Von Perbandt, et al v. Snyder, et al

Filing 655

ORDER: Defendants' motion to vacate this Court's previous Injunction 646 is GRANTED. The Clerk of the Court is DIRECTED to VACATE this Court's previous Order at Document 637. The Court ADOPTS the Special Master's Report and Response and the recommendations contained therein regarding Plaintiffs' motion for attorneys' fees 569 . Judgment shall enter separately. Signed by Judge G. Patrick Murphy on 3/27/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al.,

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Plaintiffs,
vs.
DONALD SNYDER, et al.,
Defendants.

CIVIL NO. 00-162-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This Order will dispose of the two remaining matters in this thirteen year old case,
mootness and fees. Defendants want to vacate an earlier Injunction (Doc. 637) against them
because there is no longer a Tamms prison, which was the occasion for the Injunction (See Doc.
646). And, the amount of attorneys’ fees Plaintiffs’ counsel has requested for their efforts is
disputed (See Docs. 569, 588, 595).
Procedural History
A brief procedural summary will be helpful to what follows. Plaintiffs’ class consists of
all prisoners in the custody of the Illinois Department of Corrections (“IDOC”) who have been or
who may be transferred to the closed maximum security prison (“supermax prsion”) at Tamms
Correctional Center (“Tamms”). Defendants are present and former officials and employees of
the IDOC.
Plaintiffs, pursuant to 42 U.S.C § 1983, alleged that Defendants violated their right to
procedural due process under the Fourteenth Amendment to the Constitution by employing

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constitutionally inadequate procedures when assigning IDOC inmates to the supermax prison at
Tamms. On July 20, 2010, this Court issued an Injunction, which included findings of fact and
conclusions of law with respect to the class-wide procedural due process claims (Doc. 540). The
Court found the conditions at Tamms imposed an atypical and significant hardship on inmates,
which thus gave rise to a due process liberty interest in avoiding transfer to the prison (Doc.
540).

The Court found IDOC’s procedures for making transfer decisions constitutionally

deficient and entered an Injunction, which articulated the procedures IDOC was to follow in
remedying this problem (Doc. 540).
Defendants appealed the Court’s decision, challenging only the terms of the Court’s
Injunction. See Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012). On June 6, 2012, the United
States Court of Appeals for the Seventh Circuit found that the Court’s Injunction (Doc. 540) was
overly broad and imposed requirements beyond the scope of the Prison Litigation Reform Act
(“PLRA”).

Westefer, 682 F.3d at 682 (The Court’s Injunction “eliminates the operational

discretion and flexibility of Illinois prison administrators, far exceeding what due process
requires and violating the mandate of the PLRA.”) (emphasis added). This Court received the
matter on remand with instructions to enter a new injunction consistent with the Seventh Circuit
Opinion that remanded the case. Id. at 686.
Once back in the district court, Plaintiffs filed a new motion for injunctive relief (Doc.
628). The Illinois Governor had taken affirmative steps to shut down the supermax prison at
Tamms, and the Defendants argued Plaintiffs’ motion should be denied as moot (Doc. 631). At
the time, the Governor of Illinois had just vetoed money appropriated by the Illinois Legislature
aimed at continuing to fund operations at Tamms (Doc. 631).

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The Court did not find Defendants’ argument on the issue of mootness persuasive (See
Doc. 633). Although Tamms’ days appeared numbered, the prison remained open and inmates
continued to reside there. The Court ordered Defendants to prepare and submit a proposed
remedial plan that would provide due process to Plaintiffs and comport with the Seventh Circuit
Opinion remanding this case (Doc. 634). On October 15, 2012, the Court adopted Defendants’
proposed remedial plan (Doc. 637).
Analysis
a. Defendants’ Motion to Vacate the Court’s Injunction
The present motion to vacate (Doc. 646) is aimed at undoing the last Injunction proposed
by Defendants and adopted by the Court. Defendants’ argument hinges on the fact that IDOC
has now transferred all inmates out of the supermax prison at Tamms (Doc. 647-1, Affidavit of
Greg Lambert). Moreover, the lawsuit filed by the American Federation of State County and
Municipal Employees (“AFSCME”) designed to stop the closing of Tamms was scotched by the
Illinois Supreme Court.

