNETH MCGINNIS, Director of Michigan
Department of Corrections, et al,
Defendants.
MOTION FOR ATTORNEY FEES
BEFORE THE HONORABLE NANCY G. EDMUNDS
United States District Judge
226 Theodore Levin U.S. Courthouse
231 Lafayette Boulevard
Detroit, Michigan
July 23, 2002
APPEARANCES:
MS. DEBORAH A. LABELLE, ESQ.,
MS. PATRICIA STREETER, ESQ
In behalf of Plaintiffs.
MS. LISA WARD, ESQ
In behalf of Defendants
Suzanne dacques, CSR, RMR
Official Court Report r
Dp} 79 4.2997
Phone $1.3°9A4-AI2Z]
Proceeding
Motion for Attorney Fees
Argument by Ms. LaBelle
Response by Ms. Ward
Witness Called: James P. Schratz
Direct Examination by Ms. Ward
Cross Examination by Ms. LaBelle
Redirect Exam by Ms. Ward
Rebuttal by Ms. LaBelle
EXHIBITS
Exhibit No. Offered Received
“Sia
delay in receiving funds, and that's the standard in
this circuit, as well.
Finally, | just -- | want to say with regard
to -- | understand the court has given Ms. Ward a
surreply brief, but I am concerned that there has never
been a challenge to the hourly rates, even in the reply
brief, by Mr. Schratz.
THE COURT: I agree, and if you're
considering that that's what you're going to.
MS. WARD: Absolutely not, Your Honor.
I want to respond to the law. That's all I asked for.
THE COURT: All right. That's fine.
MS. LABELLE: Then my concern is
alleviated and I don't have any other points, Your
Honor.
MS. WARD: May I be permitted to make
two additional points, Your Honor?
THE COURT: Well, it's really her
motion. I've already given you your surreply. Do I
have to give you your sur-argument, too?
MS. WARD: Just to correct the record on
one misstatement.
THE COURT: Go ahead.
MS. WARD: She's requesting interest on
the fee. I understand her argument that you start at
the market rates today, but it 1s not the case that she
is not going to be compensated if this court awards
interest on any amount of money she's not been given
previously.
32a"
Secondly, I'd also like the record to reflect
we've already sent attorney fees to counsel for a
portion of the award.
THE COURT: Well, I ordered you to.
MS. WARD: Correct, we did it at this
court's direction. Again, I've been requested to state
for the record, in the event that the sur petition is
granted, we want to contemplate what's going to
happen to those fees. We did it under court order, we
were required to, it was involuntary.
THE COURT: All right. I'U consider
the matter submitted. I'll await your surreply, Ms.
Ward, and I'll get something out to you 1n the next 30
days.
MS. LABELLE: Just for all parties'
abdication, we have done a summary of the attorney
fees and costs including the supplementals and
reflecting the payment of the fees.
THE COURT: Thank you.
MS. LABELLE: That have been paid
to date.
MS. WARD: If we find clerical errors I'll
address them in the surreply.
THE COURT: That would be fine.
MS. WARD: And the deadline for that,
Your Honor, you said a week, are you talking seven
business days?
THE COURT: No, I'm talking a week
from today.
-30a-
MS. WARD: Seven calendar days. Thank
(Proceedings concluded 11:25 a.m.)
-34a-
CERTIFICATE OF COURT REPORTER
I certify that the foregoing is a correct transcript from
reported proceedings in the above-entitled matter.
s/Suzanne Jacques 10-22-02
SUZANNE JACQUES, CSR RMR Date
Official Court Reporter
Eastern District of Michigan
-35a°
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, et al.,
Honorable Nancy G.
Plaintiffs, Edmunds
Case No: 95-CV-73540-DT
KENNETH McGINNIS, et al.,
Defendants.
/
ORDER FOR PAYMENT OF INTERIM
ATTORNEYS FEES
This matter having come before the Court on
Plaintiffs’ request for payment of undisputed attorney
fees and costs and the court having reviewed the
parties’ pleadings and heard oral argument thereon:
IT IS HEREBY ORDERED that, pending
resolution of Plaintiffs’ petition for attorney fees and
costs, Defendants’ shall make payment of those
attorney fees and costs that are not in dispute;
IT IS FURTHER ORDERED that Defendants
shall make the following payments, which represent
the undisputed attorney fees and costs in this matter,
within fourteen (14) days of entry of this Order,
together with interest from April 25, 2001, the date of
judgement in this case:
To Deborah LaBelle: $95,475.74
To Patricia Streeter: $36,216.80
-36a°
To Michael Barnhart: $59,043.38
To Barbara Levine $33,256.00
IT IS SO ORDERED this day of
s/NANCY G. EDMUNDS
United States District Court Judge
‘37a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, ET AL., Case No. 95-73540
Plaintiffs, Honorable Nancy G.
Edmunds
KENNETH McGINNIS, ET AL.,
Defendants.
ORDER GRANTING PLAINTIFFS’ MOTION
FOR ATTORNEYS’ FEES
Plaintiffs, a class of prisoners and prospective
prison visitors, brought this action in August 19985,
under 42 U.S.C. Section 1983, challenging the
constitutionality of new visitation procedures issued by
the Michigan Department of Corrections ("MDOC"). The
visitation procedures barred certain classes’ of
individuals from visiting prisoners, limited the number
of visitors per prisoner, and permanently banned
visitors, apart from clergy and attorneys, for prisoners
who twice violated MDOC's drug abuse policies. When
plaintiffs filed their lawsuit, these procedures had not
yet gone into effect. Plaintiffs obtained a temporary
restraining order ("TRO") on September 1, 1995, which
enjoined defendants from implementing the new
visitation procedures. The TRO remained in effect until
October 6, 1995, when the Court denied plaintiffs’
motion for a preliminary injunction. Bazzetta Vv.
McGinnis, 902 F. Supp. 765 (E.D. Mich. 1996)(" Bazzetta
/'). The case was certified as a class action on December
-38a-
22, 1995, and then dismissed on defendants' motion for
summary judgment on Apru 9, 1996.
In Bazzetta I, the Court found plaintiffs' challenge
to the permanent ban on visitors for substance abuse
violations not ripe for review, but upheld the other
regulations as they applied to contact visits. The Sixth
Circuit affirmed the Court's decision, holding that "there
is no inherent, absolute right to contact visits with
prisoners." Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th
Cir. 1997). The court of appeals issued a supplemental
opinion clarifying that its opinion did not, as construed
by defendants, apply to noncontact visitation. Bazzetta
v. McGinnis, 133 F.3d 382 (6th Cir. 1998). The Sixth
Circuit determined that defendants had "seriously
misled" it and the district court by indicating that the
new regulations applied only to contact visits, when in
fact MDOC was applying them to all visits, contact and
non-contact. Bazzetta v. McGinnis, 286 F.3d 311, 315
(6th Cir. 2002).
Plaintiffs moved for reinstatement of the case on
March 6, 1998, when it became clear that defendants in
fact were applying the new visitation procedures to non-
contact visits and were exercising their discretion and
permanently banning visitation for prisoners following
two major misconducts involving substance abuse
violations. The Court, over defendants' objections,
reinstated the case on July 2, 1998. After a nine day
bench trial in September 2000, the Court found in
plaintiffs' favor and ruled that MDOC's visitation
procedures were unconstitutional. Bazzetta v.
McGinnis, 148 F. Supp. 2d 813 (E.D. Mich.
2001)" Bazzetta II'). The Court held that the
regulations limiting visits infringed on prisoners' First
Amendment right of intimate association and were not
reasonably related to a valid penological objective, and
that the permanent ban on visitors for two violations of
the drug abuse policy infringed on prisoners' First
3¥Ya
Amendment right of intimate association, was noi
reasonably related to a valid penological objective, was
cruel and unusual punishment in violation of the Eighth
Amendment, and was imposed in a manner violating
prisoners’ Fourteenth Amendment due process rights.
The Court issued a Judgment on April 25, 2001, finding
in favor of plaintiffs and against defendants as to all
claims and awarding plaintiffs costs and attorneys’ fees.
The Sixth Circuit subsequently affirmed the Court's
decision. Mazzetta v. McGinnis, 286 F.3d 311 (6th Cir.
2002).
Pursuant to this Court's Judgment awarding
plaintiffs attorneys' fees and costs, plaintiffs' counsel,
Deborah LaBelle, Michael Barnhart, Barbara Levine,
and Patricia Streeter, submitted a petition for their fees
and costs on June 25, 2001. This application included
the fees and costs of Ms. LaBelle’s associate Kim Easter
and legal assistant Susan Fair and the fees and costs of
plaintiffs’ experts, Terry Kupers, M.D., Community
Service Systems, Inc., and Barry Muintzes, Ph.D.
Defendants filed a response on August 8, 2001. The
matter was stayed pending defendants’ appeal to the
Sixth Circuit of the Court's decision in Bazzetta I], On
May 28, 2002, after the Sixth Circuit affirmed the
Court’s decision, a hearing was scheduled on piaintiffs’
petition for July 23, 2002. Prior to the hearing, the
parties filed several supplemental pleadings.! Three
issues are raised in those pleadings.
'Plaintiffs' counsel filed a supplemental application
on June 27, 2002, setting forth attorneys’ fees and costs
through May 21, 2002. On July 31, 2002, plaintiffs
presented a summary of the time expended and hourly
rates for counsel and Ms. LaBelle’s legal assistant: (1) for
Ms. LaBelle 1,667.35 hours at an hourly rate of $225; (2)
for Mr. Barnhart 663.30 hours at an hourly rate of $200;
for Ms. Levine 595.80 hours at an hourly rate of $160; for
Ms. Streeter 517.10 hours at an hourly rate of $200; and
"40a"
The first issue is whether Section 803(d)(3) of the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
Section 1997e(d), applies to this matter. The second
issue is whether plaintiffs should be considered a
"prevailing party" in this case pnior to April 25, 2001, the
date the Court issued its opinion in Bazzetta ll. Prior to
April 25, Defendants argue, plaintiffs were not the
prevailing party because this Court, the Sixth Circuit,
and the Supreme Court ruled against them with respect
to contact visits. Bazzetta I, 902 F. Supp. 765 (E.D. Mich.
