Rodriguez v. Zavaras, CIV. A. 94-N-270.

• Decision Date: 01 October 1998
• Docket Number: No. CIV. A. 94-N-270.,CIV. A. 94-N-270.
• Citation: 22 F.Supp.2d 1196
• Parties: Frank D. RODRIGUEZ and Ronald White, Plaintiffs, v. Aristedes ZAVARAS, et al., Defendants.
• Court: U.S. District Court — District of Colorado

22 F.Supp.2d 1196

Frank D. RODRIGUEZ and Ronald White, Plaintiffs, v. Aristedes ZAVARAS, et al., Defendants.

No. CIV. A. 94-N-270.

United States District Court, D. Colorado.

October 1, 1998.

COPYRIGHT MATERIAL OMITTED

Michael J. Heher, Public Defender's Office, Appellate Div., David H. Miller, Miller, Lane & Killmer, Denver, CO, for Plaintiffs.

Diane Marie Michaud, Assistant Attorney General, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

NOTTINGHAM, District Judge.

Plaintiff Frank D. Rodriguez seeks an award of attorneys' fees and costs as the prevailing party in a civil-rights action. He bases his request upon 42 U.S.C.A. § 1988 (West 1994). The matter is before the court on (1) "Plaintiff's Motion for Attorneys Fees and Costs," and (2) "Plaintiff's Supplemental Motion for Attorneys Fees and Costs." The primary issue presented, on which there is no controlling precedent from the United States Court of Appeals for the Tenth Circuit, is whether the fee-limiting provisions of the Prison Litigation Reform Act ("PLRA") of April 26, 1996 apply to any extent to a case which has been pending before this court since 1992. Other issues require the court to apply existing law and determine whether Rodriguez was a prevailing party and whether he should be awarded certain specified costs.

FACTS

On March 4, 1992, Rodriguez, a prisoner in the custody of the Colorado Department of Corrections, filed a complaint in this court concerning conditions at the Centennial Correctional Facility ("CCF"). In September 1993, Rodriguez was transferred from CCF to the Colorado State Penitentiary ("CSP"). On September 13, 1993, I ordered Rodriguez's complaint stricken, without prejudice, because a state public defender represented him in violation of Colorado statute. (Order & Mem. of Decision at 5 [filed Sept. 13, 1993].)

On September 21, 1993, David H. Miller, a private attorney, was appointed as counsel for Rodriguez. (Order Appointing Attorney [filed Sept. 21, 1993].) According to Miller, he served until April 1, 1996, as Legal Director of the American Civil Liberties Union of Colorado and represented Rodriguez in that capacity. (Pl.'s Mot. ¶ 1 & n. 1.) Miller, and other counsel, have thereafter represented Rodriguez as the firm of Miller, Lane & Killmer. (Id.)

On November 6, 1993, the Department of Corrections ("DOC") began videotaping attorney-client visits at the CSP. On February 1, 1994, Plaintiff Ronald White, a prisoner at the CSP, filed a complaint in this court in which he challenged the constitutionality of the videotaping. On February 4, 1994, this court entered a temporary restraining order in White's case, which prohibited videotaping of his attorney visits. On February 7, 1994, the temporary restraining order expired pursuant to its own terms. Nevertheless, on March 2, 1994, the DOC permanently stopped videotaping attorney-client visits at CSP.

Miller had taken no action in Rodriguez's case from the time of his appointment as Rodriguez's counsel in September 1993, until August 1994. On August 12, 1994, I ordered Rodriguez to show cause as to why his case should not be dismissed for failure to prosecute it. (Order [filed Aug. 12, 1994].) On August 31, 1994, Rodriguez responded and moved to amend his complaint. October 3, 1994, I granted his motion and Rodriguez filed his amended complaint. (Am. Compl. [filed Oct. 3, 1994].) On March 1, 1995, Rodriguez filed a second amended complaint. (Second Am. Compl. [filed Mar. 1, 1995].)