Weems v. Appellate Court, Fifth District, Illinois Supreme Court

Supervisory Order Number 115240 (Dec. 11, 2012), available at:
http://www.state.il.us/court/SupremeCourt/Announce/2012/121112_2.pdf.
The lawsuit by AFSCME, filed in the Illinois Circuit Court of Alexander County, sought
a preliminary injunction to prevent the closure of Tamms because of a collective bargaining
agreement between AFSCME and the State of Illinois. The Supreme Court of Illinois ordered
the Alexander County Circuit Court to vacate the preliminary injunction it had entered. Id.
(“[R]emanding the case to the Circuit Court of Alexander County with directions to dissolve the
preliminary injunction entered on October 10, 2012 in American Federation of State County and
Municipal Employees, Council 31 v. Weems et al., Alexander County No. 12 MR 43.”).

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Plaintiffs argue that while the state court preliminary injunction has been vacated, the
litigation remains ongoing (Doc. 649). The argument is that if Tamms should reopen and if
prisoners are again transferred back to Tamms, the prisoners should get a hearing, pursuant to the
Court’s previous Injunction (Doc. 649). There are too many “ifs” in Plaintiffs’ argument; even
one is too many. The Court must pass on the issues in front of it here and now; there are no
advisory opinions. This is a fundamental principle the Supreme Court advised against many
years ago. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241-42 (1937)
(A case or controversy requires “a dispute between parties who face each other . . .” and must be
“definite and concrete, not hypothetical or abstract.”).
The PLRA requires relief to be narrowly drawn, extend no further than necessary to
correct the violation of federal rights, and be the least intrusive means necessary to correct the
violation. 18 U.S.C. § 3626(a)(1)(A). The super max prison at Tamms is closed and all prisoners
have been transferred to different facilities. A remedial plan is no longer necessary because there
is nothing to remedy. No prisoner can be transferred to Tamms so long as it is closed.
Defendants’ motion to vacate this Court’s previous Injunction (Doc. 646) is GRANTED. The
Clerk of the Court is DIRECTED to VACATE this Court’s Order at Document 637.
b. Plaintiffs’ Motion for Attorneys’ Fees
Finally, Plaintiffs’ motion for attorneys’ fees and costs (Doc. 569) is ripe for
consideration. Plaintiffs seek an award of attorneys’ fees and non-taxable costs in the aggregate
amount of $1,142,419.63: $657,225.86 in attorneys’ fees and costs for the Uptown People’s Law
Center along with $485,193.77 for attorneys’ fees and costs for DLA Piper (Doc. 569).
Defendants object to the amount claimed (Docs. 588, 589).

