Klinger v. Nebraska Dept. of Correctional Services, 4:CV88-L-399.
| Decision Date | 15 December 1995 |
| Docket Number | No. 4:CV88-L-399.,4:CV88-L-399. |
| Citation | 909 F. Supp. 1329 |
| Parties | Cheryl KLINGER, et al., Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
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Gail S. Perry and Stephanie F. Stacy, Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, NE, for plaintiffs.
Don Stenberg, Attorney General, Laurie Smith Camp, Deputy Attorney General, Lincoln, NE, for defendants.
Pending before the court is Plaintiffs' application for attorney fees and expenses (filing 723), in support of which Plaintiffs have filed numerous affidavits and exhibits (filing 724). After consideration of Plaintiffs' application and supporting evidence and Defendants' response thereto, I shall award Plaintiffs $37,084.92 in attorney fees and $3,557.52 in expenses.
This case involved female inmates at the Nebraska Center for Women (NCW) who filed suit claiming inequitable treatment in programs and services as compared with male inmates at the Nebraska State Penitentiary (NSP). After a month-long trial, I issued an opinion, Klinger v. Nebraska Dep't of Correctional Services, 824 F.Supp. 1374 (D.Neb.1993) (Klinger I), which found: (1) when examined by reference to the "heightened scrutiny" standard, female inmates at NCW were discriminated against because of their sex in many (but not all) program and service offerings as compared to male inmates at NSP, in violation of the Equal Protection Clause of the Fourteenth Amendment, id. at 1390-1431; (2) based upon the same NCW/NSP comparison which had been used for the equal protection analysis, Plaintiffs established a violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (Title IX), because NCW did not offer regularly scheduled prerelease programs while NSP did, id. at 1431-1434; (3) the segregation and orientation inmates at NCW were completely and systematically denied their right of access to the courts under the Fourteenth Amendment until January, 1989, because those inmates had no physical access to the law library or assistance from a trained legal aide, and NCW general population inmates were completely and systematically denied the same right prior to January, 1989, because those inmates did not have access to a trained legal aide and the law library itself was not adequate, id. at 1434-1438; and (4) NCW's medical and dental policies did not amount to an Eighth Amendment violation, id. at 1438-1440.
On interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the Eighth Circuit Court of Appeals concluded that the plaintiffs, NCW inmates, were not similarly situated to male inmates at NSP for purposes of prison programs and services; reversed Klinger I insofar as it found Defendants liable for violating Plaintiffs' equal protection rights; and dismissed Plaintiffs' equal protection claim. Klinger v. Department of Corrections, 31 F.3d 727, 729 & 731 (8th Cir.1994) (Klinger II). Plaintiffs' petition for writ of certiorari was denied in Klinger v. Nebraska Dep't of Corrections, ___ U.S. ___, 115 S.Ct. 1177, 130 L.Ed.2d 1130 (1995).
Because judgment had not yet been entered and trial had been bifurcated between liability and remedy, I revised Klinger I pursuant to Fed.R.Civ.P. 54(b) in Klinger v. Nebraska Dep't of Correctional Services, 887 F.Supp. 1281 (D.Neb.1995) (Klinger III). In Klinger III, I reversed my decision regarding Title IX in Klinger I because my Title IX findings in Klinger I were premised upon my determination that one could profitably compare NSP with NCW, a determination explicitly reversed by the Eighth Circuit in Klinger II. Thus, I concluded in Klinger III that Plaintiffs failed to prove that NCW inmates were denied educational opportunities on the basis of sex, in violation of Title IX. Klinger III, 887 F.Supp. at 1287.
After a bench trial on the issue of damages regarding my previous finding that former NCW superintendents Victor Lofgreen and Larry Tewes were liable for the above-described access-to-the-courts violations, Klinger I at 1383 & 1452, I issued an opinion in Klinger v. Nebraska Dep't of Correctional Services, 902 F.Supp. 1036 (D.Neb.1995) (Klinger IV). I awarded $1.00 in nominal damages to the NCW general population inmates, recognizing that Plaintiffs were unable to show that Lofgreen and Tewes caused actual or compensatory damages, that presumed damages have not been recognized in this type of case, that a dollar value could not be assigned to the harm Plaintiffs suffered, and that punitive damages were not warranted. Id., at 1043-44. I also awarded $1.00 in nominal damages to the NCW segregation and orientation inmates, again declining to award compensatory, actual, presumed, and punitive damages. Id., at 1045-46. I further ordered the filing of the application for attorney fees, which is the matter now before me.
Plaintiffs' application for attorney fees and expenses (filing 723) requests a base lodestar attorney fee of $529,784.50 and $50,821.71 in expenses. The application is supported by the following evidentiary materials: affidavit of Robert T. Grimit and exhibit; affidavit of Gail S. Perry and attached exhibits; affidavit of Stephanie F. Stacy; affidavit of David A. Dudley; affidavit of Susan L. Blackwell and attached exhibits; affidavit of Victor E. Covalt, III; affidavit of David R. Buntain; and affidavit of Vincent Powers.1
Plaintiffs' request for attorney fees in the amount of $529,784.50 was calculated by Plaintiffs' lawyers in the following manner.
