The opinion of the court was delivered by: LARIMER
This case is a class action under 42 U.S.C. § 1983 brought by inmates in protective-custody status in correctional facilities administered by the New York State Department of Correctional Services ("DOCS"). The case was eventually settled and was dismissed in 1991, with the stipulation that the dismissal was without prejudice to plaintiffs moving for attorney's fees. Plaintiffs have now moved for an award of fees pursuant to 42 U.S.C. § 1988. Defendants oppose the motion.
The case was originally filed by a number of inmates pro se. They sought a number of changes in their privileges and living conditions.
In 1976, the Prisoners Legal Rights Project of the Legal Aid Society of New York City assumed representation of the plaintiffs. An amended complaint was filed in February 1977, and a class was certified in March 1977.
Prisoners' Legal Services ("PLS") was substituted as counsel for plaintiffs in 1981. The two attorneys for whom fees are sought on this motion are both PLS attorneys.
In January 1985, the parties began settlement negotiations. Although some areas of agreement emerged, there were disputed matters and the parties continued with discovery.
In November 1985, plaintiffs deposed Philip Coombe, the then-Deputy Commissioner of DOCS. At one point, he stated that because he had found there to be "some inconsistency" in the operation of the Protective Custody Units at different facilities, "four or five months [before the deposition], long before [he] ever heard of this case," he had [sat down and started piecing together what it is that [DOCS was] doing to make it more consistent." Affidavit of Charles D. Steinman, Esq. (Item 195) Ex. A at 11. When asked whether he had "been developing some kind of plans to make changes in the facilities Protective Custody Units' operations," he stated that he had. Steinman Aff. Ex. A at 12. He stated that his intention was to speak with various facility superintendents and then "make recommendations to the Commissioner and other Deputy Commissioners as to perhaps some standardizing of the operating of our units." Steinman Aff. Ex. A at 13.
In February 1986, Judge Michael A. Telesca (who was then presiding over the case) scheduled a pretrial conference. He directed plaintiffs' counsel to prepare a list of settlement demands to dispose of the case. Plaintiffs' counsel did so by letter dated March 6, 1986. See Affidavit of David C. Leven, Esq. (Item 193) Ex. D.
Eight months later, on November 6, 1986, DOCS issued Directive 4948. The directive addressed many of the items listed in plaintiffs' settlement demand, such as family visits, recreational time, educational programs, etc. See Leven Aff. Ex. F.
Based on the new directive, counsel for both sides engaged in further settlement discussions. Some years went by as plaintiffs' counsel interviewed class members about the new policies, and the two sides worked out some remaining areas of dispute that were not specifically covered by Directive 4948. Eventually counsel agreed upon a stipulation of dismissal, which was filed on June 4, 1991.
Plaintiffs now move for $ 60,932.50 in attorney's fees. This figure represents 225.4 hours of work by Stephen M. Latimer, Esq., at $ 175 per hour, and 143.25 hours of work by David C. Leven, Esq., at $ 150 per hour. All the work for which compensation is sought was performed since January 1985; Latimer was not with PLS before December 1984, and Leven has no contemporaneous time records before 1985. See Declaration of Stephen M. Latimer (Attached to Motion for Attorney's Fees) P 2.
Defendants oppose plaintiffs' fee request on several grounds. First, defendants contend that the motion is untimely. Defendants concede that there is no time limit as such for fee motions under § 1988, but, relying upon Baird v. Bellotti, 724 F.2d 1032 (1st Cir.), cert. denied, 467 U.S. 1227, 81 L. Ed. 2d 875, 104 S. Ct. 2680 (1984), they argue that the motion should be denied because the delay here is unreasonable, and because it creates actual prejudice to defendants.
In response, plaintiffs explain that they waited until 1995 to move for attorney's fees because PLS has been involved in other litigation with DOCS involving issues similar to those in the case at bar. One of those cases, Pease v. Coughlin, No. 84-688 (N.D.N.Y.), was not settled until February 1995. Plaintiffs contend that they feared that if they moved for attorney's fees in the instant case while the other litigation was pending, defendants might be more reluctant to settle the other cases; defendants might have chosen to try those cases in the hope that they would prevail on the merits and thus avoid having to pay any fees.
Although the lapse of time here between the entry of judgment and the motion for fees was unusually lengthy, I find on these facts that the delay does not justify denial of the fee request. First of all, the Stipulation of Dismissal specifically provided that dismissal could be entered "without prejudice to plaintiffs making, and defendants opposing, an application for Attorneys Fees." Leven Aff. Ex. G. No schedule or limitation was set for plaintiffs making such a motion. Defendants may have harbored the hope that no fee application would be made after some time passed, but they had been put on notice that such a motion could be filed and plaintiffs never made any representations to lull defendants into destroying whatever material was necessary to defend such a motion.
Plaintiffs' "strategy" of delay so as not to affect other cases might not carry the day here if there was true prejudice to defendants because of the four-year delay in seeking fees. But, in light of the agreement between the parties that plaintiffs could seek fees, the reason for the delay is less important than whether defendants actually suffered any prejudice because of it.
Based on my review, I do not see any prejudice to defendants occasioned by the delay here. As defendants recognize, the real concern here is not delay per se, but whether that delay has "unfairly surprised or prejudiced" defendants. See White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 454, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982) (holding that motion for fees under § 1988 is not subject to ten-day time limit of Fed. R. Civ. P. 59(e)). The court in Baird, the case relied upon by defendants, also stated that "prejudice remains a significant factor" under the Supreme Court's decision in White. The court held that even though the moving party's delay was both "unreasonable" and ...