USCA1 Opinion
November 25, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 92-1043
DONALD PEARSON, ET AL.,
Plaintiffs, Appellants,
v.
MICHAEL FAIR, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella and Selya, Circuit Judges,
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and Zobel,* District Judge.
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Joseph D. Halpern, with whom David R. Geiger, Michele A.
__________________ ________________ ___________
Whitham and Foley, Hoag & Eliot, were on brief for appellants.
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Abbe L. Ross, Assistant Attorney General, Criminal Bureau,
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with whom Scott Harshbarger, Attorney General, was on brief for
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appellees.
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____________________
____________________
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Circuit Judge. In this appeal, we review
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whether the district court erred in finding that plaintiffs --
six inmates who are committed as sexually dangerous persons1 at
the Treatment Center for sexually dangerous persons at the
Massachusetts Correctional Institute in Bridgewater (the
Treatment Center) -- were not "prevailing parties" entitled to
attorney's fees under 42 U.S.C. 1988.
I
I
Since 1974, isolation of inmates at the Treatment
Center has been governed by a Consent Decree and a Supplemental
Consent Decree entered by Judge Wyzanski in King v. Greenblatt,
____ __________
C.A. No. 72-788-MA.2 See generally King v. Greenblatt, 489 F.
______________ ____ __________
Supp. 105 (D.Mass. 1980). The Supplemental Consent Decree
provided inter alia
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1. Defendants [the Commissioner of the
Department of Mental Health; the
correctional officers at the Treatment
Center and the Superintendent of the
Correctional Institute at Bridgewater]
shall not use or permit the use of
discipline or punishment . . . .
2. To the extent patients at said
Treatment Center are sequestered or
segregated by themselves in rooms or
cells used at least in part to isolate
patients for behavior defendants deem
inappropriate and unacceptable,
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1 See Mass. Gen. L. ch. 123A, 1-9.
___
2 The Supplemental Consent Decree was entered eight days after
the original Consent Decree.
The facts of this case have been fully described by this court
on two previous occasions. See Pearson v. Fair, 935 F.2d 401
___ _______ ____
(1st Cir. 1991) (Pearson II); Pearson v. Fair, 808 F.2d 163 (1st
_______ _______ ____
Cir. 1986) (Pearson I). We only relate the facts pertinent to
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this appeal.
(a) such sequestering or segregation
shall be effected in conformity with
minimum standards of procedural due
process, including notice of the kinds of
behavior which may lead to sequestering,
notice of particular charges or
complaints of such behavior, an
opportunity to be heard and confront such
charges or complaints and present
evidence in rebuttal, a hearing before
persons other than the complainant, and
notice and a written record of
disposition sufficient to permit
administrative review;
(b) such sequestering or segregation
shall be in locations which conform to
minimum standards of human decency . . .
.
The consent decree did not require the defendants to adhere to
specific or detailed policies governing isolation at the
Treatment Center. However, defendants adopted certain isolation
policies and procedures, none of which were specifically ordered
or approved by the district court. Pearson I, 808 F.2d at 165.
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A. Pearson I
A. Pearson I
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In December of 1981, six inmates3 at the Treatment
Center filed a pro se civil complaint seeking to have
___ __
defendants4 held in contempt of court for their alleged
violations of the King decrees. In January of 1981, the
____
plaintiffs, represented by court-appointed counsel, filed an
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3 The inmates were Donald Pearson, Albert Gagne, Joseph Johnson,
Lynwode Paquette, Michael Kelley and Francis O'Connor.
4 The defendants were the Commissioner of the Department of
Correction of the Commonwealth of Massachusetts, the Commissioner
of the Department of Mental Health of the Commonwealth of
Massachusetts, the Superintendent of the Massachusetts
Correctional Institute at Bridgewater, the Administrator of the
Treatment Center and the Supervisor of the Treatment Center.
-3-
amended complaint seeking as a matter of federal law the
imposition of detailed policies governing isolation at the
Treatment Center and injunctive relief requiring the defendants
to comply with the King consent decrees. The amended complaint
____
also requested that the defendants be found in contempt and
sought related sanctions.
From 1982 to 1986, plaintiffs brought various motions
seeking, among other things, that defendants be bound to follow
their own isolation policies and the enforcement of the terms of
the King consent decrees. Plaintiffs also claimed that
____
defendants' isolation policies and procedures violated the equal
protection and due process clauses of the United States
Constitution because they failed to comply with Massachusetts'
seclusion and restraint law.5 As a result of the request for
injunctive relief, defendants were forced to comply with the
stipulation in the King consent decrees which provided for a
____
hearing before continuing the sequestration of patients.6
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5 Mass. Gen. L. ch. 123, 21.
