Jerry Jensen v. Harold Clarke

_________________________
Nos. 95-1105NE, 95-1115NE
_________________________
Jerry Jensen, on behalf of *
himself and all others *
similarly situated; Reginald *
Pierce; Richard Duff; Al *
Wilson; Harold Crisp; Laddie *
Dittrich; Gus Dawson; Victor *
Carter; George Carter; Michael *
Kane; Ernest L. Sims; Mohamed *
Abdul Hafiz El-Tabech; and *
and Victor Luna, *
*
* On Appeal from the United
Appellees/Cross-Appellants, * States District Court
* for the District of
v. * Nebraska.
*
*
Harold W. Clarke, individually *
and in his official capacity *
as Director of the Nebraska *
Department of Correctional *
Services; and Frank X. Hopkins, *
individually and in his *
official capacity as Warden of *
the Nebraska State *
Penitentiary, *
*
Appellants/Cross-Appellees. *
___________
Submitted: July 5, 1996
Filed: September 5, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit
Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
The Nebraska State Penitentiary (NSP) is forced to house many
of its prisoners two men to a cell. This practice, known as
"double celling," requires two men to share a 74-square-foot cell.
The District Court1 held that, while this practice is not a per se
constitutional violation, randomly placing two prisoners together
under conditions as they exist at the NSP violates the plaintiffs'
right to be free from cruel and unusual punishment. The
defendants, the director of the Nebraska State Prison System and
the Warden of the NSP, appeal that decision. The plaintiffs cross-
appeal the portion of the order applicable to long-term inmates and
the District Court's holding that the defendants are entitled to
qualified immunity, shielding them from damages. We affirm the
District Court's order. We also affirm the District Court's2
subsequent orders instructing the defendants to adopt a remedial
plan, and granting the plaintiffs attorneys' fees.
I.
The plaintiffs in this case are the class of inmates housed or
to be housed in the four main housing units of the Nebraska State
Penitentiary.3 They brought this case under 42 U.S.C. § 1983,
challenging the conditions of their confinement in two respects.
1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska, adopting the
Report and Recommendation of the Honorable David L. Piester, United
States Magistrate Judge for the District of Nebraska.
2
The Honorable Richard Kopf, United States District Judge for
the District of Nebraska.
3
A fifth main housing unit was erected while this case was
pending.
-3-
First, they contend that the practice of double celling violates
the Eighth Amendment under the circumstances of this case. Second,
they contend that the policy of holding both inmates responsible
-4-
for contraband found in a double cell violates the Due Process
Clause of the Fourteenth Amendment. An 18-day evidentiary hearing
was held. The District Court rejected the due-process claim, but
held that, while the practice of double celling inmates did not
itself violate the Constitution, the manner in which the defendants
were conducting that practice did.
The District Court made extensive findings of fact in its
thorough opinion. Jensen v. Gunter, 807 F. Supp. 1463 (D. Neb.
1992). We will recount those findings here only to the extent
necessary for our review. The NSP, opened in 1981, is a maximum
security prison, housing the State's most violent offenders. It
consists of six housing units. Units one through four, the main
housing units, are at issue in this case. The cells are
approximately 74 square feet in size, and were intended to house
one inmate. Because of the large prison population, that
limitation has never been possible. The population at NSP hovers
at about 150% of capacity. To accommodate the large number of
prisoners, the NSP must double cell the inmates.
All adult male inmates in the Nebraska prison system are
screened at the Lincoln Correctional Center prior to being assigned
to an institution. Included in this screening is an assessment of
personal risk factors such as potential for suicide, propensity for
violence, victim potential, escape risk, security risk, and risk of
drug and alcohol abuse. At the time this suit was filed, this
assessment was used only in determining to which institution an
inmate would be sent. It was not used to predict compatibility of
inmates, or to help make cell assignments.
If prison officials are familiar with an inmate, they rely on
that familiarity when making cell assignments. All other incoming
inmates are assigned cells and cellmates on the basis of
-5-
availability; in other words, randomly. The only exceptions occur
if an inmate identifies another inmate with whom he has a serious
-6-
problem, or if an inmate is clearly hostile toward another inmate
or group of inmates. By way of example, a white supremacist will
not be celled with a black inmate.
The guards in the control centers cannot see into the cells.
Cell doors are solid, with a small window at eye level and a small
vent. Monitoring is accomplished primarily through an intercom
system. The speakers and receivers for this system are in the
hallway outside of the cells, requiring inmates to shout through
the vent in the door in order to get the attention of the guards on
duty.
The statistics introduced during the 18-day bench trial in
this case portray the NSP as an increasingly violent place. The
number of inmates found guilty of violent offenses such as assault,
aggravated assault, fights, and threatened bodily harm from 1983 to
1991 has increased at an alarming rate. Likewise, the number of
prisoners requesting protective custody because they were afraid to
remain in the general population increased "dramatically" in a
relatively short period of time. The District Court also noted
ample anecdotal evidence of violence in the prison. It
particularly relied on the testimony of inmates Jensen and Hart.
