CHERYL KLINGER, et al., Plaintiffs, vs. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants.



4:CV88-L-399



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA



902 F. Supp. 1036; 1995 U.S. Dist. LEXIS 15585



October 13, 1995, Decided

October 13, 1995, FILED













COUNSEL: [**1] For plaintiffs: Gail S. Perry & Stephanie F. Stacy, Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, NE.


For Defendants: Don Stenberg, Attorney General, Laurie Smith Camp, Deputy Attorney General, Lincoln, NE.



JUDGES: RICHARD G. KOPF, United States District Judge



OPINIONBY: RICHARD G. KOPF



OPINION:

[*1038] FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RELATED MEMORANDUM AND ORDER

A bench trial has now been completed on the issue of damages n1 stemming from the court's previous finding that defendants Lofgreen and Tewes violated the plaintiffs' constitutional right to access to the courts Klinger v. Nebraska Dep't of Correctional Servs., 824 F. Supp. 1374, 1434-1438, 1449-52, 1464-65, 1468 (D. Neb. 1993) (Klinger I), rev'd on equal protection grounds, 31 F.3d 727 (8th Cir. 1994), cert. denied, 130 L. Ed. 2d 1130, 115 S. Ct. 1177 (1995) (Klinger II). n2



n1 There is no basis for injunctive relief in this case because the violation ended in January of 1989, and there is no evidence or claim that such a violation is likely to reoccur. Klinger I, 824 F. Supp. at 1464-65.

n2 For this court's ruling on remand from Klinger II on the issue of Title IX of the Education Amendments of 1972, 20 U.S.C. § § 1681-1688 (Title IX), see Klinger v. Nebraska Dep't of Correctional Servs., 887 F. Supp. 1281 (D. Neb. 1995) (in light of the findings of Klinger II that men's and women's prisons in Nebraska were not factually comparable, women were not denied equal education on the basis of sex in violation of Title IX) (Klinger III).


[**2]

I now issue my findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a) on the issue of damages. In addition, I shall enter an order scheduling the filing of an application for attorney fees and a response thereto.

[*1039] I. Findings of Fact and Conclusions of Law n3



n3 Any finding of fact that is more properly construed as a conclusion of law shall be so construed, and any conclusion of law that is more properly construed as a finding of fact shall be so construed.


Prior Liability Determination

1. To summarize and restate, in Klinger I I decided the following as to liability on the access-to-the-courts claim:

A. In 1977, the Supreme Court in Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977) (footnote omitted) held that "'the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or [**3] adequate assistance from persons trained in the law.'" Klinger I, 824 F. Supp. at 1464 (Finding and Conclusion (F&C) 144).

B. In January and June, 1988, Magistrate Judge Piester and Judge Urbom found in Reutcke v. Dahm, 707 F. Supp. 1121, 1132 (D. Neb. 1988) that "'the simple fact is that if the state denies a prisoner direct physical access to a law library, the state must provide that prisoner, no matter what his status, with assistance by trained, skilled, and independent legal personnel.'" Klinger I, 824 F. Supp. at 1464


(F&C 145).

C. It was not until sometime in January, 1989, that a trained inmate legal aide was appointed to assist NCW inmates. Id. (F&C 147).

D. The orientation and segregation inmates at NCW had no physical access to the law library until November, 1989. (Id.) (F&C 148).

E. A violation of Bounds had been established regarding the inmates who were in segregation or orientation at NCW until January, 1989, since these inmates had no physical access to the law library or the assistance of a trained legal aide. The Bounds violation ended in January of 1989 when a trained and independent inmate legal aid was appointed. Id. (F&C [**4] 149).

F. Prior to January, 1989, Plaintiffs had proven a violation of Bounds regarding general population inmates because: (a) no trained and independent inmate legal aide had been appointed; and (b) the law library was not adequate in that one had to "stand in the aisle" because the only table was a small typewriter stand, and the legal materials were not organized but "just were kind of piled all over." As to general population inmates, this violation ended in January of 1989 when a trained and independent inmate legal aid was appointed. 824 F. Supp. at 1465 (F&C 153).

G. Since it was their policies which ran afoul of Bounds, Lofgreen and Tewes (former superintendents at NCW) are liable for the access-to-the-courts violations. Klinger I, 824 F. Supp. at 1468 (citing Reutcke, 707 F. Supp. at 1134) (F&C 194).

H. The physical condition of the law library was the "policy" of the superintendents. This is evident from the small size of NCW and the fact that Wayne (a superintendent of NCW who followed Tewes and Lofgreen) recognized that he was dealing with "policy" when he moved the library upon becoming superintendent so "it would be easier to find volumes and reference material [**5] they were seeking." Id. (F&C 195).

I. The restrictions on segregation and orientation inmates' physical access to the law library was a "policy" of the superintendents; for example, inmate Younger testified that Lofgreen personally denied her access to the law library when she was in segregation and Tewes approved a policy of denying physical access to the law library when he authorized segregation inmates to have law books in segregation (a policy which also violated Bounds, according to Reutcke, 707 F. Supp. at 1130). Klinger I, 824 F. Supp. at 1468 (F&C 196).

J. Lofgreen and Tewes knew there were no trained inmate legal aides, and they knew the inmates claimed to need help, as evidenced by (a) the Lange grievance to Lofgreen in June, 1988, (b) the Lange communication form regarding [*1040] writing to the NSP legal aide answered by Tewes in August, 1988, and (c) the Lange correspondence about assisting an inmate in segregation answered by Tewes in August, 1988. Id. (F&C 197).

K. Under Bounds and Reutcke, the claims regarding access to the courts involved well-established areas of the law, and therefore defendants Lofgreen and Tewes were not entitled to qualified [**6] immunity. 824 F. Supp. at 1469 (F&C 203).

Motion for Reconsideration

2. On March 20, 1995, (Filing 703) this court gave all parties leave to file motions "requesting that the court reconsider any of the findings and conclusion[s] set forth in . . . [Klinger I] pursuant to Fed. R. Civ. P. 54(b)" and the court further directed the parties to "file such a motion, with a supporting brief, by April 10, 1995."

3. On April 24, 1995, Defendants submitted a brief to the court wherein they stated: "The Court's opinion . . . is clear and should stand on its own merits, as modified by the Court of Appeals." (Br. Opp'n Pls.' Mot. Am. Opinion Pursuant to FRCP 54(b) at 1.) In that same brief, Defendants noted that no motion for reconsideration had been filed by Defendants, id., and Defendants requested "that this case proceed forward to the damage phase of the trial on the only remaining issues--those related to the plaintiffs' access-to-the-courts claims." Id. at 8.

4. Defendants never requested a modification of the court's earlier liability determination regarding access to the courts set forth in Klinger I until after the damage trial n4 was concluded on September 18, [**7] 1995.



n4 As a matter of fact, after all the evidence was presented at the damage trial, counsel for the defendants stated "that the effort we have made is not to relitigate." (One-Volume Damage Trial Transcript of Sept. 18, 1995, 130:18-19) (hereinafter "D.T.").


5. On September 20, 1995, Defendants filed a motion (Filing 717) styled "Motion to Alter or Amend Findings of Fact and Conclusions of Law" alleging essentially two things. First, Defendants submitted that recent decisions from the United States Court of Appeals had clarified the law and established that Plaintiffs did not meet their burden of proof on liability. Secondly, Defendants argued that evidence introduced at the damage phase of trial also revealed that some of the court's earlier liability determinations were erroneous.

6. Given the Court's earlier order of March 20, 1995 (Filing 703), the September 20, 1995, motion (Filing 717) is untimely.

7. Given the urging of Defendants in their brief of April 24, 1995, that the court not modify its [**8] previous liability determination, Defendants' September 20, 1995, motion, coming after the damage trial had been completed, would, if granted, unfairly surprise and prejudice Plaintiffs.

8. None of the cases cited by Defendants in support of their September 20, 1995, motion materially changed the law insofar as liability is concerned, and all of the cases relied upon by Defendants were published substantially before trial on the damage phase began. See, e.g., Schrier v. Halford, 60 F.3d 1309 (8th Cir. 1995) (July 27, 1995). n5



n5 For example, unlike Schrier, there was no issue in this case about whether NCW was constitutionally required to provide a law library for medical malpractice claims even if the law library was otherwise adequate for other types of claims. Rather, the plaintiffs' claim was, and the evidence showed, that the law library was inadequate for all legal research matters, including criminal, habeas corpus, and civil rights actions (as well as general civil matters) because the library was too small and because it was disorganized.