6 This initial injunctive relief was obtained because defendants
sequestered Albert Gagne, beginning on September 30, 1982. On
October 22, 1982, plaintiffs' filed a motion seeking a temporary
restraining order and a preliminary injunction to prevent
defendants from continuing to sequester plaintiff Gagne. On
October 25, the district court denied the motion for a temporary
restraining order, but referred the motion for a preliminary
injunction to a Magistrate. Following a Magistrate's Report
recommending that plaintiffs' motion be granted in part since
defendants were violating their own policies, defendants granted
plaintiff Gagne a hearing before continuing his sequestration.
On September 12, 1983, the plaintiffs brought a new motion
seeking a finding of contempt, sanctions and a preliminary
injunction. After numerous evidentiary proceedings, a Magistrate
-4-
On November 19, 1985, following extensive settlement
discussions between the parties and a suggestion by the district
court at a status conference, defendants filed "Revised Policies
and Procedures" (Revised Policies) for the isolation of inmates
at the Treatment Center.
On April 4, 1986, the district court issued a final
order ordering inter alia that defendants in all future
_____ ____
isolations at the Treatment Center comply with the King consent
____
decrees and the Revised Policies. Defendants appealed. In
Pearson I, we vacated the district court's order. We concluded
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that the district court had disposed of the merits of the
controversy without the benefit of an evidentiary hearing and had
failed to make the necessary findings to conclude that, as a
matter of federal law, the defendants were bound by the Revised
Policies. The case was remanded and reassigned to Judge Young.7
B. Pearson II
B. Pearson II
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Between July and December 1988, plaintiffs sought
preliminary injunctive relief against the repeated isolations of
plaintiff Calvin Tate.
On July 12, 1988, plaintiffs sought preliminary
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recommended the denial of plaintiffs' motion. Other hearings and
further motions followed which are not relevant here. As
explained in more detail above, on April 4, 1986, the district
court approved the Magistrate's Report and Recommendation, and
entered an order binding the defendants to their Revised
Policies.
7 We note that the district court granted an interim award of
attorneys' fees to plaintiffs in the amount of $7,379.12 on
February 4, 1988.
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injunctive relief seeking plaintiff Tate's immediate release on
the ground that he was sequestered in a manner which violated the
King decrees and the Revised Policies. On July 28, 1988, Judge
____
Young denied that motion without prejudice to its renewal after
August 15, 1988, if plaintiff Tate had not been released from
seclusion by that time. Although Judge Young found that
plaintiff Tate had "shown a reasonable likelihood of success in
proving that the Revised Policies and Procedures embody the
procedural due process standards to which Tate is entitled under
the King decrees," and that the defendants were violating the
____
King decrees, he concluded that the public interest -- the
____
defendants' good faith belief that plaintiff Tate was a danger to
himself and others -- outweighed the injuries plaintiff Tate
suffered from sequestration.
It was not long before plaintiffs returned to the
district court. On August 17, 1988, they renewed their motion
for injunctive relief seeking the release of plaintiff Tate from
isolation and that the defendants refrain from sequestering any
patient at the Treatment Center except in compliance with the
King decrees and the Revised Policies. Plaintiffs further
____
requested inter alia that the district court order
_____ ____
(1) the defendants to give a patient
facing sequestration one hour prior
written notice detailing the alleged
behavior that led to the sequestration
sanction;
(2) that any person on the Special
Clinical Staff Conference ("SCSC") [the
Committee which made the decisions to
isolate inmates] be a licensed
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psychiatrist;
(3) that the treatment plan for
sequestered patients specify why (i) the
patient posed "a clear and present danger
to himself or others," (ii) sequestration
is an clinically appropriate form of
treatment and (iii) no other less
restrictive form of treatment is
appropriate.
In response to plaintiffs' motion, Judge Young held an emergency
hearing on August 18, 1988. Judge Young concluded that the order
of July 22, 1988 -- finding that plaintiffs had demonstrated a
likelihood of success in proving violations of the King decrees
____
by defendants -- should stand. More importantly, Judge Young
issued an injunction to take effect on August 26, 1988, ordering
defendants
(1) to refrain from sequestering any
patient except in compliance with the
King consent decrees and the Revised
____
Policies and Procedures;
(2) to include a licensed psychologist in
the determination of the SCSC reviewing
any sequestration and such treatment
review shall indicate the treatment to be
afforded [to] the person sequestered and
how the sequestration contributes to the
treatment.
