Knighton v. Watkins

Decision Date07 May 1980
Docket NumberNo. 79-1358,79-1358
Citation616 F.2d 795
PartiesWilliam KNIGHTON, Plaintiff-Appellee Cross-Appellant, v. John C. WATKINS et al., Defendants-Appellants Cross-Appellees. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

W. V. Westbrook, III, Asst. Atty. Gen., Jackson, Miss., for plaintiff-appellee cross-appellant.

Ronald R. Welch, Gen. Counsel, Jackson, Miss., for amicus curiae, Miss. Prisoners' Defense Comm.

W. Wayne Drinkwater, Jr., Greenville, Miss., for defendants-appellants cross-appellees.

Appeals from the United States District Court for the Northern District of Mississippi.

Before GEE, RUBIN and POLITZ, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

After entering an order of settlement and dismissal in a section 1983 civil rights claim, the district court awarded attorney's fees to the plaintiff's lawyer under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. The merits are now composed, and the only issues presented are whether any attorney's fee was warranted, and, if so, whether the fee awarded was excessive, as the state defendant contends, or inadequate, as the successful plaintiff's lawyer claims, or within the trial court's range of discretion, a middle course that is suggested by neither party because neither party seeks affirmance of the decision of the trial judge. We conclude that counsel's fees were due, but that the trial court did not allow adequately for the time spent and that the rate fixed fell below the minimum that sound discretion would warrant; we, therefore, vacate the award and remand for the determination of adequate compensation including an allowance for services rendered on this appeal.

On two occasions in 1977, disciplinary actions were taken against William Knighton while he was prisoner in the custody of the Mississippi Department of Corrections. Knighton was sentenced to a total of forty days in punitive isolation, and the disciplinary misconduct was permanently recorded in his file. In October 1977, Knighton filed a rudimentary complaint pro se alleging that he had been denied due process. The magistrate granted Knighton leave to proceed in forma pauperis and, pursuant to 28 U.S.C. § 1915(d), 1 appointed counsel from a panel of volunteer attorneys that had been formed under the auspices of the district court for the Northern District of Mississippi in order that both indigent persons and the court might have the benefit of counsel's services in cases challenging the conditions of prison confinement.

After research and investigation, appointed counsel negotiated a settlement with the defendants, officials of the Mississippi Department of Corrections: the findings of disciplinary misconduct were expunged from Knighton's file and the officials agreed to restore any good time credits that he had lost. Meanwhile, eight days before the order was signed, Knighton was paroled.

The one issue that could not be settled was counsel's fees. Plaintiff's counsel sought fees for all time spent calculated at the rate of $50 per hour; defendants contended that nothing had been accomplished by the litigation and no fee was due. After an evidentiary hearing, the magistrate entered an order fixing a fee of $30 per hour for all time spent except the hours required to litigate legal fees plus out-of-pocket expenses, making a total award of $800. He expressly considered the factors required by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), but, instead of using the customary fee charged in the area, he stated, "The maximum hourly rate for strictly legal work in federal court litigation in the Northern District of Mississippi is $45.00 per hour; for work not of a strictly legal nature the rate of $35.00 per hour. Neely v. City of Grenada, 77 F.R.D. 484, 486 (N.D.Miss.1978)." The amount awarded was based on this standard. Both parties appealed the magistrate's order, and the district court affirmed it, but awarded an additional sum of $400 for services rendered on the hearing before the judge.

