Cole v. Tuttle, DC 73-73-S.

• Decision Date: 31 August 1978
• Docket Number: No. DC 73-73-S.,DC 73-73-S.
• Citation: 462 F. Supp. 1016
• Parties: Roosevelt COLE et al., Plaintiffs, v. Forrest TUTTLE et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

462 F. Supp. 1016

Roosevelt COLE et al., Plaintiffs, v. Forrest TUTTLE et al., Defendants.

No. DC 73-73-S.

United States District Court, N. D. Mississippi, Delta Division.

August 31, 1978.

Lewis Myers, Jr., North Miss. Rural Legal Services, Oxford, Miss., David M. Lipman, Lawyers Committee For Civil Rights Under Law, Washington, D. C., Ronald Reid Welch, Miss. Prisoners Defense Committee, Jackson, Miss., for plaintiffs.

M. Collins Bailey, Bailey & Trusty, Batesville, Miss., for defendant Tuttle.

Will A. Hickman, Sumners & Hickman, Oxford, Miss., for defendant Members of Board of Supervisors.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

The action sub judice was initiated by the filing of a complaint on June 22, 1973. Originally, plaintiffs were represented by Honorable Lewis Myers, Jr. and Honorable David M. Lipman, staff attorneys for the North Mississippi Rural Legal Services, a Community Services Administrative program. These attorneys represented plaintiffs during the trial stages of the action. During the progress of trial, Mr. Lipman became a staff attorney for the Mississippi Prisoners' Defense Committee, with headquarters in Jackson, Mississippi, but continued in his new connection with the representation of plaintiffs.

Plaintiffs secured the court's permission to appeal in forma pauperis from certain orders entered by the court to the United States Court of Appeals for the Fifth Circuit. They were represented on appeal by the Honorable Ronald Reid Welch, an attorney with the Mississippi Prisoners' Defense Committee.

Although pertinent to the issues now before the court, a recitation here of the history of the litigation sub judice would unduly encumber this memorandum. For this reason, a history of the litigation is attached as an appendix.

The sole remaining issue before the court relates to the allowance of attorneys' fees. The Fifth Circuit's mandate provided "It is further ordered that appellants' motion for remand on the issue of attorneys' fees in light of the Civil Rights Attorney's Fees Awards Act of 1976, is granted."

The Fifth Circuit's remand does not state whether the court should consider the allowance of fees only at the trial level or at both the trial and appellate levels. Attorneys for plaintiffs seek an allowance of fees for trial work and for services on appeal. The court concludes that the issue is live as to fees at both levels and will so consider the issue.

SHOULD THE ALLOWANCE OF ATTORNEYS' FEES BE MADE AS A PART OF THE COURT COSTS?

An order was entered by the court on October 30, 1975, denying the award of an attorney fee for plaintiffs' attorney. In that order, the court held:

Based upon the evidence heretofore introduced and the entire proceedings herein, the court finds that the plaintiffs have failed to prove by a preponderance of the evidence that in the operation of the Panola County Jail and in providing custody and incarceration for plaintiffs and members of the class represented by plaintiffs in the manner as determined by the court in its Judgment and Memorandum of Decision of February 19, 1975, defendant acted in bad faith, vexatiously, wantonly, or for oppressive reasons, or that defendant was obdurately obstinate in responding to plaintiffs' demands.

In the absence of such a finding the plaintiffs are not entitled to an award of an attorney fee.

The court's decision to deny the award of attorneys' fees as evidenced by its October 30, 1975, order was based on the finding that plaintiffs had not brought the case within the rule announced in Alyeska Pipeline Service Company v. The Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The determination of the issue must now be made by a different standard. Since the court's decision to deny the award, the Congress has passed the Civil Rights Attorney's Fees Awards Act of 1976, which amended 42 U.S.C. § 1988. This Act became effective October 19, 1976, whereas the court's decision was entered on October 30, 1975.

