The opinion of the court was delivered by: Leisure, District Judge:
This is a civil rights action brought pursuant to 42 U.S.C. § 1983,
arising from the conditions of plaintiff's
incarceration at the Sing Sing Correctional Facility ("Sing
Sing"). Plaintiff's complaint seeks declaratory, compensatory
and injunctive relief. Plaintiff's counsel now move for an
order granting an award of interim attorney's fees in the
amount of $44,120, pursuant to 42 U.S.C. § 1988, on the ground
that plaintiff was a "prevailing party" with respect to certain
preliminary relief plaintiff sought.
Plaintiff has been incarcerated at numerous New York State
Department of Correctional Services facilities since 1972, and
is presently serving a 25-year-to-life sentence for murder.
Plaintiff is a diabetic who also suffers from serious
psychiatric disorders, and has attempted suicide on at least
two occasions. As a result of complications from plaintiff's
diabetes, the lower portions of both of plaintiff's legs have
In May 1987, plaintiff was transferred from Green Haven
Correctional Facility ("Green Haven") to Sing Sing. In a
transfer memorandum, the Green Haven medical staff informed the
medical staff at Sing Sing that plaintiff had a "chronic
history of non-compliance with medication, insulin, diet,
lab-work and treatments." Affidavit of Frank Sandor, M.D.,
sworn to on July 14, 1988 ("Sandor Aff."), Exhibit A, attached
as Exhibit 2 to Affidavit of Michael A. Rosas, Esq., sworn to
on March 1, 1991 ("Rosas Aff."). From the time of his transfer
to Sing Sing until April 22, 1988, plaintiff was generally
housed at the Sing Sing infirmary. During this period,
plaintiff was hospitalized on several occasions for treatment
of diabetes-related infections, including the amputation of
leg below the knee in February 1988. Sandor Aff., ¶ 3.
On April 22, 1988, plaintiff was discharged from the Sing
Sing infirmary. Plaintiff's medical records indicate that
plaintiff repeatedly refused to go to the emergency room for
insulin injections in late April 1988, that on May 2
arrangements were made for plaintiff's admission to St.
Claire's Hospital so that he could undergo a sympathectomy,
that plaintiff refused the operation and was discharged back to
the Sing Sing infirmary on May 11, 1988. Sandor Aff., ¶¶ 7, 8
and Exhibit C. On May 11, 1988, plaintiff refused to allow a
Sing Sing staff physician to examine his right big toe.
Plaintiff was discharged from the infirmary and given daily
insulin injections on May 12 and 13. Sandor Aff., ¶ 9. On May
14, 1988, a Sing Sing physician's assistant examined
plaintiff's right big toe and noticed some "disturbed" skin.
Betadine soaks were ordered, however plaintiff became loud,
demanded an increase in his pain medication, refused his
insulin and other medication and left the infirmary. Sandor
Aff., ¶ 10.
From May 15 to May 18, 1988, plaintiff accepted insulin
injections. On May 18 the physician's assistant noticed that
the condition of plaintiff's right big toe had worsened.
Antibiotics and betadine soaks were ordered, both of which
plaintiff had been refusing. Sandor Aff., ¶ 11. On May 19 a
purulent discharge was noticed from plaintiff's right toe. An
attempt was made to admit plaintiff to St. Claire's Hospital,
but St. Claire's declined, stating that no beds were available.
On May 20, Dr. Sandor, who was a primary care physician for
plaintiff during his confinement at Sing Sing, arranged for
plaintiff's admission to Butterfield Hospital, where plaintiff
remained for almost three weeks. Sandor Aff., ¶ 12. On June 9,
1988, however, plaintiff signed out of Butterfield Hospital,
against the advice of the attending physician and the hospital
authorities, and was admitted to the Sing Sing infirmary. He
was examined by Dr. Sandor, who discharged him from the
infirmary on June 10, with instructions that plaintiff be
housed so he could come to the infirmary by wheelchair. Sandor
Aff., ¶ 13.