1990). Defendants contend that plaintiffs are not
entitled to fees and costs for work performed on Mazzetta
I, but only fees and costs incurred after the case was
reinstated on June 26, 1998. The third issue is whether
plaintiffs' fees and costs are reasonable.
Whether Section 803(d)(3) of the PLRA applies to
this matter
Section 803(d)(3) of the PLRA caps the amount of
attorneys’ fees and costs in any action “brought by a
prisoner’ to 150% of the hourly rate established under
Section 3006A of Title 18 for payment of court appointed
counsel. According to defendants, the maximum hourly
rate for work con.‘ucted in this matter up to May 1,
2002, therefore is $112.50. After May 1, the maximum
rate increased to $135. Plaintiffs argue that the PLRA
does not apply to this case because plaintiffs include
non-prisoners.
for Ms. Easter 117.10 hours at an hourly rate of $125
and 95 hours at an hourly rate of $120. The total
amount of those fees, plus costs is $ 794,204.27. Counsel
has received interim payments totaling $ 224,036.92.
Thus the total amount now sought by counsel is $
570,167.35
fla>
A. Attorneys fees and costs incurred prior to
April 26, 1996
As an initial matter, the PLRA only was enacted
on April 26, 1996. The Supreme Court has held that the
statute’s cap on attorneys’ fees and costs does not apply
to fees and costs incurred prior to its enactment. See
Hadix v. Martin, 527 U.S. 343 (1999). The Hadix Court
concluded that Section 803(d)(3) “does not clearly
express congressional intent that it apply retroactively,”
id at 353-54, and that its retroactive application would
upset attorneys’ reasonable expectations that work they
performed prior to enactment of the PLRA would be
compensated at pre-PLRA rates. Jd. at 358.
Although defendants have not raised this point,
there is a factual distinction between Hadix and the
present case which raises the issue of whether the Hadix
Court’s holding apphes here. In Had_x, the Court issued
an order well before the PLRA’s enactment date
recognizing the plaintiffs as prevailing parties entitled to
reasonable fees.? In the present matter, in comparison,
2The fee dispute in Hadix arose out of twoclass action
lawsuits challenging the conditions of confinement in the
Michigan prison system. Hadzx, 527 U.S. at 347. The
first case, Glover v. Johnson, was filed in 1977. The
district court entered a final order in 1981 finding for the
plaintiffs and detailing specific actions to be undertaken
by defendants. In 1982 the court issued an order finding
that the plaintiffs were “prevailing parties” and were
entitled to attorneys’ fees under 42 U.S.C. § 1988,
including postjudgment monitoring fees. /d. at 348. The
second case, /ladix v. Johnson, was filed in 1980. Five
years later the parties entered into a consent decree. In
November 1987, the district court entered an order
awarding attorneys’ fees to the plaintiffs, including
postjudgment monitoring fees. In both cases, the district
court held that the attorneys were entitled to fees at the
-42a-
the Court awarded plaintiffs attorneys’ fees and costs
years after the PLRA’s effective date. Other courts
addressing this same factual distinction, however, have
held that the holding in Hadixcannot fairly be read to be
confined to its facts. See Montcalm Publ’g Corp. v.
Commonwealth of Virginia, 199 F.3d 168, 172-73 (4th
Cir. 1999)(noting that at the beginning and end of its
opinion, the Hadix Court stated its holding in general
terms without emphasis on the pre-existing fee award
order); see also Chatin v. Coombe, 186 F.3d 82, 90 (2d
Cir. 1999)(noting that “in Hadix, the Supreme Court
ruled that, in a case filed prior to the effective date of the
PLRA, § 803(d)(3) applied to legal work performed after
the effective date, but not to legal work performed before
it”); Ilick v. Miller, 68 F. Supp. 2d 1169, 1175 (D. Nev.
1999)(stating the rule that “prior section 1988 law
applies to all fees billed up to the effective date of the
PLRA ...and that the PLRA fee cap applies to all fees
billed after that date”). Following Hadzx and these
subsequent cases, the Court finds that the PLRA does
not apply to fees and costs incurred in this matter prior
to April 26, 1996.
B. Attorneys fees and costs incurred after the
PLRA’s enactment date
The PLRA expressly imposes limitations on the
amount of attorneys’ fees awarded “liJn any action
brought by a prisoner who is confined to any jail, prison,
or other correctional facility.” 42 U.S.C. § 1997e(d)(1).
Relying on the District Court for the Southern District of
Ohio’s decision in Turner v. Wilkinson, 92 F. Supp. 2d
697 (S.D. Ohio 1999), plaintiffs argue that the PLRA’s
cap on attorneys’ fees does not apply in the present case
prevailing market rate. /d. at 348-49. The dispute
before the Supreme Court involved whether the PLRA
applied to the postjudgment monitoring fees.
-43a-
because it does not apply to cases brought by prisoners
and non-prisoners. Defendants argue that the 7Jurner
decision is contrary to the Supreme Court’s decision in
Thornburgh v. Abbott, 490 U.S. 401 (1989), in which the
Court held that when addressing the constitutional
rights of prisoners, any impact on the rights of non-
prisoners is derivative. Defendants also point to the
Fourth Circuit’s decision in Montcalm, in which the
court held that the PLRA’s cap on attorneys’ fees applies
in a suit filed by prisoners, even though a non-prisoner
subsequently intervenes.
In Montcalm, prisoners initiated a lawsuit
alleging that prison officials violated thei First
Amendment rights by preventing them from receiving
Gallery Magazine because of its graphic, sexually
explicit, and allegedly obscene content. Montcalm, 199
F.3d at 170. A year after the prisoners’ pro secomplaint
was filed, Montcalm Publishing Corporation, the
publisher of Gal/ery, intervened in the action, alleging
that the prison’s ban on its magazine violated its First
Amendment and due process rights. Jd. The district
court rejected the plaintiffs’ First Amendment claims,
but found in favor of Montcalm on its due process claim.
Id at 171.
The district court then awarded attorneys’ fees to
Montcalm as a prevailing party, but limited the request
of the award sought pursuant to the PLRA? /d.
Montcaim appealed, arguing that the PLRA does not
8The district court limited the award for fees and
costs to work performed before, as well as after, the
PLRA’s enactment. See Montcalm 199 F.3d at 172. This
portion of the court’s order was reversed by the Fourth
Circuit which held, as discussed above, that the PLRA
does not limit fees and costs for work performed pnior to
the Act’s effective date. Jd. at 173.
“44a-
limit attorneys’ fees sought by nonprisoners. Montcalm
relied on the Jegislative history of the PLRA in which
various legislators stated that its purpose is to limit
frivolous inmate litigation. /d. (citing 141 Cong. Rec.
S14,317 (daily ed. Sept. 26, 1995)\(statement of Sen.
Abraham)). The Fourth Circuit noted that Montcalm’s
argument was not unreasonable in light of the statute’s
legislative history; but the court found this
interpretation at odds with Section 803(d)(3)’s plain
language. The court held that the language of the statute
indicates Congress’ clear intent “that statutory fee limits
apply not ‘solely to prisoners’ but to ‘any action brought
by a prisoner.” Jd. at 172.
In Zurner, an inmate and her husband filed. an
action against prison officials seeking declaratory and
injunctive relief after the officials first granted, and then
revoked, permission to allow the husband to attend the
birth of the couple’s child. Turner, 92 F. Supp. 2d at 699.
After the court issued a restraining order and the prison
officials permitted the husband to be present during the
birth, the plaintiffs moved for attorneys’ fees. The
defendants challenged the amount sought by the
plaintiffs arguing, inter alia, that it exceeded the
maximum allowable under the PLRA. /d. at 700. The
court held that the Act did not apply because the case
was initially filed by a prisoner and a non-prisoner and
thus could not be properly characterized as a suit
“brought by a prisoner... “ /d. at 704.
The 7urnerCourt distinguished Montcalm on the
ground that the suit initially was filed by both a prisoner
and nonprisoner. The court reasoned:
Montcalm makes sense in a case where
the nature of the case 1s known at the time
the intervenor’s petition is filed, and the
intervenor is therefore on notice that there
will be a cap on attorneys’ fees if the
-45a-
intervenor is successful on his or her
claims. (The result “is dictated by
[intervenor’s] decision not to bring an
independent action but to intervene in the
prisoner’s action,”) . . .
Id. (quoting Montcalm, 199 F.3d at 172). The court
noted that even if the suit could be characterized as one
brought by a prisoner, “the presence of a non-prisoner
plaintiff with non-frivolous claims makes it appropriate
to determine whether the attorneys’ fees are severable,
so that a cap could be applied on those fees requested on
behalf of [the prisoner] but not on behalf of [her non-
prisoner husband].” Jd. Because “{bloth plaintiffs
advanced non-frivolous claims for relief, and all of the
work done was intended to address a single remedy
benefitting both,” the court held that the fees could not
be separated and thus the cap would not be applied at
all. Jd.
Defendants argue that Turneris contrary to the
Supreme Court’s decision in Thornburgh v. Abbott, 490
U.S. 401 (1989). But Adbdotit did not address the PLRA’s
limitation on attorneys’ fees and costs. In fact it did not
address the PI.RA at all. Rather, the issue before the
Abbott Court was what standard of review should be
appled to evaluate a First Amendment challenge to a
prison regulation which impacts the rights of prisoners
and non-prisoners— t..at is a standard of heightened or
strict scrutiny or one that asks whether the actions of
prison officials were “reasonably related to legitimate
penological interests.4 Abbott, 490 U.S. 408.
4 Abbott was initiated by federal inmates challenging
a prison regulation governing their receipt of certain
subscription publications. The regulation permitted
prison officials to reject incoming publications found to
be detrimental toinstitutional security. Jd. at 404. Five
years after the suit was filed, three publishers of
-A6a-
Defendants also cite the District Court for the
Southern District of New York’s unpublished decision in
Kozlowski v. Coughlin, 2001 WL 1506010 (2001), to
support their argument that the PLRA applies here.
Kozlowski, however, addressed whether the PLRA’s
provision with respect to the termination of consent
decrees, 18 U.S.C. § 3626, applies to prison conditions
impacting prisoners and non-prisoners. The language of
the consent decree provision, however, is far more
expansive than the language of the attorneys’ fees
provision at issue here.
