# Petition for Writ of Certiorari — Caruso v. Bazzetta (No. 08-1213) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0347%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text wt howe a Tr CLEAR 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) ........ 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 Transmit Cont. Re: acts Telephone Nuwwer Node | Start Time |Pages , | ) é ‘17507697195 NORM 17,15:16 0'4a1" 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 Resul * OK lf ‘U2 Sth? t Note P.O, Box 30217 LANSING, MORGAN 48908 STTyV CO TO 7-3359-71S7 RITY GN COR ax :51?7-355-7157 -70a 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 TAVOICE liga IKYOICE OATE THVOICE DESCRIPTION REF, OOC. CUREERT Coc, JMQUET 488 = 2 :DEPT «OF CORR-FISC MENT (517)373- 3409 95-CY-73546-0T M.SAZZETTA ¥ K. MCGINMIS,ET AL W204 4 102, 154.68 WARRANT AMOUNT 5 102,154.68 DETACH HERE - RETAIN STUB FOR YOUR RECORDS - DETACH HERE JOHN ENGLER, COVERNOR 000 214582393 eS “fete STATE-OF MICHIGAN 2.2585 oe ele Ae igs ~ wt ree wt) af int ** d26708!." ¥. j e 4 , At wwe Mei -* hal f 4: A J ONE KUKD TWO THOUS ONE KURD FIFTY- FOUR & 68/100 * eRe ee eeDOLLARS $*4*102 154.68 006788 is DEBORAK LABELLE 221 K. MAIH ST STE 300 AKK ARBOR MI 48106 PORTION pc, SPAY. (U Ome ‘ ’ ‘ a is BEFORE fx, Rio PCS = {Ge E nae HE K o Be aes abe wh CASHING THE TAD.CCLO® ARLE GF THs OOCUMENT CHANSES FONE GRaSUEltY FROM LICHT 10 Dank 62245823938 8072400706 OOO F.-- t=. FRE RACK OF -Ti ole what Olle: BEST AVAILABLE COPY STATE OF MICHIGAA” 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 ( -Vhe- | 000 214se239 |: 006790 PAQE , OF 1 STATE OF MICHIGAN REMITTANCE ADVICE INVOICE NUMBER THYOICE DATE —-BEYOICE DESCRIPTION AIT. COC, — CURNENT Ox, cui 458° 472 ODT OF ComR-FISC MaNT (517)379-3000 85 -CY-73540-91 M.BATZETTA ¥ XK. MCGLERTS, EF AL YP200843 4 63,173.11 WARRANT AHOUNT $ 63,173.11 - we! : = co : SU AHERASTABLS iow > SUGREGOSLE FENETL iad “3 te a othr tn® = ag . aes 78 a ~" = . t Dies (SHHEGOTAELS YWOR-REGU~ ASL BE AT DETACH HERE - RETAIN STUB FOR YOUR RECORDS -DETACH HERE : iy $4. See ' oC eur as JOHN ENGLER, GOVERNOR 000 214582395 8; ae SRS eee =a OF MICHIGAN SO Sa Mary PLEASE eT Fie aE n>~ 5% wp EP AG CY nyt HY ita '- vs nani 020708} +4735 RES 3 Vis 14.70 - fectereetto.s' Ny itt res Seman! Yea) 2 1 ) Wei ca “J | toysig ae te gts S . ror . * eb REMOVE : SIM THRE “THOUS ONE “BOND SEVENTY. “THREE & ‘11/100 008 44+ DOLLARS sae grenegs. 173. Te 006790 TH IS H HICHAEL BARAHART ‘ 615 GRISWOLD ST STE 925 : DETROIT MI 48226 PORTION . BEFORE P tum ThE PHO COLOR abla ce ted COURS? Curve’s TONE CRACUaLEY FROM LiCHT on CASHING es b4S8 23995" iF 072400706. 000% it. >. BACK © HIS HOs ; Db : TATIEICIAL : AM BOE AY Ah) Ad ok) SV eee STATE OF MICH: RRA - 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 | 006789 OF 3 STATE OF MICHIGAN REMITTANCE ADVICE INVOICE SOMBER TNYOICE DATE =: EEYOICE DESCRIPTION REF, DOC. CURIENT Ooc. 488 «472 DEPT OF CORR-FISC MRKT (517}379-3800 95-CY-73540-DT W.BAYIETTA ¥ K.MCOINEIS, EF AL vP208641 $ WARRANT AMOUNT $ 38,750.34 7, °* SF WA APC p: EE a oP aenthw bess v AF 2. EOC WNP SST eT, AS x -FEGOT EELS DETACH HERE - RETAIN STUB FOR YOUR RECORDS -DETACH HERE. Heya urse JOHN ENGLER, GOVERNOR 000 214582394 ; RCE eemeeacraes st St ; | Eee eae } rs oy ia . a “area * “ws wp iettak 12°. gee Mae ees Se ee ete eas hots Vist Pt te ae ie iets Fd > rate wee le Stas ISSUE AB "3; ees ah i WETADCOLCRUCES COIN GOCUSEN! etm aie J 10 ea PLEASE wtwr™ 4 . J REMOVE THIRTY: EYGA ruovs, SEVEN HUND FIFTY r 34/100 woe bbe bee eepOLLARS $*94038 750. 34 | 006789 THIS = PATRICIA STREETER 221 M. WAIN ST STE 300 : : Be tai 7 AXK ARBOR MI 46104 i nee Oo o> > oo whale ia ’ Ci Heh * x ith ¥y YES et SFE | OR el. a PORTIUK 7 rt BEFORE Aya, hw CASHING M2 LUSH 23GU" 07 24007081. BEST AVAILABLE COPY STATE OF MICHIGAY a ~ DEPARTMENT OF ATTORNEY GENERAL 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 000 2145824 006791 PAGE 1 OF 4 STATE OF MICHIGAN REMITTANCE ADVICE [EYOLCE OMG ER LHTOICE ATE —-1EVOICE DESCRIP TIOA REF. OOC. GMRRENT OC, AUNT ABB 472 “DEPT OF COMR-FISC MONT (517)973-3800 4 95 -CV-79540-07 W.SAZZETTA V KO EMIS, ET AL Wr209 344 $ 95,562.76 SMARRANT AMOUNT $ 35,$82.70 0 wg Oren aw FO A es a? Aer ae G 2 CAI Es Ee see OR Re Seas Fakes ~ ° . a." s . Sereeer" Se “. BES Cer Sh t Noon WS HESSOTASLE DETACH HERE - RETAIN STUB FOR YOUR RECORDS - DETACH HERE JOHN ENGLER, GOVE RNOR 000 214582402 -see- 4° PLEASE ie Weta ys EY padroa yy) Vb 124 73 REMOVE THIRTY-FIVE TROUS FIVE KUXO EIGATY-TKO & 70/100 **#8##46*DOL LARS 006793 BARBARA LEVIKE PO BOX 429 GRAND LEOGE MI 48837 THIS PORTION BEFORE SU tes OC CUMENT CHANGES TENE CREDEALLY FAY UcMt To Dare wand tir tao.covek ces CASHING @b4 58 240 cm 1807 24007060: O00" ‘ ® 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 these conclusions. On May 16, 2002, this Court issued an Order of Compliance directing the MDOC to comply with the terms of the Court’s judgment, and _ specifically enjoined the MDOC from enforcing Rule 791.6609(2) or any rule, policy, or procedure which bans, restricts, prevents or limits visitation based on prior or future misconducts for controlled substance violations. Following this Courts entry of judgment in favor of Plaintiffs, Plaintiffs moved for attorneys’ fees as provided by statute. This Court granted Plaintiffs’ motion after the Sixth Circuit affirmed the judgment. The Court granted the motion in two orders: an interim order dated June 27, 2002, which awarded $224,036.92 interim attorney fees, and an order dated August 19, 2002, which awarded the remaining $570,167.35 of requested fees, for a _ total of $794,204.27. Defendants paid Plaintiffs’ attorneys the interim attorney fees, but posted a bond pending appeal of the second award. The Supreme Court yvranted Defendants’ petition for certiorari, limited to the following three questions: 1. Whether prisoners have a right to non- contact visitation protected by the First and Fourteenth Amendments. 2. Whether the restrictions on non contact prison visitation imposed by the -105a- Michigan Department of Corrections are reasonably related to legitimate penological interests. 3. Whether the restrictions on non: contact prison visitation imposed by the Michigan Department of Corrections constitute cruel and unusual punishment in violation of the Eighth Amendment. Overton v. Bazzctta, 123 S. Ct. 658 (2002). The Supreme Court reversed the Sixth Circuit, ruling that none of the regulations facially violated the prisoners’ First Amendment rights, and that the controlled substance violations did not facially violate the prisoners’ Eighth Amendment rights. Overton v. Bazzetta, 123 S. Ct. 2162(2003). The Court neither granted certiorari nor actually decided whether the controlled substance regulations violated’ the prisoners’ procedural due process rights. On August 28, 2003, the Sixth Circuit issued an Order Vacating and Remanding, stating: 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 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 his case, the previous judgment of this Court is -106a- vacated and the case remanded to the District Court for further consideration in light of the Supreme Court opinion. In light of the Supreme Court’s ruling, Defendants moved for the Sixth Circuit to reverse the May 16, 2002 Order of Compliance, but the Sixth Circuit denied their motion so that this Court could consider the validity of the order in the first instance. Il. Analysis A. Defendants’ Third Motion for Summary Judgment Defendants move for summary judgment on Plaintiffs’ procedural due process claims because (1) the Supreme Court implicitly rejected Plaintiffs’ procedural due process argument, or in the alternative (2) Plaintiffs’ procedural due process claim is moot. The Supreme Court did not rule on Plaintiffs’ due process argument, even though both this Court and the Sixth Circuit held that the permanent ban on visitation in response to two _ substance abuse violations violated prisoners’ procedural due process rights. In fact, the Supreme Court did not grant its writ of certiorari on the due process issue, but instead the only questions before the Court were the First Amendment and Eighth Amendment issues. Therefore, this Court’s decision that the regulation violates the prisoners’ procedural due process rights is still vahd. Defendants also argue that this Court lacks subject matter jurisdiction over Plaintiffs’ due process claims because this Court’s May 16, 2002 Order of Compliance enjoined Defendants from enforcing the contested regulation or “any rule, policy or procedure -107a- which bans, restricts, prevents or limits visitation based on prior or future misconducts for substance abuse.” The MDOC removed all inmates from the visitation restriction list on May 17, 2002. After the Supreme Court’s decision, the Department of Corrections reinstated the restriction on visitation based on two substance abuse violations. Defendants conclude that Plaintiffs’ claims for injunctive and declaratory relief based on procedural due process violations became moot as of May 17, 2002. Defendants’ temporary lifting of the regulation in comphance with this Court’s Order and their subsequent reinstatement of it does not render this controversy moot. The Supreme Court has held that: it is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ‘{I]f it did, the courts would be compelled to leave ‘[t]he defendant. . free to return to his old ways.’ In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: ‘A case might become moot if subsequent events made it absolutely clear that the _ allegedly wrongful behavior could not reasonably be expected to recur.’ Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 708 (2000) Ginternal citations omitted). More specifically, when an official agency removes an offending policy under court order pending -108a- an appeal of the lower court’s order, the case is not mooted. Temporary compliance with a_ decree pending appeal, for example, clearly should not moot a case, unless other circumstances show that official policies really have changed. It 1s equally easy to deny mootness if officials who have changed their practices warn that former practices may be resumed at any time, or if officials who have not changed their practices simply argue that they may change some day in the future. 13A Charles Allen Wright et al., Federal Practice and Procedure § 3533.7 (2d ed. 1984). See also Ammex v. Cox, F.3d —, No.01-2392 (6th Cir. December 3, 2003) (refusing to find that a withdrawn official action mooted the case). Therefore, Plaintiffs’ procedural due process claims regarding the ban on visitation after two substance abuse violations are not moot. In a case decided on December 3, 2003, the Sixth Circuit held that the Michigan Attorney General’s withdrawal of a notice of intent to enforce a statute against the plaintiff did not moot the case, but that the case was no longer ripe. Ammex v. Cox, ¥.3d —, No. 01-2392 (6t» Cir. December 3, 2003). The Court stated: “Where, as in this case, the statute at issue has not. been enforced against Ammex, and indeed where a notice of intent to enforce has been explicitly withdrawn, the ripeness’ doctrine’ provides. the appropriate analysis for determining whether this case should be heard at this time.” Jd. Even though neither party frames the issue as one of ripeness, Ammex indicates that it may be the most appropnate framework to analyze this issue. 109a A court should weigh three factors to determine if an issue is ripe for adjudication: Id. One aspect of the “judicial fitness of the issues’ is the extent to which the legal analysis would benefit from having a concrete factual context. The second aspect of the “judicial fitness of the issues” is the extent to which the enforcement authority’s legal position is subject to change before enforcement. The third consideration deals with the “hardship to the parties of withholding court consideration.” In Ammex, the Sixth Circuit held that all three factors weighed against ripeness. First, the court found that factual development would enhance the court’s review of the constitutionality of the challenged statutory scheme. Ammex is not challenging a specific rule or finding of the Michigan Attorney General, but rather the — general applicability of a statutory scheme to its conduct. Analysis of any preemption or Commerce Clause issue would benefit from knowledge of just what was forbidden by the MCPA, and what the effects of the state’s regulation would be on the policies underlying the Interstate and Foreign Commerce Clauses and the federal statutes relied upon by Ammex. Second, the court found that there was a strong possibility that the agency would change its position, especially since it withdrew its notice of enforcement. -110a Third, the court did not find the hardship to the plaintiff in waiting was strong enough to outweigh the other two factors where there was no threat of criminal hability or huge immediate expense in temporary complying with the challenged statute. Applying these three factors to the present case, Court concludes that this issue ts ripe. First, there 1s no factual development needed to discover how the regulation will be implemented, since there was a full evidentiary hearing which established how it was implemented in the past. Second, there is no indication that the MDOC will change its position regarding the enforcement of the regulation, third, hardship to the prisoners to wait: until thei visitation rights are revoked is great: after the revocation, they will not be permitted any visitors until the parties meander through the legal process. The Court therefore denies Defendants’ motion for summary judgment. B. Plaintiffs’ Motion to Enforce Compliance On August 26, 2003, Defendants issued Director’s Office Memorandum 2003-1 4, which, among other things, reinstated the permanent restrictions for substance abuse violations, stating: The Supreme Court decision also allows the, Department to again restrict visits for substance abuse misconducts, even if the misconduct is unrelated to a visit. Therefore, in accordance with Paragraph IEE of PD 05.03.140, a prisoner who is found guilty of the major misconduct violation of “Substance Abuse” for behavior which occurs on or after August 277, 2003 shall have his/her visits limited to non-contact for 30 days. In addition, Wardens shall recommend to the Director -llla- that the visits of a _ prisoner’ be permanently restmcted in accordance with Paragraphs BBB through EEE of PD 05.03.140 if the prisoner has been found guilty of two or more major misconduct violations of “Substance Abuse” which do not arise from the same _ incidence Although the Supreme Court decision allows the Department to reinstate restrictions removed due to he lower courts’ rulings, it has been