Brule v. Southworth, Civ. A. No. 77-554P.

• Decision Date: 03 November 1982
• Docket Number: Civ. A. No. 77-554P.
• Citation: 552 F. Supp. 1157
• Parties: Ronald BRULE, et al. v. Bradford SOUTHWORTH, et al.
• Court: U.S. District Court — District of Rhode Island

552 F. Supp. 1157

Ronald BRULE, et al. v. Bradford SOUTHWORTH, et al.

Civ. A. No. 77-554P.

United States District Court, D. Rhode Island.

November 3, 1982.

Lynette Labinger, Providence, R.I., for plaintiffs.

Stephen M. Robinson, R.I. Dept. of Corrections, Cranston, R.I., for defendants.

OPINION

PETTINE, Senior District Judge.

In this 42 U.S.C. § 1983 case, which was successfully tried to the Court and affirmed on appeal, the plaintiffs' attorney seeks an award of fees pursuant to 42 U.S.C. § 1988. The Court found that the defendants violated the plaintiffs' rights protected by the First and Fourteenth Amendments to the United States Constitution. The procedural history, giving rise to this action, and a prior action from which it stems, is set forth in Brule v. Southworth, 611 F.2d 406 (1st Cir.1979); it need not be repeated here.

As a result of stipulations made and evidence adduced at a hearing held on April 23, 1982, certain issues were settled and need not be discussed by the Court. These are as follows:

a) The plaintiffs are prevailing parties and are entitled to fees under 42 U.S.C. Sec. 1988.

b) Accuracy of the time records submitted by plaintiffs' counsel. (Pl.Ex. 2 ¶ 6).

c) Competence or ability of Lynette Labinger, counsel for the plaintiffs, in the performance of her services in this matter. (Pl.Ex. 2 ¶ 7).

d) The hourly rate of $75 per hour is appropriate to be applied as to all hours (both in and out-of-court) which are either uncontested or awarded by the Court for services rendered on January 1, 1979 and thereafter. (Pl.Ex. 2 ¶ 8).

e) None of the services for which fees are sought should have been performed by a paralegal or should be compensated at rates for paralegal or other nonlawyer rates.

f) No issue remains as to travel time or time spent in grievance proceedings. (Pl.Ex. 3 ¶ 3, 4).

g) An award of costs may be made in the amount of $2,542.33

h) With respect to legal services rendered between November 1977 and December 31, 1978, the rates of $50/hour out-of-court and $55/hour in-court are appropriate for all uncontested hours and those awarded by the Court. (In their briefs the plaintiffs clearly set forth that they do not agree that this is or should be an appropriate rate; however, the defendants' concession establishes a floor for the rate determination.)

The defendants do contest the following claims by plaintiffs' counsel:

1. The hourly rate being sought for the period between November 15, 1977 and December 31, 1978.

2. The reasonableness of 55 hours spent between December 6, 1977 and December 26, 1977 in trial preparation.

3. The reasonableness of 128 hours preparing a post-trial brief.

4. The reasonableness of 112 hours preparing appellate briefs.

5. The plaintiffs' 10% bonus claim, and

6. The plaintiffs' contention that the "lodestar" should be increased to reflect "delay in payment".

In addition the defendants argue, as to the fee being sought for the prosecution of this application for attorneys' fees, that plaintiffs' counsel, Ms. Labinger and her retained associate Mr. Roney, should not have their respective hours added in the computation because they engaged in unnecessary duplication of work.

The defendants' concession that plaintiffs are entitled to fees is premised on the firmly established principle of entitlement under 42 U.S.C. § 1988, absent special circumstances which render such an award unjust. Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978); David v. Travisono, 621 F.2d 464 (1st Cir.1980). The award may also include costs, and additional fees for work performed on appeal. Souza v. Southworth, 564 F.2d 609 (1st Cir.1977). The fees may be taxed against the Department of Corrections as well as the named defendants. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). "The ultimate determination of the amount of the fee to be awarded requires a close filtering factual analysis of the case through the standards enunciated in King v. Greenblatt, 560 F.2d 1024 (1st Cir.1977), and the teachings of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974)." Palmigiano v. Garrahy, 466 F.Supp. 732 (D.R.I.1979).

