Stanwood v. Green

• Decision Date: 17 January 1983
• Docket Number: Civ. No. 72-981.
• Citation: 559 F. Supp. 196
• Parties: Orvin C. STANWOOD, Plaintiff, v. Ralph GREEN, Jr., R. Heenan, Jack Whitfield, Holly V. Holcomb, John Earhardt, S. Tony Zarbano, Charles M. Strawn, M.R. Moffit, Lonnie Van Elsberg, Frank Rema, William Miller, G. Woodrow Robison, Irene Johnson, Claude E. Waldrop, Leslie D. Miller, Richard Capehart, Ron Leonard, Jack L. Beebe, Sr., Robert A. Emmett, Edward E. Stevenson, David Tankersley, Veral Tarno, and Coos County, a political subdivision of the State of Oregon, Defendants.
• Court: U.S. District Court — District of Oregon

559 F. Supp. 196

Orvin C. STANWOOD, Plaintiff, v. Ralph GREEN, Jr., R. Heenan, Jack Whitfield, Holly V. Holcomb, John Earhardt, S. Tony Zarbano, Charles M. Strawn, M.R. Moffit, Lonnie Van Elsberg, Frank Rema, William Miller, G. Woodrow Robison, Irene Johnson, Claude E. Waldrop, Leslie D. Miller, Richard Capehart, Ron Leonard, Jack L. Beebe, Sr., Robert A. Emmett, Edward E. Stevenson, David Tankersley, Veral Tarno, and Coos County, a political subdivision of the State of Oregon, Defendants.

Civ. No. 72-981.

United States District Court, D. Oregon.

January 17, 1983.

Michael R. Stebbins, Hayner, Waring, Stebbins & Coffey, North Bend, Or., Jerome E. LaBarre, Portland, Or., for plaintiff.

Peter Kasting, Coos County Counsel, Paul L. Burgett, Coos County Dist. Atty., Coquille, Or., Ronald E. Bailey, Donald E. Murray, Bullivant, Wright, Leedy, Johnson, Pendergrass & Hoffman, Portland, Or., for defendants.

JAMES M. BURNS, Chief Judge:

This is, I hope, the last stage of litigation concerning jail conditions in Coos County, Oregon. The parties agreed to a consent decree, signed in February 1982, that requires the defendants (the County and its relevant officials) to initiate a broad range of changes, including the construction of a new jail facility along the lines of American Correctional Association standards. Plaintiff's attorneys seek an award of attorney's fees as the "prevailing party" pursuant to 42 U.S.C. § 1988. The defendants do not dispute that the plaintiff prevailed; rather, the fiercely contested issue is what amount of attorney's fees should be allowed.

Plaintiff Stanwood, then recently an inmate in the Coos County Jail in Coquille, brought this section 1983 civil rights case in 1972 to enjoin the defendants from operating allegedly unconstitutional facilities. In August 1976, the parties agreed to, and I signed, a consent decree that obliged the County to ameliorate the overcrowded, unsanitary, and other like conditions. For example, rather than make expensive structural repairs to the cramped North Bend Holding Facility, the County agreed to hold prisoners there no longer than seventy-two hours.

More than 4 years later, to renovate the County Jail in February 1981, the County threatened to move all Jail inmates to the North Bend Holding Facility. The County planned to confine the inmates there for the duration of the month-long renovation project. The plaintiff's attorneys filed a motion seeking to require the defendants to show cause why the defendants should not be held in contempt for failure to comply with the 1976 consent decree. The County agreed not to move the prisoners pending the resolution of this and other issues, and, with the strong encouragement of this court, the parties set about to negotiate a settlement. These negotiations produced a proposed amendment consent decree, which the parties submitted to the court in November 1981. I signed it, following a hearing in Coquille in December 1981, but emphasized that certain amendments, mostly technical, would be needed. The amended decree was signed in February 1982. This decree substantially modified and enlarged the remedial steps to be taken by the County.

I. Threshold Issues

Under section 1988, it is within the discretion of the court whether to allow reasonable attorney's fees. To determine the amount of the fee award, the court is to apply the standards set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), adopted by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). However, before addressing and applying the Johnson factors to this case, I must discuss and decide two significant threshold issues: the retroactivity (if any) of the award and consideration (if any) to be given the County's financial condition.

