![handle is hein.journals/prnlr3 and id is 1 raw text is: A project co-sponsored by
the Young Lawyers Section
and the Commission on
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American Bar Association
Volume 3, Number 1
January, 1974
Attorneys Fees
Are Proper in
Prison Suit
Appeals Court Affirms Award of $41,750 to Plaintiffs'
Counsel for Services and $10,986.05 for Costs and Ex-
penses Incident to Maintenance of Suit on Mississippi
Prison Conditions; Sovereign Immunity Is No Bar to
Award Against Defendants Acting in Their Official
Capacities
Gates v. Collier, No. 73-1790 (5th Cir. Dec. 5, 1973).
[Here Reported: Edited Text of Opinion by Tuttle, J.
(Lower court orders reported: 2 Prison Law Reporter 7,
486).]
This appeal deals only with the correctness of the judgment
of the trial court awarding attorney fees to the plaintiffs in this
prisoner suit. It grew out of, and is a companion case to, Gates,
et al, and United States v. John Collier, Superintendent, etc., No.
73-1023, which is under submission to this Court....
Plaintiffs sought an injunction against the deprivation of
such rights during their incarceration and against certain prac-
tices and conditions existing at Parchman. Plaintiffs also sought
a declaratory judgment that the deprivation of such rights and
the continuation of such practices and conditions were uncon-
stitutional.
All parties conducted extensive pre-trial discovery proceed-
ings. Plaintiffs' counsel expended considerable time, money
and energy gathering proof. His affidavit in the court below
details all the hours and services he was forced to expend on
plaintiffs' behalf to prosecute a wholly unnecessary action in
the face of an unyielding defense. On May 11, 1972, four days
before trial, counsel for all parties agreed to waive presentation
of evidence in open court and to submit the case on the record
including pleadings, stipulations, depositions, interrogatories
and answers, offers of proof, factual summaries, proposed trial
plans, evidentiary synopses, photographs, exhibits, reports and
other documentary evidence assembled by the parties. All of
these items were admitted into evidence, defendants stipulating
that they would not contest the facts set forth therein.
Moreover, the Governor himself, seeking to limit the
I I|I1S(_)A__
LAW
REP()IRIEIR
record, asked the Court: Isn't there enough of the
incriminating facts in these depositions and interrogatories to
give the Court adequate grounds to find a conclusion of fact
that the first amendment and all other constitutional provisions
have been violated ... ? The Governor of the State of Missis-
sippi in fact conceded: We are, in effect, Your Honor admit-
ting that the constitutional provisions have been violated. This
was well over a year after the action was brought and years
after the major constitutional violations had occurred.
Among the district court's findings, Gates v. Collier, 349 F.
Supp. 881 (N.D. Miss. 1972), were the following: [See 2 Prison
Law Reporter 7-12]....
The Court's judgment, in conformity with its findings and
conclusions, specifically enjoined continued constitutional
violation and mandated defendants to rectify each unconstitu-
tional condition and practice.
Defendants have appealed from the judgment (Appeal No.
73-1023 before this Court). Having admitted to all the facts and
conceding the constitutional violations, defendants have
nevertheless appealed from the judgment on the ground that
the complaint fails to state a recognized cause of action.
Furthermore, defendants continually sought extensions and
delays from compliance with the District Court's orders.
Defendants' submission of plans required by the District
Court's order have been found to be inadequate even after
substantial delays and defendants continue to delay and ob-
struct any improvement in the conditions at Parchman. Such
delays have necessitated the expenditure of additional time and
money by plaintiffs' counsel....
On February 14, 1973, the District Court awarded plaintiffs'
counsel $41,750 for services and $10,986.05 for costs and ex-
penses incident to maintenance of the action. The award did
not run against the defendants personally or individually but in
their official capacities and was directed to be paid from the
operating funds of Parchman. The defendants have now ap-
pealed from this award of attorney's fees and expenses.
The parties do not dispute the correctness of the trial court's
standard for determining whether attorney's fees should be
awarded; the court based its decision on a finding that the
defendants' conduct was violative of the plaintiffs' constitu-
tional rights and that their unlawful conduct was unreasona-
bly and obdurately obstinate.'.
I. While we adopt the standard agreed to by the parties and applied by the
district court, we note that different standards than 'unreasonably and obdurately
obstinate' have occasionally been found applicable by federal courts. One such
standard is that plaintiff's counsel is entitled to attorneys' fees on the private
attorney general theory.
The private attorney general theory is derived from the Supreme Court
opinions in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400; and Mills v.
Electric A uto-Lite Co., 396 U.S. at 389-97. The theory is that private plaintiffs have
© 1974 American Bar Association. General permission to republish but not for profit, all or part of this material is granted, provided that reference is made to this
publication, its dote of issue, and that reprinting privileges were granted by permission of the Young Lawyers Section of the American Bar Association.
3 Prison L. Rptr. I
January, 1974](ViewImageLocal?handle=hein.journals/prnlr3&div=1&collection=&method=preview&ext=.png&size=3)
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