Taylor v. Perini, Civ. No. C 69-275.

Decision Date23 May 1973
Docket NumberCiv. No. C 69-275.
Citation359 F. Supp. 1185
PartiesJ. B. TAYLOR et al., Plaintiffs, v. E. P. PERINI, Superintendent Marion Correctional Institution, Defendants.
CourtU.S. District Court — Northern District of Ohio

Niki Z. Schwartz, Cleveland, Ohio, for plaintiffs.

Richard Igo, Asst. Atty. Gen., Columbus, Ohio, for defendants.

MEMORANDUM

DON J. YOUNG, District Judge:

This civil rights action was commenced on September 17, 1969, and sought numerous reforms in the operation and policies of the Marion Correctional Institution, at Marion, Ohio. After several years of study, litigation and negotiation, a Consent Order was approved and entered by the Court on September 12, 1972. In addition to the various provisions relating to the institution, the Order provided:

. . . defendant shall pay to plaintiffs' counsel reimbursement for out-of-pocket expenses and reasonable attorney's fees based upon services rendered in the handling of this action. In the event the parties are unable to agree upon the amount of payment under this paragraph, such issue shall be submitted to the Court for hearing and decision.

After several more months of negotiations, on February 26, 1973, the Attorney General's Office advised plaintiffs' counsel that it would not honor any agreement as to the amount of fees and expenses and that the state would not willingly pay any amount in compliance with the September 12th Consent Order.

On March 9, 1973, plaintiffs' attorney filed a motion for determination of attorney's fees and expenses. On March 12, 1973, defendant filed a motion for relief from the order under Rule 60(b) and a motion for a stay of execution of the order awarding attorney's fees and of the Federal Rules of Civil Procedure expenses.

The defendant contends that under the Eleventh Amendment to the United States Constitution, this Court lacks jurisdiction to order the State of Ohio to pay plaintiffs' attorney's fees and therefore, the order should be vacated. The Eleventh Amendment states:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.

There are, essentially, three leading cases on this point. Sincock v. Obara, 320 F.Supp. 1098 (D.Del.1970) (Three-Judge Court); Sims v. Amos, 340 F.Supp. 691 (N.D.Ala.) (Three-Judge Court), aff'd 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972); N. A. A. C. P. v. Allen, 340 F.Supp. 703 (N.D.Ala. 1972). Defendant relies upon the Sincock case where the court decided that it was without authority to tax attorney's fees as costs. This case dealt expressly with the Eleventh Amendment argument. Plaintiffs' attorney relies upon Sims v. Amos, supra. In Sims, the court awarded attorney's fees, but did not treat the Eleventh Amendment problem explicitly in the text of the opinion. It is obvious, however, that the court was aware of this objection and disposed of it. Id., 340 F. Supp. at 694, n. 8. Counsel for the plaintiffs has also supplied this Court with the Jurisdictional Statement of the case which was filed in the United States Supreme Court by the Attorney General of Alabama. On page seventeen of this Statement, the question of Alabama's sovereign immunity is clearly set forth. Although ...

To continue reading

Request your trial
5 cases
  • Jordon v. Gilligan
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 18, 1974
    ...v. Thompson, 494 F.2d 885 (9th Cir., filed March 25, 1974); Gates v. Collier, 489 F.2d 298 (5th Cir. 1973); Taylor v. Perini, 359 F.Supp. 1185 (N.D.Ohio 1973), appeal argued, No. 73-2071 (6th Cir., April 15, 1974); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal. 1972), aff'd 488 F.2d 559 (9t......
  • Natural Res. Def. Coun., Inc. v. Environmental Pro. Agcy.
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 1, 1973
    ...courts have often awarded fees against state agencies or officials. Ojeda v. Hackney, 452 F.2d 947 (5th Cir.1972); Taylor v. Perini, 359 F.Supp. 1185 (N.D.Ohio 1973) (civil rights); La Raza Unida v. Volpe, 57 F.R.D. 94, 101-102 n. 11 (N.D.Cal.1972) (environmental protection); Sims v. Amos, ......
  • Palmer v. Columbia Gas of Ohio, Inc.
    • United States
    • U.S. District Court — Northern District of Ohio
    • April 5, 1974
    ...Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). This Court recently awarded attorney's fees in Taylor v. Perini, 359 F.Supp. 1185 (N.D. Ohio 1973), as part of its equitable power, and has done likewise in two other § 1983 suits in which ABLE was appointed by this Court to ......
  • Incarcerated Men of Allen County v. Fair
    • United States
    • U.S. District Court — Northern District of Ohio
    • October 5, 1973
    ...Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). This Court recently awarded attorney's fees in Taylor v. Perini, 359 F.Supp. 1185 (N.D.Ohio 1973) as part of its equitable power, a decision presently pending on appeal to the Court of Appeal for the Sixth One reason advanced......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT