Tabech v. Gunter, CV87-L-377
| Decision Date | 01 December 1994 |
| Docket Number | No. CV87-L-377,CV87-L-497 and CV87-L-607.,CV87-L-476,CV87-L-377 |
| Citation | 869 F. Supp. 1446 |
| Parties | Mohamed Abdul Hafiz El TABECH, Plaintiff, v. Frank GUNTER, et al., Defendants. Victor LUNA, et al., Plaintiffs, v. Harold CLARKE, et al., Defendants. Reginald PIERCE, et al., Plaintiffs, v. Harold CLARKE, et al., Defendants. Jerry JENSEN, et al., Plaintiffs, v. Frank GUNTER, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Gregory D. Barton, Harding & Ogborn, Robert W. Shively, Jr., DeMars, Gordon, Olson, Recknor & Shively, Barry L. Hemmerling, Jeffrey, Hahn & Hemmerling, Lincoln, NE, Scott D. Freese, Hutton & Freese, Norfolk, NE, for plaintiffs.
Don Stenberg, Atty. Gen., Terri M. Weeks, Asst. Atty. Gen., Lincoln, NE, for defendants.
Two motions1 are pending before me: The defendants have moved the court (Filing 255) to revoke its prior order indicating that injunctive relief would be granted, arguing that recently enacted federal legislation precludes such relief; and the plaintiffs have moved the court (Filing 252) for an award of attorney fees and expenses, arguing that they are prevailing parties entitled to such an award under federal law.
I shall deny the defendants' motion. I shall grant the plaintiffs' motion in part and deny it in part, awarding the plaintiffs attorney fees and expenses. The plaintiffs request attorney fees of approximately $321,705.382 and expenses of $10,321.83, but I shall limit the attorney-fee award to $168,543.27, plus expenses of $10,321.83.
These consolidated cases are class-action civil-rights cases brought by inmates at the Nebraska State Penitentiary (NSP) challenging their conditions of confinement.
After an 18-day trial to the court, the court determined, among other things, that the evidence proved an Eighth Amendment violation regarding the random placement of newly arrived inmates in double cells at NSP's main housing units. Jensen v. Gunter, 807 F.Supp. 1463 (D.Neb.1992). Thereafter, the court considered the contours of appropriate injunctive relief and in August, 1994, notified the parties of the terms and conditions the court would incorporate in its injunctive order.
The court subsequently became aware of the so-called Violent Crime Control and Law Enforcement Act of 1994 hereinafter "Act", particularly section 20409 of the Act. Pub.L. No. 103-322, 108 Stat. 1796, 1827-28 (Sept. 13, 1994) () hereinafter "section 20409 of the Act". The court advised the parties of the provisions of the Act. Based on section 20409 of the Act, the defendants now move the court to set aside its decision to issue injunctive relief.
Section 20409 of the Act states:
In essence, the defendants argue that under section 20409 of the Act injunctive relief is not appropriate in these cases because (1) the relief recommended by the magistrate judge and ordered by this court is premised on the fact that double-celling of inmates is required due to overcrowding at NSP, and the Act precludes such relief; and (2) the Act eliminates the use of class-action lawsuits to resolve claims that prison overcrowding violates the Eighth Amendment because individual plaintiffs must prove that overcrowding inflicts cruel and unusual punishment with respect to each plaintiff inmate, and class representatives cannot make (and have not made) such an individualized showing in class-action cases. I disagree with the defendants' arguments for three reasons.
First, even if section 20409 applied to class actions generally, it would not apply to these cases because these cases are not "crowding" cases within the meaning of the Act. As this court observed in its prior liability determination, "this case is not an overcrowding case...." Jensen v. Gunter, 807 F.Supp. 1463, 1469 (D.Neb.1992). Indeed, when I determined to issue injunctive relief in these cases, I also found that "here, the violation was not overcrowding or double-celling per se, but rather random double-celling of new inmates without consideration of important data." (Filing 244, at 20.) Therefore, the provisions of section 20409 are inapplicable because these are not cases where the court has held "prison ... crowding unconstitutional under the eighth amendment...." Section 20409(a)(1) of the Act (emphasis added).