decided that the restrictions will aQi be reinstated: however, recommendations shall be made to permanently restrict a prisoner’s visits if his/her second or _ subsequent misconduct is based on behavior that occurs on or after September 1, 2003, regardless of when the first misconduct occurred. (Attached as Supp. to Def. Third Mot. for Summ. J.) This new DOM requires wardens to recommend a restriction regardless of when the first misconduct occurred. The original rules required both misconducts to have occurred after the rule’s effective date. This change creates problems with notice because the first misconduct could have occurred before the rule was imposed, and problems with fairness because there can be years between the first and second substance abuse misconducts. The new DOM also prohibits imposition of a second violation arising from the same _ incident. Plaintiffs argue that this new provision does not adequately address the Court’s concern that the ban may be imposed for two incidents which were only hours apart and part of the same “pattern of behavior,” -112a- because it is unclear how the MDOC defines “same incident.” On October 21, 2003, (after these motions were filed) Defendants issued DOM 2003- 15, which further modifies the rule imposing visitation restrictions for substance abuse violations. (Attached as P1. Reply to Def. Resp. in Opp. to P1. Mot. to Enforce Compliance, Ex. 1.) Plaintiffs claim that the new procedures fail to correct the significant procedural problems associated with the implementation of the permanent ban on visitations 1n the following ways: (1) The policy still provides that the warden is to submit the recommendation to impose a permanent ban to the regional prison administrator who, in turn, forwards a recommendation to the deputy director. If the deputy director agrees that the restriction is warranted the recommendation shall be submitted to the director for a final determination. There are no criteria or time limits for the passing on any of the recommendations. (2) There are no written criteria to guide the directors decision whether or not to impose the restriction. (3) There is no hearing procedure for a prisoner to challenge the imposition of the ban, and there is no appeal procedure. (4) DOM 2003-15 prohibits a warden from submitting a recommendation for removal of the restriction if a prisoner has a subsequent substance abuse misconduct or a non bondable misconduct. Thus, the new rule even further hmits a warden’s discretion. The warden has the discretion not to recommend removal of the restriction for any other reason, and there are not written standards which establish a -113a- basis on which a prisoner can rely to ensure reinstatement. (5) The new procedure requires that a warden make a _ recommendation for permanent restriction no more than fourteen days after the second or subsequent substance abuse misconduct guilty finding. Plaintiffs contend that this does not adequately resolve the problem of excessive time between a guilty finding and the imposition of the restrictions because there are no consequences should the warden fail to make the recommendation within fourteen days. There are also no time limits for when the recommendation, which ‘s sent by the warden to the Regional Prison Administrator, must be forwardea from the RPA to the Deputy Director or when the Deputy Director must forward it to the Director and/or when the actual decision must be made by the Director. This Court previously held that the rule deprived prisoners of their procedural due process rights by the “inconsistency and uncertainty of enforcement, the absence of any _ criteria for reinstatement, and the failure to provide any opportunity to be heard.” 148 F. Supp. 2d at 858. Plaintiffs request the following procedural mechanisms be required to address the Court’s procedural due process concerns: (1) Written substantive criteria for imposing and lifting permanent visiting restricticns that are relevant to the stated purposed of reducing substance abuse; (2) A clear decision-making process that identifies the official who is actually responsible for making final decisions and insuring the restrictions are applied fairly and consistently; -]14a- (3) Time limits on the age of the misconducts that can be used to support a restriction; (4) Limits on the time that can elapse between the second guilty finding and imposition of the restriction; (5) Restricting imposition of visitation ban while underlying misconducts are being challenged through the appeal process; (6) A hearing process before imposition of a permanent restriction to ensure that all criteria are met and no extenuating circumstances exist that warrant waiving the restriction or reducing its severity (e.g. by shortening its length, limiting it to non-contact visits, or limiting it to non-immediate family members), as occurs for individual visitor restrictions pursuant to PD 05.03.140, subsections