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The Court notified the parties it was considering the appointment of a Special Master to
determine the attorneys’ fees and costs to be awarded pursuant to 42 U.S.C. § 1988(b) and
invited the parties to comment on the terms of appointment (Doc. 566). There were comments
(Docs. 585, 586) and a hearing followed (Doc. 597). The Court then appointed attorney Gerald
Ortbals to serve as Special Master (Doc. 606).
On November 1, 2012, the Special Master submitted his Report to both parties (Doc.
653-1). Each party received more than ample time to file their objections to the Special Master’s
Report (Doc. 643). On March 6, 2013, the Special Master filed his Response to Plaintiffs’
objections (Doc. 650)1. The Special Master’s Response declared his November 1st Report final
as to all recommendations except a revision on costs (Doc. 650). The Special Master’s Report
and Response, together, contain the final recommendation on attorneys’ fees and costs. Plaintiffs
have lodged objections to the Special Master’s recommendation (Doc. 653). Defendants are
satisfied with the Special Master’s recommendation for attorneys’ fees and costs (Doc. 654).
In this Court’s Memorandum and Order appointing the Special Master (Doc. 606), it was
noted that any findings of fact, conclusions of law, or recommendations made by the Special
Master, which are subject to an objection would be reviewed de novo. Accordingly, the Court
will examine the Special Master’s Report and Response to the motion for attorneys’ fees with
“fresh consideration to those issues to which specific objections have been made.” 12 Charles
Alan Wright et al., Federal Practice and Procedure § 3076.8 at p.55 (1st ed. 1973) (1992 Pocket
Part) (emphasis added). In other words, under a de novo examination the Court will not give the
Special Master’s Report and Response any form of deference. Salve Regina Coll. v. Russell, 499
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The Special Master first filed his Response to Plaintiffs’ objections on March 4, 2013 (Doc.
648). However, due to technical and typographical errors, the Special Master filed a “corrected”
Response to Plaintiffs’ objections on March 6, 2013 (Doc. 650). The corrected response is the
operative response here and throughout the ensuing Memorandum and Order, the Court’s
examination will be of the corrected Response.
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U.S. 225, 238 (1991).
After a fresh look at all the relevant papers for the instant motion (Doc. 569) the Court
ADOPTS the Special Master’s recommendation in full: People’s Uptown Law Center is entitled
to $215,000.00 in attorneys’ fees, $19,450.04 in taxable costs, and $7,049.06 in non-taxable
costs. DLA Piper is entitled to $56,349.50 for its out-of-pocket expenses.
i. People’s Uptown Law Center
The analysis of what is an appropriate award of attorneys’ fees begins with 42 U.S.C. §
1997e(d), which states that:
(1) 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 plaintiffs 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
ordered for the violation
42 U.S.C. § 1997e(d)(1)
Here, Plaintiffs prevailed.

But what is the result of this protracted litigation? The

Plaintiffs want more than one million dollars in attorneys’ fees (Doc. 569). The Special Master’s
recommendation is roughly equivalent to 30% of this request. The large disparity, and indeed all
of Plaintiffs’ objections, can be attributed to a disagreement on how to characterize the end result
of this litigation. Did Plaintiffs establish groundbreaking constitutional precedent for prisoners
in Illinois and throughout the country? Is the end result de minimis? Does this case fall
somewhere in between?
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Substantial time and effort was spent on this case but the end result after thirteen years of
litigation is de minimis. The Court did not establish groundbreaking precedent. Rather, the
United States Court of Appeals for the Seventh Circuit held that the simple application of
established constitutional precedents was all that was necessary. Westefer, 682 F.3d at 686 (“In
short, the [district court’s initial] injunction goes well beyond what the Supreme Court has said is
constitutionally deficient.”). Even if this Court’s overly-broad injunction had been sustained, it is
difficult to imagine things would have improved for Plaintiffs. This is so because, even given the
application of full-throttled due process, the Plaintiffs at Tamms would have remained at
Tamms. After fifteen years of prisoner suits from the super max prison at Tamms, this Court has
not seen one prisoner -- not even one -- that was not appropriately designated to Tamms. Here, a
cannon was fired to the end that a fly was slaughtered.
The next step then is to determine the correct methodology for calculating the amount of
attorneys’ fees to be awarded here. The Court agrees with the Special Master that a deviation
from the lodestar methodology is the correct approach. Plaintiffs are certainly right in their
claim that Supreme Court, in Blanchard v. Bergeron, 489 U.S. 87, 94-95 (1989), called the
lodestar approach the “centerpiece of attorney’s fee awards.” However, a reading of Bergeron
and the Supreme Court’s reliance on Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) in
Bergeron informs this Court the lodestar approach is not the end-all be-all in calculating an
award for attorneys’ fees. Id. at 96 (“And we have said repeatedly that ‘[t]he initial estimate of a
reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’ Blum v. Stenson, 465 U.S. 886, 888,
104 S.Ct 1541, 1544. 79 L. Ed. 2d 891 (1984). The courts may then adjust this lodestar
calculation by other factors.”); see also Hensley, 461 U.S. at 434 (“The product of reasonable

