Clayton v. Thurman

• Decision Date: 30 September 1985
• Docket Number: 84-1361,Nos. 83-2621,s. 83-2621
• Citation: 775 F.2d 1096
• Parties: James E. CLAYTON, et al., Plaintiffs-Appellees/Cross-Appellants, v. Frank THURMAN, Sheriff, Tulsa County, et al., Defendants/Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1096

775 F.2d 1096

James E. CLAYTON, et al., Plaintiffs-Appellees/Cross-Appellants, v. Frank THURMAN, Sheriff, Tulsa County, et al., Defendants/Appellants.

Nos. 83-2621, 84-1361.

United States Court of Appeals Tenth Circuit.

Sept. 30, 1985.

Louis W. Bullock, Cooperating Atty., ACLU, Tulsa, Okl., for plaintiffs-appellees/cross-appellants.

M. Denise Graham, Asst. Dist. Atty., Tulsa, Okl., for defendants/appellants.

Before HOLLOWAY, Chief Judge, and LOGAN and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Pursuant to 42 U.S.C. Sec. 1983, James E. Clayton, an inmate in the Tulsa, Oklahoma, City-County Jail, brought suit on behalf of himself, and others, against Frank Thurman, Sheriff of Tulsa County, Oklahoma, and others, complaining about conditions in the jail. For openers, the plaintiffs asked that the present jail be torn down and a new one built. They also challenged the current jail conditions and practices as they concerned racial segregation, women's rights, visitation rules, access to courts and legal materials, medical and psychiatric care, prisoner security, recreational exercise, freedom of religion, and the like. This action was originally filed by Clayton, pro se. Later, Clayton contacted Mr. Louis Bullock, an attorney in Tulsa, Oklahoma, and he became lead counsel for the plaintiffs in the 1983 proceeding. Mr. Bullock describes himself as a cooperating attorney with the American Civil Liberties Union, and he was assisted at different times during the course of this case in the trial court by four other attorneys and a law clerk.

Trial of the case was before the Judges of the United States District Court for the Northern District of Oklahoma, sitting en banc. Trial extended over five days and included an inspection of the jail by the three judges. Findings of fact and conclusion of law, signed by all three judges, were entered which were generally in favor of the plaintiffs and against the defendants. No appeal has been taken from the order and judgment based on such findings and conclusions.

The court, sitting en banc, also found that the plaintiffs in the underlying action were the prevailing parties for the purposes of 42 U.S.C. Sec. 1988 and set the matter for further hearing regarding attorneys' fees. A hearing was later held by the court, still sitting en banc, concerning attorneys' fees and costs. Numerous affidavits were submitted to the court, which also heard oral testimony from several expert witnesses. With all three judges concurring, the court awarded Mr. Bullock, and the four lawyers and a law clerk who assisted him, the sum of $144,930.43, which sum included an expense item in the amount of $8,801.43. Additionally, the court awarded the attorney who represented plaintiffs' counsel at the hearing regarding attorneys' fees the sum of $5,000. Finally, the clerk assessed costs in the amount of $2,492.84.

The defendants thereafter timely filed a notice of appeal to the order of the court awarding attorneys' fees and costs, with the following exception: the defendants did not appeal from the fee awarded the attorney who represented plaintiffs' counsel at the hearing on attorneys' fees, nor did it appeal from that part of the order which fixed expenses at $8,801.43 and costs at $2,492.84. The defendants' appeal appears in this court as No. 83-2621.

Later, the plaintiffs appeared in the trial court before the Honorable Thomas Brett, and sought an order directing immediate satisfaction of that part of the trial court's judgment from which the defendants had made no appeal, i.e., expenses, costs, and the award to the attorney who represented plaintiffs' counsel at the hearing on attorneys' fees. The defendants objected to the request for immediate payment of these monies, claiming that under Oklahoma law they could only be paid over a three-year period. 62 O.S. Sec. 365.5 and 19 O.S. Sec. 6. After hearing, Judge Brett agreed with defendants' position, and denied plaintiffs' request for immediate payment. The plaintiffs then appealed that particular order, and such appeal appears here as No. 84-1361. We have since been advised that the sums in controversy in No. 84-1361 have now been paid, and the judgment, in that respect only, satisfied. Hence, No. 84-1361 is moot.

On appeal, defendants attack the court's award of attorneys' fees on all fronts. Defendants argue that since plaintiffs did not prevail in the trial court on all of their claims, or even on a substantial part of their claims, they are not a prevailing party as that term is used in 42 U.S.C. Sec. 1988 and should not be awarded anything. Alternatively, defendants argue that the hours allegedly spent by plaintiffs' counsel on the case are unreasonable and, in instances, duplicative, and that the hourly rate for services rendered is too high.

The trial court awarded Louis Bullock the sum of $53,775, representing 537.5 hours at $100 per hour, which sum is included in the larger amount set forth above, which was awarded to all of plaintiffs' counsel. Additionally, the trial court enhanced the award to Louis Bullock by 33%, i.e., $17,925, which amount is also included in the sum set forth above as representing the total fee awarded all of plaintiffs' counsel. On appeal, defendants claim this enhancement was unjustified.

42 U.S.C. Sec. 1988 provides that in a 1983 action the trial court, "in its discretion, may allow the prevailing party, ... a reasonable attorney's fee as part of the costs." In the instant case, the three-judge trial court held that the plaintiffs were "prevailing parties" within the purview of Sec. 1988. We are not inclined to disturb this...