OO- AAA; (7) Adequate notice to the prisoner class before any misconduct findings can be used; and (8) An appeal mechanism for the imposition of a permanent ban on visitation. Plaintiffs also request that another rule be modified to comply with Overton v. Bazzetta. The rule limiting who can bring a child to visit an incarcerated parent states that a child must “be accompaed by an adult immediate family member or legal guardian” without indicating whether the adult must be an immediate family member of the child or the prisoner. The Supreme Court expressly interpreted the rule to permit visits if the child is “accompanied by an adult who is an immediate family member of the child or the inmate.” -115a- To ensure that the rules are not in fact inconsistent with the Supreme Court’s findings, Plaintiffs request this Court to order Defendants to amend subsection KK of PD 05.03.140 to specify that eligible minor children may be accompanied by an adult who is an immediate family member of either the child or the prisoner. Defendants contend that Overton v. Bazzetta rendered this Court’s judgment unenforceable and that the Sixth Circuit recognized in its Order Vacating and Remanding and its October 24, 2003 Order (denying Defendants’ motion to vacate this Court’s order of compliance) that this Court’s findings of fact and conclusions of law are no longer valid, and therefore cannot be enforced. Those Sixth Circuit orders, however, did not vacate this Court’s judgment for Plaintiffs or otherwise render it invalid. Rather, the Sixth Circuit remanded the case to this Court “for further consideration in light of the Supreme Court opinion.” (Order Vacating and Remanding at 2.) The Court therefore grants Plaintiffs’ motion to enforce compliance and orders a conference with counsel on January 13, 2004 at 3:00 to discuss implementation of specific provisions. C. Defendants’ Motion to Place Attorney Fees in Escrow On June 27, 2002, this Court ordered Defendants to pay Plaintiffs’ “undisputed” interim attorney fees and costs. Defendants did not seek any rehearing of this order nor did they appeal it. It is the money paid pursuant to this order that Defendants move to place in escrow. On August 19, 2002, this Court granted Plaintiffs’ Motion for Attorney Fees, awarding $570,167.35 in additional fees. Defendants appealed this second Order, and filed a supersedeas bond for $570,167.35 pending appeal. Following the -116a- Supreme Court’s decision, the Sixth Circuit remanded the appeal to this Court “for further consideration in light of the Supreme Court’s opinion in Overton v. Bazzctta, 123 5. Ct. 2162 (2003).” Defendants argued in their briefs that Plaintiffs are not the prevailing parties, and that the attorney fees awarded to them should be placed in escrow pending final disposition of this matter. 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.” /d. 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278 (15 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. Vexas State Teachers Ass'n Vv. Garland Indep. Sch. Dist, 489 U.S. 782, 791-92 (1989). As the Supreme Court explained, “[tlhe 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.” ld. at 798. Based on this standard, it is apparent that Plaintiffs remain a prevailing party. They have prevailed on a number of significant issues including the procedural due process violation, their request for injunctive relief, expanded visits for minor children, and recognition of constitutional hmits on prisoner visiting restrictions. Given the decision by the Supreme Court, however, it seems that there should be -117a- some further consideration of the reasonableness of the attorney fees previously awarded. This issue must be briefed before the Court can rule. With respect to the issue of escrow, the Court finds such a request to be untimely and unnecessary. Defense counsel missed their opportunity to request that the funds be put in escrow at the outset, and have cited no legal authority to support their argument that nearly eighteen months after money has been paid, the Court can order it into escrow. The Court orders briefing on the issue of whether the amount of attorneys’ fees should be reduced since Defendants prevailed at the Supreme Court on most of the issues except the procedural due process issue). In reconsidering the attorneys’ fees, the Court will consider the entire amount of awarded fees, $794,204.27, not just the limited amount awarded in the August 19, 2002 appealed order.'! The Court denies Defendants’ motion for escrow. 