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hours times a reasonable rate does not end the inquiry. There remain other considerations that
may lead the district court to adjust the fee upward or downward, including the important factor
of ‘results obtained.’ This factor is particularly crucial where a plaintiff is deemed “prevailing”
even though he succeeded on only some of his claims for relief.”).
Several years after Bergeron and Hensley, the Supreme Court reiterated its opinion that
the lodestar approach does not end the analysis, but rather begins the inquiry. See Farrar v.
Hobby, 506 U.S. 103 (1992). In Farrar the Court noted the most significant factor in
determining a reasonable award for attorneys’ fees is the success obtained by the prevailing
party. Id. at 114. If the success obtained by the prevailing party is nominal or de minimis, a court
“may lawfully award low fees or no fees without reciting the 12 factors bearing on
reasonableness.” Id. at 115 (emphasis added). The Farrar Court could have been speaking
directly to this case when the Court noted “that if ‘a plaintiff has achieved only partial or limited
success, the product of hours reasonably expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount.’” Id. at 114 (quoting Hensley, 461 U.S. at 762).
The Special Master is correct in his assessment that counsel put forth an undoubtedly
massive effort on behalf of Plaintiffs, which is the basis for their fee claim. But, the effort and
requested fee is way out of line with the minimal relief that was finally obtained. See Farrar, 506
U.S. at 114, (quoting Hewitt v. Helms, 482 U.S. 755, 762 (1987)) (“This litigation accomplished
little beyond giving petitioners ‘the moral satisfaction of knowing that a federal court concluded
that [their] rights had been violated’ in some unspecified way.”).
This Order, which also vacates the existing Injunction as moot simply underscores the
marginal result of this litigation. The supermax prison at Tamms is closed. Even a remedial
plan is no longer necessary because all of the prisoners have been transferred from Tamms to

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various facilities in Illinois. None of this, however, is a result of this litigation. Rather, the
closure of Tamms is a product of the woeful financial condition of the State of Illinois.
In conclusion, Plaintiffs’ objections are without merit and the Court adopts the Special
Master’s Report insofar as it relates to the People’s Uptown Law Center. The lodestar approach
would result in an excessive and disproportional award of attorneys’ fees in light of the minimal
result of this case. People’s Uptown Law Center shall receive $215,000.00 in attorneys’ fees,
$19,450.04 in taxable costs, and $7,049.06 in non-taxable costs.
ii. DLA Piper
Plaintiffs also object to the Special Master’s recommendation that no fee should be
awarded to DLA Piper, only out-of-pocket expenses (Doc. 653, § D). All of the preceding
analysis applies here regarding the Court’s decision not to employ a lodestar approach.
Plaintiffs’ central argument in support of DLA Piper’s attorneys’ fees begins with the
premise that lodestar is appropriate. Since the lodestar approach is not proper here, Plaintiffs’
argument is unavailing. However, there is the additional wrinkle of how DLA Piper’s pro bono
commitment to this case factors into the equation.
An award of attorneys’ fees in a case such as this is vested in the Court’s discretion. See
Hensley, 461 U.S. at 446 (“Yet Congress also took steps to ensure that § 1988 did not become a
‘relief fund for lawyers.’” It left the “district courts with discretion to set the precise award in
individual cases and to deny fees entirely in ‘special circumstances’ when an award would be
‘unjust even if the plaintiff prevailed”.) (internal citations omitted). Indeed, the Seventh Circuit
Court of Appeals has also explained the rationale behind its deferential standard in reviewing a
district court’s award of attorneys’ fees in cases such as this. See Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632 (7th Cir. 2011). The Pickett Court reasoned as follows:

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[w]e accord this significance deference to the district court because: “(1) it
possesses ‘superior understanding of the litigation and [there exists a] desirability
of avoiding frequent appellate review of what essentially are factual matters'; (2)
the need for uniformity in attorneys' fees awards is not great enough to warrant
appellate review of minutia; and (3) the desirability of avoiding ‘a second major
litigation’ strictly over attorneys' fees is high.” Spellan v. Bd. of Educ. for Dist.
111, 59 F.3d 642, 645 (7th Cir.1995).
Pickett, 664 F.3d at 639. Given the Court’s close proximity to this case for the past thirteen
years, DLA Piper’s pro bono commitment must be an additional factor to consider in
determining what, if anything, is an appropriate award of attorneys’ fees.
Initially, DLA Piper engaged in this litigation on a pro bono basis. It now asks the Court
for an award of $485,193.77 for attorneys’ fees, paralegal fees, and expenses. DLA Piper has
taken great lengths to publicize its pro bono efforts in this case. In 2010, DLA Piper issued three
press releases boasting of the prestigious pro bono awards and honors their attorneys have
received as a result of this litigation. See http://www.dlapiper.com/dla-piper-successfullyrepresents-plaintiff-class-in-constitutional-rights-case-07-30-2010/;
http://www.dlapiper.com/wojcik_pro-bono_award_release/;
http://www.dlapiper.com/wojcik_release/, (last visited Mar. 27, 2013). The goodwill and
recognition DLA Piper has received from the public, the legal community and its client base as a
result of this case is immeasurable.
DLA Piper’s request for nearly a half million dollars in attorneys’ fees contradicts its
self-proclaimed “donation” of hundreds of hours of pro bono work. Actually, DLA Piper’s
position is awkward and the Special Master’s observation was spot on: pro bono should be made
of sterner stuff. This Court must insist DLA Piper’s commitment to pro bono stand on a sturdier
crutch. All of the goodwill and prestige that have been bestowed on DLA Piper for its role in
this case, when considered against the de minimis end result of the litigation militates against an

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award of attorneys’ fees.
The Special Master’s recommendation is not intended for general application to fee
requests by pro bono counsel (Doc. 650). Rather, the recommendation is confined to DLA
Piper’s role in this case (Doc. 650). The Court finds this persuasive and thus adopts the position
since careful consideration of DLA Piper’s pro bono commitment has led to the conclusion that
fees are inappropriate.
The Special Master also mentioned IDOC’s dire financial condition. Plaintiffs say there
is no authority that allows the Special Master or the Court to consider this as a factor. The
Special Master was careful to note that “while most courts until now have not treated a
government defendant’s ability to pay (or not) as a ‘special circumstance’ it again seems likely
future awards will take that into account.” (Doc. 653-1, p. 7) (emphasis added). The Special
Master simply intended to underscore the absurdity that would necessitate from an award of
attorneys’ fees to DLA Piper since the Pro Bono Institute’s Principle 7 urges firms awarded a pro
bono fee to donate the fee to an entity that provides services to persons of limited means. In
sum, the result would be a donation to an undoubtedly cash strapped social service agency from
the practically insolvent State of Illinois.
Plaintiffs’ objections are without merit and the Court adopts the Special Master’s Report
insofar as it relates to DLA Piper. The lodestar approach would result in a disproportional award
of attorneys’ fees for DLA Piper given the result of this case. Moreover, DLA Piper’s widely
publicized role as pro bono attorneys for this case and the immeasurable goodwill it received as a
result cut against an award of attorneys’ fees. However, DLA Piper is entitled to $56,349.50 for
its out-of-pocket expenses.

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Conclusion
Defendants’ motion to vacate this Court’s previous Injunction (Doc. 646) is GRANTED.
There are no longer any prisoners who reside at the supermax prison at Tamms. A remedial plan
is no longer necessary. The Clerk of the Court is DIRECTED to VACATE this Court’s
previous Order at Document 637.
The Court ADOPTS the Special Master’s Report and Response on Plaintiffs’ motion for
attorneys’ fees. The lodestar approach is inappropriate when Plaintiffs’ fee claim is examined in
light of the final result of the litigation. The award of attorneys’ fees is consistent with the
PLRA’s requirement that the fee proportionately relate to the court ordered relief. People’s
Uptown Law Center shall receive $215,000.00 in attorneys’ fees, $19,450.04 in taxable costs,
and $7,049.06 in non-taxable costs. DLA Piper shall receive $56,349.50 for its out-of-pocket
expenses.

IT IS SO ORDERED.
DATED: March 27, 2013
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G. PATRICK MURPHY
United States District Judge

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