[**9]

9. There is no factual merit to Defendants' claim that evidence adduced at the damage phase of trial materially contradicted the essential basis of the court's earlier access-to-the-courts liability determination. For example:

A. As to the issue of whether the law library was inadequate for general population inmates because the materials were disorganized and the library was too small, the law librarian n6 at NCW testified at the [*1041] damage phase of trial. She buttressed the previous liability determination, particularly as to the crowded and disorganized ("piled all over") condition of the library. She testified that in the summer of 1988 the law library "shelves are crowded. There are materials on the floor because we were waiting. We know we need to move. It's getting full It's filling up." (D.T. 68:16-19). She also testified that "books were placed on top of the other books" (id. 47:10-11), there "were some books stacked on the floor" (id. 47:13-14), and, at least for books on the floor, the books "may not have been in specific numeric order." (Id. 47:22). She further testified during the damage phase of trial that it would have been apparent to a first-time observer [**10] that something needed to be done in the summer of 1988:


THE COURT: If someone new walked into that law library, never seen it before?


THE WITNESS: Yes.


THE COURT: Would it have been apparent to that person that something needed to be done, that some change needed to be made?


THE WITNESS: Most likely.


THE COURT: And why do you say that?


THE WITNESS: Because of the crowded condition. (D.T. 69:12-20). n7

B. As to the issue of whether inmates in segregation and orientation were denied physical access to the law library until 1989 when Wayne became superintendent n8, the librarian corroborated this determination as well:


Q. . . . . You said you didn't remember the time frame, but you remember sometime during Larry Wayne's administration when there was a formalized way for segregation inmates to get physical access to the law library?


A. Yes.


Q. And before that, there wasn't any routine plan for that?


A. Well, the OM [operational memorandum] provides, the OM that was rewritten in '88, in September of '88 does provide for that access, but there is nothing specific.


Q. Right. And so and there wasn't any publication that you [**11] know of that the inmates could request that kind of physical access?


A. Not that I recall. n9


(D.T. 61:7-20)





n6 Ms. Janice Axdahl, the librarian, was an extremely credible witness who was grossly overworked. As I noted in Klinger I, 824 F. Supp. at 1436, "Ms. Axdahl was an NCW staff member whose duties were many. For example, she was involved in education, orientation and recreation at NCW at various times."

n7 The librarian further stated that there was "a" chair and square table in the library in addition to a typewriter stand. (D.T. 69:6-11). While this testimony is slightly different than what I had earlier understood for purposes of the liability determination, as noted in the text, the librarian nevertheless confirmed at the damage trial that it was apparent that something needed to be done "because of the crowded condition." (D.T. 69:15-20.) In all material respects, the librarian's testimony at the damage phase of trial was entirely consistent with the inmate legal aide's liability phase testimony. Linda Lange, the inmate legal aide, testified that the law library was inadequate because it was too small and the legal materials were not organized. (Liability Trial Transcript (L.T.) Vol. X, 2636:17-25; 2637:1-2638:12; 2649:9-15; 2650:6-14). [**12]




n8 During the liability phase of trial Wayne testified that "in the fall of 1989, I initiated a procedure by which women housed in the segregation unit could have physical access to the law library at NCW." (L.T. Vol. XIII 3634:14-17). And Wayne further stated that it was "after I arrived at NCW [January 5, 1989], orientation women were provided access to the law library." (Id. 3638:16-18).

n9 Thus, the actual practice did not change.


10. The motion (Filing 717) styled "Motion to Alter or Amend Findings of Fact and Conclusions of Law" should be denied.

Liability Theory

11. A complete and systematic denial of an inmate's constitutional right of access to the courts is such a fundamental constitutional deprivation that it is injury in and of itself for liability purposes without a showing of actual injury or actual prejudice. Jones v. James, 38 F.3d 943, 945 (8th Cir. 1994) (recognizing principle, but holding that inmate's claim--if he had been allowed free [*1042] mailing privileges some attorney might have taken his case--was too speculative); Hershberger v. Scaletta, 33 F.3d 955, [**13] 956 (8th Cir. 1994) (applying the principle, and upholding injunction barring postal charge for legal mail regarding inmates in segregation); Klinger I, 824 F. Supp. at 1435 n.115; Reutcke, 707 F. Supp. at 1129.

12. On the other hand, if the alleged denial of the right of access to the courts does not amount to a complete and systematic denial, then an inmate plaintiff must prove actual injury or prejudice in order to establish liability. Schrier, 60 F.3d at 1313 (appointment of lawyer sufficient access to the courts to require inmate to show actual injury or prejudice); Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994) (where inmate legal aides claimed they were impeded in rendering assistance to illiterate inmates, but inmates had access to the law library, the failure to assert actual injury or prejudice justified dismissal).

Damage Theory

13. There are three types of damages which are normally recoverable once liability has been established in a civil rights case such as this one: actual or compensatory damages, nominal damages, and punitive damages. Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § 4.51 at 73 (West [**14] 1995) (Committee Comments).

14. "Actual or compensatory damages are to 'compensate persons for injuries that are caused by the deprivation of constitutional rights,' and not 'undefinable value of infringed right' or 'presumed' damages." Id. (quoting Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307, 309, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986)).

15. Actual damages, which may include out-of-pocket losses, other monetary losses, or losses for personal humiliation, mental anguish and suffering, must, nevertheless, be the "direct result" of the "conduct of the defendant" in order to be recoverable. Id. § 4.51 at 72.

16. Nominal damages are appropriate where the finder of fact is unable to place a monetary value on the harm suffered by the plaintiff. Id. § 4.52 at 74. See also Cowans v. Wyrick, 862 F.2d 697, 699 (8th Cir. 1988).

17. "Presumed" damages may be awarded as a substitute for actual or compensatory damages only in those rare situations "when a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish." Stachura, 477 U.S. at 310-11.

18. "Presumed damages" have historically been limited to those [**15] classes of cases where the law, without requiring proof of damage, has inferred "substantial money damages" merely from proof of liability, such as where a person is wrongly prohibited from voting in a particular election or in cases of actionable slander. 477 U.S. at 311-12 n.14.

19. Although the "precise impact Stachura will have on the availability of presumed damages in section 1983 actions remains to be seen," 2 Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions P 4.07 at 4-58.3 (1995), when one is dealing with the normal type of case where "damages are readily measurable, presumed damages are not appropriate. Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 317 (8th Cir. 1986), cert. denied, 482 U.S. 905, 96 L. Ed. 2d 374, 107 S. Ct. 2481 (1987) ("Any door left open by Memphis [Stachura] is not for plaintiffs like Lewis, whose damages are readily measurable.") (footnote omitted).

20. Because there is no Eighth Circuit precedent authorizing "presumed damages" in a case like this one, because historically presumed damages have not been awarded in cases like this one, and because actual or compensatory damages are normally measurable in cases like [**16] this one, a violation of the right to access to the courts, even if the violation is complete and systematic, is not the type of injury where "presumed damages" may be used as a substitute for actual or compensatory damages. Reutcke, 707 F. Supp. at 1136.

[*1043] 21. The purpose of punitive damages is to "'punish the defendant for his willful or malicious conduct and to deter others from similar behavior.'" Id. (quoting Stachura, 477 U.S. at 306 n. 9).

22. Imposition of punitive damages requires a showing of reckless and callous indifference to the plaintiffs' rights. Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § 4.53 at 76.

23. Whether to award punitive damages, and the amount of those damages, is within the sound discretion of the fact-finder. Id.

Liability: General Population Inmates

24. In general, for the time period prior to January, 1989, the plaintiffs proved a complete and systematic violation of Sounds regarding general population inmates because: (a) no trained and independent inmate legal aide had been appointed; and (b) the law library was not adequate in that it was too small and its collection was [**17] disorganized.

25. In particular, the NCW law library at all pertinent times was so disorganized that the condition of the law library amounted to a complete and systematic denial of access to the courts under Bounds, even though the general population inmates at NCW had physical access to the library. Simply stated, access to a disorganized pile of books stored in a small room "barely big enough to turn around in" (L.T. Vol. I, 143:9-10) is not access to a law library.

