Balla v. Idaho, State of

Filing 867

MEMORANDUM DECISION AND ORDER granting in part and denying in part 857 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WALTER D. BALLA, et al.,
Plaintiffs,
Case No. CV81-1165-S-BLW
v.
IDAHO STATE BOARD OF
CORRECTION, et al.,

MEMORANDUM DECISION AND
ORDER

Defendants.

Pending before the Court in the above-entitled matter is Plaintiffs’ Petition for the
Award of Interim Attorneys Fees and Costs (Dkt. 857). Having fully reviewed the
record, the Court finds that the facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding further delay, and because the
Court conclusively finds that the decisional process would not be significantly aided by
oral argument, this matter shall be decided on the record before this Court without oral
argument.
FACTUAL BACKGROUND
The detailed history of the Balla cases was set forth in the Court’s May 28, 2009
Memorandum Decision and Order, (Dkt. 768), and is incorporated by reference into
this Order. Plaintiffs now seek reimbursement in the amount of $184,634.39 for attorneys
ORDER - 1

fees and costs incurred in the monitoring and enforcing the Balla injunctive relief for the
period of June 23, 2009 through July 2, 2012. The amount sought includes costs for a
class representative. This Court has previously awarded Plaintiffs their attorneys’ fees
and costs on four separate occasions: December 9, 2005 (Dkt. 600), December 18, 2007
(Dkt. 724), October 21, 2008 (Dkt. 733) and March 30, 2010 (Dkt. 775).
Defendants do not object to Plaintiffs’ petition in its entirety, but instead
limit their objections to (1) the hourly rate requested for paralegal Brandi Boas, (2)
certain activities billed by Ms. Boas that Defendants’ characterize as “clerical,” and (3)
certain activities billed by attorney Jason Prince that Defendants argue are not related to
any of the Balla injunctions. (Dkt. 861 at 3.)
The Court having reviewed the record in detail finds that certain attorneys fees and
costs should be awarded, as well as out-of-pocket costs for Mr. Searcy.
ANALYSIS
A.

ATTORNEY FEES
It is undisputed that Plaintiffs were the prevailing parties in Balla I, II and III. It is

further undisputed that Plaintiffs are entitled to an award of attorney fees for their
reasonable monitoring activities pursuant to the fee-shifting provisions of 42 U.S.C. §
1988 and the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(d). Therefore,
the Court will begin by considering the applicable hourly rate requested by Plaintiffs.
1.

Attorneys’ Hourly Rate

The PLRA governs prisoners’ legal actions “with respect to prison conditions.”
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See 42 U.S.C. § 1997e(a). Limitations on attorneys’ fees are set forth in § 1997e(d).
Among other limitations, § 1997e(d)(3) provides that “[n]o award of attorney’s fees in an
action [brought by prisoners in which attorney’s fees are authorized under 42 U.S.C. §
1988] shall be based on an hourly rate greater than 150 percent of the hourly rate
established under section 3006A of Title 18, United States Code for the payment of courtappointed counsel.” 42 U.S.C. § 1997e(d)(3). Accordingly, the Court has authority to
award attorneys’ fees up to 150 percent of the hourly rate for counsel established in the
Criminal Justice Act, 18 U.S.C. § 30006A.
Based on the above formula, Plaintiffs claim they are entitled to $177.00 per hour
for attorneys’ fees incurred between June 23, 2009 and December 31, 2009, and $213.00
per hour for attorneys’s fees incurred between January 1, 2010 and July 2, 2012. (Dkt.
875-1 at 8.) Defendants do not challenge Plaintiffs’ requested rates as to attorneys. The
Court finds the above PLRA rates to be reasonable in this instance as to the attorneys that
generally bill at a higher market rate. As for the attorneys in this matter that generally bill
at a market rate below the PLRA rates, the Court finds their market rate to be reasonable.
2.