Defendants, however, chose not to sit by idly and watch the
August 26 injunction bind them to their Revised Policies. On
August 24, 1988, two days before the injunction would be
effective, the defendants released plaintiff Tate from
sequestration and they issued a document titled "Isolation Policy
and Procedure" ("Isolation Policy"), which expressly repealed the
Revised Policies. They notified the district court and
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plaintiffs on August 25.
The Isolation Policy constituted a broad expansion of
defendants' discretion to sequester patients. A few
illustrations suffice: (1) the defendants purported to transfer
from the SCSC to the Administrator of the Treatment Center and
his Assistant the authority to make final determinations
regarding isolation; (2) under the Policy, a valid clinical
reason to continue the isolation was a determination by the
initial isolation clinician8 that the patient would interfere
"with the orderly administration of and treatment goals of the
_______ ______________
Treatment Center"; and (3) the Administrator had the power to
suspend the Isolation Policy or parts thereof, if in his opinion
there existed "concerns for the safety of patients and staff at
the Treatment Center, and/or concerns for the safe administration
____ ______________
of the facility . . . ." (emphasis added).9
On August 24, 1988, the same date defendants
unilaterally replaced the Revised Policies, plaintiffs filed a
motion requesting the partial modification of the preliminary
injunction that was to go into effect on August 26. Plaintiffs
requested that the district court
(1) specify that any further clinical
review conducted by defendants concerning
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8 Initial Isolation Clinician was defined as "[a] member of the
[Department of Mental Health] clinical staff designated by the
Administrator to evaluate a patient who has been placed in
isolation."
9 In a post-trial opinion, the district court concluded that
"the unilateral adoption of the Isolation Policy violated the
consent decrees . . ." Opinion of August 28, 1989, at 98.
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plaintiff Tate shall comply with the King
____
consent decrees and the defendants' own
Revised Policies and Procedures; (2)
delete the provision in the injunction
allowing defendants to sequester
plaintiff Tate by the unilateral decision
of the Administrator; (3) specify that no
appeal may be taken from a treatment plan
except by the patient and the appeal must
be decided solely upon materials in the
record.
On August 26, 1988, Judge Young issued an order
modifying the preliminary injunction. Judge Young bound the
defendants to the King consent decrees and to the newly
____
promulgated Isolation Policy, except that he modified the Policy
so that (1) only qualified psychiatrists and psychologists may
serve as Initial Isolation Clinicians and Isolation Review
Clinicians; and (2) the defendants were barred from suspending
the Isolation Policy, even in an emergency.
Plaintiffs presented their objections to the Isolation
Policy on August 30, 1988 and requested that the August 26, 1988
preliminary injunction be further modified (1) to restrict the
use of isolation to inmates presenting a likelihood of serious
harm to himself or others; (2) to allow administrative
modification of a treatment plan only by a "legitimate clinician
on legitimate clinical grounds only"; and (3) to measure the time
requirements in the Policy by ordinary calendar days, rather than
"working days."
On September 22, 1988, at a status conference, Judge
Young ordered the parties to meet and work out more precise
language for the Isolation Policy. More significantly, Judge
-9-
Young adopted two of plaintiffs' three suggested amendments: he
ordered that modification of an initial clinical decision
requiring isolation be made only with the written concurrence of
a psychiatrist or psychologist, and he amended the definition of
"days" as used in the Policy to mean "all days, not just
workdays."
On November 4, 1988, plaintiffs filed a motion for
modification of the preliminary injunction in response to another
allegedly unlawful isolation of plaintiff Tate. They requested
that the district court issue an order further modifying
defendants' Isolation Policy by:
(1) defining "isolation," as used in the
Policy, to mean the confinement of a
patient in any place of seclusion, other
than in his room for the night or for a
security count;
(2) permitting the isolation of a
patient only under emergency
circumstances, such as the patient's
extreme physical violence, attempted
suicide or serious disruption of the
therapeutic environment, or conduct which
clearly demonstrates the serious and
imminent threat of such behavior.