1Plaintiffs contend that the interim fees paid pursuant to this Court’s June 27, 2002 Order cannot now be placed in escrow as those fees were undisputed, Defendants never appealed that Order and that Order is not pending before this Court. Even so, the reasoning sup the interim fee award was included in Defendants’ appeal of the Court’s August 19, 2002 Order Granting Plaintiffs’ Motion for Attorneys’ Fees. That Order granted Plaintiffs’ request only as to the total amount requested, $794,204.27, less the amount of the interim award of $224,036.92, which equaled $570,167.35. The Court awarded Plaintiffs the requested $570,167.35. Thus, Plaintiffs are correct that by appealing the August 19, 2002 award of $570,167.35, Defendants did not appeal the interim award of $224,036.92 since that award was not addressed in the Court’s August 19, 2002 Order. But to Il. Conclusion For the reasons stated above, the Court (1) denies Defendants’ motion for summary judgment; (2) grants Plaintiffs’ motion to enforce compliance; and (3) denies Defendants’ motion to place attorney fees in escrow. The Court orders that counsel appear for a conference on January 13, 2004 at 3:00 to discuss implementation of the Court’s prior orders and orders cross briefing on the issue of attormey fees by January 16, 2004. s/Nancy Edmunds | Nancy G. Edmunds U.S. District Judge Dated: deny any reconsideration of the inter:m award of attorneys’ fees seems overly formalistic. -119a- 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, Plaintiffs, Case No. 95-73540 Hon. Nancy G. Edmunds KENNETH McGINNIS, DIRECTOR OF MICHIGAN DEPARTMENT OF CORRECTIONS; MICHIGAN DEPARTMENT OF CORRECTIONS, Defendants. Deborah LaBelle (P31595) Lisa C. Ward Patricia Streeter (P30022) Co-Counsel for Defendants Michael Barnhart (P10467) 1300 N. Waverly Co-Counsel for Plaintiffs Suite 1 221 N. Main, Suite 300 Lansing, MI 48917 Ann Arbor, MI 48104 (517) 323-0300 (734) 222-0088 (734) 213-3703 Leo H. Friedman Co-Counsel for Defendants P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 -120a- DEFENDANTS' SECOND MOTION TO PLACE ATTORNEY FEES IN ESCROW AND BRIEF IN SUPPORT Defendants, 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 and costs 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. 7. 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 interim 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 ruled on Defendants' Petition for Writ of Certiorari. (See Attachment 1.) z. After Defendants' June 17, 2002 request for an escrow account was ignored, on July 8, 2002, 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 amount of $570,167.35. Defendants timely filed a notice of appeal regarding the Court's August 19, 2002 order on August 28, 2002. -12la- 3. As this Court is already aware, on October 24, 2003, the United States Court of Appeals for the Sixth Circuit issued an Order remanding Defendants' appeal of this Court's August 19, 2002 Order,Granting Plaintiffs' Motion for Attorney Fees for further consideration of the prevailing party issue in light of the Supreme Court's unanimous reversal of the lower court orders in Overton v Bazzetta, 123 S Ct 2162 (2003). On October 31, 2003, Defendants filed a motion requesting that this Court order Plaintiffs to place all attorney fees and costs paid by Defendants pursuant to this Court's prior orders, with interest, in an escrow account until such time as the Court has resolved the prevailing party issue. Defendants' motion was denied by this Court on December 28, 2003. However, on January 21, 2005, this Court granted Defendants' motion to hold all attorney fees in abeyance. 4. Subsequently, on November 28 2005, the Sixth Circuit issued an Amended Opinion and an Amended Judgment, wherein the Court determined that Plaintiffs' procedural due process claim was foreclosed by the Supreme Court's decision in Overton, supra, and it reversed and remanded this case for further proceedings. Thus, after ten long years, Defendants have prevailed with regard to every single claim at issue in Plaintiffs’ Third Amended Complaint. Given that Plaintiffs are not the prevailing parties in this case on any issue, they are no longer entitled to attorney fees pursuant to 42 USC 1988. Therefore, Defendants request that any money paid to Plaintiffs pursuant to this Court's June 27, 2002 order, including interest, be placed in an escrow account until such time as this Court has resolved the prevailing party issue. WHEREFORE, for the above-stated reasons, Defendants hereby request that this Court enter an -122a- order requiring Plaintiffs to place all attorney fees and costs 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. Dated: January 6, 2006 Respectfully submitted, Michael A. Cox Attorney General s/Leo H. Friedman Assistant Attorney General Co-Counsel for Defendants Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 friedmanl@michigan.gov (P26319) Lisa C. Ward (P38933) Special Assistant Attorney General Co-Counsel for Defendants 1300 North Waverly, Suite 1 Lansing, MI 48917 (517) 323-0300 Friedman/Bazzetta/1995052460A/Pldgs/Mot Atty Fees Escrow2 CERTIFICATE OF SERVICE: I certify that on January 6, 2006, I electronically filed Defendants' Second Motion to Place Attorney Fees in Escrow and Brief in Support with the Clerk of the Court using the ECF system. Counsel for Plaintiffs