Paralegal Fees/Hourly Rate

Plaintiffs have requested an attorneys’ fee award that includes paralegal rates of
$150.00 for 2010, $155.00 for 2011 and $165.00 for 2012. (Dkt. 875-1 at 9.) Plaintiffs
argue that the PLRA’s plain language does not require any reduction of paralegal billable
rates in prison litigation, provided that the paralegal rates do not exceed the PLRA’s cap
for attorneys. (Id.) Defendants argue that the paralegal rates are excessive and are
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contrary to the hourly rate previously established by this Court and the Ninth Circuit in
this case. (Dkt. 861 at 4.) The Court agrees with Defendants for the reasons discussed
below.
Although the PLRA does not directly address paralegal fees, the Ninth Circuit has
held that “attorney fees” includes separately billed paralegal fees at the market rate.
Perez v. Cate, 632 F.3d 553 (9th Cir. 2011). However, paralegal fees are subject to the
same hourly cap under the PLRA as attorney fees. Id. In other words, the PLRA permits
an award of paralegal fees based on rates, up to, but not exceeding, the rate cap for
attorney fees, so long as those rates are reasonable.
While Section 1997e(d)(3) provides no guidance on the method by which a court
should determine a reasonable hourly rate for paralegal services, this Court has provided
in the past that the “market rate,” as well as “the type of litigation and the nature of the
duties performed by the paralegal” are paramount factors. (Dkt. 775 at 7.) As to the
market rate, Plaintiffs argue that the requested paralegal rates fall within the range of
reasonable rates charged by paralegals providing litigation services in the Treasure
Valley. (Dkt. 857-1 at 10.) To support this argument, Plaintiffs present declarations of
two attorneys from regional/national law firms that state that Stoel Rives’ litigation rates
are in line with those of similarly situated law firms in the Treasure Valley. (Id.)
However, Plaintiff’s argument and declarations miss the mark in that they fail to state
what a reasonable rate is generally in the Treasure Valley for this type of case.
Plaintiffs cite three cases from the Northern District of California for the
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proposition that the “PLRA empowers a district court to award attorneys’ fees based on a
reasonable market for paralegals - without regard for the type of litigation services
involved.” (Dkt. 862 at 3.) See also Plata v. Schwartzenegger, 2009 WL 2997412 (N.D.
Cal. Sept. 16, 2009); Lira v. Cate, 2010 WL 727979 (N.D. Cal. Feb. 26, 2010); and Perez
v. Cate, 2009 WL 2849593 (N.D. Cal. Sept. 1, 2009). While these decisions are not
binding on this Court, a close review of these cases reveals that Plaintiffs have
misinterpreted these cases and that the nature of the work as to a particular geographical
area is vital in determining the reasonableness of the rate.
For instance, in Plata, the plaintiffs requested that their paralegals be compensated
at the same maximum hourly rate as their attorneys under the PLRA - $169.50. Plata v.
Schwartzenegger, 2009 WL 2997412, at *2. The defendants argued that the paralegals
were not entitled to the rate and that §1997e(d)(3)’s reference to “the hourly rate
established under § 3006A of Title 18 for the payment of court appointed counsel”
required the court to look to the rates set for paralegal services under the district’s
Criminal Justice Act Panel Attorney Manual, which were much less. Id. at *1. The court
agreed with the plaintiffs and held that while the plain language of the PLRA does not
require a reduction in paralegal rates, the statute’s cap on attorney fees applies equally to
paralegal rates. Id. at *2. The court then explained the following:
Of course, simply because the PLRA sets a maximum rate does not mean that
Plaintiff’s are entitled to recover attorney fees’ at that rate, and Plaintiffs do not
dispute that they bear the burden of demonstrating that their requested fee award,
including the claimed hourly rates is reasonable. In this case, the Court finds
Plaintiffs’ requested hourly rate of $169.50 to be reasonable based on the nature
ORDER - 5

of the work performed by the paralegals and their experience , [citation omitted],
as well as the uncontested evidence that $169.50 falls below the prevailing market
hourly rate for paralegals in the San Francisco Bay area, [citation omitted].
Id. (Emphasis added.) Thus, while the PLRA does not prohibit paralegals from receiving
the same maximum rate as attorneys, the rate received must be reasonable considering the
prevailing market rate for such type of work in the area.
This Court determined in its March 30, 2010 Order, (Dkt. 775), that “[b]ased on
the Court’s experience with the market rate for paralegals working on this type of case in
the Treasure Valley and the description of the duties performed in this case by the case
assistants, the hourly rate approved for case assistant or paralegal services will be set at
$65.00 per hour.” (Id.) As Plaintiffs have not demonstrated that a rate between $150-165
per hour is now reasonable for duties performed in this type of case in the Treasure
Valley, the Court leaves the rate for paralegals at $65.00 per hour. The Court also finds
the rate of $65.00 per hour to be reasonable for summer associates.
3.