Inmate Jensen recounted how he was beaten by his cellmate while
yelling for help. Inmate Hart described his numerous assaults on
inmates who had the misfortune of being assigned to his cell.
Moreover, many acts of violence at the NSP go unreported and
undocumented for three reasons. First, if an inmate reports
violence by another inmate, the reporting inmate will be labeled a
snitch by other inmates. Inmates do not want to be known as
snitches, thus they often do not report violence. Also, if an
inmate reports violence in which he is involved, both he and the
other inmate will receive misconduct reports, and may be
-7-
disciplined. Finally, if an inmate reports a violent incident, but
there is neither a witness nor physical evidence of the reported
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violence, neither inmate is disciplined. These combined factors
cause the statistics to understate the actual level of violence at
the NSP.
When we initially reviewed this case, we found it necessary to
remand it to the District Court for further findings in light of
Farmer v. Brennan, 114 S. Ct. 1970 (1994). Remand was required
because the District Court, following our pre-Farmer precedents,
found only that the defendants knew or should have known that the
plaintiffs faced a pervasive risk of harm. Farmer requires a
finding of actual knowledge on the part of prison officials in
order to support an Eighth Amendment violation. Id. at 1981.
On remand, the District Court met that requirement. El Tabech
v. Gunter, 922 F. Supp. 244 (D. Neb. 1996) (El Tabech III). It
found that the defendants were aware of the level of violence at
the NSP, and that the violence spilled over to the double cells.
Id. at 257-61. It went on to find that newly arriving inmates are
randomly assigned to cells, Id. at 248-49, and that the defendants
are aware of that fact. Id. at 252-54. Thus, the District Court
reaffirmed its original position that the plaintiffs had proved an
Eighth Amendment violation.
II.
It is crucial at this point to understand thoroughly the
contours of the District Court's holding. All of the talk by the
parties, and to some degree by the District Court, of double
celling and overcrowding at the NSP has the potential of
overshadowing the real issues. The District Court did not hold
that either double celling or overcrowding at the NSP violated the
plaintiffs' Eighth Amendment rights. In fact, it specifically
rejected those claims.
-9-
In its initial opinion finding liability, the District Court
-10-
noted that "[t]his case is not an overcrowding case in the sense
that plaintiffs are asserting that the penitentiary houses more
inmates than it can manage" or for whom it can provide services.
Jensen, 807 F. Supp. at 1469. In addition, it stated that it was
using the term "overcrowding" to "refer to the fact that the number
of inmates exceeds the design capacity of the facilities; it does
not imply any judgment about that fact." Id. at 1468 n.3. Thus,
the issue in this case is not whether the NSP is overcrowded to a
constitutionally significant degree. Notably, the plaintiffs never
made any such claim.
The plaintiffs did, however, claim that the practice of double
celling at the NSP was an Eighth Amendment violation. This claim
is based on the notion that double celling can be a constitutional
violation when it leads "to deprivations of essential food, medical
care, or sanitation," or when it causes an "increase [in] violence
among inmates or create[s] other conditions intolerable for prison
confinement." Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Cody
v. Hillard, 830 F.2d 912, 914 (8th Cir. 1987) (en banc), cert.
denied, 485 U.S. 906 (1988). The District Court, however, held the
plaintiffs' evidence that "double celling has taxed the
penitentiary beyond its limits to provide essential human services,
resources, and adequate physical structures" to be "lacking."
Jensen, 807 F. Supp. at 1481. Likewise, the plaintiffs were unable
to present sufficient evidence to establish that "double celling is
the cause of an increase in violence institution wide." Id. at
1482. The plaintiffs do not appeal this decision. Thus, this case
is not a "double celling" case in the conventional sense.
What, then, are the issues in this case? After the detailed
factual development outlined above, the District Court found that
the inmates in the double cells in the four main housing units
faced a pervasive risk of harm in the form of violence or
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threatened violence from cellmates. Id. at 1483. The defendants,
moreover, had been deliberately indifferent to that risk by
-12-
randomly assigning incoming inmates to cells without assessing
whether the new cellmates would be compatible. Id. at 1484.
However, where those inmates who have been at the NSP for some time
were concerned, prison officials consider their "propensities for
violence" when making cell assignments, at least on an informal
basis. Ibid. Stated differently, we see the District Court's
order as holding that, while the practice of double celling at the
NSP is not constitutionally suspect, the manner in which that
practice was being carried out prior to this lawsuit violated the
Eighth Amendment by exposing prisoners to a substantial risk of
harm that is avoidable by simply considering whether incoming
inmates will be compatible with their cellmates. Therefore, the
issues that we must address are whether the plaintiffs are exposed
to a substantial risk of physical harm, and, if so, whether the
defendants have been deliberately indifferent to that risk by
randomly double celling incoming inmates.
