Carruthers v. Israel

274 F.Supp.3d 1345

Ollie CARRUTHERS, et al., Plaintiffs,

v.Scott ISRAEL, et al., Defendants.

Case No. 76–06086–CV–MIDDLEBROOKS

United States District Court, S.D. Florida.

Signed August 14, 2017

Filed August 15, 2017

Nancy Gbana Abudu, American Civil Liberties Union of Florida, Miami, FL, Eric Balaban, National Prison Project of the ACLUF, Washington, DC, Christopher C. Cloney, Cloney & Cloney, P.A., Cocoa Beach, FL, Randall C. Marshall, American Civil Liberties Union of Alabama Foundation, Inc., Montgomery, AL, for Plaintiffs.

Scott Andron, Hollie Noelle Hawn, Michael James Kerr, Stephanie W. Noe, Broward County Attorney's Office, Lynn Futch Cooney, Terrence O'Byrne Lynch, Broward Sheriff's Office, Bruce Wallace Jolly, Purdy Jolly Giuffreda & Barranco PA, Charles Thomas Whitelock, Whitelock & Associates, Fort Lauderdale, FL, Robert David Arthur, II, Martin County Attorney's Office, Stuart, FL, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND NON–TAXABLE EXPENSES

DONALD M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Plaintiffs' Motion for Attorneys' Fees and Non–Taxable Expenses for the work performed by the ACLU's National Prison Project ("NPP") and by the ACLU of Florida (collectively, "ACLU") ("Motion"), filed January 18, 2017.¹ (DE 992). On May 26, 2017, Defendant Broward County ("County") filed a response (DE 1003), and on June 1, 2017, Defendant Sheriff Scott Israel ("Sheriff") filed a response (DE 1007).² Plaintiffs replied on August 1, 2017. (DE 1010). For reasons stated below, Plaintiffs' Motion is granted.

BACKGROUND

The initial complaint in this action was filed in 1976 and raised a broad range of constitutional issues relating to prison operations and conditions, including issues of overcrowding. A class was certified in 1978. In 1994, the Court entered the Stipulation for the Entry of Consent Decree (the "Consent Decree"), which outlines the Parties' responsibilities for addressing unconstitutional conditions in County facilities.³ (DE 913–1). The Consent Decree included relief for various constitutional issues, including overcrowding, and provided for fees and costs to Plaintiffs' counsel for compliance monitoring. (Id. at 19).

In May 2001, the NPP appeared as co-counsel for Plaintiffs, upon the request of the law firm of Cloney & Malloy, which had contacted the NPP for litigation assistance in light of a pending motion to terminate the Consent Decree, brought under the Prison Litigation Reform Act ("PLRA"), 18 U.S.C. § 3626. (DE 992 at 2). After the NPP joined as co-counsel, they participated in moving the Court for the appointment of neutral experts to assess the conditions of the County facilities in order to assist the Court in resolving the then-pending motion to terminate. (DE 992 at 3). The experts issued their findings in 2004, and the Parties thereafter engaged in a series of legal skirmishes over discovery and preparation for the hearing on the termination motions. (Id. ). After extensive negotiations involving the NPP, the Parties entered into two stipulations for settlement in 2004 (the "2004 Stipulations"). (913–8; 913–9). Pursuant to the 2004 Stipulations, the NPP continued to monitor the County facilities for compliance in certain constitutionally deficient areas, including monitoring capacity to address overcrowding. (Id. ). The 2004 Stipulations also provided for Plaintiffs' entitlement to their attorneys' fees and costs. (Id. ).

After the case was transferred to me in 2014, I issued an order to show cause why the Consent Decree should not be dissolved or amended. (DE 894). In response, Plaintiffs and the Sheriff agreed to a new settlement agreement, which sets forth a process for evaluating and remedying any remaining constitutional issues in the facilities' operations. (DE 929–1). In addition, after multiple hearings, I entered an Order dissolving the Consent Decree as to the County, upon concluding that the basic purposes of the Consent Decree with regard to overcrowding had been achieved. (DE 957).

As a result of the dissolution of the Consent Decree as to the County, on October 31, 2016, Plaintiffs filed the Placeholder Motion to notify the Parties that Plaintiffs intended to seek an award of attorneys' fees and costs from the County. (DE 965). On December 2, 2016, Plaintiffs, the Sheriff, and the County filed a joint motion, requesting until January 18, 2017 for Plaintiffs to file a motion for attorneys' fees and costs as to both Defendants (DE 984), which the Court granted (DE 985).

