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Perez v. Westchester County Dep't of Corrections

November 19, 2009



Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York (Berman, Judge). The District Court held (1) that Plaintiffs were "prevailing parties" under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and thus eligible for fees pursuant to 42 U.S.C. § 1988, and (2) that the resulting award was subject to the fee cap of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d). We hold (1) that Plaintiffs are prevailing parties, as they achieved a material alteration in the legal relationship between the parties, and the so-ordered settlement bore judicial imprimatur, and (2) that the PLRA's fee cap applies even though some plaintiffs were released from prison after the filing of the suit but before the successful resolution of the litigation. We also find that the District Court did not abuse its discretion in determining the fee award. Accordingly, we AFFIRM the judgment of the District Court, and REMAND for an award of fees in connection with this appeal.

The opinion of the court was delivered by: Calabresi, Circuit Judge

Argued: July 10, 2009

Before: CALABRESI and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.*fn1

Plaintiffs, a group of practicing Muslims who are or were inmates at the Westchester County Jail, sued the Westchester County Department of Corrections (the "County") and three of its employees (collectively, "Defendants") for their refusal to provide Halal meat to Muslim inmates, allegedly in violation of the First, Eighth, and Fourteenth Amendments. Prior to the initiation of Plaintiffs' suits, Defendants served Halal meat to Muslim inmates only twice a year; by contrast, they provided Kosher meat to Jewish inmates four to five times a week. Although Defendants initially rebuffed Plaintiffs' demand that Muslim inmates be given Halal or Kosher meat*fn2 with the same frequency as Jewish inmates, they ultimately agreed to do so in exchange for the dismissal of the lawsuits. The parties memorialized this agreement in an "Order of Settlement, Release and Stipulation of Discontinuance" (the "Order of Settlement"), which the District Court (Berman, Judge) entered on March 12, 2008. Subsequently, the District Court granted Plaintiffs' motion for attorneys' fees.

Defendants appealed from the award of attorneys' fees, claiming that Plaintiffs were not "prevailing parties" under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and hence were not entitled to attorneys' fees, and that, alternatively, the District Court abused its discretion in determining the amount of fees to be awarded. Plaintiffs cross-appealed, claiming that the District Court erred in applying the fee cap of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d), in this case, because the Order of Settlement expressly allowed Plaintiffs to move for attorneys' fees and because-they asserted-the fee cap does not apply to suits brought by prisoners who are released subsequent to the filing of a suit. We reject all three of these claims, and AFFIRM the judgment of the District Court in its entirety. We also REMAND the matter to the District Court to consider Plaintiffs' request for fees accrued in connection with this appeal.

I. Background

A. The Plaintiffs' Allegations

Plaintiffs alleged that for over twenty years, the County violated the constitutional rights of Muslim inmates by serving them meat that was "Haram" (in violation of their beliefs) as opposed to "Halal" (which is consistent with their beliefs). While the County ostensibly provided a "Muslim diet tray," it often included Haram meat and was only occasionally consistent with Muslim dietary practices. As the County's Supervisor of Food Services swore in an affidavit, the County's food vendor did not "serve halal meat in any of the jail facilities," although Muslim inmates did receive "halal meat on two Muslim holidays during the year." By contrast, the County accommodated Jewish inmates' religious beliefs by serving them Kosher meat approximately four or five times a week. Whilethe Kosher meat prepared regularly for Jewish inmateswas Halal and thus would have satisfied the Muslim inmates' restrictions, the County refused to include it on the Muslim diet tray.

These practices persisted despite years of protests and grievances by Muslim inmates and by the jail's Muslim chaplain. In response to these complaints, Plaintiffs alleged, the County's systematic practice was either to "refuse an inmate's request to pursue the grievance process, to issue the same 'stock response', or to refuse to change . . . ." In denying inmate grievances, the County stated plainly that "Halal is not provided in this facility at this time."

Making these allegations, Plaintiff Henry Perez filed a Complaint pro se against the County on September 20, 2005, and sought injunctive and monetary relief pursuant to 42 U.S.C. § 1983. He alleged that the County's conduct violated his First Amendment right to free exercise of religion, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment right to due process and equal protection. Subsequently, twelve other pro se inmates filed nearly identical complaints.*fn3 By order dated November 29, 2005, the District Court consolidated all actions filed prior to that date.

After filing their Complaints, ten of the plaintiffs retained Richard Cohen, then of the firm Akabas & Cohen, as pro bono counsel. After Akabas & Cohen dissolved, Cohen joined Fox Rothschild ("Fox"), and thereafter, each of the ten retained Fox as substitute pro bono counsel.

