MOHAMED A. EL-TABECH, Plaintiff, v. HAROLD W. CLARKE, et al., Defendant.

4:04cv3231

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

2007 U.S. Dist. LEXIS 52018


July 17, 2007, Decided
July 17, 2007, Filed

SUBSEQUENT HISTORY: Motion granted by, Costs and fees proceeding at El-Tabech v. Clarke, 2008 U.S. Dist. LEXIS 36793 (D. Neb., May 5, 2008)

PRIOR HISTORY: El-Tabech v. Clarke, 2007 U.S. Dist. LEXIS 36719 (D. Neb., May 18, 2007)

COUNSEL: [*1] For Mohamed A. El-Tabech, Plaintiff: Marnie A. Jensen, Theodore J. Lane, V. Gene Summerlin, Jr., OGBORN, SUMMERLIN LAW FIRM - NEBRASKA, Lincoln, NE.

For Harold Clarke, in his individual and official capacity, Mike Kenney, in his individual and official capacity, Francis Britten, in his individual and official capacity, Randy Cole, in his individual and official capacity, Douglas Sell, in his individual and official capacity, Mary Carmichael, in her individual and official capacity, Robert Houston, Defendants: Matthew A. Works, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.

For Elizabeth Conley, in her individual and official capacity, Janssen Williams, in his individual and official capacity, Dave Thomas, in his individual and official capacity, Defendants: Travis P. O'Gorman, CLINE, WILLIAMS LAW FIRM - LINCOLN, Lincoln, NE.

OPINION BY: Joseph F. Bataillon

OPINION

MEMORANDUM AND ORDER

This matter is before the court following a non-jury trial. Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that defendants violated his rights under RLUIPA, and the Eighth, First, and Fourteenth Amendments. Based on the evidence and testimony presented [*2] to the court in this case and pursuant to Federal Rule of Civil Procedure 52, the court makes the following findings of fact and conclusions of law.

Findings of Fact

El-Tabech was born and raised in Beirut, Lebanon, where he was raised in the Orthodox Muslim faith. El-Tabech was baptized into the Church of Jesus Christ of Latter Day Saints, also known as the Mormon religion, on August 14, 1983. According to El-Tabech, he was baptized due to pressure from Mormon friends who helped him establish a residence, a job, and educational opportunities. In early 2007, El-Tabech requested removal from the member list of the Mormon church.

Since July 18, 2002, El-Tabech has been continuously incarcerated at the Tecumseh State Correctional Institution ("TSCI"), where he is serving consecutive terms of life imprisonment plus twenty years. At TSCI, prison officials placed El-Tabech in the Special Management Unit ("SMU"), a segregation unit, and placed him on Intensive Management ("IM") status. El-Tabech was placed on IM status because while at Nebraska State Penitentiary ("NSP"), a maximum security prison, El-Tabech engaged in two escape attempts, one of which involved hostages and weapons. See Exhibit [*3] No. 25. El-Tabech is no longer on IM status; he is now on administrative confinement ("AC").

IM involves "removal of an inmate from general population for an indefinite period of time to maintain order and security within the institution." Exhibit No. 50. IM status, a type of administrative segregation, is defined as the "confinement of an inmate when the inmate's demonstrated behavior presents a high risk of physical danger to anyone with whom the inmate comes into contact." Id. AC is the "confinement of an inmate to maintain the safety, security and good order of the institution." Id.

As part of El-Tabech's religious beliefs, he believes that he must maintain a kosher diet. Further, El-Tabech believes that he must maintain the utmost level of physical cleanliness and purity in his daily life, including daily showers. El-Tabech must also adhere to a prayer schedule. The Nebraska Department of Correctional Services ("NDCS") does not provide a kosher food option to any of the inmates at any of its facilities. NDCS requires that all facilities provide adequate support for inmates whose religious beliefs require adherence to special dietary beliefs. Any inmate may abstain from eating religiously [*4] prohibited foods without jeopardizing the nutritional adequacy of the diet. Prisoners are able to purchase items through the canteen, but it is not possible to know what foods are kosher before ordering.