On November 21, 1988, following a hearing held three days
earlier, Judge Young entered an order modifying the preliminary
injunction of August 26, 1988 by "[d]efining 'isolation,' as used
in the Policy, to mean the confinement of a patient in the Crisis
Unit or any other place within the institution other than the
patient's room for more than eight hours per day." In addition,
Judge Young adopted plaintiffs' proposed modification that
isolation be permitted only in "emergency situations" and
-10-
plaintiffs' definition of "emergency situations."
On January 18, 1989, Judge Young recused himself and
the case was reassigned to Judge Mazzone. The case went to trial
on March 16, 1989.10 At trial, plaintiffs asserted that the
equal protection clause of the Constitution required defendants
to comply with Massachusetts' seclusion and restraint law
applicable to civilly committed mental health patients.11
Plaintiffs also claimed that the defendants engaged in a pattern
and practice of violating the King decrees, that the defendants'
____
sequestration practices violated procedural due process and that
the conditions of confinement failed to comport with minimum
standards of human decency.
On August 28, 1989, Judge Mazzone dismissed the amended
complaint and entered judgment for defendants. In a thoughtful
and comprehensive opinion, Judge Mazzone concluded that the
plaintiffs had not succeeded on any of their claims at trial.
Judge Mazzone then entered an order vacating the Isolation Policy
and staying Judge Young's preliminary injunctions until such time
as the isolation problem could be comprehensively addressed in
the context of the King case (which had been reopened by Judge
____
Young).
Following their loss at trial, plaintiffs filed a
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10 The Pearson case was consolidated for trial with Langton v.
_______ _______
Johnson, 928 F.2d 1206 (1st Cir. 1991). Langton involved a broad
_______ _______
challenge to the defendants' treatment practices for the sexually
dangerous persons interned in the Treatment Center.
11 See Mass. Gen. L. ch. 123, 21.
___
-11-
motion for attorneys' fees and costs in the amount of
$658,452.92.12 On January 31, 1990, the district court
declined to award plaintiffs the requested $673,558.03. Judge
Mazzone found that
there has been enormous improvement in
physical facilities and in therapeutic
treatments, but I cannot attribute those
achievements to present counsels' efforts
in any meaningful way . . . . Similarly,
it was the prescient and wise
intervention of Judge Young with regard
to the sequestration practice at the
Treatment Center which has resulted in
the interim policy now in effect . . .
neither of the plaintiffs' counsel took
part in the formulation of the final,
interim policy, or aided in its drafting.
Judge Young did not adopt the suggestions
of counsel, but was required, under
pressure of time, to forge a sensible and
workable course between the positions
taken by both sides.
The district court, however, found that plaintiffs had "achieved
a minor, but recognizable change in the parties' relationship
over the course of the eight years of litigation" and awarded
plaintiffs a limited award of $69,000 in attorneys' fees and
costs. Plaintiffs appealed the entering of judgment for the
defendants and the award of attorneys' fees. Defendants cross-
appealed the attorneys' fees award.
In Pearson II, 935 F.2d 401 (1st Cir. 1991), we
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affirmed the district court's judgment for defendants on the
merits, but vacated the grant of a "limited" award of attorneys'
fees. We concluded that the district court had failed to explain
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12 Plaintiffs claimed fees for the entire litigation deducting
only the prior interim award of $7,379.12
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clearly two issues: (1) whether plaintiffs' lawsuit had a
"catalytic effect" in bringing about a change in defendants'
isolation policies; and (2), if so, what method was used by the
district court to award attorneys' fees. Id. at 416.
___
On remand, the plaintiffs filed a renewed motion for
attorneys' fees in the amount of $736,456.03. The district court
denied plaintiffs' motion and refused to award any fees.
Plaintiffs appeal from this order. For the reasons that follow,
we vacate.
II
II
The Fees Act, 42 U.S.C. 1988, provides in pertinent
part, that in actions brought under the Civil Rights Act, 42
U.S.C. 1983, "the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part of the
costs."
In Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), the
_______ _________
Supreme Court defined a "prevailing party" as one who "succeed(s)
on any significant issue in litigation which achieves some of the
benefits the parties sought in bringing suit." See also Texas
________ _____
Teachers Ass'n v. Garland School Dist., 489 U.S. 782, 792-93
_______________ _____________________
(1989) ("The touchstone of the prevailing party inquiry must be
the material alteration of the legal relationship of the parties
in a manner which Congress sought to promote in the fee
statute.").