In Kozlowski, state prison inmates and their
would-be visitors brought an action against the New
York State Department of Correctional Services
(“DOCS”) challenging the constitutionality of DOCS’
regulations pertaining to inmate visitation. Kozlowski,
2001 WL 1506010, at *1. After the district court found
that the prisoners had a constitutionally protected
liberty interest in receiving visitors of their choice, the
parties negotiated procedures for visitation privileges
which were embodied in a consent decree. Jd. After
Congress’ enactment of the PLRA, DCOS moved to
terminate the consent decree pursuant to 18 U.S.C.
Section 3626(b)(2).
That section provides, in relevant part:
In any civil action with respect to prison
conditions, a defendant or intervener shall
be entitled to the immediate termination of
any prospective relief if the relief was
approved or granted in the absence of a
finding by the court that the rehef is
narrowly drawn, extends no further than
necessary to correct the violation of the
publications banned by prison officials pursuant to the
regulation were added as plaintiffs. /d. at 404 n.2.
-47a-
Federal right, and is the least intrusive
means necessary to correct the violation of
the Federal nght.
18 U.S.C. § 3626(b)(2)(emphasis added). The scction
further defines the term “civil action with respect to
prison conditions” as “any civil proceeding arising under
Federal law with respect to the conditions of
confinement or the effects of actions by government
officials on the lives of persons confined in prison, but
does not include habeas corpus proceedings .. .“ 18
U.S.C. § 3626(g)(2). Based on this definition, the
Kozlowski court held that Section 3626(b)(2) applies to
any action involving “conditions of confinement” or “the
effects of actions by government officials on the lives of
persons confined 1n prison,” regardless of whether people
other than inmates are affected. The court concluded:
The fact that people other than inmates are
affected by the consent decree does not
remove it from the scope of the PLRA
without clear language in the statute to
this effect. The statute does not limit the
PLRA’s reach to civil actions brought so/e/y
for the benefit of prison inmates. Indeed,
such a statute would have an extremely
narrow scope, since many actions relating
to prison conditions also have
repercussions outside of the prison system.
Id. *2. In comparison, 42 U.S.C. § 1997e(d) imposes
limitations on the amount of attorneys’ fees awarded
only in actions “brought by a pmsoner.” Obviously if
Congress intended to impose this hmitation on any
action respecting prison conditions, whether brought by
prisoners or non-prisoners, it would have used broad
language like that used in the consent decree provision.
The Court therefore concludes that § 803(d)(3) of the
-48a-
PLRA does not apply to limit attorneys' fees in this
matter.
Il. General Principles for Awarding Attorneys' Fees
Pursuant to 42 U.S.C. § 1988
A. Determining Whether a Party is a
“Prevailing Party”
In Hensley v. Eckerhart, 416 U.S. 424, 437 (1983),
the Supreme Court provided the framework for
determining attorney fee awards under Section 1988.
First, as a threshold matter, a district court must
determine whether the plaintiff is a “prevailing party.”
In this regard, the Hens/ey Court indicated that “[a]
typical formulation is that ‘plaintiffs may be considered
“prevailing parties” for attorney’s fees purposes if they
succeed on any significant issue in the litigation which
achieves some of the benefit the parties sought in
bringing suit.” Jd. 461 U.S. at 433 (quoting Nadeau v.
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Once
plaintiffs have crossed this threshold, they are
considered a “prevailing party” within the meaning of
Section 1988 and are entitled to a fee award of some
kind. Texas State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791-92 (1989). As the Supreme
Court explained, “[t]he degree of the plaintiffs overall
success goes to the reasonableness of the award under
Hensley, not to the availability of a fee award vel non.”
Id. at 793.
B. Determining Whether Attorneys’ Fees and
Costs are“Reasonable”
Once a district court determines that the plaintiff
.s a “prevailing party,” the court should apply certain
principles to determine “what fee is ‘reasonable.”
Hensley, 461 U.S. at 433. This inquiry begins with “an
initial estimate of the value of a lawyer’s services.” /d.
*49a-
This lodestar, or initial estimate, consists of the court’s
determination of “the number of hours reasonably
expended . .. multiplied by a reasonable hourly rate.”
Id. The court’s “reasonable fee” determination is
informed by the twelve factors identified in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-719
(5th Cir. 1974). Jd. at 433; see also Blum v. Stenson, 465
U.S. 886, 893 (1984).
The twelve Johnson factors are: “(1) the time and
labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the
attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10)
the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client;
and (12) awards in similar cases.” Hensley, 461 U.S. at
430 n.3 (citations omitted). District courts should
eliminate hours which are excessive, redundant, or
otherwise unnecessary. Jd. at 434. The focus here is
whether "a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission."
ld.
The Hens/ey Court went on to establish certain
principles to guide district courts’ decisions 1n setting fee
awards in cases where the plaintiffs have not achieved
complete success. These principles fall within the eighth
factor set forth in JoAnson-- "results obtained." In some
situations, the Court instructed, district courts should
not award fees for services unrelated to the successful
claim. In other situations, the Court advised, the
attorney should recover for all hours reasonably
expended on the litigation. To determine which
-50a-
approach is appropriate in a case, two questions must be
addressed:
First, did the plaintiff fail to prevail on
claims that were unrelated to the claims on
which he succeeded? Second, did the
plaintiff achieve a level of success that
makes the hours reasonably expended a
satisfactory basis for making a fee award?
Hensley, 461 U.S. at 434.
With respect to the first question, the Hens/ey
Court provided district courts with some guidance in
determining whether the claims in a single lawsuit are
related:
In some cases a plaintiff may present in
one lawsuit distinctly different claims for
relief that are based on different facts and
legal theories. In such a suit, even where
the claims are brought against the same
defendants... counsel's work on one claim
will be unrelated to his work on another
claim. Accordingly, work on an
unsuccessful claim cannot be deemed to
have been "expended in pursuit of the
ultimate result achieved."
Id. at 434-35 (quoting Davis v. County of Los Angeles, 8
E.P.D. | 9444, at 5049 (C.D. Cal. 1974)). No fee should
be awarded for services on unrelated claims which are
unsuccessful. The Hens/ey Court advised, however, that
more typically the claims will involve common facts and
be interrelated and the Court should award fees for
services on both claims:
Many civil rights cases will present only a
single claim. In other cases the plaintiff's
“Slac
claims for relief will involve a common core
of facts or will be based on related legal]
theories. Much of counsel's time will be
devoted generally to the litigation as a
whole, making it difficult to divide the
hours expended on a claim-by-claim basis.
Such a lawsuit cannot be viewed as a series
of discrete claims. Instead the district
court should focus on the significance of the
overall relief obtained by the plaintiff in
relation to the hours reasonably expended
on the litigation.
Apphcation
A. Whether Plaintiffs are a "Prevailing Party"
Plaintiffs filed their lawsuit to challenge the
constitutionality of MDOC's new visitation procedures.
Plaintiffs claimed the policies violated their First,
Fourth, Eighth, Ninth, and Fourteenth Amendment
nghts.° In Bazzetta //, the Court struck down the
procedures to the extent they restrict non-contact visits
and permanently ban visitation for prisoners with two
violations of MDOC's drug abuse policy, finding that the
procedures violated plaintiffs' First, Eighth and
Fourteenth Amendment nghts. These were significant
issues which achieved most of the relief plaintiffs sought
in bringing their suit. Clearly this resolution changed
‘In their complaint, plaintiffs additionally alleged
that the policies violated the Michigan Constitution.
The Court, consistent with its usual practice when the
parties are not diverse, dismissed plaintiffs' complaint
based on the Michigan Constitution, as well as any
state law claims. See Order filed 9/18/95
*6Za-
the legal relationship between plaintiffs and defendants.
Thus plaintiffs are a “prevailing party” within the
meaning of Section 1988. The fact that plaintiffs did not
prevail in Bazzetta J only affects, if anything, the
amount of the fee award.
B. Whether Plaintiffs' Attorneys’ Fees and
Costs are Reasonable
When applied to this complex class action, the
twelve factors outlined by the Supreme Court in JoAnson
suggest that plaintiffs' attorneys' fees and costs are
reasonable. Clearly this case, which has spanned more
than seven years, resulted in four published opinions,
and includes numerous plaintiffs, required extensive
time and labor by the attorneys and their staff. It
involved complex constitutional issues and issues of first
impression in this Circuit. See Bazzetta J, 124 F.3d at
770 (noting that Sixth Circuit has yet to decide whether
prisoners have a First Amendment freedom of
association right to visitation).
This case also demanded skilled attorneys with
experience handling complex prisoner class actions,
which counsel clearly had. Counse] has billed at hourly
rates within the current market rates prevailing in the
community for counsel with similar experience. See id.
Ex. AY 14; Ex. C 7412 & 13; Ex. E. And these rates are
comparable to awards in similar cases. See sd. Ex. A 44
15, 16, 17; Ex. Bex. A
Ms. LaBelle claims an hourly rate of $ 225 for her
work as lead counsel in this case. Ms. LaBelle has been
practicing law for twenty three years. See Mot. Ex. A §
1. During that time, she has served as counsel in a
number of class action lawsuits, including several cases
involving the civil and constitutional rights of prisoner:
See id. 44 4-8. In one of those cases, Ms. LaBelle was
awarded $200 per hour for her work as co-counsel. A
53a
number of professional organizations have recognized
Ms. LaBelle for her work in prisoner rights cases. See
id. 4 10.
Mr. Barnhart requests an hourly rate of $200,
consistent with an award he previously received in a
prisoner civil rights case in Michigan. Mr. Barnhart has
practiced law for thirty four years. See Mot. Ex: B ¥ 6
Since 1970 he has specialized in class action civil rights
litigation, including prisoner rights cases. See id.
Ms. Levine seeks an hourly rate of $160. Ms
Levine has been practicing law for twenty eight years
See Mot. Ex. C. 4] 2. Throughout her career, Ms. Levine
has represented indigent criminal defendants and
prisoners. See id. 44] 3-6 She has served as co-counsel
and testified as an expert witness in prisoner rights
cases and served on numerous boards and committees
concerning prisoners' rights. See id. 4% 8 & 10
Ms. Streeter claims an hourly rate of $200. She
has practiced law for twenty three years and has been
active In prisoner civil rights litigation since 1982. See
Mot. Ex. D. 441 5 & 7-10. In 1998 she was awarded $200
per hour for her work in Hadx v. Johnson. See id. 4 3.