Before proceeding to a review of the merits of the District
Court's order, it is helpful to explain how this characterization
of the District Court's holding disposes of part of the plaintiffs'
cross-appeal. The parties are of the opinion that the District
Court found a constitutional violation only with respect to the
newly arriving inmates. The plaintiffs argue that such a holding
is erroneous because a violent incoming inmate could be celled with
a nonviolent existing inmate, thus violating the right of the
existing inmate to be free from assaults at the hands of the new
inmate. They read the District Court's holding as ignoring this
inevitability by finding a violation of only the incoming inmates'
Eighth Amendment rights. If the District Court had made such an
illogical finding, we would probably agree with the plaintiffs and
reverse. However, it did not.
The District Court found that "a pervasive risk of harm
-13-
exist[ed] in the four main housing units." Jensen, 807 F. Supp. at
1483. It did not limit this finding to newly arriving inmates.
-14-
Then the District Court held that randomly assigning "newly
arriving inmates into double cells under the volatile conditions
that exist in the four main housing units is not a reasonable
response to the pervasive risk of harm." Id. at 1484. Once again,
it did not limit its holding to the newly arriving inmates. We
read the District Court's opinion as finding a substantial risk of
serious harm to all inmates in the form of violence from cellmates,
to which risk the defendants have shown deliberate indifference by
randomly assigning incoming inmates to cells. The District Court
described it as "an Eighth Amendment violation respecting random
double-celling of newly arrived inmates." El Tabech v. Gunter, 869
F. Supp. 1446, 1467 (D. Neb. 1994) (El Tabech II). That
constitutional violation applies to every inmate who faces the
possibility of being randomly celled either as an incoming inmate
or with an incoming inmate, which is to say any inmate in the four
main housing units. It is only the remedy, an injunction against
randomly assigning cells to incoming inmates, that applies to
incoming inmates only. The plaintiffs need not appeal this
holding, because it is exactly what they want.
We can dispose one of the arguments raised by the defendants
in similar fashion. The Violent Crime Control and Law Enforcement
Act of 1994 forbids federal courts from holding "prison or jail
overcrowding unconstitutional under the Eighth Amendment except to
the extent that an individual plaintiff" proves the violation. 18
U.S.C. § 3626(a)(1). This legislation, the defendants argue,
precludes class-action prison lawsuits challenging prison
overcrowding. The case before us, they continue, is a class-action
suit challenging overcrowding.
We need not decide whether the defendants' reading of the
statute, that it precludes class-action prison suits, is correct
because the statute does not apply to this case in any event. By
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its very terms, the statute applies to suits challenging "prison or
jail crowding." This case, as we have seen, and as the District
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Court held, El Tabech II, 869 F. Supp. at 1450 is not a simple
crowding case. It is a failure-to-protect case, focusing not on
crowding but on the manner of assignment of new inmates to cells.
Thus, regardless of what the Act means for class-action
overcrowding cases, an issue we do not decide, it does not apply
here. Furthermore, if the status did apply, the relief granted
here would not violate it. Individual plaintiffs have proved a
violation of the Eighth Amendment, which is what the statute
requires.
We also reject the other half of the plaintiffs' cross-appeal,
challenging the District Court's grant of qualified immunity. The
District Court correctly held that the precedents are diverse on
the issue of the constitutional necessity of classification
systems. See, e.g., McGill v. Duckworth, 944 F.2d 344 (7th Cir.
1991), cert. denied, 503 U.S. 907 (1992); Walsh v. Mellas, 837 F.2d
789 (7th Cir.), cert. denied, 486 U.S. 1061 (1988). This diversity
precludes a holding that reasonable prison officials would have
known that they were violating the plaintiffs' clearly established
rights, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), by randomly
assigning incoming inmates to double cells. Kennedy v. Schafer, 71
F.3d 292, 294 (8th Cir. 1995), cert. denied, 116 S. Ct. 2548
(1996).
III.
The Eighth Amendment proscribes the infliction of "cruel and
unusual punishments." The Supreme Court counsels that this
amendment imposes upon prison officials the duty to "provide humane
conditions of confinement." Farmer, 114 S. Ct. at 1976. That
duty, in part, requires those officials to take reasonable measures
to "'protect prisoners from violence at the hands of other
prisoners.'" Ibid. (quoting Cortez-Quinones v. Jimenez-Nettleship,
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842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)).
The Eighth Amendment imposes this duty because being subjected to
-18-
violent assaults is not "part of the penalty that criminal
offenders pay for their offenses . . .." Rhodes, 452 U.S. at 347.
In order to prevail in a failure-to-protect cases, inmates
must make two essential showings. First, they must demonstrate
that they are "incarcerated under conditions posing a substantial
risk of serious harm." Farmer, 114 S. Ct. at 1977. This objective
requirement ensures that the deprivation is sufficiently serious to
amount to a deprivation of constitutional dimension.
