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Eflte e or. th~ Docket or.

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20 I AUG

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fPJre([;~llW~ra
AUG 10 2001

l.Y

SAMUEL J. STILTNER
Attorney at law

rN THE lTNTTED STATES DISTRICT CURT
FOR THE DlSTRICT OF OREGON
PRlSON LEGAL

WS, et L

Plaintiffs,

v.

DAVID S COOK, et al.,

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OPrN10N.Al D ORDER

,

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)

____D=er:.: :.e.:.:.nd.:.:.;a: .:,n.:.:;.ts:;:.;.

CV 98-l344-M

),

This action is before the court 0[1 plaintiffs' motion for attorney fees (#57), Defedams raise
a number Qfobjections to plaintiffs' application fQrfees. For

e reaso st. at '-allow, ptaintiffs' motion

for a omey fees (#57) is granted insofar as plaintiffs may recover $38,059.47 in fees and expenses.

BACKGROUND

Plaintiffs 61ed this a.ction chaJlenging the refusal of the Oregon prison system to ddiver
subscription non-profit organization standard mail to lnmates. Plain iffs prevailed upo 11 appeal in

I - OPfNION AND ORDER

~: ~

,.

(~

Prison Legal News ... Cook. 238 F.Jd 1145 (<r" Cir 2001). and now move pursU1l1110 42 USC §
1988 for .ttomey fees and expenses in the &mOUnt of S60,946 97.
de~anlS'

The Ninth Circuit found

ban on SWldard rale nwl unconstitutional as applied to subscnpnon non-profil

orgMlunon mail. and hdd that such mad

II'llst be

afforded the same pro«dur1l protecuOM as fim

clus and penodi.:als mail unda- Department regu.laoons
plainriffs'reque$! for reasonablutu:lfney fees.

«)

(n addinon, the Ninth Circuit sante.:!

be Ii~ed byl~iscoun:, purswnllo42 USC § 1988

DISCUSSION
Defeooants object to plainllffs' mOlion for attorney fees, and make

l~

followins arguments:

(1) the lodestar should nO! be enhanced, but adjUSted downward; (2) plainlHfs should be awarded
local ralt'S. as oppoK'd to non-local fllles. (3) plaintiffs should be awarded current rolfes. DS opposed

10 historic rates, and (4) plaimiffs' award IS limited by the Prison liligalion Refoml Act, 42 US C

* I997t{d) (PLRA)
A Mjllstmem to the Lodestar

To arrive at a reasonable fee award, IheCourt must engage In a two step procen fischer v
SlB.P D Inc" 2l.1 F 3d IllS, 1119 (9"' Cir 2000) first, the ooun should calculate the "lodestu

figure" by t8ing the number ofhours reasonably expended on lhe liogatlon and multiplymg it by a
re.uonable hourly rate M Second. therowt must det:lde whether 10 er.r.anc.eor reduce the Iodcslilr
figure bued on an evaluation of the !'actors SCI forth in KelT v Screen E:rcm Guild S26 F 2d 67 (9"'
Cir 1975), that Me not subsumed ,n the iNnaJ lodestM caJCUlariOIl_ Fischff, 214 f 3d at 1119

Plaintiffs' attomcys have wbflUtted records in suppar; oftheir claim of expending .. 54 2 hours
on this litigation. a reasonable number of hours. PLamtiffS' anomey5 funller seek varying per hour
rales for the work expended on the lingauon for each anomey While plaintiffs have submitted the

2 - OPrNlON AND ORDER

re 0

L L

'nd are

Blae

ble

e

~

r his

1m

r

0

reasonable r re f

ime to be $ 17_
appears mos-

;:es

0

17

rh u

s.

nm

. Ir.clfudffig c

enL Deti:mdlarris

is ~ot novel, plainri S njO

n

Iimited sue es

y re

gu th because thi

similar to

0

r

structe

0

rs.

I NoveliY

1.J

.:.c....:;:=~..;.;..'"-U=~

E

preSUlmtlCl r asOt'lab e

OPrNl N MID ORO .. R

ce rio

n.

8 F Su p.

Supreme Court
of billable

~as

~ours

explained

t~at t~e

novelty and complexity of issues are refle<;ted in the number

re<;orrled by counsel, and thus a fee based on reasonable hours multiplied by

reasonable hourly rates does not warrant an adjustment !Q

Accordingly, while [ re<;ognize the

similarities between the current action and Miniken I decline to adjust the lodestar downward as a
resul!