Ms. LaBelle requests an hourly rate for Ms
Master of $125. Mr. Barnhart claims an hourly rate for
Ms. Easter of $120. Ms. Easter rraduated law school in
1995 and has been involved in prisoner civil rights
htigation since that time. See Mot. Ex. A. Ms. Easter
was awarded an hourly rate of $130 for her work on one
of those cases. See id. § 16. She has presented a
number of lectures on prison issues and, during law
school, co-founded and coordinated the "Prisoner Legal
Advocacy Project," in which students assisted attorney:
in prisoner rights matters. See id
With respect to the results obtained, plaintiffs
initially filed their lawsuit in August 1995 to challenge
04a"
the implementation of MDOC's visitation procedures.
The time spent on the case by the attorneys and their
staff from 1995 forward cannot logically be separated
according to work challenging the procedures as they
impact contact visits and work focusing on the policies’
impact on non-contact visits, even if the distinction was
made by the courts in assessing the constitutionality of
the policies.6 Clearly plaintiffs obtained significant
relief -- the Court struck down defendants’ visitation
policies with respect to non-contact visits and the
permanent ban on visitation for prisoners with two or
more substance abuse misconducts. That plaintiffs failed
to convince the courts that these policies were
unconstitutional with respect to contact visits does not
detract from plaintiffs overall success. In fact, had
defendants not misled this Court and the Court of
Appeals in Bazzetta /- that its new regulations applied
only to contact visits-- the result of that case may very
well have been different
Defendants raise five specific challenges to
plaintiffs' request for fees and costs. See Defs.' Resp. to
Pis.' Supp. Request. First defendants argue that 12.7
6Furthermore, it 1s lllogical to argue that services
billed prior to June 26, 1998 (when plaintiffs won their
motion for reinstatement) are unrelated to the claims on
which plaintiffs' prevailed. Clearly many hours spent
during that pernod contributed to plaintiffs' overall
success. For example: the hours billed for preparation
of the complaint (including, for example, reviewing
MDOC's proposed policies, reviewing letters from
potential plaintiffs, and researching legal theories); for
preparing and presenting the motion for temporary
restraining order (on which plaintiffs’ prevailed); for
certification of the class; and for preparing a
supplemental petition to the Sixth Circuit after its
affirmation in Bazzetta /
a rr ee ee
ae er ee ee
55a"
hours in fees and $441.37 in costs are "unreasonable and
excessive." See Resp. to Supp. Mot. at 4. Defendants,
however, do not specify to what work these hours relate.
Defendants may not make generalized, unsupported
objections to the reasonableness of fees. See Wooldridge
v. Marlene Indus. Corp., 898 F.2d 1169 (6th Cir. 1990).
Defendants did file the affidavit of James P.
Schratz, who evaluated plaintiffs' attorneys’ fees and
costs and found specific work excessive. See Decl. filed
5/16/02. Defendants however did not specifically refer to
Mr. Schratz' affidavit in their response to plaintiffs
request for fees. Mr. Schratz, however, did testify at the
motion's hearing. Thus the Court only will address the
objections he addressed at the hearing. At the hearing,
Mr. Schratz argued that plaintiffs' fees and costs were
unreasonable because counsel billed excessively for
conferencing, trial preparation time, and _ tnial
attendance. Mr. Schratz acknowledged, however, that
determining what is excessive is a judgment call,
depending in part on the complexity of the case, the
number of witnesses and exhibits, and the length of the
trial
With respect to excessive time billed for trial
attendance, Mr. Schratz opined that only counsel who
actually participated in the trial on a given day should
bill for their services. Thus if Mr. Barnhart was present
at counsel's table but did not examine a witness on a
particular day, he should not bill for his time that day.
Mr. Schratz, however, provides no caselaw to indicate
that such billing is unreasonable. In light of the
complexity of the case, the extensive number of exhibits
that needed to be managed, and the uncertainty at trial
as to how long a witness would be on the stand, the
Court does not find such billing unreasonable. Nor, for
the same reasons, does the Court find the trial
preparation time or trial attendance time unreasonable
-56a-
Defendants' second objection is ‘directed at
plaintiffs' attorneys' fees and costs for work preparing
the fee petitions and responding to defendants’
objections to their requests. Their third objection is to
the attorneys' fees and costs related to the amicus curiae
briefs filed on appeal in this case. See Resp. to Supp.
Mot at 4. Such work, however, is compensable. See
Northcross v. Bd. of Educ. of Memphis City Sch., 611
F.2d 624, 637 (6th Cir. 1979)(holding that plaintiffs
should recover attorneys' fees for services relating to the
appeals and for the time spent litigating the fees issue
itself); Weisenberger v. Huecker, 593 F.2d 49 (6th Cir.
1979)(same); Coleman v. Block, 589 F. Supp. 1411, 1419
(D.C. N.D. 1984)(finding that plaintiffs were entitled to
recover fees for amiciis representation in case which was
crucial to plaintiffs’ success in case before court).
Defendants next object to 57.8 hours in fees for
work "related to the Plaintiff class, i.e. review of and
response to correspondence regarding status of case,
incidents of reinstatement of visits, and Court's Order of
Comphiance." Services related to reasonable monitoring
of a court's decisions, in order to ensure compliance and
that the plan is working to correct constitutional
violations, are compensable. See Northcross, 611 F.2d at
637. Counsel's time spent corresponding with their
clients also is compensable, as Congress made clear
when it enacted the Fee Awards Act that counsel should
be paid "as is traditional with attorneys compensated by
a fee-paying client, for all time reasonably expended ona
matter." /d at 636
Finally, defendants object to time entmes for
conferencing between co-counsel for which there is no
corresponding time billed by the other conferencing
attorney(s). On its face, it appears that defendants are
arguing that the attorney who billed for the conference
should not be reimbursed if the other attorney(s) did not
also bill for the same time. If this is defendants’
57a
argument, itis frivolous. Perhaps counsel only billed for
one of the attorneys in the conference in order to avoid
being duplicitous. If defendants’ argument instead is
that fees for conferencing are not compensable, the
courts consistently have rejected this objection. See, e.g.,
Glover v. Johnson, 934 F.2d 703, 716-17 (6th Cir. 1991);
Glover v. Johnson, 138 F.3d 229, 251-52 (6th Cir. 1998).
The amount of hours billed for conferencing 1s not
otherwise unreasonable.
IV. Summary
In summary, the Court finds that the attorneys'
fees and costs plaintiffs request are reasonable. The
number of hours the attorneys expended is reasonable in
light of the complexity of this litigation, particularly the
vastness of the class and constitutional issues involved.
The Court finds no reason to deduct fees and costs for
services incurred prior to June 26, 1998, as services
performed prior to that date were related to the claims
on which plaintiffs ultimately prevailed and because the
relief obtained by plaintiffs is significant.
With respect to the reasonableness of the hourly
rates requested by counsel, the Court concludes that the
PLRA does not apply to this action brought by a class of
both prisoners and nonprisoners. Counsel thus should
be awarded their requested hourly rates, provided such
rates are reasonable. The Court finds that the rates
requested are reasonable considering the training,
background, experience, and skill of the individual
attorneys and because the rates are within the fair
market value of the services provided in the community
and awards in similar cases.
Being fully advised in the premises, having read
the pleadings, and for the reasons set forth above, the
Court hereby orders as follows:
-58a-
Plaintiffs' motion for attorneys' fees is granted;
The Court awards plaintiffs attorneys’ fees and
costs totaling $ 570,167.35, plus interest.
s/ Nancy G. Edmunds
Nancy G. Edmunds
U.S. District Judge
Dated: 8/19/2002
-§9a-
NOT RECOMMENDED FOR PUBLICATION
NO. 01-1635
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHELLE BAZZETTA, STACY )
BARKER, TONI BUNTON, DEBRA _)
KING, SHANTE ALLEN, ADRIENNE)
KENNETH McGINNIS, Director of
Michigan Department of Corrections
and MICHIGAN DEPARTMENT OF
CORRECTIONS,
BRANAUGH, ALESIA BUTLER, )
TAMARA PRUDE, SUSAN FAIR, )
VALERIE BUNTON, and ARTURO )
BUNTON, through his next friend )
Valerie Bunton, on behalf of )
themselves and all others similarly )
situated, )
) ORDER
Plaintiffs-Appellees ) VACATING
) and
Vv. ) REMANDING
)
)
)
)
)
)
)
Defendants-Appellants
BEFORE: MERRITT, CLAY and GILMAN, Circuit
Judges.
In the above-styled case the Supreme Court of
the United States on June 16, 2003, reversed the
decision of this Court holding that certain Michigan
prison regulations were invalid on their face, but also
-60a-
reserving any argument that "an individual claim
based on indefinite withdrawal of visitation or denial
of procedural safeguards" would pass muster under
the First and Eighth Amendments as incorporated by
the Fourteenth Amendment. In light of the Supreme
Court's holding in this case, the previous judgment of
this Court is vacated and the case remanded to the
District Court for further consideration in light of the
Supreme Court opinion.
Accordingly, it is so ORDERED.
ENTERED BY ORDER OF THE COURT
s/Leonard Green
Teanard Green Clerk
“639°
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZ&TTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Friend
VALERIE BUNTON, Case No. 95-73540
Plaintiffs, HON. NANCY
G. EDMUNDS
Ve
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
/
CORRECTED PROOF OF SERVICE
The undersigned certifies that on November 4,
2003, she served a copy of Defendants’ Motion to Place
Attorney Fees in Escrow and Brief in Support upon
the attorneys of record in the above cause by mailing
the same first-class mail with postage fully prepaid,
plainly addressed as follows:
DEBORAH LABELLE MICHAEL BARNHART
221 N. MAIN ST STE 300 615 GRISWOLD ST STE 925
ANN ARBOR MI 48104 DETROIT MI 48226
-§62a-
PATRICIA STREETER BARBARA LEVINE
221 N MAIN ST STE 300 PO BOX 420
ANN ARBOR MI 48104 GRAND LEDGE MI 48837
Said envelopes were misplaced and did not get mailed
on October 31, 2003 as originally stated.
s/Mary Zischke
Legal Secretary
Subscribed and sworn to before me
this 5 day of November, 2003.
s/Brenda Lynn Barton
Brenda Lynn Barton, Notary Public
Clinton County, Michigan
Acting in Ingham County, Michigan
My Commission Expires: July 11, 2004
Friedman/1995052460A/Pldgs/POS.cor
-63a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Fnend
VALERIE BUNTON,
vase No.