The second requirement inquires into the subjective state of
mind of the prison official who is being sued. It mandates that
the plaintiff inmates show that the official "knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of harm exists, and he must also
draw the inference." Id. at 1979. This subjective requirement
ensures that "only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment." Wilson v. Seiter, 501 U.S. 294,
297 (1991).
Chief Judge Posner has provided an apt description of what
prisoners must prove in deliberate-indifference cases.
[T]o be guilty of deliberate indifference [prison
officials] must know they are creating a substantial risk
of bodily harm. If they place a prisoner in a cell that
has a cobra, but they do not know that a cobra is there
(or even that there is a high probability that there is
a cobra there), they are not guilty of deliberate
indifference even if they should have known about the
risk, that is, even if they were negligent - even grossly
negligent or even reckless in the tort sense - in failing
to know. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
1982). But if they know that there is a cobra there or
at least that there is a high probability of a cobra
there, and do nothing, that is deliberate indifference.
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Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir.
-20-
1995). In this case, the "cobra" in the cell is the potentially
violent cellmate a prisoner faces each time he enters his cell at
the NSP. The District Court found that this risk existed and that
prison officials knew it existed.
Once that much is accomplished, prison officials still have a
defense. They may be "found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not
averted." Farmer, 114 S. Ct. at 1982-83. This defense is
available because the "duty under the Eighth Amendment is to ensure
``reasonable safety,'" Id. at 1983 (quoting Helling, 113 S. Ct. at
2481), a standard that is mindful of the very difficult task of
warehousing the most dangerous people our society has to offer in
a safe environment. Ibid. Thus, "[w]hether one puts it in terms
of duty or deliberate indifference, prison officials who act
reasonably cannot be found liable under the Cruel and Unusual
Punishments Clause." Ibid.
Each step of this inquiry is fact-intensive. See Reece v.
Groose, 60 F.3d 487, 490 (8th Cir. 1995). We review the District
Court's factual conclusions for clear error. Fed. R. Civ. P.
52(a).
A.
A most contentious point in this case is whether the
plaintiffs faced a substantial risk of serious harm, the first step
in the inquiry outlined above. Assault at the hands of fellow
inmates, as previously noted, is a "serious harm." The question,
then, is whether the District Court's finding that inmates at the
NSP faced a substantial risk of assault at the hands of cellmates
is clearly erroneous. The District Court relied on several
intertwined pieces of evidence to reach this conclusion.
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First, the Court examined statistics compiled by the prison
-22-
system reflecting the number of inmates found guilty of violent
offenses by a disciplinary committee since the NSP opened. These
statistics reveal that violent incidents have increased from a low
of 77 in 1983 to a high of 359 in 1987. Through June of 1991, the
last set of numbers available to the District Court, there had been
179 findings of guilt. In total, 1,774 guilty findings were made
during these years. Also indicative of the level of violence is
that there has been a dramatic increase in the number of inmates
requesting protective custody in recent years. Notably, these
increases occurred while the number of prisoners being double
celled increased.
The defendants challenge the District Court's reliance on
these statistics. They explain the increase in guilty verdicts on
reporting changes and changes in the definition of assault, and the
increase in protective-custody requests on numerous factors other
than violence. They also challenge the District Court's conclusion
that these statistics reflect a positive correlation between double
celling and increasing violence. It is true that these statistics,
as is the case with most statistics, are subject to more than one
interpretation. That fact is not enough, however, for us to hold
that the District Court's finding is clearly erroneous.
The District Court also found that the violence institution
wide carried over into the double cells. In order to do so, the
District Court relied on anecdotal evidence of violence in the form
of testimony from prisoners. It also found that inside the double
cells' tensions are increased by the cell size, lack of privacy,
the ineffective surveillance system, deterrents to reporting, the
contraband rule, and the excessive amount of time spent on lockdown
status.
This evidence is ample support for the District Court's
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conclusion that inmates in the double cells face a substantial risk
of assault at the hands of their cellmates. This record compares
-24-
favorably with those in prior cases holding that a jury question
existed regarding whether there was a pervasive risk of harm. See,
e.g., Butler v. Dowd, 979 F.2d 661, 674-75 (8th Cir. 1992), cert.
denied, 508 U.S. 930 (1993).
B.
We now address the subject of our earlier remand, whether the
defendants were deliberately indifferent to the risk that the
plaintiffs faced. Farmer counsels that this question, like the
first step in our analysis, is a question of fact. It is "subject
to demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact
that the risk was obvious." 114 S. Ct. at 1981 (citation omitted).