Clerical Tasks

Defendants argue that 32.3 hours of Plaintiffs’ requested paralegal fees are clerical
work and thus noncompensable. (Dkt. 861 at 6.) Plaintiffs contend that 19.2 of those
hours are actually substantive legal work and should be awarded at the full paralegal
hourly rate. (Dkt. 862 at 5-6.) As for the remaining 13.1 hours, Plaintiffs concede that
“the work billed for those hours was not substantively legal in nature”, but that those
hours should be awarded at a reduced rate. (Id. at 6-7.) The Court determines that 19.2
of the contested hours is indeed compensable.
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The U.S. Supreme Court has held that paralegal fees can be compensable as part of
an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. Missouri v. Jenkins, 491 U.S.
274 (1989). However, the Supreme Court provided the following regarding clerical
work:
Of course, purely clerical or secretarial tasks should not be billed at a paralegal
rate, regardless of who performs them. What the court in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work
of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish
between legal work, in the strict sense, and investigation, clerical work,
compilation of facts and statistics and other work which can often be accomplished
by non-lawyers but which a lawyer may do because he has no other help available.
Such non-legal work may command a lesser rate. Its dollar value is not enhanced
just because a lawyer does it.”
Id. at 288 n. 10. Thus, clerical and secretarial work are generally not compensable even
if performed by attorneys or paralegals. See also Davis v. City and County of San
Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) vacated in part on other grounds at 984
F.2d 345 (9th Cir. 1993); and Robinson v. Plourde, 717 F. Supp.2d 1092, 1099-1100 (D.
Hawaii 2010) (clerical or ministerial costs are part of an attorney’s overhead and are
reflected in the charged hourly rate).
Nonetheless, “clerical or secretarial work [can be] compensable if it is customary
to bill such work separately.” Trustees of Const. Industry and Laborers Health and
Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir. 2006). “The key . . . is
the billing custom in the ‘relevant market.’” Id. Thus, clerical work is compensable if a
party can demonstrate that billing clerical or secretarial work separately is the custom in
the relevant area, as opposed to such costs being incorporated in attorneys’ or paralegals’
ORDER - 7

hourly rates. The rationale being that attorneys should recover only those costs that are
not already built into their hourly fees. Id.
The Court has examined in detail the paralegal fees requested by Plaintiffs as well
as the fees claimed by Defendants to be clerical. The Court is satisfied that 19.2 hours of
the challenged 32.3 hours is compensable at the hourly paralegal rate. As set forth by
Plaintiffs, 17.2 hours involved the “piecing together of the original Balla compliance
plans from documents provided by Defendants in response to Plaintiffs’ document
production requests” through “analytical review of each document.” (Dkt. 862 at 5.)
Such work was substantively legal, as was the 2.0 hours involved in identifying
appropriate special master candidates for this case.
As to the remaining 13.1 hours that Defendants have identified as clerical, and to
which Plaintiffs concede is not substantively legal in nature, the Court finds that these
hours are not compensable. While Plaintiffs argue that these tasks should be
compensable at a lesser rate pursuant to Missouri v. Jenkins, supra, and Californians for
Disability Rights v. California Dept. of Trans., 2010 WL 8746910, at * (N.D. Cal. 2010),
Plaintiffs have not met their burden of demonstrating that it is customary to bill such
“clerical” work separately in the Treasure Valley, rather than to incorporate such work
into attorneys’ and/or paralegals’ hourly rates. See Trustees of Const. Industry and
Laborers Health and Welfare Trust v. Redland Ins. Co., 460 F.3d at 1256-57.
4.

Billings Related To Potential Retaliation Against Class Representatives

Defendants object to 20.7 hours of work billed by Mr. Prince, alleging that (1) the
ORDER - 8

work related to claims of retaliation against the Class Representatives, not the monitoring
of the injunctive relief; (2) the time entries were vague and lacked specificity in
identifying the claim or claimant; and (3) the work billed was not performed for this case,
but instead related to Class Representative Searcy’s independent, pro se retaliation claim.
(Dkt. 861 at 6-7.) The Court agrees with Plaintiffs that the work billed concerning the
protection of the Class Representatives was “directly and reasonably incurred in
enforcing the relief ordered.”
As set forth above, the PLRA controls the attorneys’ fees award in this case. See
42 U.S.C. § 1997e. And under the PLRA, fees “shall not be awarded, except to the extent
that” the fee was directly and reasonably incurred in proving a violation of the plaintiff’s
rights, and either the amount is proportionate to the relief ordered, or alternatively, the fee
is “directly and reasonably incurred in enforcing the relief. 42 U.S.C. § 1997e(d)(1). The
statute provides in relevant part:

In any action brought by a prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney’s fees are authorized under section 1988 of
this title, such fees shall not be awarded except to the extent that (A) the fee was directly and reasonably incurred in proving an actual violation of
the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded
under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for
the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief order for the
violation.
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Id.
The PLRA’s “prov[e] an actual violation” requirement is satisfied when the
prisoners have previously won an injunction. See Balla v. Idaho, 677 F.3d 910, 919 (9th
Cir. 2012); and Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002). In other words, once
prisoners have proved a violation, as by an injunction, the subsection (A) requirement has
been satisfied. Then fees may be awarded proportionally to the relief granted, under
subsection (B)(i). Id. Or alternatively, for monitoring, the limitation of subsection B(ii)
applies: the fee is allowable only if and to the extent that it is “directly and reasonably
incurred in enforcing the relief ordered” in the injunction. Id.
In this case, the prisoners won their injunction long ago, so subsection (A) is
satisfied. The question then is whether Mr. Prince’s billed work regarding potential
retaliation against the Class Representatives was directly and reasonably incurred in
enforcing the injunctive relief. As Plaintiffs explain in their brief, the Class
Representatives play a key role in monitoring the injunctive relief. When they are subject
to retaliatory action related to their participation in the Balla case, this directly impedes
their ability to assist counsel in monitoring the injunctive relief. Plaintiffs’ counsel must
be able to assist in the protection of Class Representatives in order to ensure the
injunctive relief is being complied with. Thus, the Court finds that Mr. Prince’s
retaliation work was “directly and reasonably incurred in enforcing the relief ordered.”
The Court is not convinced that the billing entries are “vague,” given that
Defendants have in their possession requests for production of documents which provide
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the scope and nature of Mr. Prince’s work regarding Defendants’ alleged retaliatory
tactics. Furthermore, while Mr. Searcy may have an independent retaliation lawsuit
pending from his service in the Balla case, this fact alone does not effect the
appropriateness of Plaintiffs’ counsel in investigating claims of retaliation against Balla
Class Representatives.
5.