Because the motion for attorney's fees was filed more than ten days after the entry of judgment, there is some question whether it was timely. In Stacy v. Williams, 446 F.2d 1366 (5th Cir. 1971), we applied the ten-day limitation on motions to alter or amend a judgment, Fed.R.Civ.P. 59(e), to a motion for attorney's fees. See also Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). However, the Stacy rule arose in the context of a request for attorney's fees based on the opponent's bad faith in the litigation, an equitable award of fees. The Stacy court explicitly noted that attorney's fees awarded under such circumstances were not part of the costs awarded after litigation, but should be sought as part of the litigation itself. In this case, attorney's fees are by statute part of the costs. Because they may be awarded only to prevailing parties, and in the discretion of the district court guided by the Johnson factors, attorney's fees under section 1988 will ordinarily be sought only after litigation. See Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977). Thus, a motion for attorney's fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e). Cf. Fed.R.Civ.P. 58 ("(e)ntry of the judgment shall not be delayed for the taxing of costs"). See generally National Council of Community Mental Health Centers Inc. v. Weinberger, 387 F.Supp. 991, 994-95 n.3 (D.D.C.1974), rev'd on other grounds sub nom., National Council of Community Mental Health Centers, Inc. v. Mathews, 546 F.2d 1003 (D.C.Cir. 1976), cert. denied, Wagshal v. Califano, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977); Environmental Defense Fund, Inc. v. Froehlke, 368 F.Supp. 231, 251-55 (W.D.Mo.1973), aff'd, 497 F.2d 1340 (8th Cir. 1974). Contra, Hirschkop v. Snead, 475 F.Supp. 59 (E.D.Va.1979).

This conclusion is buttressed by the manner of handling proceedings pertaining to costs. "(I)t is generally understood that the appropriate time for taxing costs is after a decision has been reached in the action." 10 C. Wright and A. Miller, Federal Practice and Procedure § 2679, at 239 (1973); see 6 Moore's Federal Practice P 54.77(9), at 1753 (2d ed. 1976). Rule 54(d) of the Federal Rules of Civil Procedure, which provides for the awarding of costs, does not specify a time in which the motion for costs must be made. It does specify the time in which an objection to an award must be made, but even that is not jurisdictional. See Moore's Federal Practice, supra at 1755. In cases to which section 1988 is applicable, it eliminates the general rule that attorney's fees may not be taxed as costs. Because Congress directed that attorney's fees under section 1988 be treated as costs, 2 there is no jurisdictional time limit on the filing of a motion seeking such fees. Thus, the district court could, in its discretion, entertain the motion for attorney's fees. Although the motion was made two months after the entry of the settlement order, the delay was the result of the plaintiff's counsel's determination to await the Supreme Court's decision in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). This delay was prompted, in part, by the defendants' assertion that they would seek to have a motion for attorney's fees held in abeyance until that decision was reached. Under the circumstances, it was not an abuse of discretion for the district court to decide the motion, and we have jurisdiction over this appeal from his decision. See generally Moore's Federal Practice, supra P 54.77(9).

The enactment of section 1983 demonstrates solicitude for the individual and concern for his protection against the abuse of his constitutional rights by the state and its officialdom. The Civil Rights Attorney's Fees Awards Act makes the remedy meaningful. It requires the court to award fees to the prevailing party "unless special circumstances would render such an award unjust." S.Rep.No.94-1101, 94th Cong., 2d Sess. 4, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5908, 5912. Criterion Club of Albany v. Board of Commissioners of Dougherty County, 594 F.2d 118, 120 (5th Cir. 1979); Bunn v. Central Realty of Louisiana, 592 F.2d 891, 892 (5th Cir. 1979); see Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977).

The defendants-appellants assert that Knighton was not a prevailing party and that, even assuming he was, special circumstances render any award of attorney's fees and other costs unjust. They ask, therefore, that we overturn the award in its entirety.

The complaint filed by the plaintiff prior to the appointment of counsel sought, in addition to damages, a declaratory judgment that defendants had violated Knighton's due process rights and an injunction restoring any good time credits he lost and expunging the record of misconduct from his file. The settlement reached provided only the relief sought by injunction. Nevertheless, Knighton was the prevailing party. A party may prevail for the purposes of section 1988, even though his claim is settled. Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1977); accord, Gagne v. Maher, 594 F.2d 336 (2d Cir.) cert. granted, --- U.S. ----, 100 S.Ct. 44, 62 L.Ed.2d 30 (1979).

The defendants contend that the relief was insignificant, but the entry of bad marks on a record can be considered trifling only to those who are not confined to an institution and to whom these marks do not threaten days, weeks or months of extra incarceration or denial of privileges. Should Knighton's parole be revoked, or should he be returned to prison for any other reason, the presence of misconduct charges in his permanent file could have an important influence on his treatment and the attitude of prison officials toward him. Even where the victory is...

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