Furthermore, the Supreme Court in Farmer set forth certain types of
evidence that can be useful in making this determination. When
evidence is introduced
showing that a substantial risk of inmate
attacks was longstanding, pervasive, well-
documented, or expressly noted by prison
officials in the past, and the circumstances
suggest that the defendant-official being sued
had been exposed to information concerning the
risk and thus ``must have known' about it, then
such evidence could be sufficient to permit a
trier of fact to find that the defendant-
official had actual knowledge of the risk.
Id. at 1981-82.
The District Court undertook just such an analysis in this
case. Initially, the District Court found that the statistics
detailing the level of violence at the NSP, the same statistics
utilized by the District Court to find a substantial risk of
-25-
serious harm, were provided to the defendants. Thus, each
defendant was actually informed "of virtually every verified
-26-
incident of violence" that occurred at the NSP. El Tabech III, 922
F. Supp. at 257-58. Notably, the defendants admitted as much in
their testimony. Id. at 258.
The District Court also found, with justification, that the
defendants knew that the reported assaults understated the actual
level of violence at the NSP. Once again, the defendants admitted
as much in their testimony. Ibid. They were also aware of the
physical construction of the cells that made monitoring the
interior of the cells impossible, and the prison rules that acted
as a disincentive to reporting assaults.
The District Court also relied on statements by prison
officials, including the defendants, to support its finding. One
official, a former director of Nebraska prisons, told the Nebraska
legislature that "a widely accepted principle of prison management"
is that "a prison cell should not be used for more that one
prisoner." Id. at 260. To do so erodes the ability to manage the
prison, and the potential for violence increases. Ibid. Likewise,
one of the defendants, Harold Clarke, when he became director, told
the Nebraska legislature that "predatory behavior is increasing and
weaker inmates are forced to seek protective custody, which has
increased by 70 per cent. in less than two years." Id. at 261.
Finally, defendant Frank Hopkins testified that he knew that the
increase in misconduct reports was "substantial." Ibid.
While the defendants would have us read the evidence
differently from the District Court, we cannot say that the
District Court's painstaking analysis, an analysis in complete
harmony with Supreme Court precedent, resulted in a clearly
erroneous conclusion.
C.
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The final issue is the reasonableness of the defendants'
-28-
actions in light of their knowledge of the risk faced by the
plaintiffs. The defendants do not argue that random cell
assignments are reasonable. Rather, they challenge the District
Court's factual conclusion that cell assignments for newly arriving
inmates were, indeed, random.
All adult male prisoners in the Nebraska prison system undergo
a detailed evaluation called a classification study. El Tabech
III, 922 F. Supp. at 248. This evaluation, conducted at the
Diagnostic and Evaluation Center, considers factors such as the
crime for which the inmate was convicted, the inmate's criminal
history, his medical history and psychological status, and any
particular needs or problems the inmate may have. Ibid. A
condensed version of the study called a scoring instrument is
created from the classification study. Ibid. These studies, as
well as observations of the inmate while he is housed at the
Diagnostic and Evaluation Center, are used to determine to which
institution the inmate will be sent.
Either of these resources could be used to help predict
whether inmates who are slated to become cellmates will be
compatible. However, the District Court found that neither
resource is so utilized. El Tabech III, 922 F. Supp. at 248-49.
Rather, the District Court found that cell assignments were made
based on "space availability." Jensen, 807 F. Supp. at 1477.
Space availability is just another way to say randomly. Ibid.
The District Court came to these conclusions after hearing
testimony from numerous prison officials who are intimately
familiar with the cell-assignment procedure. Virtually every
witness, prison officials all, testified that the primary, if not
sole, factors used in determining where an incoming inmate will be
celled were "available bunks" and racial balance. El Tabech III,
-29-
922 F. Supp. at 249. The housing unit managers, who actually made
the cell assignments, would not have seen either classification
-30-
resource prior to making cell assignments. Nor did they know the
inmate's size, age, or length of sentence, all important factors in
predicting compatibility. Id. at 249-50.
It is true, as the defendants point out, that this initial
cell assignment is not final in a technical sense. Soon after the
inmate's arrival at the NSP he is subjected to an initial
classification meeting with housing personnel. The classification
instruments are available for this meeting, and the inmate is free,
perhaps even encouraged, to inform housing personnel of any
particular problems he may have with his cell assignment.
Moreover, if prison officials know the prisoner, his cell
assignment can be changed on that basis. Id. at 250.
The problem with the defendants' argument, as the District
Court pointed out, is two-fold. First, the classification meeting
took place quite often well after the cell assignment. Thus, the
inmate would have to spend at least some time with a cellmate prior
to the meeting. Ibid. Second, and most convincing, the District
Court viewed the initial classification meeting more as an
orientation session than as a cell-assignment method. Id. at 251.
Rarely, if ever, had the meeting resulted in a change in cell
assignment. Thus, for all practical purposes, the initial cell
assignment was final. We have reviewed the record quite thoroughly
and cannot find clear error in any of these findings or in the
ultimate finding to which they led: that incoming inmates are
assigned on a random basis.
