The opinion of the court was delivered by: Foreman, Chief Judge:
Plaintiffs' application for attorney's fees and costs,
pursuant to 42 U.S.C. § 1988, is now before the Court.
Plaintiffs originally filed this 42 U.S.C. § 1983 action on
October 2, 1973 on behalf of thirty-eight named black prisoners
confined to segregation at Menard Correctional Center (Menard)
since May 1, 1973. Among other things, the plaintiffs
challenged the adequacy of health care provided in segregation.
On December 4, 1973, the parties consented to a temporary
restraining order providing in part for regular exercise and
proper health care. On July 14, 1975, the plaintiffs amended
their complaint, to include all inmates in segregation. This
amended complaint alleged violations of both federal
constitutional and state law in a number of areas of
institutional life including a claim that there existed at
Menard a systematic denial of adequate health care services.
The Court certified this class on March 5, 1976.
Upon the plaintiffs' motion, and over the defendants' strong
objection, the Court appointed a panel of impartial medical
experts pursuant to Fed.R.Evid. 706. This panel was instructed
to assist the Court in determining questions of essential
medical care as required by the United States Constitution and
to direct and conduct a comprehensive health services survey
to determine the adequacy and propriety of health care
services provided by the defendants. On November 18, 1976 the
panel filed its first report, stating that, in its opinion,
there was a systematic denial of acceptable medical care to
all residents at Menard, and not just the certified class.
In light of this conclusion, the Court granted the
plaintiffs' motion to expand the class to all the inmates
incarcerated at Menard for purposes of declaratory and
injunctive relief as to the issues involving denials of
medical care. A non-jury trial of these health care issues
commenced on August 29, 1977, and continued for thirty-one
bitterly-fought days, ending on November 17, 1977. During this
trial, the medical panel reinspected the prison pursuant to
the request of the defendants. After the conclusion of the
trial, the Court allowed the plaintiffs and defendants to
submit proposed findings of fact and conclusions of law.
Almost two years later, after this briefing was complete, the
Court heard oral argument on the matter. The Court issued its
order, as amended, on March 18, 1980. See Lightfoot v. Walker,
486 F. Supp. 504 (S.D.Ill. 1980).
After a careful examination of all the voluminous exhibits,
briefs, memorandums, and evidence, the Court found gross
deficiencies in the health care system and environmental
conditions which amounted to a violation of the plaintiffs'
eighth amendment rights. Id. at 525. The Court ordered
extensive and detailed relief including the creation of a
state-wide office of medical services within the Department of
Corrections. The Court approved the appointment of a special
master to oversee the implementation of the relief ordered. In
November of 1984, the Court, having found that the defendants
were in substantial compliance with the requirements of the
order, dismissed the Master.
On October 9, 1981, the plaintiffs submitted an application
for costs, expenses, and attorney's fees. The defendants
responded to the application and requested that a hearing be
held on the matter. The plaintiffs maintained that a hearing
was not necessary. The Court accommodated the defendants, and
an evidentiary trial hearing was held for seven days in
November and December of 1984. Oral argument on the matter was
heard on July 26, 1985.
The plaintiffs request that the Court award them $605,243.00
for attorney's fees, a twenty-five percent enhancement, and
$26,303.65 in costs and expenses.
42 U.S.C. § 1988 provides that in a federal civil rights
action such as this, "the court, in its discretion, may allow
the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs." In calculating
a reasonable attorney's fee, the Court must make an initial
estimate, commonly referred to as the "lodestar" figure, by
multiplying the number of hours reasonably expended on the
litigation times a reasonable hourly rate. Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d
40 (1983). Adjustments to this figure may be made as necessary
in the particular case. Blum v. Stenson, 465 U.S. 886, ___, 104
S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984).
The Supreme Court advises, although not heeded here, that a
request for attorney's fees should not result in a second
major litigation. Hensley, 424 U.S. at 437, 103 S.Ct. at 1941.
