Richard Franklin MILLER et al., Plaintiffs-Appellees, v. Dale CARSON, Individually and in his capacity as Sheriff of Duval County, Florida, et al., Defendants-Appellants.
No. 75-2739.
United States Court of Appeals, Fifth Circuit.
Nov. 23, 1977.
Rehearing and Rehearing En Banc Denied Dec. 27, 1977.
563 F.2d 741
This court said in Meeks v. United States, 259 F.2d 328 (5th Cir. 1958):
“After the Government rested, appellant moved for a judgment of acquittal. The court denied the motion. Thereafter appellant introduced evidence in his behalf but did not renew his motion for acquittal at the close of all the evidence, as required under Criminal Rule 29, 18 U.S.C.A. Appellant‘s failure to renew his motion operates to waive the benefit of the motion. Ansley v. United States, 5 Cir., 1943, 135 F.2d 207; Moomaw v. United States, 5 Cir., 1955, 220 F.2d 589. We may, however, review the sufficiency of the evidence to prevent a manifest miscarriage of justice. Thomas v. United States, 5 Cir., 1951, 189 F.2d 430; Demos v. United States, 5 Cir., 1953, 205 F.2d 596.”
Having found the evidence to be insufficient to affirm appellant‘s conviction, it is not necessary that we proceed to rule on appellant‘s second point concerning the admissibility of extraneous offenses.
The judgment is reversed and the cause remanded to the trial court with directions to enter a judgment of acquittal.
REVERSED and REMANDED.
William J. Sheppard, Jacksonville, Fla. (Court-Appointed), for plaintiffs-appellees.
Before TUTTLE, WISDOM, and COLEMAN, Circuit Judges.
WISDOM, Circuit Judge:
The threshold question here is whether the district court had jurisdiction over the subject matter of the case. In addition, on appeal the appellants challenge the propriety of certain remedies the district court fashioned to rectify uncivilized conditions in a jail for detainees. Appellants also attack the district court‘s award of attorney‘s fees to counsel for the plaintiffs-appellees.
On June 11, 1974, detainees held in the Duval County Jail in Jacksonville, Florida, filed a handwritten pro se complaint against Dale Carson, the Sheriff of Duval County, for the purpose of improving conditions in the jail. The district court ruled that the case was properly brought as a class action, and defined the class as all persons “who are presently or in the future will be incarcerated in the Duval County Jail“.1 The district court appointed counsel,
The plaintiffs moved for partial summary judgment as to the local defendants. After three weeks of hearings, the trial court issued a declaratory judgment, supporting findings of fact, and a preliminary injunction.4 No appeal was ever taken from the judgment, findings, or injunction. On July 17, 1975, the court entered an order substantially incorporating its earlier findings of fact and granting a permanent injunction. 401 F.Supp. 862. The court awarded $45,792 in attorney‘s fees to Sheppard. 401 F.Supp. 845.
The defendants-appellants have never contested the conclusions of law or findings of fact of the trial court. First, the defendants contend that the trial court lacked jurisdiction to issue the injunction of July 17, 1975. Second, they argue that the trial court abused its discretion in ordering the following remedial measures: contact visitation, daily recreation, a reduction in the prison population to a level below that contemplated in the design and construction of the jail, and the hiring of a permanent ombudsman. Finally, the defendants contend that the court had no power to award attorney‘s fees and, in the alternative, that the fees awarded were excessive.
We affirm the rulings of the district court with minor modifications: we affirm its holding that an ombudsman be appointed, but conclude that the ombudsman should not hold permanent office at the Duval County Jail; we modify the ruling that the inmates are entitled to outdoor recreation; we find a different basis for a proper award of attorney‘s fees to counsel for the plaintiffs-appellees.
I.
The Duval County Jail primarily houses persons awaiting trial on criminal charges. A secondary function of the jail is to hold convicted state and federal prisoners awaiting assignment and transfer to other institutions. The jail was built in 1956 as a maximum security facility. It was designed to hold 432 inmates.
At the time this suit was filed, when a person was arrested, brought to the Duval County Jail, and booked, he was first assigned to a “holding cell“. The cell‘s dimensions were eight feet four inches by nine feet nine inches. In that cell he would find a sink and a commode that might or might not be working. He found other
After a stay of up to eight days in a holding cell, inmates were transferred to larger cells on the upper floors of the jail. There, showers were available, but newly arrived inmates often could not obtain hygienic materials, such as soap, toothbrushes, and shaving gear, for several days. Sanitation in the upstairs cells was poor. The trial court found that all the commodes and sinks in the upstairs cells were filthy. Standing water on the floor of one of the cell blocks caused slips and falls that resulted in serious injuries. Mice and rats were so numerous that inmates passed their idle time trapping these vermin. The ventilation was poor, and lighting was so weak that reading was never possible in some areas. The trial court found that laundry service was inadequate: the inmates themselves washed most of their clothing with hand soap.
Although the jail was designed for 432 inmates, the population sometimes exceeded 600 and was rarely below 100 over the stated maximum. Some inmates slept in cell-block dayrooms on mattresses strewn on the floor because sleeping areas were inadequate. One expert witness described the situation as “almost shoulder-to-shoulder housing“. 401 F.Supp. at 873. Overcrowding strained jail personnel and made conditions even more unsanitary.
At the time this suit was filed, the jail did not have rules governing inmate behavior, and punishment was inflicted without a hearing. The district court found that medical facilities were inadequate. A physician was present only one-half day a week, and nurses were available during only one or two of the three daily shifts. The district court found an even greater problem in the procedure to obtain medical help. Inmates had first to obtain the attention of a correctional officer to receive medical help. In the upstairs cells, inmates often signaled by beating trash can lids against the cell walls. Even so, help was not always forthcoming. The district court found that “the inadequacy of the communications system . . . contributed to the deaths of several inmates“. 401 F.Supp. at 876.