Under Section 1988, a litigant may be considered a
prevailing party for attorneys' fees purposes if the litigant
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either (1) succeeds "on a significant issue in litigation which
achieves some of the benefit the parties sought in bringing the
suit" or (2) even absent success on the merits, "[if the
litigant's suit] had a catalytic effect in bringing about a
desired result." Langton v. Johnston, 928 F.2d 1206, 1224 (1st
_______ ________
Cir. 1991) (citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st
______ ________
Cir. 1978) and Guglietti v. Secretary of HHS, 900 F.2d 397, 398
_________ ________________
(1st Cir. 1990)). In Pearson II, we held that plaintiffs here
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were not prevailing parties in the classic sense because they
"did not win on any significant issue in the current litigation
and no judgment was entered in their favor." 935 F.2d at 415
(citation omitted).13 Nonetheless, we remanded the case after
determining that a substantial question lingered as to whether
plaintiffs' lawsuit had a catalytic effect in bringing about the
modified Isolation Policy. Id.
___
On remand, the district court found that appellants'
contribution to bringing about the modified Isolationist policy
was de minimis and thus did not warrant an award of fees.14
__ _______
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13 In a footnote of their brief, plaintiffs argue that they are
prevailing parties in the classic sense of achieving victory in
the litigation itself. We decline plaintiffs' invitation to
reconsider our earlier holding. See, e.g., U.S. v. Rivera-
___ ____ ____ _______
Mart nez, 931 F.2d 148, 150 (1st Cir. 1991) ("[T]he phrase 'law
________
of the case' signifies, in broad outline, that a decision of an
appellate tribunal on a particular issue, unless vacated or set
aside, governs the issue during all subsequent stages of the
litigation in the nisi prius court, and thereafter on any further
____ _____
appeal.").
14 The district court held:
Having reviewed the voluminous record in
preparation for the trials, having
-14-
This court reviews the district court's determination
of attorneys' fees under 42 U.S.C. 1988 for abuse of
discretion. See generally Domegan v. Ponte, No. 91-1625, slip
_____________ _______ _____
op. at 11-12 (1st Cir. Aug. 10, 1992); Langton, 928 F.2d at 1225.
_______
Having thoroughly scrutinized the record in this case, we cannot
agree with the district court's conclusion that the achievements
of plaintiffs' suit were de minimis.
__ _______
We have held that "[t]he catalyst test 'applies to
plaintiffs who have succeeded in achieving favorable results
because of the filing of their 1983 claim, but have not had a
final judgment on the merits entered in their favor.'" Langton,
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928 F.2d at 1225 (citing Exeter-West Greenwich Regional School
______________________________________
Dist. v. Pontarelli, 788 F.2d 47, 52 (1st Cir. 1986)). Under the
_____ __________
catalyst test, plaintiffs must prove that their lawsuit caused
the sought-after improvements (the causation component) and the
improvements were of more than "minor significance" (the
materiality component). Langton, 928 F.2d at 1224-25 (quoting
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____________________
presided at the trials and having combed
the same record to write a lengthy
opinion, I continue to believe the early
and intense involvement by Judge Wyzanski
and Judge Garrity and the continued
involvement of other judges of this
court, especially Judge Young, brought
about the improvement in physical
facilities and therapeutic treatment, and
the operating stability that I found
existed in my Opinion, August 28, 1989.
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An extended discussion of this difficult
issue would serve no purpose. I simply
cannot make the concrete findings
necessary in either case.
Memorandum and Order, November 20, 1991.
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-15-
Texas Teachers Ass'n, 489 U.S. at 792). We address below each
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requirement of the catalyst test.
A. Causation
A. Causation
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Under the causation prong of the catalyst theory,
plaintiffs must show that their lawsuit was a "necessary and
important factor in achieving the improvements" in the isolation
policies and practices at the Treatment Center. Nadeau, 581 F.2d
______
at 281. The district court concluded that plaintiffs'
contributions to the sequestration policies was insignificant
because, in its view, "neither of the plaintiffs' counsel took
part in the formation of the final, interim policy, or aided in
its drafting." However, the facts underlying the evolution of
Judge Young's injunctive orders contradict this conclusion. The
long and tortuous history of this litigation demonstrates that
plaintiffs' attempt to obtain relief during the summer and fall
of 1988 caused the district court to order the modification of
defendants' isolation policies.
In Nadeau, we pointed out that in determining whether
______
plaintiffs' lawsuit caused the defendant to act, the chronology
of events was an important factor to consider.15 581 F.2d at
281. An examination of the chronology leading to the final
Isolation Policy yields only one conclusion: the terms of Judge
Young's orders were in direct response to plaintiffs' motions and
the district court orders adopted the substance if not the form
____________________
15 We also emphasized that it was not a decisive factor and
nothing in this opinion modifies that holding.