The "fee applicant bears the burden of establishing entitlement
to an award and documenting the appropriate hours expended and
hourly rates." Id. The applicant is expected to exercise
billing judgment with respect to the hours claimed and should
maintain accurate time records. Id.
Before applying the legal standards to the case at hand, the
Court feels obligated to address at this time two points of
major significance. First, the Court notes that a major
portion of the findings the Court makes below are based on
this Court's extensive involvement with this case. This Court
has superintended this case from the initial filing of the
original complaint in 1973 through this fee request. The Court
was present at numerous pretrial conferences and meetings. The
Court ruled on the hundreds of pretrial motions filed. The
Court presided over the thirty days of trial. The Court
painstakingly plowed through the hundreds, if not thousands of
pages of briefs, reports, and exhibits in this case. The Court
wrote the fifty or so pages of findings and conclusions
granting the plaintiffs the relief they requested. Finally,
since that order, the Court has monitored the compliance stage
of this litigation. The Court only mentions this fact to
assure the parties that a majority of the evidence presented
during the seven days of fee petition hearing served only to
jar this Court's memory as to the specifics of the underlying
With this fact in mind, the Court turns to the second point.
As a defense to a majority of the fee request, the defendants
have tendered to the Court the recent Supreme Court case of
Marek v. Chesny, ___ U.S. ___, 105 S.Ct. 3012, 87 L.Ed.2d 1
(1985). In Marek, the Supreme Court held that a prevailing
plaintiff for purposes of § 1988 is not entitled to any
attorney's fees incurred after a valid Fed.R.Civ.P. 68 offer of
settlement has been made. Fed.R.Civ.P. 68 provides that if a
timely pretrial offer of settlement is not accepted, and the
judgment finally obtained by the offeree is not more favorable
than the offer, the offeree must pay the costs incurred after
making the offer. Since § 1988 includes attorney's fees as part
of costs, the Supreme Court reasoned that in civil rights
actions the term costs in Rule 68 includes attorney's fees. Id.
105 S.Ct. at 3017. Therefore, if the final judgment is not more
favorable than the offer, the offeree, although a prevailing
party, may only recover its attorney's fees incurred prior to
While this Court openly embraces the Marek decision in light
of the low likelihood of settlement in civil rights actions, it
is not applicable to the case at hand for the simple reason
that the judgment obtained was far more favorable than any
offer of settlement. The defendants contend that a careful
comparison of the final order with their offers of settlement
reveals that mathematical precision exists. Notwithstanding the
fact that there is inherent difficulty in comparing settlement
proposals in cases such as this, the Court feels obligated to
briefly specify the inadequacies of the defendants' offers
since they have devoted a great deal of time to this defense.
The plaintiffs have characterized this defense as
"transcending advocacy and entering the Land of Oz." While not
commenting on the accuracy of this characterization, the Court
need only to remind the parties that it was privy to many, if
not all, the settlement offers. Its ironic to note that the
inherent suggestion made by the defendants' argument is that
this Court stood by and let such wonderful offers fall by the
wayside without exerting that remarkable power of persuasion
that a district judge possesses. To be sure, had this Court
thought the defendants' proposals to be reasonable, that
belief would have readily been communicated to the plaintiffs,
especially in light of the thirty days of trial this Court
faced. For these reasons the Court believes that
Marek is inapplicable to this case.
A plaintiff must be a "prevailing party" to recover
attorneys fees under § 1988. Plaintiffs will be considered
prevailing parties if they succeed on any significant issue in
litigation which achieves some of the benefit the plaintiffs
sought in bringing this suit. Hensley, 461 U.S. at 433, 103
S.Ct. at 1939. Here, the Court finds that the plaintiffs have
prevailed in this action. In fact, it would be difficult for
the Court to think of a case where the plaintiffs have more
completely prevailed. The plaintiffs were granted much, if not
all, the relief they requested. The Court finds no special
circumstances which would render an ...