Prisoners on IM status receive three showers per week, although El-Tabech has earned a fourth shower per week through TSCI's incentive program. On days in which he is not permitted to shower, Mohamed believes he exists in an impure state, a state in which he remains until he is able to cleanse his "whole body" in accordance with his sincerely-held beliefs based on the Holy Qu'ran.

Two of El-Tabech's claims proceeded to trial, pursuant to the court's previous memorandum and order. Filing No. 172. In his amended complaint, El-Tabech alleges that defendants Clarke, Houston, Hopkins, Britten, and Carmichael violated his rights under Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") (42 U.S.C. § 2000cc et seq.) (Claim I), and that the same defendants violated El-Tabech's right to free exercise of religion under the First and Fourteenth Amendments of the United States Constitution (42 U.S.C. § 1983) (Claim II). Filing No. 110.

Conclusions of Law

The First Amendment provides [*5] that no law shall prohibit the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987). A prison regulation is valid, even if it restricts an inmate's constitutional rights if it is "reasonably related to legitimate penological interests." Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 982 (8th Cir. 2004) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)). Courts evaluating a First Amendment claim must first consider whether the challenged governmental action infringes upon a sincerely-held religious belief. Murphy, 372 F.3d at 983. Then, the court must apply the Turnerfactors, a reasonableness test "less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987). The Turner factors are: "(1) whether there is a valid, rational connection between the regulation and the asserted governmental interest; (2) whether alternative means for exercising the right remain open to the prisoner; (3) the impact of the regulation on prison staff, other inmates, and the allocation of prison resources; and (4) the availability of ready alternatives to the regulation." Hamilton v. Schriro, 74 F.3d 1545, 1551 (8th Cir. 1996); [*6] Turner, 482 U.S. at 89-91.

While the rational-basis test applies to constitutional claim cases, strict scrutiny applies to claims brought under RLUIPA. The Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq., provides that no government shall impose a substantial burden on the religious exercises of an inmate, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1 (2007). A government regulation is a substantial burden when it significantly inhibits or constrains conduct or expression that manifests some central tenet of a person's individual religious beliefs, meaningfully curtails a person's ability to express adherence to a faith, or denies a person reasonable opportunities to engage in religious activities cardinal to a person's religion. Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (brackets and citation omitted). Courts must "[a]ccord great deference to the judgment and expertise of prison officials, [*7] 'particularly with respect to decisions that implicate institutional security.'" Murphy, 372 F.3d at 983 (quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004)).

The court first notes that "the Muslim religion is a legitimate form of religion protected by the First Amendment, and the court finds that [El-Tabech is] sincere in [his] practice of and belief in that religion." Rogers v. Scurr, 676 F.2d 1211, 1212 (8th Cir. 1982). Turning first to El-Tabech's kosher diet request, at trial, defendants voiced reasons for denying a religious diet. Those reasons include the speculative increased cost of food and preparation materials, the potential for creating the perception of favoritism by other inmates, and the risk of inviting increased religious diet requests. Applying the deferential Turner standard, the court finds that the defendant's denial of a kosher meal is not rationally related to its economic and administrative concerns. Defendants were unable to offer any evidence at trial to quantify the economic impact of accommodating prisoners a kosher meal or kosher items through the canteen. Moreover, the evidence demonstrates that defendants are able to furnish prisoners with kosher [*8] meals during Ramadan without incident or impact, and vegetarian, low sodium, cardiac, and bland diet options are provided to prisoners. According to the evidence adduced at trial, ready alternatives exist to satisfy El-Tabech's dietary requirements at a de minimis cost to the prison.