-16-
of most of plaintiffs' suggested modifications.
Judge Young's final order of November 21, 1988, adopted
verbatim the following terms proposed by plaintiffs: (1)
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defendants were bound by a detailed isolation policy enforceable
as a matter of federal law; (2) the term "days" is defined as
"calendar days," not "working days"; (3) isolation is only
permitted in emergency situations; and (4) "emergency situations"
included only three defined categories. Additionally, the
district court adopted plaintiffs' suggested definition of
"isolation," adding only the requirement that confinement be for
more than eight hours. Two further modifications proposed by
plaintiffs were adopted in large part by the district court:
administrative modification of the treatment plan was prohibited
unless a psychiatrist concurred in writing, and only qualified
psychiatrists and psychologists may serve as Initial Isolation
Clinicians and Isolation Review Clinicians.
In sum, Judge Young issued various preliminary
injunctions in response to plaintiffs' motions seeking that
defendants be bound to the King decrees and the Revised Policies.
____
In the end, it was clear that plaintiffs' lawsuit triggered the
district court decision to bind defendants to the King decrees
____
and to modify the Isolation Policy to comply with the due process
rights of the inmates.
B. Materiality
B. Materiality
___________
Under the materiality prong of the catalyst theory, the
plaintiffs must show that whatever changes their lawsuit caused
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at the Treatment Center were not de minimis. Langton, 928 F.2d
__ _______ _______
at 1225. At a minimum, "plaintiff must be able to point to a
resolution of the dispute which changes the legal relationship
between itself and the defendant." Texas Teachers Ass'n, 489
____________________
U.S. at 792.
In Texas Teachers Ass'n, the Supreme Court held that
_____________________
the key inquiry under Section 1988 is whether "the plaintiff has
succeeded on 'any significant issue in litigation which
achieve[d] some of the benefit the parties sought in bringing the
lawsuit . . .'," 489 U.S. at 791-92 (citing Nadeau, 581 F.2d at
______
278-79). In ascertaining eligibility for a fee award, the degree
of plaintiffs' success is relevant only to the quantity of a
reasonable fee. Id. at 790. In the present case, the district
___
court held without explanation that plaintiffs lawsuit was of
"minor significance given the entire record." The district court
apparently measured plaintiffs' achievements with reference to
the overall goals of plaintiffs in the other consolidated case.
See Langton, 928 F.2d at 1212 (affirming district court's finding
___ _______
that plaintiffs failed to carry their burden that defendants'
therapeutic treatment of inmates at the Treatment Center violated
the United States Constitution or two prior consent decrees).
A close review of plaintiffs' achievements -- the
injunctive relief obtained to bind defendants to the Revised
Policies and to modify the Isolation Policy -- leaves us with the
firm conviction that the district court's outright denial of
attorneys' fees is erroneous.
-18-
The central change in the legal relationship -- as a
matter of federal law the defendants are now bound to follow the
modified isolation policies and procedures -- was largely, if not
solely, brought as a result of plaintiffs' efforts to obtain
injunctive relief. Courts have routinely held that substantive
injunctive relief is not de minimis and is a proper basis for an
__ _______
award of attorneys' fees. See, e.g., Crowder v. Housing
___ ____ _______ _______
Authority of Atlanta, 908 F.2d 843, 849 (11th Cir. 1990)
______________________
(district court abused its discretion in denying fees when it had
issued permanent injunction ordering housing authorities to
comply with certain procedures and guarantees); Rogers v. Okin,
______ ____
821 F.2d 22, 25 (1st Cir. 1987), cert. denied, 484 U.S. 1010
_____ ______
(1988) (fees proper when plaintiffs obtained injunctive relief
establishing right of committed mental patients not to be
forcibly medicated or secluded, except in clearly defined
emergency situations).
Indeed, before plaintiffs sued, defendants were not
complying with the King consent decrees or even their own Revised
____
Policies. Although an injunction that merely preserves the
status quo may constitute de minimis relief, in this case the
__ _______
injunctions entered by the district court repeatedly "changed the
legal relationship" between the parties to the benefit of
plaintiffs. Texas Teachers Ass'n, 489 U.S. at 792. Defendants
____________________
are now as a matter of federal law bound to a modified Isolation
Policy.