Total time billed to this case by lawyers, law clerks, paralegals, and support staff— some 45 individuals—from October 18, 1988, to October 31, 1995, was 9,591.6 hours. (Blackwell Aff. ¶ 12(A) & Ex. K.) This sum was voluntarily reduced twice. First, the sum was reduced by 1,098 hours to delete the work of non-primary timekeepers, such as lawyers who only worked sporadically on the case or clerical personnel. (Blackwell Aff. ¶¶ 10 & 12(A)-(B) & Exs. K, L.) While the time appearing on billing statements for all primary timekeepers2 was 8,493.6 (Blackwell Aff., Ex. L), this amount was reduced to 5,123.6 after the time entries for primary timekeepers were divided into categories of 10 core legal activities such as document discovery, discovery disputes, settlement negotiations, depositions, and motions/briefs. (Perry Aff. ¶ 22; Blackwell Aff. ¶¶ 11 & Exs. A-J.) This reduction accounted for duplication and removal from consideration of time spent on appeal (350.2 hours). (Blackwell Aff., Ex. M.) Time for telephone calls (216 hours), correspondence (177.4 hours), and time spent on preparation of the fee application (214.5 hours) was also excluded from this initial hourly figure. (Blackwell Aff. ¶¶ 15, 16, 17 & Exs. M, S.)
The "lodestar" was then determined by taking 5,123.6 hours for the 10 core legal activities accomplished by the primary time-keepers (Blackwell Aff., Ex. L) and adding 216 hours for telephone calls, 177.4 hours for correspondence, and 214.5 hours for preparation of the fee application. (Blackwell Aff. ¶¶ 15, 16, 17 & Exs. M, S.) The total number of hours claimed to have been reasonably expended on this case was 5,731.5.
For all tasks except telephone calls and correspondence, the hourly billing rate for each primary timekeeper was then multiplied by the number of hours spent for that timekeeper. (Blackwell Aff., Exs. M, S.) These rates ranged from $150.00 per hour to $90.00 per hour for lawyers, $50.00 per hour for the paralegal, and $35.00 per hour for the law clerks. (Id.) An average hourly billing rate for all primary timekeepers of $105.00 per hour was multiplied by telephone and correspondence hours. (Blackwell Aff. ¶¶ 15, 16.)
The total lodestar fee was thus calculated at $529,784.50 for 5,731.5 hours. (Blackwell Aff., Ex. M.) This figure represents all work which counsel claim was reasonably done on the case, excluding appeals. This figure does not represent work on the successful access-to-the-courts claim only, as counsel argue they cannot break out the work done on the successful claim only because the claims were so interrelated. (Perry Aff. ¶¶ 25-28.) However, counsel make a "rough estimate" that 20 percent of their time was spent on the successful claim and closely related issues. (Perry Aff. ¶ 29.)
Plaintiffs also request $50,821.71 in expenses. This figure was calculated by dividing the entire original computerized billing statement (Blackwell Aff., Ex. P, at 397-472; summarized at Ex. Q) into seven general categories—collect calls from inmates, long distance charges, photocopying, express mail, postage, Westlaw research, and deposition expenses. (Blackwell Aff., Ex. Q.) Telecopier expenses were not included, nor were other expenses not fitting into the above seven categories. (Compare Blackwell Aff., Ex. P, at 397-472, with Ex. Q.) The firm's customary 20-cents-per-page charge for photocopying was reduced to 5 cents per copy, and the firm's usual markup for Westlaw research expenses was not applied. (Blackwell Aff. ¶ 14.) The total figure reached for expenses in these seven categories was $21,160.03, to which was added Plaintiffs' expenses which formed the basis for their reimbursement from the Federal Practice Fund—expenses which must be repaid in the event expenses are awarded in this court. (Perry Aff. ¶ 30; Blackwell Aff., Ex. Q, at 3.) Plaintiffs calculate these Federal Practice Fund expenses as $29,661.68. (Blackwell Aff., Ex. Q, at 3 (); Ex. R (orders by Chief Judge Lyle E. Strom authorizing disbursement of $29,161.68 and $500 from Federal Practice Fund).)
This court has discretion to allow the "prevailing party" in this lawsuit a reasonable attorney fee as part of...
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Klinger v. Department of Corrections
... ... Larry Tewes, Assistant Director, Nebraska Department of ... Correctional Services and former Acting ... ...
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Prison Litigation Reform
...trial court is not lost on the defendants in inmate civil rights cases. See, e.g., Klinger v. Nebraska Dep't of Correctional Servs., 909 F. Supp. 1329, 1342 (D. Neb. 1995), rev'd, 107 F.3d 609 (8th Cir. 1997). 25. NEB. REV. STAT. §25-213 (Reissue 1995). Note, however, the Nebraska Supreme C......