dissenting:
I agree with the majority that the case must be remanded for further proceedings and I commend the majority opinion for its analysis of the many factors, including those set forth in Hensley v. Eckerhart,U.S. -, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and the twelve set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), cited with approval in Battle v. Anderson, 614 F.2d 251 (10th Cir. 1980), to be considered in the allowance of attorney’s fees pursuant to 42 U.S.C. § 1988. The guidelines should prove helpful to trial judges. However, based on the particular facts of this case, I must respectfully dissent from the broad range of factors the majority would permit the trial court to consider upon remand. In this case, I would severely limit the factors to be considered by the district court in the allowance of reasonable attorney’s fees.
The public interest was not served — in fact it was ill-served — and the Colorado taxpayers were abused by the trial court’s award of attorney’s fees in the amount of $709,933.50 and expenses in the amount of $32,782.43. The five week trial involved a parade of national prison system-facility experts and a full array of at least twelve lawyers representing Ramos who have claimed that their efforts required the expenditure of in excess of 9,000 hours in the public interest. In my view, this was un*561necessary, uncalled for and contrary to the public interest, working to the detriment of the taxpayers of the State of Colorado. I shall relate my views and conclusion in some detail.
Background
The Canon Correctional Facility, known as “Old Max”, was originally constructed in the 19th century. Over the years additional buildings were constructed. There was little violence at Old Max until the late 1960’s when more violent offenders began to enter the prison. Nationally, the situation was comparable. By the early 1970’s the prison officials had largely lost control of penal facilities. Filth was prevalent and violence was commonplace.
On May 18, 1975, a riot occurred in cell-house 1 of Old Max. It lasted about forty minutes. The inmates took control of the cellhouse, smashed the lights and killed one and injured 18. Governor Lamm immediately requested that an investigation be made and a report be submitted by the attorney general. The report recommended immediate legislative action.
By 1976, the Colorado General Assembly, working on a bipartisan basis with Governor Lamm, appropriated $989,610.00 for renovation and construction of the existing facility, and an additional sum of $671,-127.00 for a new minimum security facility at Rifle, Colorado. Later in 1976, Governor Lamm called a special session of the general assembly. The legislature responded by áppropriating $933,883.00 for renovation and construction and an additional $200,000.00 to plan a new facility. This resulted in a massive Touche-Ross Master Plan of 1977, which was later rejected and supplanted by a master plan proposed by the Department of Corrections and completed on or about February 24,1978. In 1977, the legislature, again to improve conditions, appropriated $7,920,892.00 for planning and construction of a new medium security facility. Thus, in 1976 and 1977, the legislature appropriated over $22 million for the renovation of the existing facilities and the building of new facilities. The five year plan proposed by the Department of Corrections was adopted in 1978 by the general assembly and included new facilities and a comprehensive list of reforms to be implemented.
Colorado has moved consistently in its efforts to provide adequate correctional facilities. New facilities are now constructed and in use at a cost to the Colorado taxpayers well in excess of $22,500,000.00. The record shows that the State of Colorado, through its governor, general assembly and correctional officials, has in good faith grappled with the difficult problems, and at all times has proceeded with a specific remedial plan. The plan has been fully funded and implemented and has resulted in a substantial upgrading of Colorado’s correctional system. Thus, since 1976, Colorado has attempted in good faith to remedy the antiquated facilities which are the subject of the complaint in this case.
The Instant Litigation
On November 30,1977, Fidel Ramos filed a pro se complaint against certain state defendants challenging as unconstitutional his status as a transitional worker at Old Max. He sought a job assignment. On January 16, 1978, the defendants filed a motion to dismiss Ramos’s complaint. On February 15, 1978, the National Prison Project and the ACLU Foundation of Colorado appeared on behalf of Ramos and filed a 10 page amended complaint, styled as a class action, alleging that conditions of confinement at Old Max were unconstitutional. On March 23, 1978, the district court ordered seven other cases alleging constitutional violations at Old Max stayed pending the outcome of this case. On March 31, 1978, the district court certified this as a class action under Fed.R.Civ.P. 23(a). The class was certified as “all persons who are now or in the future may be incarcerated in the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado.”
On April 7,1978, the State filed a motion to dismiss and/or abstain and stay proceedings. The trial court was made fully aware of the remedial steps then undertaken by *562the State of Colorado to renovate Old Max and to construct new, modern facilities and of the time table proposed for the completion of the projects. The State urged that extensive proceedings involving conditions at Old Max were, under the circumstances, unnecessary. Counsel for Ramos vigorously opposed the State’s motion. The trial court denied the motion and ordered that the suit proceed without delay. The trial court and counsel for Ramos erred, in my view. The public interest would have been fully and adequately served if all proceedings had been limited exclusively to remedying only emergency matters at Old Max involving medical care, food, and safety, in light of the remedial steps then undertaken by the State. After extensive discovery held in 1978 and 1979, trial began on October 15, 1979. After five weeks of trial, the court on November 15, 1979, ruled in favor of plaintiffs and entered certain emergency orders pertaining to medical care. On December 20, 1979, the court filed a 75 page memorandum opinion and order. On December 28,1979, appeal was taken from the judgment entered December 21, 1979.