In sum, plaintiffs' lawsuit vindicated the due process
-19-
rights of the inmates under the King regime by clarifying the
____
King decrees and forcing defendants to adopt an Isolation Policy
____
in compliance with the decrees.
III
III
This is the third time this case has been appealed and
the second appeal involving a dispute over attorneys' fees. We
see no need for a fourth remand, particularly since plaintiffs
have included in the appendix a lengthy computer printout which
reflects time charges for counsel's work and disbursements
itemized on a line by line basis and affidavits in support
thereof. De Jes s v. Banco Popular de Puerto Rico, 951 F.2d 3, 6
________ ____________________________
(1st Cir. 1991); Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.
______ _______
1987); Rogers, 821 F.2d at 31.
______
Plaintiffs admit that they obtained "less than complete
success," but they argue that the injunctive relief gained is
"sufficient to warrant an award of fees based upon the time spent
on all aspects of the case." Plaintiffs' Reply Brief at 18.
___
After deducting a few hours found redundant or otherwise
unnecessary, plaintiffs submitted a request for an award of fees
in the amount of $736,456.03.
Defendants have adopted an "all or nothing" approach in
their opposition to plaintiffs' fee application. They
essentially assert that plaintiffs' fee request is grossly
exaggerated and since "no attempt was made to segregate the
amount of time spent on any particular claim, total disallowance
is justified." Appellees' Brief at 26. We have examined the
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record carefully and conclude that defendants' opposition lacks
merit. In fact, the district court arguably encouraged
plaintiffs to file a submission for time spent on all aspects of
the case when it denied a motion filed by defendants requesting
the court to order plaintiffs to segregate. Cf. Domegan v.
__ _______
Ponte, No. 91-1625, slip op. at 45 n.35 (1st Cir. Aug. 10, 1992)
_____
("failure [of fee target] to present evidence that flat rates
approved by the district court were unreasonable means that [fee
target] cannot prevail on their 'flat rate' challenge") (emphasis
_______
in original); Rogers, 821 F.2d at 30 ("[T]he realities of fee
______
award reviews compel those who would object to such awards on
appeal on the basis of time spent to select priority targets and
marshal the facts as effectively as possible.").
The starting point in determining an award of
attorneys' fees under Section 1988 is that it must be
"reasonable." Hensley v. Eckerhart, 461 U.S. 424 (1983). In
_______ _________
calculating a reasonable attorneys' fee, "the most critical
factor is the degree of success obtained." Id. at 436; Texas
___ _____
Teachers Ass'n, 489 U.S. at 789-90. If the plaintiff has failed
______________
to prevail on a claim unrelated to the successful claims, the
hours spent on the unsuccessful claim should be excluded in
considering the amount of a reasonable fee. Application of these
general principles leads us to set the amount of fees at $110,000
including expenses and costs.16
____________________
16 This figure represents approximately fifteen percent of the
total award claimed.
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We have not hesitated to recognize that there are cases
which do not require this court to set forth an exacting, line-
by-line explanation of our conclusion that the requested award of
attorneys' fees must be reduced. Ackerley Communications v. City
_______________________ ____
of Sommerville, 901 F.2d 170 (1st Cir. 1990); Hart v. Bourque,
_______________ ____ _______
798 F.2d 519 (1st Cir. 1986). This is such a case. This amount
reflects not only our determination that miscellaneous reductions
in the total award requested was necessary "but also a more
general sense that a higher award in these circumstances would
not be 'reasonable.'" Ackerley Communications, 901 F.2d at 170.
_______________________
We explain the general factors upon which we relied to reduce the
lodestar figure.
First, and principally, plaintiffs only achieved
limited success on their claims. They admit as much. See Foley
___ _____
v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991) (paring award
______________
to reflect degree of actual success). Plaintiffs' assertion that
they are entitled to compensation for all hours spent on the case
for proving the necessity to maintain the modified Isolation
Policy proves too much. Indeed, we attach some significance to a
pre-trial motion filed by plaintiffs seeking an interim award of
fees for counsel's work in obtaining the injunctive relief.17
____________________
17 The interim fee request was submitted on January 17, 1989,
and it sought an award of fees for counsel's work in obtaining
the injunctive relief in an approximate amount of $105,000 at
current rates. As grounds for the award, plaintiffs pointed to
their success in obtaining the preliminary injunctions of August
18 and August 26, 1988 and the subsequent modification of the
injunctions on August 20, September 22 and November 18, 1988.