Plaintiff received insulin injections on June 10, 11 and 12,
1988. On the afternoon of June 13, plaintiff suffered a
"seizure" because his sugar level was low. He was admitted to
the infirmary and given sugar and orange juice, and his
condition improved. On June 14, 1988, Dr. Sandor again examined
plaintiff and discharged him from the infirmary, with orders
for daily sugar level testing. Sandor Aff., ¶ 14. Over the
following two weeks, plaintiff received regular insulin
injections. Twice plaintiff failed to appear for sick call, but
on June 28, 1988, plaintiff came to the emergency room, where a
physician's assistant examined him and noticed dead tissue
surrounding ulcers on his right big toe. Betadine soaks were
again ordered, as was a surgical evaluation. On June 30, 1988,
plaintiff reported that he was becoming dizzy in the evenings,
and an adjustment was made in the timing of plaintiff's sugar
level testing. Sandor Aff., ¶ 15. On July 6 and 7, 1988,
plaintiff's right foot was again examined, and betadine soaks
were continued. Sandor Aff., ¶ 16. On July 13, 1988, plaintiff
was transferred to Auburn Correctional Facility ("Auburn").
According to Dr. Sandor, throughout plaintiff's confinement at
Sing Sing plaintiff was "extremely uncooperative with and
overtly hostile to medical staff . . . [and] refused to accept
recommended treatment on many occasions and thus impaired our
efforts to attend to his serious medical needs." Sandor Aff., ¶
6. Dr. Sandor's final diagnosis of plaintiff stated that
plaintiff's condition "may call for hospitalization and may
eventually require amputation. In my judgment, however,
immediate hospitalization is not necessary. Local wound care
and antibiotics are adequate pending the surgical evaluation."
On July 7, 1988, before his transfer to Auburn, plaintiff
commenced this action. On July 8, 1988, plaintiff moved, by
order to show cause, for a preliminary injunction
Order to Show Cause, July 8, 1988.
Upon plaintiff's arrival at Auburn, he was placed in the
infirmary and examined by Dr. Roger D. Spier, M.D. ("Spier"),
who performed an evaluation on July 13, 1988, and again on July
20, 1988. Affidavit of Roger D. Spier, M.D., sworn to on July
22, 1988 ("Spier Aff."), attached as Exhibit 3 to Rosas Aff.
Rivera was placed on a diet approved by the American Diabetic
Association. Spier Aff., ¶ 4. Spier concluded on July 22, 1988
that "oral antibiotics should be sufficient to deal with
[plaintiff's] condition," and that "intravenous antibiotics and
debridement are not necessary at this point. Therefore,
immediate hospitalization is not appropriate." Spier Aff., ¶¶
5, 6. Spier also noted that plaintiff "was extremely
uncooperative with medical staff and disruptive of the
functioning of the infirmary. Mr. Rivera failed to follow
instructions of medical staff and refused insulin injections.
Subsequently, Mr. Rivera became less hostile and began
accepting the treatment offered. However, he continues to
refuse to stop smoking cigarettes, which impairs his
circulation." Spier Aff., ¶ 3.
On August 1, 1988, this Court "so ordered" a stipulation
signed by the parties (the "Stipulation"), providing that:
IT IS HEREBY STIPULATED AND AGREED, pursuant to
F.R.C.P. 35, that as soon as practically possible
Defendants shall cause Plaintiff to be medically
evaluated by physicians not employed by the New
York State Department of Correctional Services.
The evaluations shall include (a) bone scans of
the Plaintiff's right toes and foot; (b)
evaluations by physicians to determine the
Plaintiff's need for surgical debridement of areas
on his right toes and foot; (c) evaluations by a
diabetologist; and it is further
STIPULATED AND AGREED, that upon a finding by the
physicians and other medical personnel that
Plaintiff requires hospitalization that Defendants
shall take all necessary steps to assure that
Plaintiff is immediately hospitalized in a
facility able to meet Plaintiff's medical care
needs; and it is further
STIPULATED AND AGREED, that Defendants shall not
take any steps to remove Plaintiff from any
hospital unless Plaintiff is discharged by the
hospital's medical staff or ...