are served electronically via the ECF System. s/ Leo H. Friedman (P26319) Assistant Attorney General PO Box 30217 Lansing, MI 48909 Phone: (517) 335-7021 Email: friiedmanl@michigan.gov ee ATTACHMENTS TO DEFENDANTS' SECOND MOTION TO PLACE ATTORNEY FEES IN ESCROW AND BRIEF IN SUPPORT June 17, 2002 letter to Deborah LaBelle from Defendants’ counsel requesting an escrow account be set up for attorney fees and costs and the Court's June 27, 2002 Order for Payment of Intenm Attorney Fees July 8, 2002 letters to Plaintiffs’ counsel enclosing checks pursuant to the Court's June 27, 2002 Order. “124a STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL P.O. Box 30217 WiLtuIAM J. RICHARDS LANSING. MICHIGAN 48909 Dc purr Anoracy Gtaaral JENNIFER MULHERN GRANHOLM ATTORNEY GENERAL June 17, 2002 VIA FACSIMILE AND U.S. MALL Deborah Labelle Attorney at Law 221 N. Main Street, Suite 300 Ann Arbor, Michigan 48104 Dear Ms. LaBelle Re: Bazzetia 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 attomey 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 Certioran 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. Very truly yours, Leo H. Fnedman Assistant in Charge Corrections Division Lisa C. Ward Special Assistant Attomey General LCW/mz C Hon. Nancy G. Edmunds F ciedionar 1995052460 A ‘cord a Bciic 065702 JHathmest PUD ereree, ATTY GEN CORR “7 {S) ¢-335-7157 -125a° KK Transmit Conf. Report ** P. I Jun 17 'O? 25:1? Start Time |Pages{ Result Note — Telephone Number 17,15:16 | O°41° 2; * 0K 9-/17347692196 STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL Wruam J. Ricnarps P.O. Box 30217 Ovnuty Afiamey Gonera! LANSING, Nicraaan 48908 JENNIFER MULHERN GRANHOLA ATIORAGY Gamal FAX COVER SHEET DATE: June 17, 2002 TO: Deborah LaBelle Attorney at Law ‘FAX NO (734) 769-2196 FROM: Lisa C, Ward Special Assistant Attorney 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 D0. LaBelle from {.. Ward. Osiginal will follow via U.S. Mall. AITY GEN CIRR :517-335-7157 -126a- 4 Transmit Conf.Report ** P 4 Jun 1? "02 15:18 Telephone Number | Mod Start Time |Paces} Result me 9-/13132345393 | MORMAL | ivisc:iz oa] 2txoK | y a 2 Lene Z STATE OF NICHIGAN OEPARTMENT OF ATTORNEY GENERAL P.O. Box 30217 Wauau J. AiCHARDS aecnianiin Ganers Lansna@ McnGan 46909 JENNIFER MULHERN GRANHOLIA ATTURAEY GENER FAX COVER SHEET. DATE: June 17, 2002 TO: Honorable Nancy G. Edmunds U.S: District Court foc the Eastern District of Michigan FAX NO: (313) 234-5393 FROM Lisa C. Ward Special Assistant Attorney General Corrections Division QUA PHONE: (517) 335-7021 QUA FAX: (517) 335-7157 No. of pages, including cover page: 2 : pag Bazzetta v. McGinnis, et al USDC Docket No: 95-cv-73540-D1 -D mM COMMENTS: Letter dated 6/17/02 to D. LaBelle from L. Ward. Original will follow »1!1CS Adal -1Z ia RNEY Gry). VORRECT, 0 GE NER ; L UNITED STATES DISTRICT COURT IL 9 2 09 ” BASTERN DISTRICT OF MICHIGAN, Q2 SOUTHERN DIVISION SSIGNED to MICHELLE BAZZETTA, et al., | won Honorable Nancy G. Edmunds Plaintiffs, Case No: 95-CV-73540-DT Vs ; _ e ‘S) 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 [S HEREBY ORDERED that, pending resolution of Plaintiffs’ petition for attorney fees and costs, Defendants’ shall make payment of those attomey fees and costs that are not in dispute; [Tt 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 casc: To Deborah LaBelle: $95,475.74 To Patricia Streeter: $36,216.80 To Michael Bamhart: $59,043.38 To BarbaraLevine $33,256.00 IT IS SO ORDERED this day of , 2002. , m= a tee NS ANG 1a, Boosie ; ‘| — ne United States District Court Judge t - be ri ke me > hn ere es rey >* *2 4 SHeHEGORAZELE SPHERES AELS “ORME NST ir ole DETACH HERE - RETAIN STUB FOR YOUR RECORDS - DETACH HERE JOHN ENGLER, GOVERNOR 600 214582395 Arey SEER ae nd +h eeora8 SRE a : eae ica) Caetn BI OO Waede Ace “hf te. e a 22M oa eee ae ru cs say ek we aee S- : suxY- TAREE “Twous ONE HOHO SEVENY-THREE & 11/100 wonuee opOLL ARS 006790 MICHAEL BARNHART 61S GRISWOLD ST STE 925 we: DETROIT HI 48226 ae 7 UE it" dt Ha D.CC. OW LES EOE Te:S SCCUMENT CHAYCTS TONE GRAC ati tio Licker to 08 264582395" 80724007061 O00 PLEASE REMOVE THIS PORTION BEFORE CASHING - 9 a - STATE OF micncan 33 DEPARTMENT OF ATTORNEY GENERAL WItuAM J, Richagos Depaty Atomey Geacral JENNIFER MULHERN GRANHOLM ATTORNEY GENERAL July 8, 2002 Patricia A. Streeter Attorney at Law 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 Dear Ms. Streeter: Re: Sazzetta v. McGinnis USDC-ED No. 95-CV-73540-DT P.O. Box 30247 LANSING, MictaiGAn 48909 Enclosed pursuant to the Court's Order of June 27, 2002, is a check for attomey fees in the amount of $38,750.34. Very truly yours, Mark Mati) (KS Mark W. Matus Assistant Attomey General Corrections Division MWM:kjs Enclosure Friedman/ 199505 2460A/conLtr Strerier 070802 "134a- 000 214582394 006789 PAGE 1 OF «1 STATE OF MICHIGAN REMITTANCE ADVICE INVOICE sUMSER TEVOLCE CATE =: IEYOLCE DESCRIPTION AEF, OX. CURRET OX. MOT 458 «472 OPT