Newell v. Department of Mental Retardation

• Decision Date: 20 March 2006
• Citation: 446 Mass. 286,843 N.E.2d 1084
• Parties: Louis NEWELL<SMALL><SUP>1</SUP></SMALL> v. DEPARTMENT OF MENTAL RETARDATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

843 N.E.2d 1084

446 Mass. 286

Louis NEWELL¹ v. DEPARTMENT OF MENTAL RETARDATION.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 7, 2005.

Decided March 20, 2006.

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Daniel S. Sharp (Elaine Whitfield Sharp, Marblehead, with him) for the plaintiff.

Ronald F. Kehoe, Assistant Attorney General (Jacquelyn Berman with him) for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

In Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (Buckhannon), the United States Supreme Court ruled that "a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct" is not a "prevailing party" for purposes of awarding attorney's fees under Federal fee-shifting statutes allowing such awards. The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (2000), is one such statute.² We transferred this case here on our own motion to consider whether counsel who represented the plaintiff, a mentally retarded and physically vulnerable man, may recover attorney's fees under 42 U.S.C. § 1988. The underlying litigation has been pursued in the Superior Court for more than one decade, and was resolved only when essential services for the plaintiff were finally provided by the Department of Mental Retardation (department). A judge in the Superior Court concluded that the litigation spurred the department to provide the services long denied to the plaintiff: she noted that the plaintiff would "never" have been provided the services "had it not been for this litigation." The issue of the recovery of attorney's fees here is, however, one of Federal law. On a careful review of the voluminous record and with due regard for the legal services provided by counsel to their client to secure basic necessities for him, we conclude that under the command of Buckhannon and its progeny, attorney's fees may not be awarded in this case. We affirm the judge's order vacating her earlier award of attorney's fees.

Also at issue is the department's appeal challenging a ruling that statements made by the judge during a hearing on the plaintiff's motion for injunctive relief constituted an order enforceable by contempt proceedings.³ We reverse the judge's order holding the department in contempt and awarding damages to the plaintiff.

1. Background. We summarize the judge's findings of fact, and describe the lengthy procedural history of this case. See Palmetto Props., Inc. v. County of DuPage, 375 F.3d 542, 543 (7th Cir.2004), quoting McGrath v. Toys "R" Us, Inc., 356 F.3d 246, 253 (2d Cir.2004) (to determine whether award of attorney's fees is appropriate under Buckhannon, "a meticulous analysis of the particular judgments and orders entered in a case is necessary").

The plaintiff is a sixty-six year old severely mentally retarded man with no family. He suffers from Fahr's Disease, a degenerative neurological disorder that causes him to have difficulty walking and maintaining his balance. He has been in the care of the Commonwealth since early childhood. In 1995, while in the department's custody,⁴ the plaintiff suffered serious injuries, including a head injury, resulting from a series of falls and an assault he suffered while living in a department-sponsored group home, Charles River Association for Retarded Citizens. He was hospitalized at Massachusetts General Hospital (MGH) in June, 1995, and remained there for some six months. Eventually the plaintiff's guardian was required to move him from MGH. Believing that placement in the department-sponsored group home would not be safe for the plaintiff, the guardian transferred the plaintiff to a nursing home over which the department had no control.

In November, 1995, while he was still a patient at MGH, the plaintiff (through his guardian) commenced this action against the department.⁵ The plaintiff alleged that injuries suffered in 1994 and 1995 were caused by the department's failure to provide him with an individual service plan (ISP)⁶ requiring one-to-one care and supervision.⁷ The plaintiff asserted various State claims and claims under 42 U.S.C. § 1983, and sought compensatory damages. He also sought injunctive relief ordering the department to place him in an appropriate facility that could provide one-to-one care and supervision.

A request for a preliminary injunction, filed when the action was commenced, was denied in March, 1996, after the department agreed to amend the plaintiff's ISP.⁸ The case eventually went to trial in December, 1999. A directed verdict was entered in favor of the department on all claims, except one claim for negligence.⁹ The jury returned a verdict in favor of the plaintiff on that count, and awarded damages in the amount of $482,600 for the injuries he had sustained. On August 29, 2000, the judge allowed the department's motion for judgment notwithstanding the verdict, concluding that the department was immune from liability under G.L. c. 258, § 10(j), and that the plaintiff failed to produce sufficient evidence to allow the jury to draw a reasonable inference that the department had been negligent. The plaintiff does not raise any issues related to that order.