26. For example, Linda Lange, who later became the inmate legal aide, testified, in response to a question dealing with the organization of the library, that before she organized the law library in January of 1989 when she became the aide: "I wasn't able to use most of the stuff." (L.T. Vol X, 2638:9-12). Indeed, Lange testified that the first thing she did when she was appointed inmate legal aide was to "organize it," "clean it up," and "do an inventory." (Id. 2650:8-9.) Prior to this time "you couldn't really organize it because the books were piled all over because there was no shelf to put them on, so they just stayed piled." (Id. 2650:11-13).

27. The law library was so disorganized that it did not even [**18] contain accurate and up-to-date copies of the operational memorandum and administrative regulations that guided all Nebraska prisons and DCS. (L.T. Vol. I, 14:4-16) ("not in any particular sequence" and "outdated"). For example, inmate Cheryl Klinger, who had experience as a legal secretary (id. 144:7-8; 145:11-13) and as a secretary for a parole administrator (id. 120:11-13), could not "match up" operational memorandum and administrative regulations that were found in the NCW library with copies of "OMs" and "ARs" received from other Nebraska penal institutions. (Id. 158:15-25; 159:1). This was especially significant to Klinger because she was the person who drafted the grievance that prompted this lawsuit. (Id 149:4-5). The ability to make an accurate comparison of "OMs" and "ARs" was important to Klinger because it formed the basis for the grievance which alleged, among other things, that female inmates were treated less favorably than male inmates. (Id. 149:6-7; 158:15-18.)

Damages: General Population Inmates

28. Plaintiffs admit that they have no evidence that "someone missed an appeal deadline or lost their case because of their inability to get into or have adequate [**19] assistance in the law library." (D.T. 133:12-14). Plaintiffs have not proven that they suffered any out-of-pocket or other related monetary losses.

29. While Plaintiffs proved that they suffered emotional distress resulting from the inequality in how female inmates were treated as compared to male inmates, Plaintiffs have not persuaded me that such emotional distress was caused in whole or in part by the Bounds violation. Rather, I am persuaded that the female inmates suffered emotional distress because of the equal protection violation committed by Gunter and Clarke, a violation that has now been determined, by the court of appeals, not to have been proven. Klinger II.

30. Because Plaintiffs, individually and as a class, are unable to show Lofgreen or Tewes caused actual or compensatory damages, [*1044] and because this type of case is not the type of case where presumed damages have been recognized, I shall award $ 1.00 as nominal damages to the general population inmates with respect to the complete and systematic violation of Sounds because I am unable to put a dollar value on the harm Plaintiffs suffered. Hershberger, 33 F.3d at 956 n.3; Reutcke, 707 F. Supp. at [**20] 1136; Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § 4.52 at 74-75.

31. The evidence establishes that neither Lofgreen nor Tewes was recklessly and callously indifferent to the rights of the general population inmates under Bounds. Moreover, in the exercise of my discretion, I do not believe that punitive damages are warranted insofar as the general population inmates are concerned.

32. Four examples will serve to illustrate why I do not believe that punitive damages are appropriate:

A. The law librarian testified that plans were made as soon as it was apparent that the law library was overcrowded to move the library and shelves were ordered for that purpose. (D.T. 69:25-71:9). The librarian further testified that it was the delay in receiving the shelving that delayed the eventual move of the law library. (D.T. 70:17-71:3). She also testified that neither Lofgreen nor Tewes were indifferent to this problem. (D.T. 71:4-7).

B. Because he was concerned that the inmates did not know how to use the law library, in the spring of 1988 Lofgreen wrote to various law schools seeking information on correspondence courses which could [**21] be offered to NCW inmates to assist them in the use of the law library. (D.T. 75:10-77:6). This activity took place in April of 1988 (D.T. 75:22-76:5), prior to the NCW inmates' July 1988 suit in this case. Klinger I, 824 F. Supp. at 1382. This conduct is inconsistent with the assertion that Lofgreen was recklessly and callously indifferent to the legal needs of the inmates.

C. Tewes, who came from the DCS central office, was a temporary superintendent at NCW who served the institution about five months. (D.T. 99:11-16.) He had no prior experience as a superintendent; in fact, he had never worked in a correctional institution prior to serving as temporary superintendent. (D.T. 99:20-22). Because Lofgreen apparently resigned unexpectedly, Tewes "had no time to become oriented to" the job at NCW, but rather started work the day after Lofgreen left. (Id. 100:22-101:3). Tewes also maintained many of his responsibilities at the DCS central office acting as a program director. (Id. 100:9-21). Tewes had little time or opportunity to familiarize himself with the problems at NCW, he had no experience in actually running a prison, and he was overworked. Accordingly, the lack of time, [**22] experience, and opportunity for orientation suggests that Tewes was not motivated by callous and reckless disregard of the inmates.

D. Within approximately one month after Judge Urbom's adoption of Judge Piester's report and recommendation in Reutcke in June of 1988, Klinger I, 824 F. Supp. at 1435, inmate Lange was selected by Lofgreen as a potential inmate legal aide and her training was started. (D.T. 53:23-54:8). This relatively quick response by Lofgreen is not indicative of reckless and callous disregard by Lofgreen. While Lange completed her training in September of 1988 when Tewes was the superintendent, she was not appointed as a legal aide until January of 1989. The reasons for this delay, according to the law librarian, were because of various administrative concerns raised by the staff, including "some misconduct reports that Ms. Lange had received." (D.T. 40:12-42:16). While the reasons for the delay are debatable, the explanation by the law librarian is inconsistent with the assertion of reckless and callous indifference on the part of Tewes, particularly given Tewes' lack of experience, lack of orientation to his job, his temporary status, and the fact that [**23] he was overworked.

Liability: Segregation and Orientation Inmates

33. In general, for the time period prior to January, 1989, plaintiffs proved a [*1045] systematic and complete violation of Bounds regarding segregation and orientation inmates because: (a) no trained and independent inmate legal aide had been appointed; and (b) these inmates had no physical access to the law library. Moreover, for the reasons articulated above, even if these inmates had physical access to the library, Plaintiffs would have nevertheless proven a complete and systematic violation of Bounds because there was no trained and independent inmate legal aide, and the law library was not adequate in that it was too small and its collection was disorganized.

34. To the extent that Defendants seriously argue that the policy of allowing inmates in-segregation or orientation to "order" law library books amounted to "some access" to the law library and thus there was no complete and systematic violation of Bounds, I reject the argument. If an inmate, who has no access to a trained legal aide, cannot physically go to the law library, the process of "ordering" books from the law library is no substitute [**24] for physical access to the library. This is particularly true for prisoners, like the vast majority of NCW inmates, who are poorly educated and untrained in the law. Moreover, this point is even more compelling where, as here, the law library was utterly disorganized.

35. As the Fourth Circuit said in 1978, "Simply providing a prisoner with books in his cell, if he requests them, gives the prisoner no meaningful chance to explore the legal remedies he might have." Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir. 1978), cert. denied, 442 U.S. 911, 61 L. Ed. 2d 276, 99 S. Ct. 2825 (1979). Indeed, it is "unrealistic to expect a prisoner to know in advance exactly what materials he needs to consult." Id. Rather, such a policy amounts to a complete and systematic denial of the right of access to the courts. Reutcke, 707 F. Supp. at 1132 ("The simple fact is that if the state denies a prisoner direct physical access to a law library, the state must provide that prisoner, no matter what his status, with assistance by trained, skilled, and independent legal personnel.") (citations omitted); Watson v. Norris, 729 F. Supp. 581, 585-86 (M.D. Tenn. 1989) (Tennessee correctional [**25] institution deprived inmates in segregation of their right of access to the courts by prohibiting physical access to prison library when prison policy allowed "jailhouse lawyer" to refuse, in his sole discretion, to help the segregated inmate).

36. Schrier cannot fairly be read to require a different conclusion.

Damages: Segregation and Orientation Inmates

37. For the same reasons earlier stated regarding general population inmates, I award segregation and orientation inmates $ 1.00 in nominal damages.

38. For the same reasons earlier stated regarding general population inmates, I decline to award compensatory or actual damages, presumed damages, or punitive damages to the segregation and orientation inmates.

