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WEDRA v. THOMAS

October 24, 1985

KEN WEDRA,* Plaintiff,
v.
DALE THOMAS, Warden, Metropolitan Correctional Center, Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge :

 Richard Ware Levitt, Esq., attorney for plaintiffs, moves this Court for an award of attorneys' fees under the Equal Access to Justice Act (the "Act"), 28 U.S.C. § 2412 et seq., on the ground that his client was a prevailing party in litigation against the United States. *fn1" Levitt represented pro bono a group of inmates housed in "Unit 3," the federal witness security unit of the federal Metropolitan Correctional Center ("MCC") in New York, who challenged certain MCC legal and social visitation policies regarding this unit. He requests payment for 29.4 hours of work on this matter at a rate of $100 per hour for a total of $2,940.00. No request for costs is made.

 Defendant does not contest plaintiff's right to recover attorneys' fees as prevailing party in this action, but defendant does challenge both counsel's hourly rate and his entitlement to be paid for all time expended in connection with this action. Defendant asserts that Levitt should be paid no more than $75 per hour, the maximum rate permitted under the Act "unless the Court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). Defendant claims that Levitt has failed to justify a higher fee. Defendant further asserts that plaintiff prevailed on only three of his five claims and that therefore Levitt should be paid only for 60% of the total hours he spent on this litigation.

 A brief history of the litigation is required in order to evaluate the parties' positions.

 The original plaintiffs in this action filed a complaint pro se on November 23, 1979, seeking a declaratory judgment, money damages and injunctive relief:

 (1) permitting inmates in Unit 3 to confer privately with their attorneys without audial monitoring by MCC staff;

 (2) permitting inmates' attorneys to enter the unit without being photographed;

 (3) permitting visits to inmates by attorneys other than their counsel of record;

 (4) permitting the family and friends of inmates to visit the unit without being photographed; and

 (5) permitting inmates to have more than six friends or family members on their list of approved visitors.

 After various proceedings, including the filing by defendant of a motion for summary judgment seeking dismissal of all of plaintiffs' claims, Mr. Levitt undertook to represent plaintiffs, at my request, in April 1982.

 Shortly thereafter, he wrote to counsel for defendant in an effort "to identify and summarize our chief areas of concern...." *fn2" Levitt initially noted that "attorneys who are not of record may now utilize attorney-only visiting hours" so that the third claim in the complaint was no longer a live issue. He then summarized the plaintiffs' position on their first and fourth claims, expanding their first claim to encompass a request for added privacy in and no audial monitoring of social, as well as legal, visits. No mention was made of plaintiffs' second or fifth claims.

 After extensive settlement negotiations, the parties entered into a Stipulation and Order of Settlement and Dismissal dated May 7, 1985. That ...


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