At the conclusion of the trial but before the judge's ruling on the department's motion for judgment notwithstanding the verdict, the plaintiff renewed his request for injunctive relief. See note 8, supra. He again sought an order that the department amend the plaintiff's ISP¹⁰ to require the provision of one-to-one care and supervision, and added a claim that the department had violated his rights under a consent decree entered in a class action, Ricci v. Okin, 823 F.Supp. 984 (D.Mass.1993) (Ricci).¹¹ It is the 2000 injunctive relief sought by the plaintiff that forms in large part the basis of his Buckhannon claim. For purposes of resolving those claims, the critical events, which we describe in greater detail below, are as follows: (1) on February 10, February 17, and March 29, 2000, the judge, who had presided at the trial, held hearings on the plaintiff's renewed motion for injunctive relief, and on March 29, she allegedly issued an oral order that is the subject of the contempt claim; (2) on May 31, 2000, the plaintiff filed a complaint for contempt for noncompliance with the judge's March 29, 2000, order; (3) by order dated December 1, 2000, and entered on January 2, 2001, the judge dismissed the plaintiff's request for injunctive relief as moot, awarded attorney's fees to the plaintiff, and held the department in contempt for failure to comply with one aspect of her March order; (4) on January 22 and 24, 2001, respectively, the department filed a notice of appeal, and the plaintiff cross-appealed¹²; (5) on December 31, 2001, the department filed a motion for reconsideration concerning the award of attorney's fees in light of the Supreme Court's decision in Buckhannon, issued after the judge's order on attorney's fees; (6) on March 18, 2002, the judge vacated her award of attorney's fees; (7) on April 2, 2002, the plaintiff filed an amended notice of appeal regarding the vacation of the attorney's fee award.

The focal point of our inquiry is the March 29, 2000, hearing for purposes of both our Buckhannon analysis and the contempt ruling. To place it in context we review in greater detail the posttrial stages in the litigation, preceding and following that hearing.

As noted earlier, in December, 1999, following the trial, the plaintiff renewed his request for injunctive relief that the department complete a new ISP to require "in particular" some form of one-to-one care and supervision to assure the plaintiff's safety and allow him to live "in the most normal, least restrictive manner possible."¹³,¹⁴ At that time, the plaintiff continued to reside in the nursing home where his guardian had placed him after his discharge from MGH. He claimed in his renewed request that the services were required in part because he is a member of the class certified in Ricci. Three hearings on the plaintiff's motion then followed: February 10 and 17, and March 29, 2000. At the February 10 hearing, the department did not contest that an amended ISP was required, but informed the judge that an amended ISP had not been prepared. The judge "ordered" that the department "prepare and serve on the court and plaintiff's counsel the ISP ... by the end of business on [February] 15th."¹⁵ At the February 17 hearing, the judge "order[ed]" the department to prepare a "more complete ISP" within three weeks because she was not satisfied with the draft ISP presented to her. Between that date and the next hearing, the department focused on revising and finalizing a new ISP for the plaintiff.

We turn now to the hearing on March 29. By that time the judge had rejected the initial revised ISP presented to her in February, had granted a three-week extension sought by the department, was aware that the department had met with the plaintiff's guardian, and had every expectation that the department would comply with her orders. The judge reviewed a copy of the new ISP prepared by the department, which the plaintiff's guardian had received but had not signed. The new ISP stated that "by April 30th" the plaintiff would have one-to-one care and supervision "for up to twenty-five hours each week."¹⁶ The department's ISP service coordinator¹⁷ testified that funding for the plaintiff's one-to-one care had been "approved," and that although she did not know "how the funding works," she had set an April 30 deadline. These represented substantial and important changes to the services the department would provide to the plaintiff. Some ambiguities in the revised ISP needed to be resolved,...