While deference is due to prison officials' expertise under both RLUIPA and the First Amendment, the evidence shows that defendants did not select the least restrictive means to achieve their goal. Indeed, the court finds it incredulous that at a minimum, prison officials are unable to contract with their canteen supplying vendor for a list of generally available kosher items so that list could be made available to prisoners purchasing kosher food. Therefore, the court finds that defendants violated El-Tabech's right to freedom of religion when they denied El-Tabech reasonable access to a kosher diet. The court does not find that a separate kosher kitchen is a necessary option to accommodate kosher diet requirements. However, the court orders the parties to negotiate the feasability of providing El-Tabech and other prisoners similarly situated with the following options:

1. Modifying the canteen sheet to [*9] indicate the kosher items;

2. Supplying inmates with prepackaged kosher meals;

3. Supplying inmates with kosher food already available in the kitchen (i.e., boiled eggs, unopened cans and jars, uncut and unpeeled fruits and vegetables, cereal, crackers, and liquid nutritional supplements).

The court further orders the parties to report back in sixty (60) days on which option or combination of options will be instituted by NDCS.

As to El-Tabech's prayer request, the court finds that posting a prayer schedule so that the guards are aware of it is not an unreasonable accommodation. The court orders that such a schedule should be posted with the understanding that the guards can adjust activities or reduce disturbances as appropriate. However, the court recognizes that prison security is a compelling state interest, and that altering prison schedules to accommodate El-Tabech's prayer schedule is not expected.

Furthermore, El-Tabech's request for daily showers is denied. Incarceration, by its nature, limits many privileges and rights, the further retraction of which is justified by attempts to escape from prison. El-Tabech is currently housed in AC where he receives three showers per week. General [*10] population prisoners, however, are permitted showers seven days a week. Prison officials testified at trial about the logistics and staff needed to run TSCI, and how accommodating a different shower schedule for an AC prisoner would disrupt the system, cause security concerns due to staffing requirements, and may even serve as a catalyst that ignites disputes or breeds resentment between inmates. As such, the court finds that a valid, rational connection exists between the fewer showers available to inmates housed in AC, and the compelling government interest in maintaining a safe, secure prison facility. The evidence shows that El-Tabech has a sink in his cell where he may wash himself, and this is a reasonable alternative for El-Tabech on the days he is not permitted to shower. Further, El-Tabech may earn an additional shower each week as an incentive.

THEREFORE, IT IS ORDERED that

1. Judgment will be entered for the plaintiff against the defendants on plaintiff's amended complaint (Filing No. 110) as set forth herein;

2. The parties are ordered to submit their negotiation results to this court within sixty (60) days as set forth herein; and

3. Pursuant to Federal Rule of Civil Procedure 52, [*11] a separate judgment will be filed on this date in accordance with this Memorandum and Order.



DATED this 17th day of July, 2007.

BY THE COURT:

s/ Joseph F. Bataillon

Chief United States District Judge
--------------------------------------------------------------------------------

MOHAMED A. EL-TABECH, Plaintiff, v. HAROLD W. CLARKE, et al., Defendants.

4:04CV3231

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

2008 U.S. Dist. LEXIS 36793


May 5, 2008, Decided
May 5, 2008, Filed

PRIOR HISTORY: El-Tabech v. Clarke, 2007 U.S. Dist. LEXIS 52018 (D. Neb., July 17, 2007)

CORE TERMS: hourly rate, attorneys' fees, prisoner, prevailing party, per hour, fee award, postjudgment, reputation, expended, prevail, reasonably incurred, time records, legal relationship, legal service, court-appointed, unrecoverable, monitoring, religious, billing, kosher, prison, diet, vindicated


COUNSEL: [*1] For Mohamed A. El-Tabech, Plaintiff: Ted J. Lane, V. Gene Summerlin, Jr., OGBORN, SUMMERLIN LAW FIRM - NEBRASKA, Lincoln, NE.

For Harold Clarke, in his individual and official capacity, Mike Kenney, in his individual and official capacity, Francis Britten, in his individual and official capacity, Randy Cole, in his individual and official capacity, Douglas Sell, in his individual and official capacity, Mary Carmichael, in her individual and official capacity, Robert Houston, Defendants: Matthew A. Works, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.

JUDGES: Joseph F. Bataillon, Chief United States District Judge.