It is even less difficult to affirm the District Court's
finding that the defendants actually knew that incoming inmates
were randomly assigned to cells. As the District Court pointed
out, the defendants were intimately familiar with the workings of
the NSP. They held several positions within the NSP as they worked
-31-
their way up the Department's hierarchy. As they readily admitted,
they were "responsible for the overall operation" of the NSP, and
-32-
had "direct ongoing contact with housing unit procedures." Id. at
253-54. They also were familiar with the regulations outlining the
initial classification procedure, including the fact that the
regulation made no provision for cell assignments and inmate-
compatibility determinations. This evidence was sufficient to
allow the District Court to find that the defendants knew that cell
assignments were random.
IV.
After liability was determined in this case, the District
Court fashioned a remedy in the form of an injunction. That
injunction imposes upon the defendants a duty to use the
classification instruments available to them to try to predict
whether incoming inmates and their cellmates will be compatible.
El Tabech v. Gunter, No. CV87-L-377, slip op. at 26 (D. Neb. 1994)
(El Tabech I). Citing language from Farmer v. Brennan, supra, the
defendants claim that this injunction should not have been issued.
In Farmer, the Supreme Court wrote that in order to "establish
eligibility for an injunction, the inmate must demonstrate the
continuance of [prison officials' disregard of a risk of harm]
during the remainder of the litigation and into the future."
Farmer, 114 S. Ct at 1983. Parties may rely on "developments that
postdate the pleadings and pretrial motions" in order to determine
whether an injunction is appropriate. Ibid. Furthermore, prison
officials who are violating prisoners' rights when a lawsuit is
filed can "prevent the issuance of an injunction by proving, during
the litigation, that they [are] no longer unreasonably disregarding
an objectively intolerable risk of harm and that they [will] not
revert to their obduracy upon cessation of the litigation." Ibid.
n.9.
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The plaintiffs introduced sufficient evidence, in the first
instance, to justify the District Court's finding that a
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constitutional violation had occurred, as we have discussed.
Rather than immediately remedying that violation, the defendants
chose to take a premature appeal to this Court, which was
dismissed. When, after months of waiting, the defendants filed a
remedial plan, it was inadequate and had to be modified. El Tabech
I, slip op. at 18-26. That is sufficient evidence to support the
District Court's finding that the violation would continue into the
future.
We recognize that the defendants were merely proceeding as
they felt they had a right to proceed by appealing to this Court.
However, an immediate appeal was not their only option, even if
such an appeal would have been proper. For example, they could
easily have ceased random cell assignments, and then appealed the
finding on liability. If we had eventually reversed the liability
finding, they could have reverted to their prior cell-assignment
system if they had so desired. Thus, we cannot find error in the
District Court's holding that an injunction should issue.
We also disagree with the defendants' assertion that the
District Court improperly imposed the burden of proving the above-
described elements on them. When the District Court wrote that the
defendants had not "met their burden of proving that an injunction
is no longer necessary," El Tabech I, slip op. at 19, it was in
reference to the language in Farmer setting forth how prison
officials can avoid an injunction, not the language describing what
the plaintiff would have to prove to merit an injunction. The
District Court correctly placed the burden of proof. Farmer, 114
S. Ct. at 1983 n.9 ("prison officials . . . could prevent issuance
of an injunction by proving . . . that they were no longer
unreasonably disregarding an objectively unreasonable risk of harm
and that they would not revert to their obduracy upon cessation of
the litigation").
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The defendants make no attempt to argue that they had ceased
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violating the plaintiffs' rights prior to the injunction, nor could
they. Indeed, they fought imposition of a change in cell-
assignment methods every step of the way. The District Court
correctly issued the injunction.
V.
After finding liability on the part of the defendants and
imposing the injunction, the District Court awarded the plaintiffs
attorneys' fees. The Court did so under the provisions of 42 U.S.C
§ 1988, which allows for the award of attorneys' fees to prevailing
parties in Section 1983 cases. The defendants make three
challenges to this award. We will address each in turn.
A.
In Hutto v. Finney, 437 U.S. 678 (1978), the Supreme Court
held that the Eleventh Amendment does not bar an award of
attorneys' fees ancillary to prospective relief, even though the
fees would be paid from the state treasury. Id. at 693-98. The
defendants argue that this holding was overturned sub silentio by
Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996).
There, the Supreme Court reiterated its rule that Congress could
abrogate the sovereign immunity that states enjoy by virtue of the
Eleventh Amendment, but only if its "intention [is] unmistakably
clear in the language of the statute," Id. at 1123 (quoting
Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989)), and Congress acts
"pursuant to a valid exercise of power." Ibid. (quoting Green v.
