Barrett v. Kalinowski
| Decision Date | 20 November 1978 |
| Docket Number | Civ. No. 77-1129. |
| Citation | 458 F. Supp. 689 |
| Parties | Esley BARRETT, III, et al., Plaintiffs, v. Henry W. KALINOWSKI et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Raymond L. Hamill, Honesdale, Pa., Robert J. Fields, Waymart, Pa., Stephen Jennings, Honesdale, Pa., O. Randolph Bragg, David F. Bianco, N. Pa. Legal Services, Scranton, Pa., for plaintiffs.
Jered L. Hock, Metzger, Wickersham, Knauss & Erb, Harrisburg, Pa., John C. Mascelli, Scranton, Pa., for defendant Kalinowski.
Thomas F. Kilroe, Honesdale, Pa., for third party defendants.
John F. Spall, Conway, Barna & Spall, Honesdale, Pa., for third party defendant Perkins.
The Plaintiffs in this action, Esley Joseph Barrett, III, Timothy Benson, Robert Carroll, and William Healey filed this action pursuant to 42 U.S.C. § 1983 on behalf of themselves and all others similarly situated alleging that the Department, Henry W. Kalinowski, the Sheriff of Wayne County, Pennsylvania, and ex officio Warden of Wayne County Prison, Honesdale, Pennsylvania, violated their constitutional rights. On June 7, 1978, following a hearing directed to the issue of whether a class should be certified, the Court declined to treat this case as a class action. Carroll withdrew as a Plaintiff on June 26, 1978. A trial on the questions of permanent injunctive relief and monetary damages was scheduled to be held in September, 1978 in Scranton, Pennsylvania. Prior to the holding of the final pre-trial conference, counsel for all parties advised the Court that the case had been settled with the exception of the issue of attorney's fees. A hearing on that issue was held before the undersigned judge on September 18 and 19, 1978. The following represent the Court's findings of fact, discussion, and conclusions of law.
1. Plaintiffs Barrett, Healey, and sometime Plaintiff Carroll were formerly inmates of the Wayne County, Pennsylvania jail.
2. Plaintiff Benson is still incarcerated in the Wayne County Jail.
3. Carroll voluntarily withdrew from the action in June, 1978.
4. At the time of the filing of the suit, Plaintiffs Barrett, Benson and Carroll were prisoners in the Wayne County Jail and Plaintiff Healey was a prisoner in the State Correctional Institution at Dallas.
5. Defendant Kalinowski is the Warden of the Wayne County Jail.
6. Plaintiffs' counsel in this case are O. Randolph Bragg, Raymond Lloyd Hamill, Stephen Jennings, Robert J. Fields, and David F. Bianco.
7. Mr. Hamill graduated from Dickinson College in 1972 and from the University of Pittsburgh Law School in 1975.
8. Mr. Hamill began the practice of law in November, 1975, with Northern Pennsylvania Legal Services in Scranton and subsequently became office manager for that organization in Honesdale, Pennsylvania.
9. This case is the first prisoner civil rights action in which Mr. Hamill has participated.
10. In 1977 Mr. Hamill attended a Practicing Law Institute seminar on civil rights litigation and in 1978 attended a seminar lasting one week in Connecticut given by the Legal Services Corporation dealing with federal practice and procedure.
11. Mr. Hamill claims compensation for 231.75 hours devoted to the prosecution of this case.
12. Mr. Hamill started private practice in Honesdale, Pennsylvania, on August 1, 1978.
13. Mr. Hamill's present hourly rate is $30.00 per hour for conferences and his rate for litigation is $40.00 per hour.
14. Mr. Hamill testified that he would charge $50.00 per hour for litigation of a complex case.
15. Mr. Hamill has never charged a client at the rate of $50.00 per hour.
16. Mr. Hamill claims compensation at the rate of $50.00 per hour for his work in this case.
17. The number of hours asserted by Mr. Hamill to have been devoted to this case, 231.75, multiplied by $50.00 per hour equals $11,587.50.
18. The time claimed by Mr. Hamill does not cover all of the services rendered by him in this case.
19. Prior to August 1, 1978, Mr. Hamill spent 182.75 hours on this case and on and after August 1, 1978, up to the date of the hearing, spent 49 hours on the case.
20. The Plaintiffs in their complaint alleged a large number of constitutional and statutory violations by the Defendant.
21. Mr. Hamill spoke with nine deputies in the Sheriff's Office, other county employees, and prisoners in his investigation of this case.
22. Most of the persons with whom Mr. Hamill spoke showed great reluctance to discuss the alleged violations of the Plaintiffs' rights.
23. The Plaintiffs encountered some difficulty in proving that telephone conversations of the named Plaintiffs were ever tapped.
24. Prior to this case, Mr. Hamill never had any legal experience relevant to this case and in particular had no prior federal practice, had no prior civil rights practice, no experience in prisoner litigation, and no experience in class actions.
25. Mr. Hamill at the suggestion of Plaintiffs Barrett and Benson interviewed Plaintiff Healey to ascertain if he wished to join this action.