At the date of the district court’s order, the new facilities at Old Max and at Rifle were almost complete and the old facilities were to be closed and vacated within a matter of months.
Although the trial court’s opinion did not expressly state the constitutional standard utilized to measure conditions at Old Max, it is clear from the ten factors enumerated in the opinion, (physical facilities, idleness, isolation, employment, education, recreation, personal safety, medical care, classification and access) that the evaluation utilized the “totality of circumstances” standard to determine whether conditions gave rise to the possibility of mental, emotional or physical degeneration.
By the time the opinion of this court was entered, on appeal, Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981), almost all of the prisoners incarcerated at Old Max had been transferred to the newly constructed, modern maximum security facilities. For all practical purposes the district court’s order had thus been rendered moot. The five week trial, venturing into every conceivable area and aspect of standards, personnel, practices and administration at Old Max, thus proved to be, in large measure, a wasteful venture. This is particularly so because, in my view, it is simply impermissible to transplant any findings of Eighth Amendment “cruel and unusual” violations found at Old Max to any other facility or place. If such was intended, I do not hesitate to say that such action constitutes an impermissible intrusion into the internal affairs of the State of Colorado involving its operation and control of the Colorado penal system.
The failure of the trial court and counsel for Ramos to give full recognition to the fact that renovation and construction of new penal facilities had actually been commenced by the State of Colorado two years prior to filing of the instant suit and had been expeditiously proceeded upon in all good faith by the State is inexcusable. This failure constituted a breach of the “delicate role assigned to the federal courts to display that restraint so necessary ‘in the maintenance of proper federal-state relations’.” Battle v. Anderson, 564 F.2d 388, 392 (10th Cir.1977) (quoting Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963)). As I reviewed the proceedings, I could not understand why the district court did not simply require emergency remedies at Old Max deemed necessary to protect the health and safety of the prisoners until the new facilities were open and Old Max could be left behind.
If the court was satisfied that the State was proceeding in good faith to cure the deficiencies requiring emergency attention, there was no need to spend five weeks venturing into defects and cures which, because of the new facilities, may never require the court’s attention. Instead, the *563district court proceeded without regard for the new facilities under construction. It is my view that the district court should have stayed all proceedings except those involving emergency remedies required at Old Max. I cannot accept the proposition that it was necessary for the district court, the ACLU, the National Prison Projects and private counsel to push Colorado state officials to take action they had already determined to take. Federal courts must be reluctant to intervene in matters involving the administration, control and maintenance of state penal systems, in recognition of that restraint so necessary in the maintenance of proper federal-state relations. Battle v. Anderson, supra, 564 F.2d at 392. And federal courts must be ever mindful of an obligation to avoid needless conflict with administrative officials charged with the operation of penal facilities. The basic responsibility for the operation, control and management of penal institutions lies with the administrative officials and agencies charged therewith and it is not subject to judicial review unless exercised in such a manner as to constitute a clear abuse of discretion or caprice on the part of prison officials. Randle v. Romero, 610 F.2d 702 (10th Cir.1979); Marchesani v. McCune, 531 F.2d 459 (10th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976); LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971); Bethea v. Crouse, 417 F.2d 504 (10th Cir.1969).
That federal judges’ individual views may be that a particular aspect of prison operation or administration is inept or undesirable does not compel the conclusion that the practice (or lack thereof) is necessarily constitutionally offensive. An Eighth Amendment cruel and unusual punishment challenge must be placed in proper context. That was definitively accomplished, in my view, in the case of Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The majority in Rhodes (Justice Powell was joined by Chief Justice Burger, and Justices Stewart, White and Rehnquist) held that conditions creating “cruel and unusual” punishment under the Eighth Amendment must meet the measure of one of three queries: (a) is the punishment “grossly disproportionate to the severity of the crime” warranting punishment; (b) do the conditions involve “the wanton and unnecessary infliction of pain”; or (c) do the conditions deprive “inmates of the minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399.
The majority in Rhodes observed that the record there did not evidence conditions proving that unnecessary or wanton pain was inflicted on the Ohio inmates or that the punishment was disproportionate to the crimes committed. Furthermore, the Court placed less weight on the opinions of experts and standards promulgated by correctional agencies than upon the public attitude. In dictum, this emphasis was explained. The Rhodes majority observed that harsh or restrictive conditions of confinement are. part of the punishment criminal offenders justly receive; the Constitution does not mandate comfortable prisons. Justice Powell wrote that “[t]o the extent that such conditions [of confinement] are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101 S.Ct. at 2399. Of particular import here, the Rhodes majority observed that state legislatures and state prison officials can properly weigh considerations affecting the adequacy of prisons because they are sensitive to the dictates of the Constitution, the problem of just punishment, the deterrence of future crime, and the promotion of rehabilitation. On this predicate, the Court cautioned lower federal courts to avoid overzealous design in granting relief to prisoners. The Rhodes opinion, in my view, is a clear signal that the federal judiciary should, absent inaction by state courts, legislatures and executive officials where dire circumstances exist in a state penal system, practice a hands-off policy.