Mansour, 474 U.S. 64, 68 (1985)). Section 1988, the defendants
argue, has no "unmistakably clear" language, and, thus cannot
abrogate sovereign immunity. (The fees in this case would be paid
from the state's coffers, thus implicating the Eleventh Amendment).
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This very argument was made, and rejected by the Supreme
Court, in Missouri v. Jenkins, 491 U.S. 274 (1989). There, the
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State of Missouri argued that "the principle enunciated in Hutto
has been undermined by subsequent decisions of [the Supreme] Court
that require Congress to ``express its intention to abrogate the
Eleventh Amendment in unmistakable language in the statute
itself.'" Id. at 279 (quoting Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 243 (1985)); Welch v. Texas Dept. of
Highways and Public Transportation, 483 U.S. 468 (1987). The "flaw
in this argument," an argument identical to the one made by the
defendants in this case, with one more citation added to the list,
"lies in its misreading of the holding of Hutto." Jenkins, 491
U.S. at 279.
In Jenkins, the Supreme Court made it quite clear that
"application of §1988 to the States did not depend on congressional
abrogation of the States' immunity." Ibid. Rather, Hutto held
that Section 1988 "imposes attorney's fees ``as a part of costs.'
Costs have traditionally been awarded without regard for the
States' Eleventh Amendment immunity." Hutto, 437 U.S. at 695.
Indeed, following Hutto and Jenkins "it must be accepted as settled
that an award of attorney's fees ancillary to prospective relief is
not subject to the strictures of the Eleventh Amendment." Jenkins,
491 U.S. at 279. In short, Section 1988 attorneys' fees do not
depend on abrogation of sovereign immunity, and Seminole Tribe does
not affect the fee award in this case.
B.
The defendants' second challenge to the fee award involves the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321,
to be codified at 18 U.S.C. § 3626 and 42 U.S.C. § 1997. This
legislation, enacted well after both the liability and attorneys'
fee determinations in this case, alters how prison cases are to be
prosecuted in various ways. One provision of the Act, Section
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803(7)(d), applies to attorneys' fees. In order to affect this
case, Section 803(7)(d) must have retroactive application. We hold
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that it does not.
The Supreme Court recently announced a procedure for
determining when a statute is to be applied to actions that
occurred prior to enactment of the statute. Landgraf v. USI Film
Products, 511 U.S. 244 (1994). Initially, a court should determine
whether "Congress has expressly prescribed the statute's proper
reach." Id. at 1505. If so, the dictates of the statute should be
followed, barring some constitutional prohibition. Id. at 1497-98.
Absent an express command, "the court must determine whether the
statute would have retroactive effect, i.e., whether it would
impair rights a party possessed when he acted, increase a party's
liability for past conduct, or impose new duties with respect to
transactions already completed." Id. at 1505. If so, then the
"traditional presumption" against retroactivity precludes
application "absent clear congressional intent favoring such a
result." Ibid.
Nothing in this portion of the Act expressly prescribes its
reach. The Act was not in effect when the plaintiffs' attorneys
accepted this appointment, when liability and fee determinations
were made, or even when we remanded this case to the District Court
in light of Farmer. When the plaintiffs' attorneys were exerting
what the District Court quite fairly described as "herculean"
efforts on their behalf, they expected to have their fee determined
under Section 1988. If we apply the Act, those expectations will
be foiled. Thus, application of the Act in this case would have
the retroactive effect of disappointing reasonable realiance on
prior law. That leaves us with the "traditional presumption"
against retroactive application.
The defendants base their argument for retroactivity on
Bradley v. Richmond School Dist., 416 U.S. 696 (1974). In Bradley,
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the District Court awarded attorney's fees and costs to parents who
had prevailed in a school desegregation case on general equitable
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principles. Bradley, 416 U.S. at 706. While the appeal of the
case was pending, Congress passed a statute that allowed courts to
award fees to prevailing parties in school desegregation cases.
Id. at 709. The Supreme Court held that the statute applied to the
case at hand because courts are "to apply the law in effect at the
time [they] render [their] decisions, unless doing so would result
in manifest injustice or there is statutory direction or
legislative history to the contrary." Id. at 711.
Two clear distinctions between Bradley and this case defeat
the defendants' argument. First, in Bradley, there was no
"manifest injustice" in allowing the fee statute to apply because
the lower courts had already awarded fees on general equitable
principles. As the Supreme Court wrote in Landgraf, it would be
difficult to imagine a "stronger equitable case for an attorney's
fee award" than a school desegregation case. Landgraf, 114 S. Ct.
at 1503. Given the availability of fees under an alternative
theory, the new fee statute did not impose an "unforeseeable
obligation" on the school board. Bradley, 416 U.S. at 721. Thus,
being ordered to pay attorneys' fees was no great surprise, even
though the legal theory under which those fees were to be imposed
changed.