OPINION

MEMORANDUM AND ORDER

This matter is before the court on plaintiff's Motion for Attorney Fees and Costs pursuant to 42 U.S.C. § 1988. Filing No. 191. This is a civil rights action, brought by a prisoner incarcerated in the Nebraska Department of Correctional Services. The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging that defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the Constitution and under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq. The plaintiff's [*2] Eighth Amendment cruel and unusual punishment claim was settled and the court dismissed El-Tabech's Fourteenth Amendment procedural due process claim on a motion for summary judgment.

El-Tabech's First Amendment and RLUIPA claims were tried to the court. The court found that El-Tabech's First Amendment right to the free exercise of his religion and RLUIPA rights had been violated by the NDCS's denial of access to a kosher diet and its refusal to post and reasonably accommodate his daily prayer schedule. Filing No. 179. The court ordered injunctive relief. Id.

Plaintiff seeks fees in the amount of $ 196,605.90 and taxable costs of $ 8,380.38, for a total of $ 204,856.28. 1 In support of the motion for attorneys' fees, plaintiff submits (1) itemized and detailed contemporaneous time records and cost entries; (2) a summary and itemization of unrecoverable time; (3) the qualifications of counsel; and (4) affidavits from Lincoln, Nebraska, attorneys attesting to the reasonableness of the fees and costs sought by plaintiff. Filing No. 193, Index of Evidence, Exs. 1-A, 1-B, 1-C, Ex. 2, Affidavit of Jefferson Downing, Ex. 3, Affidavit of Pete Wegman. In their affidavits, the local attorneys [*3] state that they are familiar with the pleadings, briefs, orders, and billing statements generated in the litigation, with the attorneys involved in the case, the reputations of those attorneys, the type and quality of work, and the Lincoln legal market. Id. In support of his request for taxable costs, plaintiff submits an affidavit and documentation of costs actually incurred in the litigation. Id., Ex. 4, Affidavit of Gene Summerlin, attached Ex. A.

FOOTNOTES

1 Plaintiff also seeks leave to file a supplemental fee request following the defendants' full implementation of the court's order. The court finds that request should be granted.


The defendant prison officials oppose the award. They contend that the total hours expended on the litigation are excessive and unreasonable. Defendants also argue that the time is not properly documented. They also contend that the fees requested are not allowable in part because El-Tabech did not prevail on all of his claims.

The "prevailing party" in a § 1983 action is generally entitled to "a reasonable attorney's fee." See 42 U.S.C. § 1988 (2007); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Cody v. Hillard, 304 F.3d 767, 772 (8th Cir. 2002). A "prevailing [*4] party" is one who secures a "judicially sanctioned change in the legal relationship of the parties." Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Resources, 532 U.S. 598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001); Farrar v. Hobby, 506 U.S. 103, 111-112, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) (stating that 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").

Nevertheless, compensability is limited by the degree of a plaintiff's success in the case as a whole. Jenkins by Jenkins v. Missouri, 127 F.3d 709, 718 (8th Cir. 1997). The Eighth Circuit has noted "the degree of [a plaintiff's] success is 'the most critical factor' in determining a reasonable fee award." Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005). There is "no precise rule or formula" for making fee determinations in cases with only partial success. Hensley, 461 U.S. at 436. Where "the court cannot separate out which hours were billed for which issues, [it] 'may simply reduce the award to account for the [plaintiff's] limited success.'" Warnock, 397 F.3d at 1026 (quoting Hensley, 461 U.S. at 436-37). [*5] Where the plaintiff prevails on some, but not all of the claims he asserts, the court may consider the significance of the issues on which the plaintiff prevailed and whether a public purpose was served or relief obtained that applied to others besides the plaintiff. See, e.g., Murray v. City of Onawa, Iowa, 323 F.3d 616, 619 (8th Cir. 2003).

Also, the prevailing party status extends to postjudgment work if it is a "necessary adjunc[t] to the initial litigation." Jenkins by Jenkins, 127 F.3d at 716. A district court may award fees to a prevailing party for reasonable postjudgment monitoring. Cody, 304 F.3d 774.