Plaintiffs, 5-" 3540
Vv.
HON. NANCY
KENNETH McGINNIS, DIRECTOR G. EDMUNDS
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
/
PROOF OF SERVICE
The undersigned certifies that on October 31,
2003, she served a copy of Defendants’ Motion to Place
Attorney Fees in Escrow and Brief in Support upon the
attorneys of record in the above cause by mailing the
same first-class mail with postage fully prepaid,
plainly addressed as follows:
DEBORAH LABELLE MICHAEL BARNHART
221 N. MAIN ST STE 300 615 GRISWOLD ST STE 925
ANN ARBOR MI 48104 DETROIT MI 48226
-64a°
PATRICIA STREETER BARBARA LEVINE
221 N MAIN ST STE 300 PO BOX 420
ANN ARBOR MI 48104 GRAND LEDGE MI 48837
s/Mary Zischke
Legal Secretary
Subscribed and sworn to before me
this 31st day of October, 2003,
s/Brenda Lynn Barton
Brenda Lynn Barton, Notary Public
Clinton County, Michigan
Acting in Ingham County, Michigan
My Commission Expires: July 11,2004
Friedman/1995052460A/Pldgs/POS
-65a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Friend
VALERIE BUNTON, Case No.
95-73540
Plaintiffs,
HON. NANCY
Vv. G. EDMUNDS
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
/
DEFENDANTS' MOTION TO PLACE
ATTORNEY FEES IN ESCROW AND BRIEF IN
SUPPORT
Defendants, Kenneth McGinnis and_ the
Michigan Department of Corrections (MDOC), through
their attorney, Lisa C. Ward, Special Assistant
Attorney General, hereby request that this Court enter
an order requiring Plaintiffs to place all attorney fees
paid by Defendants pursuant to this Court's June 27,
2002 order, with interest, in an escrow account until
such time as this Court has resolved the prevailing
party issue.
66a
a On June 27, 2002, this Court entered its
Order for Payment of Interim Attorney Fees, wherein
it required Defendants to pay Plaintiffs $223,991.92 as
a partial payment for attorney fees and costs in this
case, while the parties litigated the remaining issues
concerning Plaintiffs' motion for attorney fees. At the
time of this Court's order, Defendants requested that
the money being paid pursuant to the June 27, 2002
order be placed in an escrow account until such time
as the United States Supreme Court had ruled on
Defendants' Petition for Wnt of Certiorari. (See
Attachment 1.)
2 After Defendants' request for an escrow
account was ignored, on July 8, 2003, Plaintiffs
received checks from Defendants in the following
amounts: Deborah LaBelle received $102,154.68;
Michael Barnhart received $63,173.11; Patricia
Streeter received $38,750.34; and Barbara Levine
received $35,582.70. (See Attachment 2.) In addition,
on August 19, 2002, this Court also entered its Order
Granting Plaintiffs' Motion for Attorney Fees and
ordered Defendants to pay Plaintiffs an additional
$570,167.35. Defendants timely filed a notice of
appeal of the Court's August 19, 2002 order on August
28, 2002.
3. As this Court is already aware, on
October 24, 2003, the United States Court of Appeals
for the Sixth Circuit issued an Order remandiny
Defendants’ appeal of this Court's August 28, 2002
Order Granting Plaintiffs' Motion for Attorney Fees for
further consideration of the prevailing party issue in
light of the Supreme Court's opinion in Overton v.
Bazzetta, 123 S. Ct. 2162 (2003). Thus, given that
Plaintiffs are not the prevailing parties in this case,
they are no longer entitled to attorney fees pursuant to
42 U.S.C. § 1988. Therefore, Defendants request that
any money paid to Plaintiffs pursuant to this Court's
*6/a°
June 27, 2002 order, including interest, be placed in an
escrow account until such time as this Court has
resolved the prevailing party issuc.
WHEREFORE, for the aboverstated reasons
Defendants, Kenneth McGinnis and the Michigan
Department of Corrections, hereby request that this
Court enter an order requiring Plaintiffs tu place all
attorney fees paid by Defendants pursuant to this
Court's June 27, 2002 order, with interest, in an
escrow account until such time as this Court has
resolved the prevailing party issue.
Respectfully submitted,
Michael A. Cox
Attorney General
Leo H. Friedman
Assistant-in-Charge
Corrections Division
P.O. Box 30217
Lunsinyg, MI 48909
(517) 335-7021
s/Lisa C. Ward
Lisa C. Ward (P38933)
Special Assistant Attorney
General
1300 North Waverly, #1
Lansing, Michigan 48917
(517) 323-0300
Dated: October 31, 2003
Friedman/Bazzetta/1995052460A/Pldgs/Mot Atty Fees Escrow
68a
STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
Sig a
WILUAM J. RucHarns P.O. Box 30217
Dap Atrwrecy Gemvol LANSING. Micinoan 48909
JENNIFER MULHERN GRANHOLA)
ATTORNEY GENERAL
June | 7, 2002
VIA FACSIMILE
AND U.S. MAIL
Deborah LaBelle
Attomey at Law
221 N. Main Street, Suite 300
Ann Arbor, Michigan 48104
Dear Ms. LaBelle
Ke Barretta v, McGinnis
USDC-FD No, 95-CV-73540-DT
I am writing as a follow-up to the Court’s discussion of June 13, 2002 regarding an
interim order of attorney fees and costs. Based on a review of Mr. Schratz’s May 14, 2002
Declaration, Defendants are prepared to agree to the following:
1. Defendants will send the Court a check in the amount of $223,991.92, which
represents the attorney fees and costs that are not in dispute
2. Defendants request that this money be placed in an escrow account by the
Court until such time as the United States Supreme Court has ruled on
Defendants’ Petition For Writ Of Certiorari.
Defendants submit that this proposal is the only way to insure that, in the event
Defendants prevail in their appcal to the Supreme Court, the taxpayers of the State of Michigan
are reimbursed for any attorney fees and costs wrongly paid to Plaintiffs. Please let me know
iummediately if this proposal is satisfactory to Plaintiffs.
Very truly yours,
Leo H. Fnedman
Assistant in Charge
Corrections Division
Lisa C. Ward
Spctial Assistant Atlomey General
LCW/m
Cc: Hon. Nancy G. Edmunds
F evedlinan’19950524QA ‘cow/La Bek 061 702
Attac hynest
7¢
ATTY GEN CORR “ax'51?-335-718? -@gu
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STATE OF MOC HKAAN
OLPARTMENT OF ATTORNEY GENERAL
Wat J. Ricans
OemAy Ahoray Gorers
JENNIFER MULHERN GRANHOLM
ATTORALY Gln
FAX COVER SHEET
June 17, 2002
Deborah LaBelle
Attorr ey at | aw
(734) 769-2196
| Sa C Ward
Special Assistant Aflorney Genera
Corrections Division
OUR PHONI (517)
UR FAX (517)
1udINg Cover pag
Bazzetta v. McGinnis. ct al
JSDC Docket No: 9f
COMMENTS Letter dated 6/17
Via U.S. Mall
Jun
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P.O, Box 30217
LANSING, MORGAN 48908
STTyV CO TO 7-3359-71S7
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KK Transmit Conf. Report >
Pl Jun 1? ‘02 15718
esephone Number Mode | Start Time |Pages| Resvi¢ Note
3-/15152545393 NORMAL | 17.1517 2) #0K | i
STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
WAAL J. RUCHAROS P.O. Box 30217
Deputy Agoerey Gensel Langa, Micwcan 48909
JENNIFER MULHERN GRANHOLM
ATTURAEY GENERAL
DATE: June 17, 2002
TO: Honorabie Nancy G. Edmunds
U.S: District Caurt
for the Eastern District of Michigan
FAX NO: (313) 234-5393
FROM: Lisa C. Ward
Special Assistant Atlomey General
Corrections Division
OUR PHONE: (517) 335-7021
OUR FAX: = (517) 335-7157
No. of pages, including cover page: 2
RE: Bazzetia v. McGinnis, et al
USDC Docket No: 95-cv-73540-DT
COMMENTS: Letter dated 6/17/02 to D. LaBelle from. Ward. Original will follow
via U.S. Mail,
STATE OF MICHA
DEPARTMENT OF ATTORNEY GENERAL
WILLIAM J, RUCHARDS —- P.O. Bax 30217
Deputy ABoracy Generel Lx} LANSING, MICHIGAN 48909
JENNIFER MULHERN GRANHOLAS
ATTORNEY GENERAL
July 8, 2002
Deborah LaBelle
Attomey at Law
221 N. Main Street, Suite 300
Ann Arbor, MI 48104
Dear Ms. LaBelle:
Re: Bazzetta v. McGinnis
USDC-ED No. 95-CV-73540-DT
Enclosed pursuant to the Court’s Order of June 27, 2002, is a check for attomey fees in
the amount of $102,154.68.
Very truly yours,
Wia4 Satie /KS
Mark W. Matus
Assistant Attommey General
Corrections Division
MW™M:kys
Enclosure
Friedman/1995052460A/con/Lir LaBe Ue 070802
21458239:
006788
STATE OF MICHIGAN REMITTANCE ADVICE
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WARRANT AMOUNT 5 102,154.68
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DEPARTMENT OF ATTORNEY GENERAL
WILLIAM J. RICHARDS
Depety Attorney Go-eral
P.O. Box 30217
LANSING, MICHIGAN 48909
JENNIFER MULHERN GRANHOLMI
ATIORNEY GENERAL
July &, 2002
Michael Barnhart
Attomey at Law
615 Griswold Street, Suite 925
Detroit, Mi 48226
Dear Mr. Barnhart:
Re: Bazzetta v. McGinnis
USDC-ED No. 95-CV-73540-DT
Enclosed pursuant to the Court's Order of June 27, 2002, is 2 check for attomey fees in
the amount of $63,173.11.