A. Retroactivity. The plaintiff seeks attorney's fees retroactive to his filing of the case in 1972. The initial consent decree was signed in August 1976. At that time, a party serving as a "private attorney general" could not recover attorney's fees absent specific legislative authorization. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). In August 1976, there was no such authorization. Later Congress amended section 1988 to authorize retroactive fee awards in civil rights cases pending on the date of enactment, October 19, 1976. Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575 n. 23, 57 L.Ed.2d 522 (1978). After the consent decree was signed in August 1976, this court was not involved in this case until February 1981, when Stanwood's attorneys filed the contempt motion. Accordingly, an award retroactive to 1972 is not appropriate in this case. However, because I am sailing unchartered waters, I make alternative findings, one covering the period 1976-1982, the other 1972-76. This way, if this case is appealed, and the court of appeals finds my ruling incorrect, the time and expense of an extra appeal may be avoided.

The Ninth Circuit has not dealt with the retroactivity question under the specific circumstances here. See Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979) (per curiam), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980) (case pending for section 1988 purposes if court's mandate has not issued on date of enactment); Bartholomew v. Watson, 665 F.2d 910 (9th Cir.1982) (discussed, infra, note 1). However, courts in the Fourth, Fifth, and Seventh Circuits have reviewed this issue in some detail. These decisions reflect a method of analysis which I find sound, and which I believe will be adopted by this Circuit.

This case would have been pending on October 19, 1976, if there had then been a substantive claim to be resolved. Peacock v. Drew Municipal Separate School District, 433 F.Supp. 1072, 1075 (N.D.Miss.1977), aff'd sub nom. Andrews v. Drew Municipal Separate School District Board of Trustees, 611 F.2d 1160 (5th Cir.1980) (per curiam). The strongest evidence that a case is pending on the October 1976 date of enactment is that the court was holding proceedings in the case. However, "the mere pendency on the date of enactment ... of supplemental proceedings to effectuate a prior final judgment is not ... sufficient to convert an action into such a `pending action' as to warrant an award of attorney fees ...." 433 F.Supp. at 1075. In Peacock, the plaintiffs filed an action in 1973 challenging the school district's policy prohibiting the employment of unwed parents. That year, the court enjoined the enforcement of the policy and announced that it would award back pay to those parents injured by the policy. In December 1976, the court resolved the specific amount of back pay due the plaintiffs. The pendency of the back pay amount proceeding did not make Peacock a pending case on the date of enactment.

On October 19, 1976, no motion in Stanwood was before this court. Nor would one be for nearly four and one half years. From a purely technical standpoint, Stanwood was not an active case. The County claims the case would not have been pending even if Stanwood's motion had been before this court on the date of enactment. See Escamilla v. Santos, 591 F.2d 1086 (5th Cir.1979) (per curiam). In Escamilla, the plaintiffs filed a class action lawsuit in 1974 challenging living conditions in the jail of Webb County, Texas. The suit ended with a consent decree in July 1976. On October 1, 1976, the plaintiffs filed a motion concerning the County's failure to comply with the consent decree. This motion was before the court on the date of enactment. However, the court of appeals found motion was "in the nature of a supplemental proceeding to effectuate the prior consent judgment and was insufficient to make a pending active issue." Id. at 1088 n. 1 (citing Peacock, 433 F.Supp. at 1075-76). But the Fifth Circuit does not describe the relief the plaintiffs sought or the nature of the County's noncompliance, factors that are relevant to an assessment of whether litigation has been concluded. Therefore, I cannot and, indeed, need not, decide whether the Escamilla analysis requires the same result here.

Enforcement of a consent decree or remedial order may be more important than an initial finding of liability. In Bolden v. Pennsylvania State Police, 491 F.Supp. 958 (E.D.Pa.1980), the plaintiffs filed a class action lawsuit in 1973 challenging the defendant's discriminatory employment practices. The suit settled in 1974 by consent judgment. The defendant was under court order to develop job-related hiring and promotion criteria, demonstrate their validity to the district judge, and use them to remedy past discrimination. As such, "the consent decree expressly contemplated a continuing judicial proceeding." Id. at 961. Consequently, the court awarded attorney's fees retroactive to 1973.

On October 19, 1976, this court did not contemplate that this would be a continuing judicial proceeding. The 1976 consent decree details in some forty pages the remedial steps the County was to take. The parties could have, but did not, draft the consent decree to include this court's continuing involvement. Cf. Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980), vacated and remanded, 652 F.2d 823 (9th Cir.1981) (per curiam) (State ordered to submit plan to alleviate overcrowded prisons). That the County was to initiate its policy changes 120 days after the signing of the August 1976 decree—a date after October 19, 1976 —does not mean that substantive issues remained to be resolved. When it signed the decree, the County was obliged to act. By contrast, it may have been a different case if the County were to have submitted its new policies for this court's approval at the end of 120 days. Then a fee award might be appropriate.

Stanwood's attorneys point out that this court maintained jurisdiction over...