In King v. Greenblatt, supra, the criteria considered for an award under 42 U.S.C. § 1988 are:

1) the time and labor required; 2) the novelty and difficulty of the question presented; 3) the skill required to perform the legal services; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee in the community; 6) whether the fee is fixed or contingent; 7) time limitations imposed by client or circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; 12) awards in similar cases. Id. at 1026-1027 describing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719. (5th Cir.1974).

The analysis of these criteria is a tough and at times a frustrating task. The distinctions are unrefined and not subject to precise categorization and thus, individualized considerations. The First Circuit recognized this difficulty in Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980) wherein it stated that "this approach recognizes that commenting on the twelve factors identified in Johnson v. Georgia Highway Express, Inc. 488 F.2d 714 (5th Cir.1974) setting out the factors adopted in Greenblatt, supra may not in any real sense contribute to the rational setting of a fee; the comments are imprecise and the items overlap." 635 F.2d at 920.

The First Circuit then set forth the following formula:

In an effort to develop a useful analytical framework that can be applied by trial courts in all cases and can also lend itself to meaningful review, the Third and D.C. Circuits recognize two levels or steps in analysis. The starting point is to calculate the "lodestar": "The number of hours reasonably expended multiplied by a reasonable hourly rate." Copeland v. Marshall, 641 F.2d 880, at 891. This would involve separating out work done in relation to a firm's hierarchy, from senior partner to junior associate (and, we would add, including work that was or ought to have been assigned to a nonlawyer); eliminating time beyond that consistent with a standard of reasonable efficiency and productivity; and, after receiving documentation and possibly holding a hearing, assigning appropriate hourly rates for the kinds of work done by those at different levels of expertise. This results in a "lodestar" fee that then is adjusted upward or downward to reflect the contingent nature of any fee (if such is not reflected in the hourly rate), delay in payment, quality of representation (i.e., an unusually good or poor performance above or below the skill already reflected in the hourly rates), exceptional (and unexpected) results obtained, etc. For a more detailed discussion, see Copeland, at 889-94.

Furtado v. Bishop, supra, at 920.

However, Furtado does not overrule Greenblatt. Miles v. Sampson, 675 F.2d 5, 8 (1st Cir.1982). The district courts are still required to express their views on the factors identified in Greenblatt. Sampson, supra, at 8. This is quite understandable because only through an analysis of such factors can a court fathom all the components of the "lodestar"; the ultimate design of which is to 1) "attract competent counsel" who will exhibit "the same standards which prevail in other types of equally complex Federal litigation such as antitrust cases"; and 2) achieve the ultimate goal of a fair and reasonable fee under all the circumstances.¹ Within the discipline of the foregoing, I will attempt arriving at a proper fee.

A. The Greenblatt Factors

The defendants do not contest the need to apply these factors. They do, however, dispute how each factor should be applied to the specific claims at issue. Each will be considered in turn.

1) Time, labor and skill

The basic case from which this dispute arises was, in a sense, a spinoff from a hotly contested and notorious inmate class action suit commenced on November 29, 1977. The class action concerned an extended indefinite "lockup" of the entire maximum security section of the Rhode Island Adult Correctional Institution; tangentially that litigation involved, among other things, the conduct of the plaintiffs in the performance of their jobs, which the defendants alleged was the cause for their suspension from their assignments as prison officers and guards. On the other hand, the plaintiffs claimed that the defendants were guilty of violating their First Amendment, Due Process and Equal Protection rights. The development of the plaintiffs' case, to prove the falsity of the charges against them, required a thorough investigation of all the historical facts surrounding the disturbance at the prison. This had to be done in an ambience of prison hostility and distrust. No one questions the difficulty of this task; it involved the sifting of complex facts and the probing of charges and counter charges which hinged on the credibility of witnesses. It is uncontrovertible that careful preparation and skill was crucial to the success of the plaintiffs' case. The acquisition of this proficiency required total effort squeezed into a short pre-trial preparation period. The "time and labor required", the "skill required to perform the legal services", "time limitations imposed by client or circumstances", and the "preclusion of other employment" are manifest; indeed, in their post-trial brief, the defendants do not contest these factors.

2) Experience and reputation of plaintiffs' counsel

The experience, reputation and ability of Ms. Labinger was conceded. The defendants stated that they have nothing but the "highest regard for her professional integrity and competence and none of the issues raised by them are intended to question this factor." Defendants'...