Very truly yours,
Mian Mata IS
Mark W. Matus
Assistant Attorney General
Corrections Division
MWM:kjs
Enclosure
Fricdman/1995052460A/con/Lir Barnhart 070302
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DEPARTMENT OF ATTORNEY GENERAL
Wi. UiaM J. RaCHARDS P.O. Box 30217
Deputy Ameracy Cuncral : . LANSING, MICHIGAN 48909
JENNIFER MULHERN GRANHOLM
ATTORNEY GENERAL
July 8, 2002
Patricia A. Streeter
Attomey at Law
221 N. Main Street, Suite 300
Ann Arbor, MI 48104
Dear Ms. Streeter:
Re: Bazzetta vy, McGinnis
USDC-ED No. 95-CV-73540-DT
Enclosed pursuant to the Court's Order of June 27, 2002, is a check for attorney fees in
the amount of $38,750.34.
Very truly yours,
“har YWNatig [KS
Mark W. Matus
Assistant Attomey General
Corrections Division
MWM:kjs
Enclosure
Friedman/199505 2450 A/coml tr Streeter 070802
21458239 |
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STATE OF MICHIGAN REMITTANCE ADVICE
INVOICE SOMBER TNYOICE DATE =: EEYOICE DESCRIPTION REF, DOC. CURIENT Ooc.
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WILLIAM J, ROCHARDS ‘ P.O. Box 30217
Depay Asormy Geraral LANSING, MICHIGAN 48909
JENNIFER MULHERN GRANHOLM
ATTORNEY GENERAL
July 8, 2002
Barbara Levine
Attorey at Law
P.O. Box 420
Grand Ledge, MI 48837
Dear Ms. Levine:
Re: SBazzetta y. McGinnis
USDC-ED No. 95-CV-73540-DT
Enclosed pursuant to the Court's Order of June 27, 2002, is a check for attomey fees in
the amount of $35,582.70.
Very truly yours,
Wars SMNatua) 1*S
Mark W, Matus
Assistant Attommey Gencral
Corrections Division
MWM:kjs
Enclosure
Friedman’ 1995052460A con Lir Levane 070802
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‘ ® t de ONT AN
-79a-
JNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Fnend
VALERIE BUNTON,
Case No.
Plaintiffs, 95-73540
v.
HON. NANCY
KENNETH McGINNIS, DIRECTOR G. EDMUNDS
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
PROOF OF SERVICE
The undersigned certifies that on November 21,
2003, she served a copy of Defendants’ Reply in
Support of Motion to Place Attorney Fees in Escrow
upon the attorneys of record in the above cause by
mailing the same first-class mail with postage fully
prepaid, plainly addressed as follows:
DEBORAH LABELLE MICHAEL BARNHART
221 N. MAIN ST STE 300 615 GRISWOLD ST STE 925
ANN ARBOR MI 48104 DETROIT MI 48226
-BOa-
PATRICIA STREETER BARBARA LEVINE
221 N MAIN ST STE 300 PO BOX 420
ANN ARBOR MI 48104 GRAND LEDGE MI 48837
s/Mary F’.. Zischke
Legal Secretary
Subscribed and sworn to before me
this 21st day of November, 2003,
s/Brenda Lynn Barton
Brenda Lynn Barton, Notary Public
Clinton County, Michigan
Acting in Ingham County, Michigan
My Commission Expires: July 11,2004
Friedman/1995052460A/Pldgs/POS
‘Bla
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Friend
VALERIE BUNTON,
Case No.
Plaintiffs, 95-73540
Vv. HON. NANCY
G. EDMUNDS
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
/
DEFENDANTS' REPLY IN SUPPORT OF
MOTION TO PLACE ATTORNEY FEES IN ESCROW
Defendants, Kenneth McGinnis and_ the
Michigan Department of Corrections ("MDOC"),
through their attorney, Lisa C. Ward, Special
Assistant Attorney General, hereby file their Reply in
Support of Motion to Place Attorney Fees in Escrow,
which was filed with this Court on October 31, 2008.
[In support of their reply, Defendants state as follows:
l. On October 24, 2003, the Sixth Circuit
issued an Order remanding Defendants' appeal of this
82a-
Court's August 19, 2002 Order Granting Plaintiffs’
Motion for Attorney Fees. In their October 24, 2003
Order, the Sixth Circuit ruled that Plaintiffs’ status as
the prevailing party in_ this case should _ be
reconsidered by this Court in light of the Supreme
Court's opinion in Overton v. Bazzetta, 123 S. Ct. 2162
(2003).
2. Defendants' Motion to Place Attorney
Fees in Escrow was filed by Defendants on October 31,
2003. In their motion, Defendants requested that this
Court enter an order requiring Plaintiffs to place the
$223,991.92 they have already received from
Defendants, with interest, in an escrow account until
such time as this Court has resolved the prevailing
party issue.
3. On November 12, 2003, Plaintiffs filed
their Response opposing Defendants' motion, wherein
they argue that because Defendants complied with
this Court's June 27, 2002 Order for Payment of
Interim Attorney Fees, they have given up their right
to contest Plaintiffs’ status as a prevailing party in
this case. Not only do Plaintiffs misrepresent the
record in this case, but acceptance of their argument
would lead to an absurd result. It is Plaintiffs’
position that in spite of the unanimous reversal of the
lower court rulings in this case by the Supreme Court
in Overton, supra, they are still the prevailing party in
this litigation.
4. As this Court is already aware, under 42
U.S.C. § 19838, the determination as to whether
Plaintiffs are a prevailing party is a_ threshold
determination that must be made prior to the award of
any attorney fees. Hensley v. Eckerhart, 416 U.S.
424 (1983). A review of the record in this case reveals
that Defendants have raised the prevailing party issue
at. all times during this litigation and have only paid
Si3u
interim attorney feces to Plaintiffs when ordered to do
so by this Court. Therefore, given that Plaintiffs are
not the prevailing party in this case, they are not
entitled to attorney fees, and Defendants Motion to
Place Attorney Fees in Escrow should be granted.
WHEREFORE. for the above-stated reasons and
the reasons set forth in Defendants' Motion to Place
Attorney Fees in Escrow, Defendants respectfully
request that this Court enter an order requiring
Plaintiffs to place all attorney feces paid by Defendants,
with interest, in an escrow account until such time as
this Court has resolved the prevailing party issue
Respectfully submitted,
Michael A. Cox
Attorney Genera!
Leo H. Friedman
Assistant-in-Charge
Corrections Division
P.O. Box 30217
Lansing, MI 48909
(517) 335-702)
s/Lisa C. Ward _
Lisa C. Ward (P38933)
Special Assistant Attorney General
1300 N. Waverly, #1,
Lansing, MI 48917
(517) 323-0300
Dated: November 21, 2003
Friedman/Bazzetta/1 995052460A/Plds/RepSupAtty FeesEscrow
-84a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Friend
VALERIE BUNTON,
Case No.
Plaintiffs, 95-73540
V. HON. NANCY
G. EDMUNDS
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPARTMENT OF CORRECTIONS,
Defendants.
PROOF OF SERVICE
The undersigned certifies that on December 18, 2003,
he/she served a copy of the following papers upon the
attorneys of record 1n the above cause by mailing the
same to his/her respective address, with first class
postage fully prepaid thereon, said papers being
described as follows:
(a) Defendants’ Brief Regarding the Issue of
Prevailing Party.
s/Pam Pung |
Legal Secretary
Thom 1995052460A / Ple adings POS Brf 121803
-85a-
UNITED STATES DISTRICT COURT
KASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, STACY
BARKER, TONI BUNTON, DEBRA
KING, SHANTE ALLEN, ADRIENNE
BRANAUGH, ALESIA BUTLER,
TAMARA PRUDE, SUSAN FAIR,
VALERIE BUNTON and ARTURO
BUNTON, through his Next Fnend
VALERIE BUNTON,
Case No.
Plaintiffs, 95-73540
v. HON. NANCY
G. EDMUNDS
KENNETH McGINNIS, DIRECTOR
OF MICHIGAN DEPARTMENT OF
CORRECTIONS; MICHIGAN
DEPAIKTMENT OF CORRECTIONS,
Defendants.
/
DEFENDANTS' BRIEF REGARDING
THE ISSUE OF PREVAILING PARTY
Introduction
Defendants, Kenneth McGinnis and_ the
Michigan Department of Corrections (MDOC), through
their attorney, LisaC. Ward, Special Assistant
Attorney General, hereby submit their Brief Regarding
the Issue of Prevailing Party pursuant to the Court's
December 4, 2003 ruling.
-86a-
Statement of the Case
On June 25, 2001, Plaintiffs filed their motion
for attorney fees wherein they requested a total of
$652,415.49 in attorney fees and costs. Subsequently,
on July 11, 2001, Plaintiffs submitted a corrected brief
and increased their request for attorney fees and costs
to $660,479.49. Defendants' response in opposition to
Plaintiffs' motion for attorney fees and costs was filed
on August 7, 2001. In their response, Defendants
objected to Plaintiffs' motion for attorney fees on the
basis that they were not the prevailing party, that
they were not entitled to attorney fees in excess of the
PLRA rate, and that Plaintiffs' motion contained
unreasonable fees and costs. On August 22, 2001, the
district court issued an order holding Plaintiffs’ motion
for attorney fees in abeyance until such time as the
Sixth Circuit issued its decision concerning the appeal
of the case on the merits. Bazzetta v. McGinnis, 148
F. Supp. 2d 813 (E.D. Mich. 2001).
After the Sixth Circuit issued its decision
affirming the April 25, 2001 judgment of the district
court in Bazzetta v. McGinnis, 286 F.3d 311 (6th Cir.
2002), on April 10, 2002, the district court scheduled a
hearing on Plaintiffs' motion for attorney fees for
July 23, 2002. Given that Defendants intended to offer
expert testimony at the July 23, 2002 court hearing, on
May 15, 2002, Defendants filed a declaration of James
Schratz in support of Defendants’ opposition to
Plaintiffs' motion for attorney fees and costs. On
June 7, 2002, Plaintiffs filed a statement requesting
an additional amount of $133,552.88 in attorney fees
and costs. After a June 17, 2002 telephone conference
between the district court and the parties, on June 27,
2002, the court entered an order requiring Defendants
-87a-
to pay Plaintiffs $223,991.92 as payment for interim
attorney fees. !