The Act added the following provision to 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

42 U.S.C.A. § 1988 (Supplementary Pamphlet 1974-1977).

The rule is now well established that section 1988, as amended in 1976, applies to all cases pending at the time of enactment. Since the attorney fee issue in the action sub judice was pending and had not been finally determined at the time of the enactment of the statute, the court finds that the Civil Rights Attorney's Fees Awards Act of 1976 authorizes and provides a basis for the allowance of attorneys' fees to counsel for the plaintiffs. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, 1978; Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977). As to the exercise by the court of the discretion vested in it by the Act, such exercise must be limited by Northcross v. Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973) and its progeny. In Northcross the court held that "if other requirements of § 718 are satisfied, the successful plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" The court's examination of the record sub judice does not disclose any "special circumstances" which would justify denial of an award of attorneys' fees by the court.

THE REQUESTS FOR FEE ALLOWANCE AND EXPENSES

As reflected by Appendix No. 2 attached hereto, the following requests are made:

                A. Attorneys' Fees
                   1. During the trial of the case, the sum of              $9,140.00
                   2. After remand in the trial court, the sum of             2,860.00
                                                                             ----------
                   Total fees requested for work in the trial court                      $12,000.00
                   3. Services on appeal, the sum of                          7,260.00
                                                                             ---------
                   Total attorneys' fees requested                                       $19,260.00
                                                                                         ===========
                B. Expenses
                   1. On appeal                                              $  222.20
                   2. On remand                                                  89.70
                                                                             ---------
                   Total expenses requested                                                 $311.90
                                                                                         ==========
                

Appendix No. 2 contains as complete a breakdown and itemization of the fees and expenses requested as can be gleaned from the record.

THE STANDARD UPON WHICH TO JUDGE THE ALLOWANCE OF ATTORNEYS' FEES

The allowance of reasonable attorneys fees is governed in this circuit by the criteria established by the Court of Appeals in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Johnson enumerates 12 criteria which should be taken into account by the district court in the award of reasonable attorneys' fees.

The record here reflects that services were furnished plaintiffs by the North Mississippi Rural Legal Services and the Mississippi Prisoners' Defense Committee.

The services were rendered through regularly employed staff attorneys. An allowance of fees should not be denied or diminished because plaintiffs' attorneys were employed or funded by a civil rights organization and/or tax exempt foundation or because the attorneys do not exact a fee from plaintiffs. Thompson v. Madison County Board of Education, 496 F.2d 682, 689 (5th Cir. 1974); Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974).

The facts in the action sub judice render several of the criteria in Johnson immaterial here on the issue of a reasonable fee. These are (1) the preclusion of other employment by the attorney due to acceptance of the case; (2) whether the fee is fixed or contingent; (3) time limitations imposed by the client or the circumstances; (4) the "undiserability" of the case; and (5) the nature and length of the professional relationship with the client. Johnson v. Georgia Highway Express, Inc., supra at 717-719.

There remains, however, for the court's consideration, the remaining criteria listed in Johnson. These are: (1) the time and labor required to properly represent the plaintiffs against the defendants; (2) the novelty and difficulty of the question presented by the litigation; (3) the skill requisite to perform the legal services properly; (4) the customary fee; (5) the amount involved and the results obtained; (6) the experience, reputation and ability of the attorneys and (7) awards in similar cases.

This litigation does not involve a novel or difficult question. The skill required to perform adequate legal services for plaintiffs is that skill which any attorney who practices before the court is required to possess in order to effectively handle the average case. Plaintiffs' attorneys are experienced and fully capable of handling litigation such as that posed by the instant case. The issue involved an important issue for members of the general public who came into contact with the officials of Panola County who are charged by law to operate a jail which measures up to constitutional standards. The court will take into consideration all of these matters, as well as the pertinent criteria listed in Johnson in reaching a decision on the issues presented.

GENERAL...