Because the plaintiff is a prisoner, his civil rights suit is also subject to the Prison Litigation Reform Act of 1996 ("PLRA"), which imposes special limitations on fee awards. 42 U.S.C. § 1997e(d)(1). To recover fees, the prisoner must be a prevailing party under 42 U.S.C. § 1988 and the fees must be directly and reasonably incurred in proving an actual violation of the prisoner's rights, must be proportionately related to the court-ordered relief for the violation, or directly and reasonably incurred in enforcing the relief ordered for the violation and the hourly rate of the [*6] fee recovery must be no more than 150% of the Criminal Justice Act rates for court-appointed counsel. 2 See 42 U.S.C. § 1997e(d)(1)(A) & (B). See also Martin v. Hadix, 527 U.S. 343, 353, 360, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999) (affirming a fee award under the PLRA for postjudgment monitoring, but reducing the award in accordance with PLRA's hourly rate cap).

FOOTNOTES

2 The rate for court-appointed counsel in the Eighth Circuit is $ 92.00 per hour. Thus, the highest hourly rate that can be recovered in this action is $ 138.00 per hour.


In determining the amount of attorney fees, the court should consider these factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. [*7] Hensley, 461 U.S. at 430 n.3. The starting point for determining the amount of attorney fees is the lodestar, which is determined by multiplying the number of hours reasonably expended by the reasonable hourly rate. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).

El-Tabach seeks compensation for a total of 1,460.8 hours of attorney work at the rate of $ 138.00 per hour. The court has reviewed the time sheets and billing descriptions submitted by plaintiff and finds them sufficiently detailed. The time records show that El-Tabech seeks remuneration only for work that directly relates to his First Amendment and RLUIPA claims. Time spent on unsuccessful claims, totaling 187.9 hours, has been identified and $ 24,651.90 has been subtracted from the fees requested. Because unrecoverable time has already been deducted for plaintiff's requested fees, there is no need for a percentage reduction in the amount of the award. Moreover, the court notes that the claims on which El-Tabech succeeded, his religious claims, were the heart of this litigation from the outset. The First Amendment and RLUIPA claims are interrelated--El-Tabech's kosher diet claim being the central focus. The court also finds [*8] the hours expended on the litigation are reasonable in view of the complexity of the litigation, the importance of the issues and the quality of the attorneys' work. The action has been pending for more than three years, which included unrelenting resistance by the defendants. It involved extensive discovery, including a number of depositions, and several contested motions. It also involved trial preparation and a two-day trial as well as several post-trial disputes concerning the defendants' compliance with the court's order. In addition, the attorneys assumed a significant risk on nonrecovery and prisoner litigation cases are often regarded as undesirable.

Through this litigation, the plaintiff vindicated important constitutional rights. Significant and complicated constitutional issues and statutory issues were adjudicated and El-Tabech vindicated not only his own rights, but those of similarly situated prisoners. Accordingly, the court finds the requested fees are proportional to the meaningful benefit obtained.

Under the PLRA, the recoverable hourly rate is capped at $ 138.00. A reasonable hourly rate would exceed that amount for each of El-Tabech's attorneys. El-Tabech was represented [*9] by an AV rated law firm and all of his attorneys are highly qualified and distinguished lawyers with excellent reputations. In the marketplace, El-Tabech's attorneys charge between $ 150.00 and $ 212.00 per hour. Based on the affidavits submitted by El-Tabech and on its own familiarity with rates for legal services in this community, the court finds that $ 138.00 per hour is a reasonable hourly rate. Accordingly,

IT IS ORDERED:

1. Plaintiff's motion for attorneys' fees and costs (Filing No. 191) is granted.

2. Attorney fees in the amount of $ 196,605.90 are assessed in favor of plaintiff and against defendants.

3. Costs in the amount of $ 8,380.38 are taxed in favor of a plaintiff and against defendants.

4. A judgment in conformity with this memorandum and order will be entered this date.

DATED this 5th day of May, 2008.

BY THE COURT:

/s/ Joseph F. Bataillon

Chief United States District Judge