Attorneys’ Fee Award

Based on the foregoing, the Court will award the following Attorneys’ Fees:
2009
Name:

Hours:

Rate:

Value:

1. J. Walter Sinclair/Partner
2. Jason Prince/Associate

3.2
60.3

$177
$177

$ 566.40
$10,673.10

Total Hours/Fees: 63.5

$11,239.50

2010
Name:

Hours:

Rate:

Value:

1. J.Walter Sinclair/Partner
2. Jason Prince/Associate
3. Sara Berry/Associate
4. Allison/Blackman/Summer Associate
5. Brandi Boas/Paralegal

3.4
94.6
15.6
31.8
43.8

$213
$213
$200
$65
$65

$ 724.20
$20,149.80
$ 3, 120.00
$ 2,067.00
$ 2,847.00

Total Hours/Fees: 189.2

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$28,908.00

2011
Name:

Hours:

Rate:

Value:

1. J. Walter Sinclair/Partner
2. Jason Prince/Associate
3. Allison Blackman/Associate
4. Brandi Boas/Paralegal

7.5
160
18.1
17.6

$213
$213
$200
$65

$ 1,597.50
$34,080.00
$ 3,620.00
$ 1,144.00

Total Hours/Fees: 203.2

$40,441.50

2012
Name:

Hours:

Rate:

Value:

1. J. Walter Sinclair/Partner
2. Jason Prince/Associate
3. W. Christopher Pooser/Associate
4. Allison Blackman/Associate
5. Brandi Boas/Paralegal

3.0
160.1
12.1
274.5
1.7

$213
$213
$213
$200
$65

$ 639.00
$34,101.30
$ 2,577.30
$54,900.00
$ 110.50

Total Hours/Fees: 451.4
Total 2009-2012 Attorneys’ Fees

B.

$92,328.10
$172,917.10

COSTS
Federal Rule of Civil Procedure 54(d)(1) provides that “costs other than attorneys’

fees shall be allowed as of course to the prevailing party unless the court otherwise
directs.” Rule 54(d) creates a presumption for awarding costs to prevailing parties; the
losing party must show why costs should not be awarded. Save Our Valley v. Sound
Transit, 335 F.3d 932, 944-45 (9th Cir. 2003); Stanley v. Univ. of Southern California,
178 F.3d 1069, 1079 (9th Cir. 1999).

ORDER - 12

Plaintiffs seek $1,994.29 for costs associated with monitoring and enforcing the
Balla injunctive relief from June 23, 2009 through July 2, 2012. Defendants have not
objected. The Court has reviewed the costs incurred during the relevant time period and
has determined that they are reasonable in light of the complexity of the litigation, the
duration of the appointment and the Court’s prior ruling concerning photocopying costs.
(Dkt. 775 at 9-12).
Based on the foregoing, Plaintiffs’ requests for costs will be awarded in the
amount of $1,994.29. Plaintiffs’ counsel is also directed to reimburse Mr. Barry Searcy
for his out-of-pocket costs from the costs award.
ORDER
Being fully advised in the premises, the Court hereby orders that Plaintiffs’
Petition for the Award of Interim Attorneys’ Fees and Costs (Dkt. 857) is GRANTED IN
PART AND DENIED IN PART consistent with this Order. Plaintiffs shall be awarded
$172,917.10 in fees and $1,994.29 in costs. The fees and costs shall be paid within thirty
(30) days of the date of this Order.
IT IS FURTHER ORDERED that in the future, if Plaintiffs’ counsel intend to
submit a request for attorneys’ fees, they shall first meet and confer with Defendants’
counsel, at intervals no greater than on a semi-annual basis, to present bills for fees and
costs before filing a motion for such fees with the Court. If agreement cannot be reached
//
//
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by counsel, Plaintiffs’ counsel may then file a motion for attorneys’ fees with the Court.

DATED: February 8, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

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