II. Attorney Fees Application

Now that all liability and remedy issues have been resolved, it is necessary to set a schedule for the filing of an application for attorney fees. NELR § § 54.3 & 83.14 (West 1995). In this regard, the parties have advised me that: (a) all evidence on the issue of whether this case was a catalyst for change regarding attorney fees was presented in the damage phase of trial; (b) all other evidentiary matters regarding attorney [**26] fees can be presented by way of affidavit; (c) the plaintiffs should be given approximately 21 days to file their application and affidavits for attorney fees with supporting brief, and the defendants should be given approximately 21 days thereafter to respond; and (d) neither party objects to the court withholding judgment until after resolution of the attorney-fee question.

Accordingly,

IT IS ORDERED that:

1. The motion (Filing 717) styled "Motion to Alter or Amend Findings of Fact and Conclusions of Law" is denied;

2. Plaintiffs are given until November 6th, 1995, to file their application and affidavits for attorney fees with supporting brief, [*1046] and Defendants are given until November 27th, 1995, to respond; and

3. Judgment shall be withheld until further order.

DATED this 13th day of October, 1995.

BY THE COURT:

RICHARD G. KOPF

United States District Judge

CHERYL KLINGER, et al., Plaintiffs, vs. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants.



4:CV88-L-399



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA



909 F. Supp. 1329; 1995 U.S. Dist. LEXIS 19461



December 15, 1995, Decided

December 15, 1995, Filed







COUNSEL: [**1] For Plaintiffs: Gail S. Perry & Stephanie F. Stacy, Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, NE.


For Defendants: Don Stenberg, Attorney General, Laurie Smith Camp, Deputy Attorney General, Lincoln, NE.



JUDGES: Richard G. Kopf, United States District Judge



OPINIONBY: Richard G. Kopf



OPINION:

[*1331] MEMORANDUM AND ORDER

Pending before the court is Plaintiffs' application for attorney fees and expenses (filing 723), in support of which Plaintiffs have filed numerous affidavits and exhibits (filing 724). After consideration of Plaintiffs' application and supporting evidence and Defendants' response thereto, I shall award Plaintiffs $ 37,084.92 in attorney fees and $ 3,557.52 in expenses.

I. BACKROUND


A. Procedural History

This case involved female inmates at the Nebraska Center for Women (NCW) who filed suit claiming inequitable treatment in programs and services as compared with male inmates at the Nebraska State Penitentiary (NSP). After a month-long trial, I issued an opinion, Klinger v. Nebraska Dep't of Correctional Services, 824 F. Supp. 1374 [*1332] (D. Neb. 1993) (Klinger I), which found: (1) when examined by reference to the "heightened scrutiny" standard, [**2] female inmates at NCW were discriminated against because of their sex in many (but not all) program and service offerings as compared to male inmates at NSP, in violation of the Equal Protection Clause of the Fourteenth Amendment, 824 F. Supp. at 1390-1431; (2) based upon the same NCW/NSP comparison which had been used for the equal protection analysis, Plaintiffs established a violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § § 1681-1688 (Title IX), because NCW did not offer regularly scheduled prerelease programs while NSP did, 824 F. Supp. at 1431-1434; (3) the segregation and orientation inmates at NCW were completely and systematically denied their right of access to the courts under the Fourteenth Amendment until January, 1989, because those inmates had no physical access to the law library or assistance from a trained legal aide, and NCW general population inmates were completely and systematically denied the same right prior to January, 1989, because those inmates did not have access to a trained legal aide and the law library itself was not adequate, 824 F. Supp. at 1434-1438; and (4) NCW's medical and dental policies did not amount to an Eighth Amendment violation, [**3] 824 F. Supp. at 1438-1440.

On interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the Eighth Circuit Court of Appeals concluded that the plaintiffs, NCW inmates, were not similarly situated to male inmates at NSP for purposes of prison programs and services; reversed Klinger I insofar as it found Defendants liable for violating Plaintiffs' equal protection rights; and dismissed Plaintiffs' equal protection claim. Klinger v. Department of Corrections, 31 F.3d 727, 729 & 731 (8th Cir. 1994) (Klinger II). Plaintiffs' petition for writ of certiorari was denied in Klinger v. Nebraska Dep't of Corrections, 130 L. Ed. 2d 1130, 115 S. Ct. 1177 (1995).

Because judgment had not yet been entered and trial had been bifurcated between liability and remedy, I revised Klinger I pursuant to Fed. R. Civ. P. 54(b) in Klinger v. Nebraska Dep't of Correctional Services, 887 F. Supp. 1281 (D. Neb. 1995) (Klinger III). In Klinger III, I reversed my decision regarding Title IX in Klinger I because my Title IX findings in Klinger I were premised upon my determination that one could profitably compare NSP with NCW, a determination explicitly reversed by the Eighth Circuit [**4] in Klinger II. Thus, I concluded in Klinger III that Plaintiffs failed to prove that NCW inmates were denied educational opportunities on the basis of sex, in violation of Title IX. Klinger III, 887 F. Supp. at 1287.

After a bench trial on the issue of damages regarding my previous finding that former NCW superintendents Victor Lofgreen and Larry Tewes were liable for the above-described access-to-the-courts violations, Klinger I at 1383 & 1452, I issued an opinion in Klinger v. Nebraska Dep't of Correctional Services, 902 F. Supp. 1036 (D. Neb. 1995) (Klinger IV). I awarded $ 1.00 in nominal damages to the NCW general population inmates, recognizing that Plaintiffs were unable to show that Lofgreen and Tewes caused actual or compensatory damages, that presumed damages have not been recognized in this type of case, that a dollar value could not be assigned to the harm Plaintiffs suffered, and that punitive damages were not warranted. Id., 902 F. Supp. 1036. I also awarded $ 1.00 in nominal damages to the NCW segregation and orientation inmates, again declining to award compensatory, actual, presumed, and [**5] punitive damages. Id., 902 F. Supp. 1036. I further ordered the filing of the application for attorney fees, which is the matter now before me.


B. Application for Attorney Fees and Expenses

Plaintiffs' application for attorney fees and expenses (filing 723) requests a base lodestar attorney fee of $ 529,784.50 and $ 50,821.71 in expenses. The application is supported by the following evidentiary materials: affidavit of Robert T. Grimit and exhibit; affidavit of Gail S. Perry and attached exhibits; affidavit of Stephanie F. Stacy; affidavit of David A. Dudley; affidavit of Susan L. Blackwell and attached exhibits; affidavit of Victor E. Covalt, III; affidavit of David R. Buntain; and [*1333] affidavit of Vincent Powers. n1



n1 All affidavits and exhibits from these individuals are part of Filing 724, but this filing number will not be repeated for ease of citation.


1. Request for Attorney Fees

Plaintiffs' request for attorney fees in the amount of $ 529,784.50 [**6] was calculated by Plaintiffs' lawyers in the following manner.

Total time billed to this case by lawyers, law clerks, paralegals, and support staff--some 45 individuals--from October 18, 1988, to October 31, 1995, was 9,591.6 hours. (Blackwell Aff. P 12(A) & Ex. K.) This sum was voluntarily reduced twice. First, the sum was reduced by 1,098 hours to delete the work of non-primary timekeepers, such as lawyers who only worked sporadically on the case or clerical personnel. (Blackwell Aff. PP 10 & 12(A)-(B) & Exs. K, L.) While the time appearing on billing statements for all primary timekeepers n2 was 8,493.6 (Blackwell Aff., Ex. L), this amount was reduced to 5,123.6 after the time entries for primary timekeepers were divided into categories of 10 core legal activities such as document discovery, discovery disputes, settlement negotiations, depositions, and motions/briefs. (Perry Aff. P 22; Blackwell Aff. PP 11 & Ex. A-J.) This reduction accounted for duplication and removal from consideration of time spent on appeal (350.2 hours). (Blackwell Aff., Ex. M.) Time for telephone calls (216 hours), correspondence (177.4 hours), and time spent on preparation of the fee application (214.5 [**7] hours) was also excluded from this initial hourly figure. (Blackwell Aff. PP 15, 16, 17 & Exs. M, S.)



n2 Primary timekeepers were senior partner Robert T. Grimit; partner Gail S. Perry; partner David A. Dudley; associate Stephanie F. Stacy, who worked initially on the case as a law clerk; paralegal Susan L. Blackwell; and law clerk Kirsten Gregory. (Perry Aff. P 6.)