OF CORR-FISC MGMT (517) 573-3600 95-CY-73540-0T K.GATRETIA V KMCRIRMES,ET AL ¥?10083) t 38,750.34 WARRANT AMOUNT $ 38,750.34 Ts e-ACAGYKMELS Se HES AES MiSs SETA DETACH HERE - RETAIN STUB FOR YOUR RECORDS - DETACH HERE - Teoeurae JOHM ENGLER, GOVERNOR 000 214582394 pfieroe eRe as wig SS aa STATE: OF: MICHIGAN. tang Boas = RE *, m2 Fis, § ¢ #3 ne i! ub Pare rv, Te 4 ‘deroens eek Get 1 ua) if sia y ny Seal ot v2, nar ne syreptra THIRTY-E1GHT THOUS SEVEN HUKO HY 44/100 cseeg ha 046 eDOLLARS geneegg, 750.34 006789 PATRICIA STREETER 221 NX. HAIN ST STE 300 AKN ARBOR KI 46104 Nae geist Cte SA2AITLH HO?2LOO7OE! OOO Ted COLCRLEEA CE THs DOCUMENT CHANGES TORE CREDUALLY.FROW LIGHT TO DANY PLEASE REMOVE THIS PORTION BEFORE CASHING Ja 000 C06791 PAGE 1 STATE OF MICHIGAN REMITTANCE ADVICE INVOICE UG ER INVOICE OATE = 1 HYOICE oxScatPrice REF, COC. CURRENT Oo, 468 472 DEPT OF CORR-FISC MaMT (517)373-3000 = fe 214582402 i DOuNT 95 -C¥-73$40-0T K.SAQETIA ¥ K.ncornnts, eT AL vr200644 $ 35,562.70 mime 4- -MARRAKT AMOUNT $ 35,582.70 23> R “ ' ° ° T Gems og 8 im : fg mn, ! - ew inte wee, SARG.. * ax : eh they Pinte — : Teves ee “8 re REL BE Man dT TE. BAe. ee 2° a, {fase egg St SS er 2a saAGsS oot! a oie Skee Ae FS GE BLE * clearest ie = £4 NS Py Y ¥- 3 3 Q . : , ry ee ee Te, Ee v4, 23°75 A (, Ee 0 se, of OE et a aie r - Avte a * . @ “es, a” "e' saps 0 te ° . TE (eet. ts O* t he: .- x . 2 ante SOTOS A eee a Chet oy a“ : a _ ‘, So . fas & 9 - Shic - 2, wee eS. ane Me an” o te OT Re eS BEI: Se Tas ‘. a Bee ee vars i at%, se CB Se a MY5° os 4 we me = ‘. a Ste - Ee : - tm e i7 po! od . ‘ ‘ ” o "€ oo ’ Hap woe sf2* GREE LE ES 22557 i REGO SELE HOH HESS TABLE SSE SEP TIAL E DETACH HERE - RETAIN STUB FOR YOUR RECORDS - DETACH HERE ; r = VseG = sd s¢5.GFS: JOHN ENGLER, GOVERNOR 000 214582402; i rere} MG pero SWEET} i i 08/2602 | = fas »3 - 5 ies eadree* 78 x tet i D Asay 2 Sg LQ ey y “hs “4 a] . -$****35,582.70 | 006791 "BARBARA LEVINE ae PO BOX 420 F GRAND LEOGE HI 46837 ; 'h4 SB eLO cu = ~#O72L00706% O00" PLEASE REMOVE THIS PORTION BEFORE CASHING -136a- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MICHELLE BAZETTA, et al., Plaintiffs, CIVIL NO. 95-73540 HON. NANCY G. V. EDMUNDS KENNETH McGINNIS, et al., Defendants. / ORDER DENYING DEFENDANTS’ SECOND MOTION TO PLACE ATTORNEY FEES IN ESCROW [397] This matter came before the Court on Defendant’s second motion to place attorney fees in escrow [397]. The Court having read the motion and brief, and Plaintiffs’ response and being fully advised in the premises; IT IS ORDERED that the motion is DENIED for the reasons set forth in the Plaintiffs’ brief. s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: September 20, 2006 [ hereby certify that a copy of the foregoing document was served upon counsel of record on September 20, 2006, by electronic and/or ordinary mail. s/Carol A. Hemever Case Manager Ll37Va Supreme Court of the United States Office of the Clerk Washington, DC 20543-0001 William KE. Suter Clerk of the Court October 10, 2006 POR) 67O-S0Kt Mr. Thomas L. Casey Solicitor General Office of the Attorney General P.O, Box 30212 Lansing, MI 48909 Re: Michelle Bazzetta, et al v. Patricia L. Caruso, Director, Michigan Department of Corrections, et al. No. 05-1672 Dear Mr. Casey The Court today entered the following order in the above-entitled case: The petition for a writ of certiorari is denied Sincerely, Ly) Wham f. Auk” William K. Suter, Clerk 138a 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 G. Edmunds KENNETH McGINNIS, DIRECTOR OF MICHIGAN DEPARTMENT OF CORRECTIONS; MICHIGAN DEPARTMENT OF CORRECTIONS, Defendants. Deborah LaBelle (P31595) Patricia Streeter (P30022) Michael Barnhart (P10467) Co-Counse! for Plaintiffs 221 N. Main, Suite 300 Ann Arbor, MI 48104 (734) 222-0088 (734) 213-3703 Lisa C. Ward Co-Counsel for Defendants 1300 N. Waverly Suite 1 Lansing, MI 48917 (517) 323-0300 Leo H. Friedman Co-Counsel for Defendants P.O. Box 30217 Lansing, MI] 48909 (517) 335-7021 139a CERTIFICATE OF SERVICE hereby certify that on October 13,2006, | electronically filed Defendants' Reply in Opposition to Plaintiffs' Request for Attorney Fees with the Clerk of ECF System. Counsel for Plaintiffs are also served via the ECF System. S/Lisa CU. Ward Co-Counscl for Defendants Special Assistant Attorney General 1300 N. Waverly, #1 Lansing, MI 48917 (517) 323-0300 LisaCWard@aol.com P38933 140a 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 G. Edmunds KENNETH McGINNIS, DIRECTOR OF MICHIGAN DEPARTMENT OF CORRECTIONS; MICHIGAN DEPARTMENT OF CORRECTIONS, Defendants. Deborah LaBelle (P31595) Patricia Streeter (P30022) Michael Barnhart (P10467) Co-Counsel for Plaintiffs 221 N. Main, Suite 300 Ann Arbor, MI 48104 (734) 222-0088 (734) 213-3703 Lisa C. Ward Co-Counsel for Defendants 1300 N. Waverly Suite 1 Lansing, MI 48917 (517) 323-0300 Leo H. Friedma [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0347%3A1. Public record. Not legal advice.