STANDARD

A reasonable attorneys' fee award "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The fee applicant bears the burden of documenting "the appropriate hours and hourly rates." Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). After calculating the lodestar fee, the court determines whether any portion of this fee should be adjusted upwards or downwards for results obtained. Id. at 1302.

"Although [the Johnson ] balancing test has since been displaced by the lodestar formula, [the Eleventh Circuit] ha[s] expressed [its] approval of district courts considering the Johnson factors in establishing a reasonable hourly rate." Loranger v. Stierheim, 10 F.3d 776, 781 n.6 (11th Cir. 1994). The Johnson factors are: the time and labor required to prosecute the suit; the novelty and difficulty of the legal questions; the skill requisite to perform the legal service properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; the time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718–19 (5th Cir. 1974),⁴ abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989).

DISCUSSION

A. Attorneys' Fees

As an initial matter, the Parties do not dispute that Plaintiffs are entitled to attorneys' fees and costs pursuant to the Consent Decree and the 2004 Stipulations.⁵

Plaintiffs request attorneys' fees and costs for services performed by the ACLU from May 2001 through October 17, 2016.⁶ Specifically, Plaintiffs seek $757,840.00 in fees, with interest from the date of judgment, based on 3,528 hours at an hourly rate of $219.00 for attorneys and $160.00 for law clerks. Defendants raise three objections to the reasonableness of Plaintiffs' fee claim: (1) Plaintiffs are not entitled to fees for work related to the overcrowding issue because such work was not directly and reasonably incurred in proving and enforcing an actual violation of Plaintiffs' rights, (2) the PLRA dictates that the hourly rates charged by attorneys should be capped at $193.50, and (3) the Court should reduce the rate for law clerks to $100.00 so that it is more proportionate to the PLRA-rate for attorneys.⁷

i. Compensable Hours

Defendants argue that Plaintiffs are not entitled to fees for work performed by the ACLU on overcrowding for two reasons. First, Defendants argue that Plaintiffs are not the "prevailing party" under 42 U.S.C. § 1988 as to the overcrowding claim because the Court ultimately terminated the Consent Decree upon concluding that its basic purpose with regard to overcrowding had been achieved.⁸ Second, and relatedly, Defendants argue that the ACLU's work on overcrowding was not reasonably incurred in proving an actual violation of Plaintiffs' rights or proportionally related to court-ordered relief, as required by the PLRA, because the County had already addressed the overcrowding issue through the construction of new facilities, which were predominately completed before the ACLU appeared as co-counsel in this case.

As a general rule, "[e]fforts to monitor compliance with a consent judgment ‘cannot be severed from the matters upon which the plaintiff prevailed’ by obtaining the consent judgment. ..." Turner v. Orr, 785 F.2d 1498, 1503–04 (11th Cir. 1986). "[T]he expenses of the [plaintiff], including those of its counsel, incurred in its post-judgment efforts at monitoring and enforcement are properly payable by the defendants as those of a ‘prevailing party’ whether or not it prevails in each individual post-judgment effort because these ‘measures necessary to enforce the remedy ordered by the [district] court cannot be severed from the matters upon which the plaintiff prevailed’ in obtaining the judgment." Id.

The PLRA does not alter this general rule.⁹ "Once a violation has been proven, later work is compensable if it is ‘directly and reasonably incurred in enforcing the relief ordered’ for the violation." Cody v. Hillard , 304 F.3d 767, 776 (8th Cir. 2002). A subsequent order vacating a consent decree does "not change the fact that the class members had proven actual violations of their rights." Id. at 777 ; see also Webb v. Ada Cty., 285 F.3d 829, 834 (9th Cir. 2002) (rejecting defendant's argument that plaintiff is "not entitled to attorney's fees incurred in monitoring and enforcing the judgment and consent decree pursuant to the PLRA because [the plaintiff] failed to demonstrate that the postjudgment fees were incurred in proving an actual violation of the Constitution"). As the Ninth Circuit has explained:

If a postjudgment fee request could only be granted if the attorney's services were directly linked to a discrete constitutional violation, fees incurred "in enforcing the relief" that the court had ordered because of demonstrated previous constitutional violations, could not be awarded. To the contrary, when subsections (A) and (B) [of the PLRA] are read

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