The "lodestar" was then determined by taking 5,123.6 hours for the 10 core legal activities accomplished by the primary timekeepers (Blackwell Aff., Ex. L) and adding 216 hours for telephone calls, 177.4 hours for correspondence, and 214.5 hours for preparation of the fee application. (Blackwell Aff. PP 15, 16, 17 & Exs. M, S.) The total number of hours claimed to have been reasonably expended on this case was 5,731.5.

For all tasks except telephone calls and correspondence, the hourly billing rate for each primary timekeeper was then multiplied by the number of hours spent for that timekeeper. (Blackwell Aff., Exs. M, S.) These rates ranged from [**8] $ 150.00 per hour to $ 90.00 per hour for lawyers, $ 50.00 per hour for the paralegal, and $ 35.00 per hour for the law clerks. (Id.) An average hourly billing rate for all primary timekeepers of $ 105.00 per hour was multiplied by telephone and correspondence hours. (Blackwell Aff. PP 15, 16.)

The total lodestar fee was thus calculated at $ 529,784.50 for 5,731.5 hours. (Blackwell Aff., Ex. M.) This figure represents all work which counsel claim was reasonably done on the case, excluding appeals. This figure does not represent work on the successful access-to-the-courts claim only, as counsel argue they cannot break out the work done on the successful claim only because the claims were so interrelated. (Perry Aff. PP 25-28.) However, counsel make a "rough estimate" that 20 percent of their time was spent on the successful claim and closely related issues. (Perry Aff. P 29.)

2. Request for Expenses

Plaintiffs also request $ 50,821.71 in expenses. This figure was calculated by dividing the entire original computerized billing statement (Blackwell Aff., Ex. P, at 397-472; summarized at Ex. Q) into seven general categories--collect calls from inmates, long distance [**9] charges, photocopying, express mail, postage, Westlaw research, and deposition expenses. (Blackwell Aff., Ex. Q.) Telecopier expenses were not included, nor were other expenses not fitting into the above seven categories. (Compare Blackwell Aff., Ex. P, at 397-472, with Ex. Q.) The firm's customary 20-cents-per-page charge for photocopying was reduced to 5 cents per copy, and the firm's usual markup for Westlaw research expenses was not applied. (Blackwell Aff. P 14.) The total figure reached for expenses in these seven categories [*1334] was $ 21,160.03, to which was added Plaintiffs' expenses which formed the basis for their reimbursement from the Federal Practice Fund--expenses which must be repaid in the event expenses are awarded in this court. (Perry Aff. P 30; Blackwell Aff., Ex. Q, at 3.) Plaintiffs calculate these Federal Practice Fund expenses as $ 29,661.68. (Blackwell Aff., Ex. Q, at 3 (subtracting expenses in seven categories from total expenses requested); Ex. R (orders by Chief Judge Lyle E. Strom authorizing disbursement of $ 29,161.68 and $ 500 from Federal Practice Fund).)

II. ANALYSIS


A. Prevailing Party

This court has discretion to allow [**10] the "prevailing party" in this lawsuit a reasonable attorney fee as part of the costs. 42 U.S.C. § 1988(b).


To qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. . . . [A] plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

. . . .


A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay.




Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 573-74, 121 L. Ed. 2d 494 (1992). Because "the prevailing party inquiry does not turn on the magnitude of relief obtained," 113 S. Ct. at 574, it follows that "a plaintiff who wins nominal damages is a prevailing party under § 1988." 113 S. Ct. at 573. See also Milton v. Des Moines, Iowa, 47 F.3d 944, 945 (8th Cir.), cert. denied sub nom., Milton v. Heller, 133 L. Ed. 2d 44, 116 S. Ct. 87 (1995); Casey v. City of Cabool, 12 F.3d 799, 804 (8th Cir. 1993), cert. denied, 130 L. Ed. 2d 285, 115 S. Ct. 325 (1994). [**11]

Therefore, Plaintiffs' $ 2.00 award in nominal damages for access-to-the-courts violations makes Plaintiffs prevailing parties for purposes of 42 U.S.C. § 1988.


B. Nominal Damage Award as Technical or De Minimis

Despite the fact a plaintiff may be a prevailing party, when a plaintiff's success is "purely technical or de minimis, no fees can be awarded." Farrar v. Hobby, 113 S. Ct. at 576 (O'Connor, J., concurring). The relevant indicia of success are: (1) the extent of relief achieved as measured by the difference between the amount recovered and the damages sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose or goal the litigation might have served. 113 S. Ct. at 578-79 (O'Connor, J., concurring). See also Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir. 1994) (applying O'Connor factors in Farrar to prisoner civil rights case where Plaintiff alleged three Eighth Amendment claims and recovered $ 2.00 on one of the claims, with defendants prevailing on all other claims; court found Plaintiff's victory "though [**12] minimally compensated, was not pyrrhic or technical."). Applying these factors to the present case, I conclude that Plaintiffs' success is not technical or de minimis.

1. Difference Between Recovery and Relief Sought

First, I cannot say that the difference between the amount recovered, $ 2.00, and damages sought was dramatic because Plaintiffs simply requested an award of "compensatory and punitive damages." (Filing 333, at 19 (Pls.' Third Am. Compl.).) Compare Farrar, 113 S. Ct. at 578 (O'Connor, J., concurring) (17 million dollars sought; one dollar recovered).

2. Significance of Legal Issue

Second, like the court in Jones v. Lockhart, 29 F.3d at 424, I find that vindication of the "fundamental constitutional right of access to the courts," Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 [*1335] (1977), is "a significant legal issue in contrast to the injury to a business interest alleged in Farrar." n3 Access to the courts has been described as "perhaps the most cherished of all constitutional guarantees" because without such access "none of the other rights which the Constitution guarantees would be secure." Vaughn v. [**13] Trotter, 516 F. Supp. 886, 900 (M.D. Tenn. 1980). Thus, Plaintiffs' victory on their access-to-the-courts claim involved enforcement of the one fundamental constitutional right which is pivotal to the enforcement of all other rights, and is therefore a victory on a significant legal issue.



n3 Farrar involved coadministrators of decedent Farrar's estate who sought from Texas officials $ 17 million in compensatory damages pursuant to 42 U.S.C. § § 1983 and 1985 for the alleged illegal closure of a school that Farrar and his son operated. Farrar v. Hobby, 113 S. Ct. at 570.


3. Public Purpose or Goal Served by Litigation

Finally, this particular litigation served a public goal or purpose, as does civil rights litigation in general.


A plaintiff bringing a civil rights action "does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority."




Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir. 1994) [**14] (quoting Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993), cert. denied, 130 L. Ed. 2d 285, 115 S. Ct. 325 (1994) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968))).

The content of Plaintiffs' access-to-the-courts claim suggests that Plaintiffs' main goal with respect to this claim was to remedy the inadequate law library at NCW, correct the legal-aide situation, and change Defendants' unconstitutional policies. During the course of this litigation, that goal has been achieved. (Br. Supp. Pls.' Appl. Attorney Fees & Expenses, App. A (timeline indicating corrective measures taken at NCW, as established by evidence, during course of this litigation).) "The chronological sequence of events is an important factor in determining whether or not it can be inferred that the defendants guided their actions in response to plaintiffs' lawsuit." United Handicapped Federation v. Andre, 622 F.2d 342, 347 (8th Cir. 1980) (noting that even though defendants made some efforts in addressing the alleged discrimination prior to the filing of the plaintiffs' lawsuit, certain events took place after filing suit and efforts [**15] to address the discrimination increased sharply after suit was filed).

The chronological events in this case lead to an inference, id., that Defendants guided their actions with respect to the NCW library in response to Plaintiffs' lawsuit. As the "law library" timeline and overlay of Appendix A indicates, a number of pivotal changes regarding Plaintiffs' access-to-the-courts claim coincide with identifiable events in this litigation. For instance, shortly after counsel was appointed (October 1988), the inmate legal aide position was filled (January 1989) and the law library was moved and inventoried. One month before the first scheduled trial date (December 1989), NCW segregation and orientation inmates were given direct physical access to the law library, and the law library materials were expanded to include the Shepard's citator. One month before the third scheduled trial date (November 1990), the NCW law library materials were expanded yet again to include the Federal Shepard's citator. (Br. Supp. Pls.' Appl. Attorney Fees & Expenses, App. A ("Law Library" timeline with "Case Progression" overlay and references to exhibits in evidence indicating corrective measures taken [**16] at NCW, as established by evidence, during course of this litigation).)