Second, section 20409 of the Act has no application to these cases because these are class-action lawsuits, and section 20409 does not by its plain terms, or by reference to pertinent legislative history, indicate congressional intent to apply the Act to class-action suits.
Section (a)(1) of section 20409 of the Act states that "a Federal court shall not hold prison or jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff inmate proves that the crowding causes the infliction of cruel and unusual punishment of that inmate."
By its terms ("an individual plaintiff inmate"), section (a)(1) of the Act pertains to lawsuits involving individuals. Thus, section 20409(a)(1) would bar a federal court from imposing injunctive relief in a case brought by one or more individual inmates beyond the relief necessary to remedy the specific overcrowding grievance of the individual inmate(s) who brought suit.3 However, there is nothing in section 20409 that expressly seeks to alter or amend the long-standing provisions of the Federal Rules of Civil Procedure authorizing the courts to issue relief to a "class" of individuals, so long as the class representatives prove the case for themselves and the unnamed members of the class. Indeed, the "rule of construction" found in section (b)(2) of the Act strongly implies that Congress had no intent to limit the power of a court to issue class-wide relief.
If there were any doubt about this fact, such doubt is resolved by reference to the report of the conference committee of the House and Senate. In that report, the conferees specifically stated that "the Conferees note that this section has no effect on the certification or success of class action lawsuits." Joint Explanatory Statement of the Comm. of Conference, Amendment of the House to the Bill (H.R. 3355) to amend the Omnibus Crime Control and Safe Streets Act of 1968, 140 Cong.Rec. H7474 (daily ed. Aug. 10, 1994).4 See also Joint Explanatory Statement of the Comm. of Conference, 140 Cong. Rec. H8868 (daily ed. Aug. 21, 1994) ("The Conferees note that this section 20409 has no effect on the certification or success of class action lawsuits.").
Thus, whether the plain words of the statute are reviewed without reference to the legislative history or whether the Act is viewed in light of the legislative history, the conclusion is the same: Section 20409 of the Act does not apply in these cases because these cases are certified as class-action lawsuits.
Finally, even if the Act applied to these cases generally, there was sufficient specific evidence in the record as to each plaintiff (whether named or unnamed) to justify the remedial order which will be issued in these cases.
For example, at the liability stage of these cases, the court found as fact that (1) within three days of his transfer to a double cell in one of the four main housing units, named plaintiff Jensen "was awakened by Svitak Jensen's cellmate punching him in the face," Jensen, 807 F.Supp. at 1473; (2) five of inmate Hart's cellmates "checked into protective custody" because of their fear of being assaulted, id. at 1475; (3) "violent cellmate confrontations are routine," id.; (4) the "practice of double celling is, of course, the primary factor leading to violent attacks by a cellmate on a cellmate," id.; (5) the "amount of violence and threatened violence as well as the presence...
To continue reading
Request your trial
-
Klinger v. Nebraska Dept. of Correctional Services, 4:CV88-L-399.
...($50) and law clerks ($35) are actually lower than that allowed for similar work in other civil rights cases, Tabech v. Gunter, 869 F.Supp. 1446, 1456 & 1461 (D.Neb.1994) (attorney rate of $85-$105 per hour in civil rights cases of the type involved in that case was reasonable; $55 allowed ......
-
Jensen v. Clarke
...described it as "an Eighth Amendment violation respecting random double-celling of newly arrived inmates." El Tabech v. Gunter, 869 F.Supp. 1446, 1467 (D.Neb.1994) (El Tabech II ). That constitutional violation applies to every inmate who faces the possibility of being randomly celled eithe......
-
Orr v. Nelson
...in cases such as this, and I therein explored in depth the appropriate range of fees in the relevant economic market. El Tabech v. Gunter, 869 F.Supp. 1446 (D.Neb.1994) (awarding attorney fees under section 1988(b) in the sum of $168,543.27 at rates for lawyers ranging from $105.00 per hour......
-
Weaver v. Clarke
...law clerks, were between $60-$65 an hour. These are customary charges in the relevant economic market."). See also, Tabech v. Gunter, 869 F.Supp. 1446, 1455 (D.Neb.1994). The same principle applies to out-of-pocket expenses; that is, if an out-of-pocket expense is normally billed to fee-pay......