Taylor v. Perini, 73-2071

• Decision Date: 03 October 1974
• Docket Number: No. 73-2071,73-2071
• Citation: 503 F.2d 899
• Parties: J. B. TAYLOR et al., Plaintiffs-Appellees, v. E. P. PERINI, Superintendent, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 899

503 F.2d 899

J. B. TAYLOR et al., Plaintiffs-Appellees, v. E. P. PERINI, Superintendent, Defendant-Appellant.

No. 73-2071.

United States Court of Appeals, Sixth Circuit.

Argued April 15, 1974.

Decided Oct. 3, 1974.

James A. Laurenson, Chief Counsel, Columbus, Ohio, for appellant; William J. Brown, Atty. Gen., Richard B. Igo, Asst. Atty. Gen., Columbus, Ohio, on brief.

Niki Z. Schwartz, Gold, Rotatori, Messerman & Hanna, Cleveland, Ohio, for appellee.

Thomas W. Gray, Gerald M. Jackson, Avery S. Friedman, Cleveland, Ohio, on brief for amicus curiae Bar Assn. of Greater Cleveland.

Armand Derfner, Washington, D.C., for amicus curiae Lawyers' Committee for Civil Rights Under Law; Wilmer, Cutler & Pickering, Washington, D.C., of counsel.

CELEBREZZE, Circuit Judge.

This is an appeal by the Superintendent of the Marion Correctional Institution at Marion, Ohio and by the State of Ohio from an Order of the District Court denying Appellant's motion to vacate a portion of a Journal Entry and Order entered on September 12, 1972 providing for the payment of attorneys' fees. The award was part of the resolution of a class action by the Institution's inmates for injunctive relief from conditions and practices violative of rights secured to them by the Constitution and 42 U.S.C. 1983.

The action was commenced on September 17, 1969, by J. B. Taylor, an inmate of the Marion Correctional Institution on behalf of himself and his fellow inmates against E. P. Perini, Superintendent of the Institution. Counsel was appointed by the court to represent Appellees. Appellant Perini was represented by the Ohio Attorney General. Appellees' counsel filed a First Amended Complaint seeking only injunctive relief from allegedly unconstitutional conduct and conditions, including obstruction of access to courts and lawyers, racial discrimination in job assignments and racial segregation of living quarters, and deprivations of substantive and procedural due process in the administration of discipline, including the infliction of cruel and unusual punishment.

On January 7, 1971, Appellee Taylor filed a Supplemental Complaint seeking compensatory and punitive damages, alleging that Perini had personally subjected him to deprivations of civil rights in retribution for filing the lawsuit.

On September 12, 1972, the District Court entered a Journal Entry and Order which had been negotiated and agreed to by counsel. That order granted nearly all the relief requested in the First Amended Complaint, including attorneys' fees and expenses, and provided that the Court would retain continuing jurisdiction to oversee the implementation of its order.

Subsequently, following a trial, the District Court entered Findings of Fact and Conclusions of Law on the issues raised in Appellee Taylor's Supplemental Complaint. The Court held that Appellant Perini was not liable to Appellee because 'the defendant was, at all times, acting in good faith to carry out his duties as he understood them.'

Subsequent negotiations resulted in an agreement in December 1972 between Appellees' counsel and the Attorney General's office as to the amount to be paid pursuant to the provision for attorneys' fees. However, on February 26, 1973 the Attorney General's office advised Appellees' counsel that no attorneys' fees would willingly be paid in compliance with the order of September 12, 1972. Appellees' counsel then filed a motion for determination of attorneys' fees and expenses pursuant to the order of September 12, 1972, and Appellants moved to vacate that portion of the order providing for attorneys' fees pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ¹ on the ground that the Eleventh Amendment prohibited the award. On May 23, 1973, the District Court denied the motion to vacate, set the amount of the award at $21,055.07, ² and ordered it paid.

Subsequently the Attorney General filed a motion seeking:

An order of Clarification, specifying that the award of attorneys fees in this matter was a judgment to be satisfied from revenues of the State of Ohio, and not a judgment to be exacted from the personal earnings, savings, or other assets of E. P. Perini.

On July 25, 1973 the District Court clarified its previous order by specifically providing:

'. . . the award of attorney fees in this action runs against both the defendant Perini and the State of Ohio and can be collected from either at plaintiffs' option.'

The District Court also granted Appellants' motion for a stay of execution pending appeal to this Court.

The questions presented to us are whether a United States District Court may hold either a prison warden, in his personal capacity, or the State of Ohio, or both, liable for attorneys' fees to an attorney whom the Court appointed to represent a prisoner in a 42 U.S.C. 1983 lawsuit against the warden. The propriety of an award of attorneys' fees by a federal court against a state or its officials acting in their official capacity has been settled in this Circuit by our recent holding in Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), that such an award is barred by the Eleventh Amendment.

Appellee contends, however, that the state waived its immunity under that amendment when the Attorney General consented to the original court order awarding attorneys' fees. We do not agree. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), the Supreme Court, in interpreting a provision of the Indiana Constitution, stated:

We interpret this provision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. Nor do we think that any of the general or special powers conferred by statute on the Indiana attorney general to appear and defend actions brought against the state or its officials can be deemed to confer on that officer power to consent to suit against the state in courts when the state has not consented to be sued. 323 U.S. at 468, 65 S.Ct. at 352.

And in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), which followed the holding in Ford Motor, the Supreme Court said:

In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated 'by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.' Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909). 415 U.S. at 673, 94 S.Ct. at 1361.

We are unable to conclude that the State of Ohio has, through its Attorney General, waived its constitutional immunity by consenting to the award of attorneys' fees in this case. The Ohio Supreme Court has held that an award of attorneys' fees to be paid out of the state treasury must be authorized by a two-thirds vote of the General Assembly. Grandle v. Rhodes, 169 Ohio St. 77, 157 N.E.2d 336 (1959). Thus, we find that the state has not conferred on its Attorney General the authority to consent in individual cases to a payment of attorneys' fees out of the state treasury. In view of this determination, the award of fees against the State of Ohio cannot stand.

On a different footing is the award of attorneys' fees against Appellant Perini in his individual capacity. An award of attorneys' fees individually against Perini is not, of course, barred by the Eleventh Amendment. Even an award of damages is not so barred. As the Supreme Court recently reiterated, 'damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office.' Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (April 17, 1974). Two considerations are necessary, however, to determine whether the award made in this case can stand. First, it is contended that Perini is immune from liability under a theory of common law executive immunity. The Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974), discussed the nature of this immunity in the context of a suit filed under 42 U.S.C. 1983:

These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct. 416 U.S. at 247, 94 S.Ct. at 1692.

Thus, in order to determine whether a defendant is entitled to official immunity from liability for damages, there must be some finding as to the scope of his discretion, the existence of reasonable grounds for the propriety of the official's actions, and the exercise of good faith in the performance of his duties. As we have indicated previously, repeated acts of negligence may form the basis of liability for a prison warden under 1983. Pucket v. Cox, 456 F.2d 233 (6th Cir. 1972).

However, the order in the District Court was entered

'without admission of any violation of the Constitutional rights, privileges or without a finding by the Court of whether the defendant has deprived any of the members of plaintiffs' class of any such rights, privileges or immunities of any of the members of the plaintiff class by defendant, and munities.'

Thus,...