Conversely, in this case the plaintiffs and their attorneys
have proceeded from the outset under the assumption that Section
1988 would apply to this case. They have litigated for literally
years under that assumption. The Act was passed after our remand
to the District Court, and after the District Court's findings on
remand. Indeed, it did not become law until shortly before we were
prepared to decide this case once and for all. It would be
"manifestly unjust" to upset those reasonable expectations and
impose new guidelines at this late date.
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Furthermore, there is evidence of congressional intent
contrary to retroactive application of this portion of the Act.
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Section 802, the section of the Act dealing with prospective
relief, specifically provides that it "shall apply with respect to
all prospective relief whether such relief was originally granted
or approved before, on, or after the date of enactment of this
title." § 802(b)(1). Section 803, conversely, is silent on
retroactive application. Congress saw fit to tell us which part of
the Act was to be retroactively applied, Section 802. The
exclusion of Section 803 and its fee provisions from that clear
statement is inconsistent with the defendants' argument for
retroactivity.
C.
Finally, we reach the issue of the correctness of the District
Court's attorneys' fee award. Section 1988 provides for the
payment of attorneys' fees to prevailing parties at the discretion
of the court in Section 1983 cases. A fee award will not be
altered absent an abuse of discretion. Butler, 979 F.2d at 676.
The plaintiffs in this Section 1983 case are clearly
prevailing parties. The District Court, employing the procedure
described by the Supreme Court in Hensley v. Eckerhart, 461 U.S.
424 (1983), awarded them $178,865.10 in fees and expenses. This
method, known as the "lodestar" method, id. at 433, focuses on "the
significance of the overall relief obtained by the plaintiff in
relation to the hours actually expended on the litigation." Id. at
435. The district court multiplies the number of hours reasonably
expended by the relevant market rate for legal services, then
reduces the amount for partial success, if necessary.
The defendants challenge two elements used in the calculation
of that award. First, they argue that the number of hours
reasonably expended should have been lowered because of inadequate
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records on the part of the plaintiffs' attorneys. Second, they
argue that the District Court should have allowed a greater
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reduction for limited success.
The gravamen of the defendants' argument regarding the number
of hours reasonably expended is that the plaintiffs' lawyers'
records were inadequate to inform the court of the nature and
reasonableness of the services rendered. The District Court
considered this argument in its thorough and detailed opinion on
fees. It noted that "the documentation submitted by the
plaintiffs' counsel was voluminous, detailed, and in most cases,
fully in compliance with our local rules of practice." El Tabech
II, 869 F. Supp. at 1460. However, "there were certain instances
where the documentation was simply not sufficient to make an
intelligent determination as to whether the hours expended were in
fact reasonable." Ibid. Therefore, the District Court imposed an
across-the-board reduction in hours of 10%.
Though this deduction is significant, the defendants would
have us add another 50% deduction. As we have consistently held,
"[t]he trial court is in a much better position than this court to
view the evidence and to evaluate the testimony and work product of
the attorney." Vosburg v. Solem, 845 F.2d 763, 770 (8th Cir.),
cert. denied, 488 U.S. 928 (1988). Here, the District Court
clearly considered, and to a degree accepted, the arguments of the
defendants. However, it held that the severe deduction advocated
by the defendants was far too great given the amount of detail and
explanation provided by the plaintiffs' attorneys. We see no abuse
of discretion in that holding.
Likewise, the District Court rejected the defendants' request
to reduce the fee award by 75% for partial success, choosing
instead a 15% reduction. El Tabech II, 869 F. Supp. at 1464. The
defendants request a 75% reduction in the award because the
plaintiffs failed altogether on their Fourteenth Amendment claim
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related to the contraband rule, and enjoyed only partial success on
their Eighth Amendment claims. The Eighth Amendment claim that
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double celling was causing a deprivation of essential services was
rejected.
As the District Court noted, the defendants' argument ignores
the fact that the plaintiffs prevailed on their "main claim" that
the prison was unsafe. Id. at 1467-68. They obtained injunctive
relief for that constitutional violation designed to make the
prison safer for all inmates. It is of little significance that
the plaintiffs' claims regarding services and the contraband rule
were rejected, particularly given that those claims, and the
evidence introduced in their support, helped significantly in
proving that the NSP was unsafe. Those conditions, though short of
a constitutional violation, contributed to the tense and hostile
environment in which the plaintiffs existed. Finally, we reiterate
that the constitutional violation affects any inmate who may be
celled with a newly-arriving inmate, not just newly-arriving
inmates. The relief obtained is major, and we see no abuse of
discretion on the part of the District Court. The fee award is
affirmed.
VI.
The order of the District Court is affirmed in all respects.
We join the District Court in commending the parties for the
quality and thoroughness of their work before the Court. Their
briefs have been literate and their arguments well-reasoned. We
also commend the District Court for its detailed and exhaustive
work on this difficult and fact-intensive case. Its meticulous
opinions have been most helpful to us.
Affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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