On November 8, 1996, Rodriguez and White moved to consolidate their cases. On November 14, 1996, I granted the motion and ordered the two cases consolidated. I also set the consolidated cases for trial beginning January 27, 1997. On January 16, 1997, pursuant to rule 68 of the Federal Rules of Civil Procedure, defendants delivered to Rodriguez an offer of judgment. On January 17, 1997, Rodriguez accepted their offer of judgment. In accordance with the offer and acceptance, I entered judgment in Rodriguez's favor and against defendants. (Order [filed Jan. 17, 1997].) Specifically, I:(1) ordered the defendants to destroy all videotapes of attorney-inmate visits; (2) enjoined defendants from videotaping visits between Rodriguez and his attorneys at the CSP, excepting emergencies; (3) prohibited defendants and CSP correctional officers from observing the contents of documents and from overhearing normal conversation levels during Rodriguez's attorney visits; and (4) awarded Rodriguez reasonable and appropriate fees and costs accrued in the case until January 16, 1997. (Id.)

On January 24, 1997, Rodriguez filed a motion for attorneys' fees and costs. (Pl.'s Mot. for Attorneys Fees and Costs [filed Jan. 24, 1997] [hereinafter "Pl.'s Mot."].) Rodriguez contends that, as the prevailing party, he is entitled to an award of (1) attorneys' fees in the amount of $98,478.75, and (2) costs in the amount of $3,415.64. (Pl.'s Mot. at 5-6.) On February 6, 1997, Rodriguez filed a supplemental motion seeking fees and costs of $3,420.00 incurred between January 31, 1997, and February 5, 1997. (Pl.'s Supplemental Mot. for Attorneys Fees and Costs [filed Feb. 6, 1997] [hereinafter "Pl.'s Supplemental Mot."].)

Rodriguez argues that his claims stem from a common core of operative facts relating to allegations that defendants interfered with the confidentiality of his attorney-client communications. He further claims that he is entitled to be fully compensated for attorneys' fees and costs because of the "significant overall equitable relief [he] obtained." (Pl.'s Mot. ¶ 7.) He claims the fees and costs incurred were "necessarily and reasonably expended." (Id. ¶ 8.) According to Rodriguez's attorneys, their time and costs were "contemporaneously and accurately recorded" and they exercised "reasonable and professional billing judgment so as to eliminate unnecessary or otherwise objectionable hours and expenses." (Id. ¶ 9.) In particular, Rodriguez's attorneys modified their raw billing data to: (1) subtract twenty hours from a total of over sixty-six hours expended by Miller in researching and drafting Rodriguez's opposition brief to defendants' motions to dismiss and for summary judgment; (2) omit Michael Heher's time of one hundred hours expended on behalf of Plaintiff Ronald White; (3) bill for only one attorney's time where more than one was involved (e.g., meeting together, multiple attendees at same meeting or hearing); and (4) deduct charges for in-house copying ($480) and long-distance phone calls ($200). (Id. ¶ 10.) Defendants argue that: (1) the PLRA governs Rodriguez's fee application, or, alternatively, fees incurred after the PLRA's effective date; (2) Rodriguez is not a prevailing party and is therefore not entitled to attorneys' fees; (3) any fees awarded must be restricted to those "directly and reasonably incurred" in obtaining relief; and (4) costs should be denied, in part. (Defs.' Resp.)

ANALYSIS

1. Application of the PLRA

The PLRA became effective April 26, 1996, and provides in pertinent part as follows:

(d) Attorney's fees

(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that —

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and

(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

. . . . .

(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, for payment of court-appointed counsel.

42 U.S.C.A. § 1997e. Rodriguez argues that, because the PLRA became effective in 1996, four years after he initiated suit, its provisions do not apply to any part of his fee application — including the part representing time spent after the effective date of the Act. Defendants respond that the Act applies to every part of plaintiff's fee application. Because of a severe split among the courts of appeal, there is persuasive authority for both positions — as well as for the intermediate position that the Act applies only to fees representing time expended after its effective date.

The United States Supreme Court has prescribed the method for analyzing the applicability of a new statute to events happening before the statute's effective date. "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). When a statute lacks an express command, "the court must determine whether the new statute would have a retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. If a statute has a "retroactive effect," a court should not apply it absent clear congressional intent otherwise. Id.

Following Landgraf, I first consider whether Congress has expressly prescribed the proper reach of section 1997e. Noting that section 1997e applies "[i]n any action brought by a prisoner" (emphasis supplied), two courts of appeal have treated this language as sufficient to expressly prescribe the statute's temporal reach and have held that the statute unequivocally applies to limit all fee awards made after its effective date, even if the work was performed before the effective date. Madrid v. Gomez, 150 F.3d 1030, 1035 (9th Cir.199...