Based on this chronology, it is clear that this litigation served a public goal or purpose by ensuring that the NCW law library complies with Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), and that NCW policies provide for adequate access to the courts.

4. Conclusion Regarding Victory as Technical

Therefore, under the O'Connor test set forth in Farrar and adopted by the Eighth [*1336] Circuit Court of Appeals, Jones v. Lockhart, 29 F.3d 422 (8th Cir. 1994), Plaintiffs' victory in this case was neither technical nor de minimis, entitling Plaintiffs to an award of attorney fees and expenses under 42 U.S.C. § 1988.


C. The Lodestar

In what has come to be known as the "lodestar," a reasonable attorney fee in § 1988 cases is the number of hours reasonably expended on the lawsuit, multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Courts are to look to the marketplace as a guide in determining what is a "reasonable" attorney fee. Missouri v. Jenkins, 491 U.S. 274, 285, [**17] 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989); Blum v. Stenson, 465 U.S. 886, 895 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (reasonableness of requested rates is to be determined with reference to rates prevailing in the community for similar services by attorneys of comparable skill, experience, and reputation).

Subsumed within the lodestar calculation are the "Johnson factors," derived from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Hensley v. Eckerhart, 461 U.S. at 429-30 & 434 n.9 (referring to Johnson factors, and noting that "many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate"). n4



n4 "Hensley makes clear that [the Johnson factors] matter only as they bear on the market rate or hours reasonably expended, or, in rare cases, if they are a basis for adjusting the lodestar." Alan Hirsch & Diane Sheehey, Awarding Attorneys' Fees and Managing Fee Litigation at 19 n.84 (Federal Judicial Center 1994). In reaching my decision, I have considered each and every Johnson factor. These factors are: (1) time and labor required; (2) novelty and difficulty of issues; (3) skill required; (4) loss of other employment; (5) customary fee; (6) whether fee is fixed or contingent; (7) time limitations imposed by client or circumstances; (8) amount involved and results obtained; (9) counsel's experience, reputation, and ability; (10) undesirability of case; (11) nature and length of relationship with clients; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 717-19.


[**18]

I now turn to calculation of the lodestar, specifically taking into account the Johnson factors. n5



n5 The sixth Johnson factor, whether the fee is fixed or contingent, will not be considered since there was no fee agreement between Plaintiffs and counsel because counsel was appointed by the court. (Br. Supp. Pls.' Appl. for Attorney Fees & Expenses at 16.)


1. Calculation of Reasonable Hourly Rate

a. Customary Fees

Plaintiffs' counsel's hourly billing rate for this litigation and other civil matters of similar size and complexity are as follows:



________________________________________________________________________________



Robert T. Grimit $ 150.00
Gail S. Perry $ 120.00
David A. Dudley $ 100.00
Stephanie F. Stacy $ 90.00

________________________________________________________________________________



(Grimit Aff. PP 4, 7; Perry Aff. PP 5, 9.) Further, because it is the practice in the relevant market to bill clients for the services of paralegals and law clerks, counsel have set forth the following billing rates for those individuals in this and similar litigation:



________________________________________________________________________________



Paralegals $ 50.00
Law Clerks $ 35.00

________________________________________________________________________________



[**19]


See Missouri v. Jenkins, 491 U.S. 274, 286-88, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989) (if practice in relevant market is to bill work of paralegals separately, that is what § 1988 requires). (Perry Aff. PP 5, 11; Covalt Aff. P 7.)

As evidenced by the affidavits submitted in this matter, these rates are well within the range of reasonableness for complex civil rights litigation in the Lincoln, Nebraska, area for attorneys with similar skill, experience, and ability. (Buntain Aff. P 6; Covalt Aff. P 6.)

b. Skill, Experience, Reputation, and Ability of Counsel

The skill, experience, reputation, and ability of counsel in this case are outstanding. Robert T. Grimit has practiced law since 1964 and is a partner at the law firm of Baylor, Evnen, Curtiss, Grimit & Witt in Lincoln, Nebraska. Mr. Grimit has been [*1337] involved in various types of complex litigation, including civil rights litigation, and has practiced extensively in state and federal courts. (Grimit Aff. P 2.) Mr. Grimit was actively involved in civil rights litigation for a number of years, and is now serving in an advisory and consultative capacity in such cases. (Grimit Aff. P 2.) Among numerous other [**20] professional affiliations and special distinctions, Mr. Grimit has held several executive positions in the Nebraska State Bar Association, including president, and is also a Fellow of the American Bar Foundation. (Grimit Aff., Ex. A.)

Gail S. Perry, also a partner in the Baylor law firm, is rated "AV" by Martindale-Hubbell and is an active participant in the Nebraska State Bar Association, including election to a second term in the NSBA House of Delegates commencing in 1995. Ms. Perry also serves on the Federal Practice Committee for the District of Nebraska. (Perry Aff. P 2.) Ms. Perry's special distinctions include membership in Phi Beta Kappa; authoring several articles dealing with law and psychology; serving as chair of the Allen Moot Court Board at the University of Nebraska College of Law; and serving as judicial law clerk for United States Magistrate David L. Piester, where Ms. Perry gained substantial experience with inmate civil rights litigation. (Perry Aff., Ex. A & P 3.) Ms. Perry has performed civil rights defense work throughout her legal career, and since becoming partner of her law firm in 1992, approximately one-third of Ms. Perry's work has consisted of such work [**21] (excluding time spent in the Klinger matter). (Perry Aff. P 3.)

David A. Dudley is a partner of the Baylor law firm, and is rated "BV" by Martindale-Hubbell. (Dudley Aff. PP 1-2.) Mr. Dudley graduated from the University of Nebraska College of Law with distinction, and while in law school was a member of the Allen Moot Court Board; Order of the Barristers, a national oral advocacy honorary; and the National Moot Court Team. (Dudley Aff., Ex. A.)

Stephanie F. Stacy is now an associate with the Baylor law firm after having served as a law clerk for the firm while in law school at the University of Nebraska College of Law. (Stacy Aff. P 1.) Ms. Stacy graduated from the College of Law with distinction and as a member of the Order of the Coif. While in law school, Ms. Stacy was a member of the Nebraska Law Review, the Allen Moot Court Board, and the National Moot Court Team; received American Jurisprudence Awards in four courses, among them Criminal Trial and Postconviction Procedure; and wrote a law review comment which was selected for publication. (Stacy Aff. P 2.) Like Ms. Perry, Ms. Stacy served as a law clerk for United States Magistrate David L. Piester for two years, during [**22] which she had intensive contact and involvement with inmate civil rights suits in federal court. (Stacy Aff. P 3.)

Counsel's reputation in the legal community for quality of work is excellent. (Buntain Aff. P 4 ("Robert T. Grimit and Gail S. Perry . . . [are] very capable, skilled and accomplished trial attorneys"); Covalt Aff. P 4 ("Robert T. Grimit, Gail S. Perry and David A. Dudley . . . [are] excellent trial attorneys").)

Counsel's performance in this particular case has been as superb as each attorney's credentials. As I have previously noted, "appointed counsels' service was of the very highest caliber." Klinger v. Nebraska Dep't of Correctional Services, 824 F. Supp. at 1382 n.4.

c. Awards in Similar Cases

While the requested hourly rates for David A. Dudley ($ 100) and Stephanie F. Stacy ($ 90) are well within the range customarily awarded by this court in civil rights litigation, and while the requested hourly rates for paralegals ($ 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 [**23] civil rights cases of the type involved in that case was reasonable; $ 55 allowed for paralegal and $ 45 for law clerk), the hourly rates claimed for attorneys Robert Grimit ($ 150) and Gail Perry ($ 120) are outside this range.

While the $ 85.00-$ 105.00 range may be reasonable for most civil rights cases, I believe the extraordinary nature of this case, as [*1338] well as the preeminence of the attorneys involved in this litigation, justify the higher rates of Mr. Grimit and Ms. Perry. This case was an extremely broad, unusually complex, institution-wide challenge to the constitutionality of NCW programs and services--a case which was made even more extraordinary by the behavior of former defense counsel.