26. Mr. Hamill charged for his travel time the same as for his other services in this case.
27. The driving time between Honesdale and the State Correctional Institution at Dallas one way is approximately one and one-half hours.
28. Mr. Hamill interviewed Benson between 25 and 30 times, interviewed Barrett a like number of times, interviewed sometime Plaintiff Carroll 12 times and interviewed Healey once.
29. The driving time is approximately one and one-half hours round trip from Scranton to the State Correctional Institution at Dallas.
30. The driving time between Honesdale and Waymart is one-quarter hour.
31. The driving time between Honesdale and Scranton is 45 minutes one way.
32. Mr. Hamill's travel did not begin before 8:00 A.M. or end after 6:30 P.M. on any day.
33. The particular services rendered by Mr. Hamill on November 7, 1977, May 22, 1978, May 23, 1978, May 24, 1978, and May 26, 1978, were not noted on Mr. Hamill's time records or in his application for fees.
34. The amount of time relating to the entries in the preceding paragraph is a total of 18 hours.
35. Mr. Hamill drove to Scranton from Honesdale round trip for the meeting with Mr. Bragg on May 29, 1976.
36. Two conferences between Mr. Hamill and Mr. Carroll, sometime Plaintiff, on June 2, 1978 and June 5, 1978 totalled 4.5 hours.
37. The July 14, 1978 and July 16, 1978 entries by Mr. Hamill on his time sheets and on his claim for compensation totalling 6.5 hours show only "briefs" without indicating what briefs were involved and Mr. Hamill does not remember which briefs were involved.
38. Some of the two and a half hours spent by Mr. Hamill on July 28, 1978 on brief to strike Defendant's brief related to a matter ultimately held by the Court to be moot but the precise amount of time so spent is not ascertainable.
39. None of the Plaintiffs' motions to compel discovery were granted by the Court.
40. At least 23 hours and 23 minutes of Mr. Hamill's time spent on May 8, 1978, June 19, 1978, July 12, 1978, July 13, 1978, July 28, 1978, July 14, 1978, and July 16, 1978 were devoted to discovery matters on which the Plaintiffs did not prevail.
41. The amount of time devoted by Mr. Hamill to class action certification questions on which the Plaintiffs did not prevail on May 2, May 17, May 29, and May 30, 1978 totalled 24 hours 40 minutes.
42. The Plaintiffs' motion for class certification was denied on the 7th day of June, 1978.
43. Mr. Hamill spent 16.75 hours in drafting the complaint.
44. Messrs. Hamill, Bragg, and Bianco were all employed by Northern Pennsylvania Legal Services until July 31, 1978 and Mr. Bragg is still so employed.
45. Messrs. Jennings and Fields during this litigation have been engaged in the private practice of law.
46. 25% of the operating funds of Northern Pennsylvania Legal Services are derived from Legal Services Corporation, a federal instrumentality.
47. The log at the Wayne County Jail showed that for 78 days consecutively beginning about August, 1977, prisoners were not given outdoor exercise.
48. Mr. Hamill did not make any real effort to refer the case to private counsel.
49. The meetings of Mr. Hamill with Plaintiff Carroll on June 2, 1978 and June 5, 1978 related to Carroll's desire to withdraw as a Plaintiff.
50. Stephen Jennings, counsel for the Plaintiff, received a Baccalaureate degree from Duquesne University in 1971 and a J.D. degree from the Catholic University of America in 1974.
51. Mr. Jennings was sometime employed by the U.S. Indian Claims Commission and the U.S. Indian Health Service of the United States Department of Health, Education, and Welfare.
52. Mr. Jennings was admitted to the bar in December, 1974 and has been in the private practice of law since June 1, 1975.
53. Mr. Jennings spent 74 hours on this case.
54. Mr. Jennings claims compensation at the rate of $50.00 per hour.
55. The amount of compensation requested by Mr. Jennings is $3700.00.
56. Mr. Jennings' out-of-pocket expenses are less than $20.00 with respect to this litigation and none of those expenses are being claimed by him.
57. Mr. Jennings sometimes charges $40.00 per hour.
58. Mr. Jennings as a second year law student worked for the Native American Rights Fund on civil rights cases and class actions.
59. Mr. Fields shows a half hour conference on December 20, 1977 in his time records with attorney Hamill.
60. Messrs. Hamill and Jennings each show a 3-way conference among Hamill, Jennings and Fields lasting an hour and a half on December 20, 1977.
61. Mr. Jennings shows in his time records a conference on January 2, 1978 with Attorneys Hamill and Fields lasting one hour.
62. Mr. Hamill's time records show no meeting with anybody on January 2, 1978.
63. Mr. Fields' time records contain no entry for any services rendered in this case on ...
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...to take that factor into account." Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); Barrett v. Kalinowski, 458 F.Supp. 689 (M.D.Pa.1978). However, the Court can make an adjustment in the overall fee based upon the Court's impression of excessiveness without ma......
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