:l Extem of Success
Defendants ask

t~e

court to exclude ~ours spent on unsuccessful claims, arguing that

defendants should not be responsible lor fees for those claims that were abandoned in plaintiffs'
appeal Plaimiffs respond

t~at(~ey

prevailed upon both of the only (wo claims originally raised in

their wmplaint
The congressi0n31 intent to limit awards to prevailing parties requLteS lhal unrelated claims
be treated as if they had been raised in separate cases. and thus it LS improper to award fees for
services on any unsuccessful claims. Hensley v Eckerhan, 461 C,S 424, 435 (1933) When much

,

ofcounsd's time is devoted generally to the litigation as a whole. It IS difficult to divide the hours
expended on a claim-by-claim basis Id Such a case cannOI be viewed as a series of discrete claims

In their complaint, plaintiffs alleged two causes of action, the first a violation of t~e First
Amendment. and the second a due process violation. The Ninth Circuit found for plaintiffs on both
of these claims in holding that the ban was unconstitutional and that sudt mail must be afforded the
same procedural protections as first class and periodicals mail under Department regulations. While
the Ninth Circuit considered le Hung's specific claim regarding the International Prison Ministry to
have been abandoned, the courts' holding that the Depanment's ban on standard rate mail is

4 _OPlNJON Ai'ill ORDER

unconstit1..uional is the relief sought by all original plaintiffs.

Even if le Hung abandoned his

particular argument. the time the attorneys spent working toward the relief sought and obtained in
this action is not divisible among the separate plaintiffs. Accordingly. [ decline to reduce plaintiffs'
attorney fee award based on the c){tent of their success.
3 ReconstruCted Hours
Defendants argue that reducIng Ms Hardy's fe<: award is appropriate. as she
r«onstOlcted her hours

Fee requests may be challenged for madequate documentation, or

inappropriately claimed hours or rates. Fi$Cher, 21 <t F 3d at ll21 Howe...er. baSing an anomey fee
award in part on reconstructed records de... eloped by reference to litigation files and other records
IS possible M
/VIs Hardy testified that she reconstructed her hours from her files to arrive at a total of 115 5
hours spent on this litigation Her reconstruction appears reasonable. and tS based on reference to
her files

Accordingly, Ms Hardy's fee award shall nOt be discounted on the basis that it was

reconstructed
4. Differinll Rales for Attomevs
Defendants argue a single average rate should be established for each anorney, rather
than a separate rate for each attorney, and cite to Sorenson v MInk. 239 F 3d 1140 (9- Cir 2001)
in supportoftheir argument Sorenson does not stand for the proposition that a district court should
apply a single a"erage rate for each attorney, as opposed to a separate rate for each attorney.
Accordingly, this court finds that the separate rates are justified on the basis of experience and
responsibility, father than applying a single average rale for all attorneys

5 - OPfNlON AND ORDER

B. Local v, Non-local rates
The panics do not dispute that the appropriate rate for an allomey fee award is the market
rate prevailing in the forum in ....,hich this court sits Here, the highest per hour fee sought by any of
plaintiffs' counsel is $200 per hour

Both />.olr. Blackman, a Ponland. Oregon aBorney. and Ms

Hardy. cUITently a Mill Valley. California attorney. seek fees for services as Portland. Oregon
attorneys. based on their rates while practicing in the locality It does nOE app"ar that any of plaintiffs'
attorneys have requested fees higher than th" local rate for their servrces
C CUITent rates v. Historic rates
Defendants raise the issue of whether current rates or histone rates should be awarded. given
that courts sometimes award current rates to account for inflation and delay in payment. However.
plaintiffs have not requested current rates To the contrary. each anorney has les!lfied thar the rate
they are requesting was their rate at the time or the litigation
D PLRA limits
42 USC

~

1997e(d) limits attOrney fee awards in "any action brought by a prisoner" The

issue is whether this case is an action "brought by' a prisoner" within the meaning of § 1997e In
Montcalm Publishinll Corp v Commonwealth of Virginia, 199 F.3d 168 (4'" Cir 1999), the coun
held that once a suit \s filed by prisoners, the fact that a non-prisoner intervenes at a later date does
not change the character of the case. and the intervenor is therefore bound by § I'i97e(d)'s limitation
on allomeyfees. However, as discussed by the coun in Turner v Wilkinson, 92 FSupp 2d 697, 704
(S.D Ohio 1999). Montcalm makes sense in a case where the narure of the case is known at the rime
the intervenor's pe[;lion is filed, and where the intervenor is therefore on notice that there will be a
cap on attorney fees if the intervenor is successful on his or her claims In Turner. as in the present

6 - OPlNlON AND ORDER

(

.

ac ion, the case was Qriginally tiled by both a prisoner an a 1'10 -prisoner, The Iurner court held th
smc no all of the original: plaintiffs were prisoners. the cas IS not roperly characterized as"a su.i
ound hat even if he action could be

libro gh

characterized as having been brough by a priso er. there w
fe

0 IO~lcaI

way t:O ,eparate h a orney

expended on behalfofthe rwo plaintiffs. as the work done on [ne case was intended

a s'ngle remedy benefi 'ng borh and

t

0

ad res

us the ca did nm app . The current a tion t very similar

ccordingly, the cap does not apply and t e PLRA will nor limit a

ward of ees in his etlon.

CONCLUSION
for "he oregoing reaso. s, plaimi

5'

motion for atrorney fees ( 57) is GRANTED insofar s

pi intiITS may recover a total, f $58,05947 in

t

omey fees l1d e" ense

IT IS SO ORDERED
Daed his

--=--

a of

uguSl _0-0 I

2iL~£?n~...
Malcolm r. Ma.rsh
UNITED ST. TES DLSTRICT ruoGE

7 - OPmION AND ORDER