There was nothing novel or challenging about the instant case. The State of Colo*564rado had already recognized the infirmities in its penal system and was aggressively moving to remedy them. The majority opinion indicates that because the State of Colorado resisted the claims of unconstitutionality, a great deal of time and expense expended would have been saved if it had admitted to these conditions. What conditions and what specific requirements of change? The converse is that the State had moved the district court in the early pleading stages to abstain or stay the overall proceedings inasmuch as the State was in fact moving expeditiously to renovate or construct new maximum security facilities. However, the trial court and counsel for Ramos .refused to compromise. There was no “give” on their part. Public interest lawyers cannot, under these circumstances, claim an “incentive” which simply results in the abuse of Colorado taxpayers.
In light of the circumstances, it was not proper for the trial court to review the gamut of conditions, standards, personnel, etc., at Old Max, well knowing that Colorado was moving forward to renovate and/or construct new, modern facilities. The taxpayers have been handed an unnecessary, unjustified bill. I would send this case back to the trial court with instructions to reduce the entire attorneys’ fees allowance to that which would have been required only and exclusively in preparing and presenting evidence of those conditions at Old Max which required emergency attention while Colorado proceeded expeditiously to renovate and build the new penal facilities.
The district court should not have permitted national prison experts to appear and give prolonged testimony about national prison standards. In my view, Rhodes v. Chapman, supra, dictates otherwise. The clients’ interest here involved only emergency conditions at Old Max and nothing more. There was no “genius” required of counsel for Ramos. It was unnecessary for the plaintiffs to utilize twelve attorneys to fight a battle which the State of Colorado had already declared won. It makes no sense to condemn state officers for not freely acknowledging all of the alleged unconstitutional conditions at Old Max under the “totality of circumstances” standard, particularly in light of Rhodes v. Chapman, supra. There was no policy to be vindicated by the plaintiffs. Before the suit was filed the decision had been made to expend millions of dollars to remedy the conditions existing at Old Max. It did not require novelty on the part of counsel for plaintiffs to face difficult questions under these circumstances. It did, however, constitute great waste of precious judicial time and tax dollars to litigate a case which was positively sure to become moot. It was in fact moot when this court rendered its opinion in 1980 in Ramos v. Lamm, supra.
Finally, the recent Supreme Court opinion in Hensley v. Eckerhart, supra,-U.S. at-, 103 S.Ct. at 1943, emphasizes that a crucial factor that district courts must consider in awarding attorney’s fees under 42 U.S.C. § 1988 is the degree of success a plaintiff achieves. I recognize that in literal terms the plaintiffs here were successful in pursuing their claim for relief. If, however, as the Court in Hensley also instructed, the focus is placed on “the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation”, Hensley, supra, - U.S. at -, 103 S.Ct. at 1940, the plaintiffs’ success here was far more limited. To the extent the State of Colorado had already made the commitment to remedy the conditions at Old Max, the overall relief obtained by Ramos was insignificant when compared to the hours expended on the litigation. The only significant relief obtained as a result of the litigation was the elimination of conditions at Old Max which directly and immediately affected the health and safety of the inmates. The award of attorney’s fees should be considered in that light.
On remand, I would instruct the district court to undertake such further proceedings as are necessary to determine the award of *565attorneys’ fees and the allowance of expenses, limiting the award to that portion of the prolonged trial proceedings which brought about necessary emergency relief at Old Max involving health and safety within the ambits of Rhodes v. Chapman, supra, prior to the removal of the inmates to the new penal facilities.
This matter comes on for consideration of - defendants-appellants’ and cross-appellees’ petition for rehearing and amended petition for rehearing in the captioned causes.
Upon consideration whereof, the petition for rehearing and the amended petition for rehearing in these cases are denied. Judge Barrett would grant rehearing. We comment only on one point made by the trial judge in the June 30, 1983 scheduling conference, which he apparently intended to be brought to our attention. The judge questioned the burden our opinion places upon district judges to notify counsel in civil rights and other cases in which fees may be claimed from the losing party under federal statutes of counsel’s duty to keep meticulous, contemporaneous time records. We reaffirm our directive. District Courts can meet that duty by adopting an appropriate local rule or by written notification from the court clerk’s office at the outset of litigation in which a fee request appears to be a possibility. Either of these approaches seems better than directing that every potential litigant, many of whose counsel may be in federal court for the first time, will be deemed to have knowledge of this Court’s opinion in this case.