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October 18, 1985


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 litigation.

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 the offer.

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 final order in the underlying case required the defendants to submit a detailed compliance plan demonstrating the manner in which they would provide an adequate health care delivery system. The defendants never offered such a plan. The Court ordered the creation of a departmental Chief of Medical Services. The defendants never offered one. The Court ordered an adequate budget for the delivery of the health care systems. The defendants' offers never came close to being adequate. The Court ordered the employment of a physician as Chief Medical Officer. The defendants offered such a position but burdened the position with numerous other responsibilities. The Court appointed a master to oversee compliance. The defendants never considered this. The Court deemed all of these above provisions absolutely essential for the delivery of any meaningful health care system, and none of them were offered by the defendants. Further, with respect to specifics, the Court required that a medical exam and history be taken of each inmate within seven days of their arrival at Menard. The defendants never offered this. The Court ordered a comprehensive system of record-keeping and supervision. The defendants' offer to provide a nurse to assume these responsibilities was severely lacking. The Court could go on and on in describing the inadequacies of the defendants' offers. Suffice to say, with regard to the specifics, the Court ordered a systematic delivery of health care, but the defendants only offered a few of the "nuts and bolts" asking the plaintiffs to place their trust in the expertise of the defendants, who even after the second medical panel report, failed to rectify gross deficiencies in the delivery of medical care.

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 ยง 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 ...

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