Unfortunately, prior to the involvement in the case of Elaine Chapman and Laurie Smith Camp, counsel for the defense, this matter was often one of the most unpleasant cases in which I have ever been involved. In my professional opinion, during the time I have been engaged in the practice of law in Lincoln, Nebraska, our firm and its attorneys have never been treated worse by opposing counsel.




(Grimit Aff. P 10; see also Perry Aff. P 23 (describing former defense [**24] counsel's conduct as "zealous representation without a purpose" which was "a major distraction in this case and personally stressful").)

Adding to the extraordinary nature of the case was the four-week trial, including some weekends; the management of voluminous exhibits; and the orchestration of numerous inmate and corrections witnesses who required extreme flexibility in a not-so-flexible court schedule. (Perry Aff. P 13 & Ex. A ("I can only describe it as ferocious, beyond any litigation I have observed, heard of, or been involved in [in] my [12-year legal] career").)

d. Nature and Length of Relationship with Clients

Counsel in Klinger were appointed in 1988 and continue in 1995 to serve in that capacity, a time period which equals what this court termed an "extraordinary" length of representation in Tabech v. Gunter, 869 F. Supp. 1446, 1458 (D. Neb. 1994) (counsel appointed in 1987 to serve a large and diverse group of prison inmates for seven years; nature and length of representation should be considered extraordinary in terms of responsibility to a large number of plaintiffs and the sheer duration of the case).

e. Undesirability of Case [**25]

Plaintiffs' counsel's appointment to this case is not one envied by other private attorneys (Powers Aff. P 7; commenting on time required in such cases and fact that compensation given does not reflect inherent risks and loss of business) because prisoners can make unsympathetic plaintiffs and difficult clients, and the time required to ferret out potential claims, conduct discovery, and present such cases in trial is extraordinary (Covalt Aff. P 2). Many of counsel's regular clients reacted adversely to the Baylor firm's vigorous representation of the Plaintiff inmates in this case, and the enormity of this case had a significant adverse impact on counsel's firm in terms of total time expended and the cash flow required to pursue the case. (Grimit Aff. P 8.) Also added to the undesirability of the case were counsel's time-consuming and unpleasant disputes with former defense counsel, as discussed above. (Grimit Aff. P 10; Perry Aff. P 23.)

f. Loss of Other Employment

The affidavits submitted by Plaintiffs' counsel demonstrate that the time commitment involved in representing Plaintiffs in this complex litigation served to seriously reduce the amount of time Plaintiffs' [**26] attorneys were able to spend on other billable accounts, particularly during peak periods in the litigation. (Grimit Aff. P 8; Perry Aff. PP 14-15; Blackwell Aff., Ex. N.) The amount of work performed by Plaintiffs' attorneys and their staff on this case often required redistribution of workloads within the firm, causing an adverse effect on overall firm economics and on employee morale. (Perry Aff. PP 12, 14-16; Grimit Aff. P 8-9.)

g. Time Limitations Imposed by Client or Circumstances

"Priority work that delays the lawyer's other legal work is entitled to some premium." Johnson v. Georgia Highway Express, Inc., 488 F.2d at 718. As discussed above, counsel's other legal work was seriously delayed or redistributed in order to give priority to this case, particularly during peak litigation periods. (Grimit Aff. P 8; Perry Aff. PP 14-15; Blackwell Aff., Ex. N.) Further, the liability trial was uniquely intensive in terms of length of trial days, number and management of exhibits, orchestration of inmate and corrections witnesses, and the selective presentation of evidence required to [*1339] compress the trial into the four-week period allotted. (Perry Aff. P 13.)

h. [**27] Conclusion Regarding Rates

Considering the above factors, I conclude that the rates requested by Plaintiffs' counsel for all attorneys, paralegals, and law clerks are reasonable and should be adopted and used to calculate the lodestar.

2. Calculation of Hours Reasonably Expended

The manner in which Plaintiffs' counsel have calculated hours reasonably expended on this litigation has been described in detail in section (B) (1), above.

a. Time and Labor Required

After reducing the hours actually expended on this litigation as described in section (B) (1), above, the total number of hours reasonably expended in representing Plaintiffs in this case is as follows for each primary timekeeper:



________________________________________________________________________________



Robert T. Grimit 471.3 hours
Gail S. Perry 1,684.8 hours
David A. Dudley 955.7 hours
Stephanie F. Stacy 187.8 hours as attorney
77.9 hours as law clerk
Susan L. Blackwell 1,543.9 hours
Kirsten L. Gregory 202.2 hours
5,123.6 hours

________________________________________________________________________________



(Blackwell Aff., Exs. L & M.) Plaintiffs wish to add to these figures 216 hours for telephone calls, 177.4 hours for correspondence, and 214.5 hours for preparation [**28] of the fee application. (Blackwell Aff. PP 15, 16, 17 & Exs. M, S.) An average hourly billing rate for all primary timekeepers of $ 105.00 per hour was multiplied by telephone and correspondence hours, while each timekeeper's individual hourly rate was multiplied by the hours outlined in the table above and by the fee-application hours. (Blackwell Aff. PP 15, 16 & Exs. L, S.) Thus, the total number of hours claimed to have been reasonably expended on this case is 5,731.5 and may be summarized as follows:



________________________________________________________________________________



Robert T. Grimit Total Hours
471.3 hrs. 471.3

Gail S. Perry
1,684.8 hrs. + 42.8 hrs. (fee app.) = 1,727.6

David A. Dudley
955.7 hrs. 955.7

Stephanie F. Stacy
187.8 hrs. (atty.) + 71.1 hrs. (fee app.) = 258.9
77.9 hrs. (law clk.) 77.9

Susan L. Blackwell
1,543.9 hrs. + 72.0 hrs. (fee app.) = 1,615.9

Kirsten L. Gregory
202.2 hrs. + 28.6 hrs. (fee app.) = 230.8
5,338.1

Telephone Calls 216.0
Correspondence 177.4
5,731.5

________________________________________________________________________________



b. Novelty and Difficulty of Issues

Although Plaintiffs' attorneys had familiarity with prisoner civil rights cases when they were appointed [**29] to represent Plaintiffs, this case, in addition to containing a myriad of constitutional issues, involved many issues of first impression in this district. As such, the investigation, preparation, presentation, and briefing of this case required more time and effort on counsel's part than would be involved in a typical civil rights case. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 718 (cases of first impression require more time and effort on attorneys' part).

c. Conclusion Regarding Hours Reasonably Expended

Again considering the above factors, I conclude that the hours requested by Plaintiffs' counsel for all attorneys, paralegals, and law clerks are reasonable and should be adopted and used to calculate the lodestar.

3. Calculation of the Lodestar

The lodestar requested by Plaintiffs' counsel may be summarized as follows:



________________________________________________________________________________



Robert T. Grimit Total Fee
471.3 hrs. x $ 150 (rate) = $ 70,695.00

Gail S. Perry
1,727.6 hrs. x $120 (rate) = $ 207,312.00

David A. Dudley
955.7 hrs. x $ 100 (rate) = $ 95,570.00

Stephanie F. Stacy
258.9 hrs. (atty.) x $ 90 (rate) = $ 23,301.00
77.9 hrs. (law clk.) x $ 35 (rate) = $ 2,726.50

Susan L. Blackwell
1,615.9 hrs. x $ 50 (rate) = $ 80,795.00

Kirsten L. Gregory
230.8 hrs. x $ 35 (rate) = $ 8,078.00
Subtotal: $ 488,477.50

Telephone Calls 216.0 hrs. x $ 105 = $ 22,680.00
Correspondence 177.4 hrs. x $ 105 = $ 18,627.00

Total Lodestar Requested: $ 529,784.50
Total Hours for all Timekeepers: 5,731.50

________________________________________________________________________________



[**30]