On June 27, 2002, Plaintiffs filed a
supplemental request for attorney fees through
May 31, 2002. On July 16, 2002, Plaintiffs filed a
corrected supplemental request for additional attorney
fees and costs. On July 16, 2002, Defendants' response
in opposition to Plaintiffs' supplemental request for
attorney fees and costs through May 31, 2002 was filed
with the district court. In their response, Defendants
objected to Plaintiffs' hourly rate because it exceeded
the maximum rate allowed under the PLRA, and
Defendants objected to being billed for unreasonable
attorney fees and costs. Jd. On July 12, 2002, and
July18, 2002, Plaintiffs filed reply bnefs in support of
their motion.
The district court held a hearing on Plaintiffs'
motion for attorney fees on July 23, 2002. The only
testimony offered at the July 23, 2002 was the
testimony of James Schratz, an expert witness called
by Defendants. In addition to the expert testimony of
Mr. Schratz, on July 29, 2002, Defendants' reply in
opposition to Plaintiffs’ motion for attorney fees was
filed with the district court. On August 19, 2002, the
district court issued an Order granting Plaintiffs’
motion for attorney fees and awarding Plaintiffs an
additional $570,167.35 in fees and costs beyond those
already paid pursuant to the district court's June 27,
1 As set forth in the attached June 17, 2002 letter, at
the time of Defendants' payment to Plaintiffs of
interim attorney fees, Defendants requested that
Plaintiffs put this money in an escrow account until
such time as the Supreme Court ruled on Defendants’
Petition for Writ of Certiorari. (See Exhibit 1)
*88a-
2002 Order requiring payment of interim attorney
fees.
Defendants' notice of appeal of the lower court's
orders was timely filed on August 28, 2002. On June
16, 2003, the United States Supreme Court issued its
unanimous decision reversing the lower courts’ orders
in this case. WBazetta v. Overton, 123 S.Ct. 2162
(20063). On October 24, 2003, the Sixth Circuit issued
an order remanding the appeal back to the district
court for the purpose of determining whether Plaintiffs
are the prevailing party in this case in hght of the
Supreme Court decision in Bazetta, supra.
Argument
Plaintiffs are not entitled to any attorney fees
and costs because they are not the prevailing
parties in this case.
The attorney fees at issue in this appeal are
governed by 42 U.S.C. § 1988, which provides that the
court, 1n its discretion, may allow the prevailing party
a reasonable attorney fee as‘part of costs. 42 U.S.C.
§ 1988(b). Exactly what constitutes a "prevailing
party" has been the subject of much discussion by the
courts over the years, including the United States
Supreme Court. In Hanrahan v. Hampton, 446 U.S.
754 (1980), the Supreme Court determined that the
phrase "prevailing party" was not intended to apply to
the situation where a party has prevailed initialiy on
some matters but has not established an entitic. it
to relief based on the merits of his/her claims. Jd. at
757-758.
Subsequently, in Aucke/shaus v. Sierra Club,
463 U.S. 680 (1983), the Supreme Court ruled that
because the claimants had not succeeded on the actual
-89a-
merits of their claim, they were not entitled to
attorney fees under the Clean Air Act.
While the foregoing treatments of fee-
shifting differ in many respects, they
reflect one consistent, established rule: a
successful party need not pay its
unsuccessful adversary's fees. The
uniform acceptance of this rule reflects, at
least in part, intuitive notions of fairness
to litigants. Put simply, ordinary
conceptions of just returns reject the idea
that a party who wrongly charges
someone with violations of the law should
be able to force that defendant to pay the
costs of the wholly unsuccessful suit
against it. L/d@. at 685.]
Although the Supreme Court specifically dealt with
the attorney fee provision of the Clean Air Act in
Ruckelshaus, supra, the Court also reviewed the other
federal fee-shifting provisions. In Ruckelshaus, supra,
the Court noted that the same requirement of
awarding attorney fees only to a party that has
prevailed on the merits of his/her claim is present in
the other federal fee shifting statutes as well,
including 42 U.S.C. § 1988. /d. at 684-685. See also
Commissioner, Immigration and Naturalization
Service, et. al v. Marie Lucie Jean, ct. al, 496 U.S.154
(1990), and Fiarman v. Western Publishing Company,
810 F.2d 85 (6th Cir. 1987).
With regard -to the _ fee-shifting provision
contained in 42 U.S.C. § 1988, the Supreme Court held
in Hewitt v. Helms, 482 U.S. 755 (1987), that a party
who litigates to judgment and loses on all his claims
cannot be a prevailing party for purposes of an award
of attorney fees.
-90a-
In order to be eligible for attorney fees
under § 1988, a litigant must be a
"prevailing party." Whatever the outer
boundaries of that term may be, Helms
does not fit within them. ... The most
that he obtained was an interlocutory
ruling that his complaint should not have
been dismissed for failure to state a
constitutional claim. That is not the stuff
of which legal victories are made. [/d. at
760.]
See. Rhodes v. Stewart, 488 U.S. 1 (1988). "The Court
of Appeals misapprehended our holding in Hewitt.
Although the plaintiff in Hewrtt had not won a
declaratory judgment, nothing in our. opinion
suggested that the entry of such a judgment in a
party's favor automatically renders that party
prevailing under § 1988." /d. at 3.
Recently, in Buckhannon v. Board and Care
Home, Inc., et. al. v. West Virginia Department of
Health and Human Services, et. al, 532 U.S. 598
(2001), the Supreme Court determined that even if a
plaintiff has achieved a desired result because the
litigation brought about a voluntary change in the
conduct of a defendant, the plaintiff is not a prevailing
party and, thus, not entitled to attorney fees. Thus,
the Supreme Court held that the "catalyst theory" is
not a permissible basis for an award to attorney fees.
A defendant's voluntary change in
conduct, although perhaps accomplishing
what the plaintiff sought to achieve by
the lawsuit, lacks the necessary judicial
imprimatur on the change. Our
precedents thus counsel against holding
that the term "prevailing party"
authorizes an award of attorney fees
-9la-
without a corresponding alteration in the
legal relationship of the parties. [/d. at
605.]
See also: Toms v. Taft, 338 F.3d 519 (6th Cir. 2003).
This Sixth Circuit has also addressed the
question of the meaning of the phrase "prevailing
party" as used in various federal fee-shifting
provisions. In Northcross v. Board of Education of
Memphis City Schools, 611 F.2d 624 (6th Cir. 1979),
the Sixth Circuit noted that the question as to whether
plaintiff has prevailed is a threshold determination
that the court must make before deciding the amount
of attorney fees to award to a successful plaintiff
pursuant to 42 U.S.C. § 1988. Id. at 636.
Subsequently, in Crabtree v. Collins, 900 F.2d 79 (6th
Cir. 1990), the Sixth Circuit reversed a district court's
order awarding attorney fees pursuant to 42 U.S.C.
§ 1988, on the basis that the plaintiffs claim was
nonfrivolous.
A plaintiff is a prevailing party within the
meaning of Section 1988 if the plaintiff
has succeeded on any significant issue in
the htigation which achieved some of the
benefits the parties sought in bringing
the suit. ... A prevailing party must
have resolved the dispute in a manner
that changes the legal relationship
between itself and the defendant.
This change in legal relationships may be
accomplished by obtaining some relief on
the merits through a favorable judgment,
or by obtaining a settlement. [/d. at 82.]
In Crabtree, supra, the plaintiff, a prisoner, had
obtained a court order requiring that he be examined
by a medical specialist; however, the court ultimately
-92a-
granted «efendant's motion to dismiss. After
reviewing the record on appeal, the Sixth Circ:it ruled
that although plaintiff prevailed on some initial
matters, he was not the prevailing party and, thus, not
entitled to any attorney fees and costs.
Five years later, in a case that dealt with a
fifteen-year-old civil rights employment dispute
between the City of Detroit and the NAACP, the Sixth
Circuit reversed the district court's award of attorney
fees on the basis that although plaintiffs had prevailed
on some interim orders, they were not prevailing
parties under 42 U.S.C. § 1988. NAACP, Detroit
Branch v. Detroit Police Officers Assn, 46 F.3d 528
(6th Cir. 1995).
Therefore, even assuming for the
sake of argument that the plaintiffs have
received ‘actual relief,’ any relief they
have received was not on the merits of
their underlying claim. Therefore, the
NAACP is not a prevailing party simply
because the laid off police officers
eventually returned to their jobs. ‘The
officers must have returned to their jobs
as a direct result of a court order that was
not subsequently reversed for error in
order to have received actual relef on the
merits of their claim. [/d. at 531.]
See also’ fPoutllon v. Little, 326 F.3d 713 (6% Cir.
2003) and Filarman v. Western Publishing Company,
810 F.2d 85 (6th Cir. 1987)
In addition to the Sixth Circuit, several other
circuit courts have also determined that just because
plaintiffs have prevailed on some interim matters, this
does not make them prevailing parties pursuant to 42
U.S.C. § 1988. See’ Krocka v. City of Chicago, 203
“Y3a°
F.3d 507, 518 (7th Cir. 2000) "Where a plaintiff has
‘obtained benefits to which we now know he was never
entitled,’ the granting of that relief does not provide
grounds for awarding attorney's fees." Foreman v.
Dallas County, 193 F.3d 314 (5th Cir. 1999); Palmer v.
City of Chicago, 806 F.2d 1316, 1320 (7th Cir. 1986)
"The plaintiffs, we now know, have lost this case; and
when a judgment on which an award of attorney's fees
to the prevailing party is based is reversed, the award,
of course, falls with it." Doe v. Bushee, 684 F.2d 1375,
1381 (11th Cir. 1982) “In view of the purpose behind
the Attorney's Fees Award Act, we conclude that
plaintiffs-appellees are not prevailing parties in this
htigation. Their successes were merely temporary,
and any benefit flowing from their successes in the
district court was awarded under a mistake of law."
In its August 20, 2002 Order granting Plaintiffs'
motion for attorney fees, this court relied on the fact
that the Sixth Circuit affirmed the district court's
ruling (Bazzetta v. McGinnis, 148 F. Supp. 813 (E.D.