We emphasize that plaintiffs subsequently proved at trial
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The main focus of the dispute at trial was plaintiffs'
claims that the defendants violated the equal protection and due
process clauses in failing to afford Treatment Center inmates the
legal rights accorded to other mental health patients in the
Commonwealth, including the protections of the Commonwealth's
restraint and seclusion statute.18 The district court
determined that plaintiffs had failed to prove by a preponderance
of the evidence that the restraint and seclusion statute should
apply to the Treatment Center and that the defendants had engaged
in a pattern and practice of violating the King decrees. See
____ ___
generally Pearson II, 935 F.2d 401 (1st Cir. 1991).
_________ _______
Second, the level of limited success achieved by
plaintiffs demonstrates that a substantial number of hours spent
on factual discovery and legal research was devoted to matters on
which the plaintiffs did not prevail. To a large extent,
plaintiffs' counsel overreached in their constitutional claims
and by going to trial, plaintiffs did not serve "'the public
interest by vindicating important constitutional rights.'" City
____
of Riverside v. Rivera, 477 U.S. 561, 572 (1985) (citation
_____________ ______
omitted). Although it would be impractical, if not impossible,
to separate the time spent on the due process and equal
protection claims -- particularly since the factual issues are
closely interrelated -- we conclude that the award must be
reduced to reflect the limited success achieved. See, e.g.,
___ ____
____________________
that the Isolation Policy violated the King decrees.
____
18 See Mass. Gen. L. ch. 123, 21.
___
-23-
Domegan v. Ponte, supra (affirming district court's decision to
_______ _____ _____
award only half of requested attorneys' fees, although
plaintiffs' counsel sought compensation for only one third of
time spent on case).
Finally, we have reviewed the fee petition and find
miscellaneous billing entries that reflect hours not reasonably
expended on the litigation. Hensley, 461 U.S. at 588.
_______
Accordingly, we have applied our "billing judgment" to disallow
unreasonable claims.19
We have also reduced the number of hours claimed to
adjust for overstaffing. Exhibit B of plaintiffs' motion shows
that approximately 15 lawyers billed hours for work performed on
this case. This is an unreasonable number of lawyers. Courts
"should ordinarily greet a claim that several lawyers were
required to perform a single set of tasks with healthy
skepticism." Lipsett v. Blanco, No. 91-2152, slip. op. at 8 (1st
_______ ______
Cir. Sept. 23, 1992). It is conceivable that a civil rights
litigation may be so complex and novel that a plaintiff may have
to retain more than 15 skilled civil rights lawyers to succeed.
But this is not such a case. At the time the complaint was
filed, defendants were in theory bound by the King consent
____
decrees and they had promulgated policies which on their face
complied with the decrees. In simple terms, the vindication of
plaintiffs' rights was to a large extent a matter of clarifying
____________________
19 For example, plaintiffs' counsel seeks $15,105.11 for the
preparation of the first motion for award of attorneys' fees.
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the consent decrees, which did not require overreaching to assert
tenuous constitutional claims.20
Likewise, the high hourly rates billed by plaintiffs'
law firm "presuppose particular familiarity and expertise, which
should reduce" the number of attorneys needed to litigate. Cf.
__
Ackerley, 901 F.2d at 172; see also Foley, 948 F.2d at 20. This
________ ________ _____
is particularly so here where plaintiffs' two lead counsel
conducted most, if not all, stages of the litigation.
Ultimately, plaintiffs have failed to articulate a compelling
reason as to why defendants should be taxed for the duplicative
costs of associating a horde of attorneys with this dispute.
Finally, plaintiffs' counsel, by overreaching (continually
pushing for full fees in the face of very limited success), have
forfeited any claim on appellate generosity. C.f., e.g., Lewis
____ ____ _____
v. Kendrick, 944 F.2d 949 (1st Cir. 1991). Considering this
________
history, no further award of fees or costs shall be granted with
respect to this appeal.
Vacated and remanded for entry of judgment consistent
_______________________________________________________
with this opinion.
_________________
____________________
20 As the district court noted, plaintiffs' equal protection
argument flew in the face of this court's decision in Doe v.
___
Gaughan, 808 F.2d 871 (1st Cir. 1986). 1989 Opinion at 58. In
_______
Doe, we held that "[t]here is no constitutional requirement . . .
___
that all mental patients in state-run hospitals receive the same
rights or care." Id. at 881 (citation omitted).
___
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