[*1340] From the above figures, I have calculated the lodestar in the following manner: (1) total hours allowed for lawyers is 3,413.50 with a weighted effective rate n6 for lawyers of $ 116.27 per hour; (2) total hours allowed for law clerks is 308.70 with a weighted effective hourly rate of $ 35.00; (3) total hours allowed for the paralegal is 1,615.90 with a weighted effective hourly rate of $ 50.00; and (4) total hours allowed for telephone and correspondence is 393.40 with a weighted effective hourly rate of $ 105.00. The net result is a total of 5,731.50 hours allowed, with a weighted effective average for all timekeepers of $ 92.43 per hour, for a lodestar fee of $ 529,784.50. A summary of these calculations follows:



________________________________________________________________________________



SUMMARY
Total hrs. claimed and allowed: 5,731.50
Total fees allowed: $ 529,784.50
Weighted effective rate/all: $ 92.43

Total hrs. claimed/allowed for lawyers: 3,413.50
Total fees allowed for lawyers: $ 396,878.00
Weighted effective rate/lawyers: $ 116.27

Total hrs. claimed/allowed for law clerks: 308.70
Total fees allowed for law clerks: $ 10,804.50
Weighted effective rate/law clerks: $ 35.00

Total hrs. claimed/allowed for paralegals: 1,615.90
Total fees allowed for paralegals: $ 80,795.00
Weighted effective rate/paralegals: $ 50.00

Total hrs. claimed/allowed for telephone calls
and correspondence: 393.40
Total fees allowed for telephone calls and
correspondence: $ 41,307.00
Weighted effective rate for telephone/
correspondence functions: $ 105.00

________________________________________________________________________________



[**31]



n6 The "weighted effective rate" for lawyers was calculated by multiplying the approved hours for each lawyer times the market or approved rate for that lawyer. The totals for each lawyer were then added together, and that total was then divided by the total number of hours attributed to lawyers as a class. The same procedure was followed for each class of timekeeper.


D. Reduction for Partial or Incomplete Success

In Hensley v. Eckerhart, 461 U.S. 424, 436, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), the Supreme Court recognized that the product of hours reasonably expended on the litigation times a reasonable hourly rate may be excessive if the plaintiff has achieved only partial or limited success. "There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." [**32] 461 U.S. at 436-37.

a. Partial Success

"Where the plaintiff advances discrete, essentially unrelated claims, and prevails on some but not others, it should not be compensated for work on the unsuccessful claims." Alan Hirsch & Diane Sheehey, Awarding Attorneys' Fees and Managing Fee Litigation at 27-28 (Federal Judicial Center 1994) (footnotes omitted) (citing Hensley). "However, in the majority of cases, courts have rejected the contention that the lodestar should be adjusted downward for unsuccessful claims, usually finding that the successful and unsuccessful claims were legally or factually intertwined or that counsel devoted most of its time to the litigation as a whole." Id. See Casey v. City of Cabool, 12 F.3d 799, 806 (8th Cir. 1993), cert. denied, 130 L. Ed. 2d 285, 115 S. Ct. 325 (1994) (when party prevails, fee award should not be reduced merely because party did not prevail on every theory raised in the lawsuit; the "dispositive consideration" is "whether the issues upon which plaintiff's counsel spent time are interrelated to the central issues of the case").


Many civil rights cases will present only a single claim. In other cases the plaintiff's claims [**33] for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be [*1341] devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.




Hensley v. Eckerhart, 461 U.S. 424, 435, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

This case involved a central issue derived from a common core of facts and four related legal theories--that is, the systematic constitutional inadequacy of most programs and services offered to NCW inmates. The Klinger court essentially examined seven NCW program or service areas--ranging from employment and economic programs to the constitutional adequacy of the law library and medical services--in deciding what was basically one claim: whether such programs and services violated constitutional norms. Klinger I, 824 F. Supp. at 1455-63 & 1464-66 (claims outlined).

Therefore, Plaintiff's successful access-to-the-courts [**34] claim was factually and legally intertwined with Plaintiffs' other constitutional challenges to NCW programs and services. See Hensley, 461 U.S. 424, 427 & 438, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (court found constitutional violations in five of six general areas at state hospital unit for the involuntarily confined--physical environment, individual treatment plans, least restrictive environment, privileges, and seclusion and restraint; court found "interrelated nature of the facts and legal theories"). Indeed, this is clearly not a case where "counsel's work on one claim [was] unrelated to [her] work on another claim." Id. at 435. (Perry Aff. P 27.)

Therefore, I find that there is no justifiable basis for reducing the lodestar for partial success because the claims in this case were related, both legally and factually.

b. Incomplete Success

" Even if claims are closely related, or there is just one claim, a downward adjustment to the lodestar may be appropriate if the plaintiff achieved only limited success. In such a case, the gauge of success is the result of the lawsuit in terms of relief . . . ." Alan Hirsch & Diane Sheehey, Awarding Attorneys' Fees [**35] and Managing Fee Litigation at 29 (Federal Judicial Center 1994). "The result is what matters." Hensley, 461 U.S. at 435.

I conclude that the lodestar must be dramatically reduced for incomplete success because Plaintiffs have not prevailed in six out of the seven program areas challenged, Klinger IV, 902 F. Supp. 1036 (damages trial only on finding that two defendants violated Plaintiffs' constitutional right to access to the courts; Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), violation proven as to general population and segregation/orientation inmates), and because Plaintiffs were only about 50 percent successful on their access-to-the-courts claim, Klinger I, 824 F. Supp. at 1459 & 1464 (Plaintiffs proved Bounds violation, but did not prove equal protection violation); Klinger II, 31 F.3d 727 (8th Cir. 1994) (Plaintiffs' equal protection claim dismissed).

Thus, the lodestar must be reduced as follows:



________________________________________________________________________________



Lodestar: $ 529,784.50
Expenses: $ 50,821.71
Reduction for Not Prevailing
on Six of Seven Claims: 6/7 or 86%
Further Reduction for Prevailing
on Half of One Successful
Claim: 7%
Final Attorney Fees: $ 37,084.92
Final Expenses: n7 $ 3,557.52

________________________________________________________________________________



[**36]



n7 A "reasonable attorney's fee" under 42 U.S.C. § 1988 "must also take account of other expenses and profit." Missouri v. Jenkins, 491 U.S. 274, 285, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989). Therefore, the expenses requested must also be reduced by seven percent as part of the attorney's fee award.


c. Conclusion Regarding Award

I have therefore determined to award counsel for Plaintiffs the sum of $ 37,084.92 in attorney fees (seven percent of the lodestar of $ 529,784.50) and $ 3,557.52 in expenses (seven percent of the $ 50,821.71 in expenses [*1342] requested). This attorney fee award provides weighted effective hourly rates of approximately $ 6.47 for all timekeepers; $ 8.14 for lawyers; $ 2.45 for law clerks; $ 3.50 for paralegals; and $ 7.35 for telephone and correspondence tasks.

I am as personally troubled by this award as anything I have ever done as a judge. In this age when lawyers are attacked for various and sundry reasons, some good, but most bad, the conduct of appointed counsel [**37] in this case stands as a shining tribute to the legal profession. Unfortunately, the law, at least as I read it, does not permit me to recognize in monetary terms anything close to the value of the work these fine lawyers expended in this case. I am truly sorry.


E. Upward Adjustment

Because the court has used the reasonable hourly rates requested by Plaintiffs' counsel for each class of timekeepers, Plaintiff does not request an enhancement to produce a reasonable attorney fee. (Br. Supp. Pls.' Appl. Attorney Fees & Expenses at 36-37.)

IT IS ORDERED:

(1) Plaintiffs' motion (filing 723) requesting an award of attorney fees and expenses is granted in part and denied in part, and the plaintiffs are awarded $ 37,084.92 in fees and $ 3,557.52 in expenses, for a total attorney fee award of $ 40,642.44; and

(2) Final judgment shall be entered by separate document contemporaneously with the filing of this memorandum and order.

DATED this 15th day of December, 1995.

BY THE COURT:

Richard G. Kopf

United States District Judge

ATTACHMENT

JUDGMENT

Judgment is entered in favor of the Plaintiffs and against the Defendants Victor Lofgreen and Larry Tewes for $ 2.00 [**38] in nominal damages and attorney fees (and costs) of $ 40,642.44 regarding the access-to-the-courts claim, and as to all other claims Judgment is entered in favor of the Defendants and against Plaintiffs, providing that Plaintiffs shall take nothing and this case as to those claims is dismissed.

DATED this 15th day of December, 1995.

BY THE COURT:

Richard G. Kopf

United States District Judge