Mich. 2001)) in favor of Plaintiffs as to all claims, as
the basis for ruling that Plaintiffs were the prevailing
parties under 42 U.S.C. § 1988. However, there is
absolutely no dispute that the Sixth Circuit’s decision
finding Defendants' visitation restrictions
unconstitutional, Bazzetta v. McGinnis, 286 F.3d 311
(6th Cir. 2002), was reversed in its entirety by a
unanimous ruling of the United States Supreme
Court. Overton v. Bazzetta, 123 S. Ct 2162 (2003).
Given that Defendants had already prevailed in the
first part of this case, Bazzetta v. McGinnis, 124 F.3d
774 (6th Cir. 1997), and Bazzetta v. McGinnis, 133
F.3d 382 (6th Cir. 1998), there is absolutely no aspect
of this case that has been determined in a manner
favorable to Plaintiffs. Therefore, given that Plaintiffs
have not prevailed on any part of this case, the August
19, 2002 Order granting Plaintiffs' motion for attorney
fees in the amount of $794,204.27, which includes the
-94a-
June 27, 2002 Order for interim attorney fees, must be
vacated as a matter of law pursuant to 42 U.S.C.
§ 1988.
Conclusion
WHEREFORE, for the above-stated reasons,
Defendants request that this Court vacate it's
August 19, 2002 Order granting Plaintiffs’ motion for
attorney fees in the amount of $794,204.27, which
includes the June 27, 2002 Order for interim attorney
fees, pursuant to 42 U.S.C. § 1988.
Respectfully submitted,
Michael A. Cox
Attorney Genera!
Leo H. Friedman
Assistant-in*Charge
Corrections Division
P.O. Box 30217
Lansing, MI 48909
(517) 335-7021
s/Lisa C. Ward
Lisa C. Ward (P38933)
Special Assistant Attorney
General
1300 N. Waverly, #1
Lansing, M] 48917
(517) 323-0300
Dated: December 18, 2003
Friedman/Bazzetta/1995052460A/Pids/Brf Prevailing Part
-95a
STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
WILLIAM J. RICHARDS a, P.O. Rox 30217
Deputy Avorary General LANSONG. MICHIGAN 48909
JENNIFER MULHERN CRANHOLM
ATTORNEY GENERAL
June 17, 2002
VIA FACSIMILE
AND U.S. MAIL
Deborah LaBelle
Attorney at Law
221 N. Main Street, Suite 300
Ann Arbor, Michigan 48104
Dear Ms. LaBclic:
Re: Bazzetta v. McGinnis
USDC-ED No. 95-CV-73540-DT
| am writing as a follow-up to the Court's discussion of June 13, 2002 regarding an
interim order of attorney fees and costs. Based on a review of Mr. Schratz's May 14, 2002
Declaration, Defendants are prepared to agree to the following:
1. Defendants will send the Court a check in the amount of $223,991.92, which
represents the attorney fees and costs that are not in dispute.
2. Defendants request that this money be placed in an escrow account by the
Court until such time as the United States Supreme Court has ruled on
Defendants’ Petition For Writ Of Certiorari.
Defendants submit that this proposal is the only way to insure that, in the event
Defendants prevail in their appeal to the Supreme Court, the taxpaycrs of the State of Michigan
are reimbursed for any attomcy fecs and costs wrongly paid to Plaintiffs. Please tect me know
immediately if this proposal is satisfactory to Plaintiffs.
Very truly yours,
Leo H. Fricdman
Asststast in Charge
Correchions Division
Lisa C, Ward
Special Assistant Attomey General
LCW/mz
c Hon. Nancy G. Edmunds
Friecmarv1995052460A/corr/La Belle 06/702 -
y DEFENDANT'S
EXHIBIT
2
96a"
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLE BAZZETTA, et al,
Plaintiffs,
v. CIVIL ACTION
NO. 95-73540
KENNETH MCGINNIS,
Director of Michigan
Department of Corrections, et al,
Detendants.
MOTION HEARING
BEFORE THE HONORABLE NANCY G. EDMUNDS
United States District Judge
226 Theodore Levin U.S. Courthouse
231 Lafayette Boulevard West
De*roit, Michigan
December 4. 2003
APPEARANCES:
MS. DEBORAH A. LABELLE, ESQ..,
MS. PATRICIA STREETER, ESQ
MR. MICHAEL BARNHART, ESQ
In behalf of Plaintiffs
MS. LISA WARD, ESQ.
In behalf of Defendants
Suzanne Jacques, CSR, RMR
Offi ial Court Reporter U.S. District Court
Phone I1.3°2.354-51585
97a
INDEX
Proceeding _ Page
Defendant's Motion for Summary Judgment
and to Enforce Compliance
Argument by Ms. Ward 3
Response by Ms. LaBelle 1]
Rebuttal by Ms. Ward 21
Defendant's Motion to Place Attorney Fees
in Escrow 23
-98a-
A particular application, not in _ the
regulation on its face.
Last sentence, "Those issues are not
presented in this case, which challenges the validity of
the restriction on noncontact visits in all instances."
They didn't say those issues aren't
presented in this appeal, they said in this case. They
saw the third amended complaint the way they do. The
fact of the matter is we do not have those findings of
fact to rely on for some sort of remedial plan, and we
take issue with that.
That's all I have. I'm available for any
questions.
THE COURT: All nght. Let's take up
the motion to place the attorney fees in escrow. Well,
let me short circuit that because I don't think I need
argument on that.
I think there is a fair question with
respect to whether the plaintiffs are entitled to be
considered a prevailing party, and I think you need to
brief that. You didn't really brief that. I don't think
you're entitled to an escrow. You didn't challenge that
270 some thousand dollars in the first instance, and
I'm not going to order them to escrow it now but I do
think it’s on the table, and if you want to: brief what
prevailing party means, that's fine with me.
MS. WARD: Your Honor, | would request,
then, that we have a tight briefing schedule and be
willing to have my brief on this subject in a week from
Friday, because my client wants to deal with this issue
as soon as possible, and I'm just giving you that for the
record.
-99a-
THE COURT: I knew money was
tight at the state, but I didn't know —
MS. WARD: It's tighter than you know.
THE COURT: -- that the 224,000
would be that big a deal.
I don't know, it's the holidays. Truthfully,
I'm not going to rule on this before the end of the year,
so if you want to get your brief in by a week from
Friday, that seems a httle tight to me.
MS. WARD: My chent's requested me to
make the request that we get the papers in front of the
judge in short order.
THE COURT: Okay. Short order
sounds fine. But how about by, just file your cross
motions, you don't need to file response and replies,
and I'jl ask you to file them by Friday, the 19th, not
the 12th. And then I won't need further argument on
it. I'll get something out to you within a couple of
weeks.
MS. WARD: We would appreciate that,
Your Honor and yes, for the record, money is very tight
at the state.
THE COURT: I know it is.
MS. LABELLE: Your Honor, and that
will include the fee, the entire fee blah that the Sixth
Circuit sent down for them to raise this argument?
THE COURT: Yes. The rest of it ['ll
take under advisement, and this is, it's really a fairly
complex and interesting question so —
-100a-
MS. WARD: My last question, Your
Honor, would the Court profit at all from additional
briefing on the ripeness issue? Because I'm more than
willing to do that, as well.
THE COURT: No.
(Proceedings Concluded 3:05 p.m.)
-101la-
CERTIFICATE OF COURT REPORTER
I certify that the foregoing is a correct transcript from
reported proceedings in the above-entitled matter.
s/Suzanne Jacques 2/26/04
SUZANNE JACQUES, CSR, RMR Date
Official Court Reporter
Eastern District of Michigan
-102a-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Bazetta, et. at.,
Plaintiffs, Case No. 95-73540
V. Honorable Nancy G.
Edmunds
McGinnis, et. al.,
Defendants.
/
OPINION AND ORDER (1) DENYING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; (2) GRANTING PLAINTIFFS’
MOTION TO ENFORCE COMPLIANCE; AND
(3) DENYING DEFENDANTS’ MOTION TO PLACE
ATTORNEY FEES IN ESCROW
This matter came before the Court on three
motions: (1) Defendants’ third motion for summary
judgment; (2) Plaintiffs’ motion to enforce compliance;
and (3) Defendants’ motion to place attorneys’ fees in
escrow. Defendants’ motion for summary judgment is
DENIED because the Supreme Court’s ruling in this
case did not overturn this Courts judgment as to
Plaintiffs procedural due process claim. Plaintiffs’
motion to enforce compliance is GRANTED.
Defendants’ motion to place attorneys’ fees 1n escrow Is
DENIED.
I. Factual and Procedural Background
These motions arise out of Plaintiffs’ objections
to the following Michigan Department of Corrections
-103a-
(MDOC) regulations governing non-contact prisoner
visitations:
(a) Mich. Admin. Code Rule § 791.6609(9),
defining what persons are in an inmate’s immediate
family;
(b) Mich. Admin. Code Rule § 791 .6609(2),
limiting the number of visitors for a prisoner to an
approved list often, not including immediate family
and requiring visitors and immediate family members
to be on a prisoner’s list of approved visitors;
(c) Mich. Admin. Code Rule 791 .6609(2)(b), (5),
and (6), restricting prisoner’s access to minors, in that
minors under the age of 18 are not permitted to visit
unless they are the child,’stepchild, or grandchild of
the prisoner accompanied by an adult immediate
family member or a legal guardian, and prohibiting a
child to visit an incar parent if the prisoner parent’s
rights have been ‘+ »minated:;
(d) Mich. Admin. Code Rule 791.6609(7),
prohibiting former prisoners from visiting unless they
are the immediate family of a prisoner or unless prior
approval for the visit is obtained from the warden of
the institution where the visit will occur;
(e) Mich. Admin Code Rule 791.6609(11),
permanently banning all visitation (other than
attorneys or clergy) for prisoners with two or more
major misconduct charges of controlled substance
violations.
On April 19, 2001, following a bench trial, this
Court granted judgment for Plaintiffs. Bazzetta v.
McGinnis, 148 F. Supp. 2d 813 (E.D. Mich. 2001). This
Court ruled that all of the contested regulations
violated the prisoners’ First Amendment rights. ‘This
-104a-
Court also held that the last rule, imposing a visitation
ban for prisoners with two controlled substance
violations, violated the Eight Amendment’s prohibition
against cruel and unusual punishment and the
Fourteenth Amendment’s procedural due _ process
requirements. On appeal, the Sixth Circuit affirmed
each of
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