B. The Defendants' Initial Responses to the Lawsuits

In February 2006, Cohen met with representatives of the Defendants, who offered to change the Muslim diet tray-but only to the extent of removing meat altogether and providing substitutes such as peanut butter. On September 14, 2006, the County moved, inter alia, to dismiss Plaintiffs' Complaints. In their motion papers, Defendants asserted that:

Plaintiffs' claims against County Defendants for relief pursuant to [§ 1983] for the denial of halal meat and/or kosher food has [sic] 4been repeatedly rejected and simply does not amount to a violation of a constitutional right. Plaintiffs have been provided with a halal diet that is consistent with their nutritional needs and religious beliefs. . . . Moreover, Plaintiffs' equal protection claim clearly fails as County Defendants provide both Muslim and Jewish inmates with nutritionally adequate meals that conform to their respective faith's requirements.*fn4 The County also argued that Plaintiffs failed to exhaust administrative remedies and failed to demonstrate any facts that amounted to a constitutional violation, and that Defendants were in any event entitled to qualified immunity. Plaintiffs opposed the motion and cross-moved for a preliminary injunction directing the County (1) to provide either Halal or Kosher meat to Muslim inmates with the same frequency as Kosher meat was served to Jewish inmates, and (2) to refrain from putting Haram meat on the Muslim tray. In response to the preliminary injunction motion, the County argued that (1) it had attempted to satisfy the concerns of Plaintiffs by serving them a vegetarian diet; and (2) providing Plaintiffs with Kosher meals would be a significant financial burden on the County since Kosher meals were more expensive than regular meals.

On April 30, 2007, the District Court granted in part and denied in part the County's motion to dismiss, and denied Plaintiffs' cross-motion for a preliminary injunction without prejudice. Perez v. Westchester County Dep't of Corr., No. 05 Civ. 8120, 2007 U.S. Dist. LEXIS 32638 (S.D.N.Y. Apr. 30, 2007). Specifically, the District Court dismissed the Plaintiffs' Eighth Amendment claims, but denied the County's motion as to the First and Fourteenth Amendment claims. In reaching this decision, the District Court commented on the strength of Plaintiffs' claims, noting, for example, that "the heart of the matter is Plaintiffs' (seemingly unrefuted) allegation that Defendants refuse to offer Muslim inmates the same kosher meat provided to Jewish prisoners," and that Plaintiffs were "(relatively easily) able to surmount Defendant's motion [to dismiss the equal protection claims]."

As for the preliminary injunction, the District Court found that Plaintiffs had shown irreparable injury and might succeed on the merits because they "may be able to show that there is disparate treatment among Muslim and Jewish inmates." But the District Court found that disputed issues of fact existed regarding the alleged financial burden that serving Halal or Kosher meat to Muslim inmates would place on the County. Because preliminary injunctions should not be decided on the basis of affidavits when disputed issues of fact exist, the District Court found that an evidentiary hearing was required. It therefore dismissed the preliminary injunction motion without prejudice, explicitly allowing the Plaintiffs to reinstate their application "if and when Plaintiffs request a hearing on the injunction and/or the merits."

C. Settlement Negotiations and the "So-Ordered" Settlement Agreement

In itsApril 30 order, the District Court also directed the parties to "appear at a scheduling/settlement conference with principals (or authority) before the Court" ten days later. At the conference, Judge Berman actively urged settlement, and made it clear that he felt the law was on Plaintiffs' side. When the County offered to provide Halal meat to Muslim inmates once a week and not provide any money in damages (an offer Plaintiffs' counsel Cohen analogized to allowing Rosa Parks to sit at the front of the bus on Mondays only),Judge Berman opined that, from a settlement perspective, it didn't sound "like much of a settlement to propose once a week for 3 inmates to have kosher meals when . . . Jewish inmates receive kosher meals 4 or 5 times a week." The County commented that "it's obvious that [Plaintiffs] are not going to accept any form of settlement unless we give them Halal meat the same number of times that the Jewish inmates get kosher meat," to which Judge Berman responded, "Remind me again why that shouldn't be the case?" Judge Berman extensively probed the County's arguments that providing Halal meat as often as it provided Kosher meat would be either a cost problem or a security threat, warning that the County's estimated expense of $30,000 a year didn't sound as if it supported a "good faith argument" and making it clear that the County's security argument seemed no more plausible. At the close of the conference, Judge Berman set an unusually short time frame for discovery and a trial date just five months away. He explained:

I am actually going to give you a little less time because the issues are very simple and I think the basic issues are known. . . . [T]his couldn't be more obvious and couldn't be more simple as to what is going on here and the question is whether these Muslim inmates are entitled to be treated like the Jewish inmates. It's really that simple. I am not saying I know the answer to that question and even if I come up with an answer somebody may think it's wrong. But that is the whole story here.

So, frankly, I think we have been wasting a lot of time already because I would [have] thought this was such an ...

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