The food inmates received was cold and nutritionally inadequate. No special diets were available for inmates with special religious or medical requirements; pork was used “in virtually all meals” because prisoners at the County‘s correctional farm raised hogs. 401 F.Supp. at 885. Inmates were allowed out of the cell blocks for exercise and recreation only two hours a week. The jail‘s staff was inadequate: at times the only authority present on a floor with 110 inmates was an inmate-trusty. The trial court found that inadequate supervision by guards contributed to “a daily horror show of violence” in the jail, where assaults, attempted suicides, and homosexual rapes were commonplace. 401 F.Supp. at 883. Jail personnel prepared reports on more than 150 occasions of brutality in the first 11 months of 1974. In most of these incidents, the injured inmate received hospitalization or medical care.
The trial court found that visitation of inmates was severely limited:
Visitation privileges at the Duval County Jail were limited to two hours on one day of each week and were confined only to members of an inmate‘s immediate adult family. Visiting hours still oc
cur on Saturdays from 12:30 P.M. to 2:30 P.M. and on Sundays from 12:30 P.M. to 2:30 P.M. Visiting facilities still consist of three small scratched and cloudy visiting windows in each cellblock with malfunctioning speaker boxes below. The construction of the windows and speakers is such that there can be no eye contact at the time of the verbal communication. Visitors and inmates alike are required to shout to be heard and the arrangement prevents any privacy or physical contact whatsoever. There appears to be almost no supervision of visiting by jail personnel, undoubtedly resulting in inequities in obtaining a window due to the over-crowded condition. 401 F.Supp. at 884.
Pretrial detainees could not meet with prospective witnesses unless the witnesses were relatives. Jail personnel routinely monitored inmates’ telephone calls. Attorneys could not visit inmates during meals or in visiting hours or after 9:00 P.M.
The trial judge, who had handled several cases involving conditions of confinement in the Florida State Prisons, made this finding: “The totality of circumstances present at the Duval County Jail . . . produced conditions significantly inferior to those existing within the Florida state institutions.” 401 F.Supp. at 889. The district court found that the conditions were “worse than those to which many sentenced prisoners are subjected in Florida, even though the majority of the plaintiffs and the subclass of pretrial detainees they represent have not been convicted and are not subject to punishment for any crime“. The conditions were “severely punitive and effectively punish” detainees “before they have been convicted of any crime“. This “constitute[d] punishment which is both cruel and unusual“.5 The lack of access to lawbooks, the restrictions on visiting privileges, and the limitation on telephonic communications deprived the plaintiffs of effective assistance of counsel. There were restrictions on religious freedom. Discipline was administered in an “arbitrary, capricious, and unlawful summary” manner. “[A]rbitrary and capricious limitations” were placed upon access to families and friends. 401 F.Supp. at 839, 840. The trial judge held that these and other conditions violated the plaintiffs’ rights under the first, fifth, sixth, eighth, and fourteenth amendments to the Constitution; and under
Because the appellants do not attack the trial judge‘s conclusions of law, we need not determine which constitutional amendment is applicable to what misconduct by the prison authorities. We point out, however, that the totality of circumstances demonstrates that the defendants’ conduct violated the due process clause of the fourteenth amendment and
“Upon the whole, if the offense be not bailable, or the party cannot find bail, he is to be committed to the county gaol . . . there to abide till delivered by due course of law. . . . But this imprisonment, as has been said, is only for safe custody, not for punishment: Therefore, in this dubious interval between the commitment and the trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only.” 4 Blackstone Commentaries 300. [Ehrlich‘s Blackstone 901 (1959)].
II.
The plaintiffs contend that the trial court properly exercised jurisdiction under
Muzquiz, however, does not stand for the proposition that no one can maintain a 1983 suit that is in essence against a governmental body regardless of the relief sought. In Muzquiz, the plaintiffs sought, in effect, the transfer of money from a governmental entity to their own pockets. They labeled their action one for an accounting, restitution, and refunds, and sued individual members of the Board of Trustees of the City‘s pension fund. This Court held that the suit would fail because the relief requested was “tantamount to a money judgment for restitution against the fund“. 528 F.2d at 501. Muzquiz is distinguishable from the case we face now: the plaintiffs seek no transfer of money to themselves. They do not even seek the expenditure of public funds. They asked the district court only to halt the unconstitutional operation of the Duval County Jail. Muzquiz does not bar such relief. In McGill v. Parsons, 5 Cir. 1976, 532 F.2d 484, this Court allowed injunctive relief against city officials and stated that such relief did not result in “the kind of monetary burden . . . which we prescribed in Muzquiz . . . .” 532 F.2d at 486 n.1.
The instant case is analogous to Williams v. Edwards, 5 Cir. 1977, 547 F.2d 1206, in which this Court stated that a district court order to improve the Louisiana State Penitentiary at Angola “does not require the spending of funds. It requires only that if the State of Louisiana continues to operate the Angola prison it must do so within the Constitution and laws of the United States and the State of Louisiana.” 547 F.2d at 1212. Williams involved the eleventh amendment, but it stands for the principle that enjoining the unconstitutional operation of an institution need not require mon
The officials operating the jail here have two choices: to operate the jail constitutionally, or not to operate it at all. See Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1319-20. The trial court correctly exercised jurisdiction here. The plaintiffs’ 1983 action was proper: it sought injunctive relief from unconstitutional conditions rather than money damages from a nonperson. To hold that officials in their individual capacities are always nominal rather than real defendants for 1983 purposes would be a long step backward in federal jurisdiction. Muzquiz cannot be read to go that far.
III.
As Judge Coleman stated in Newman v. State of Alabama, 5 Cir. 1977, 559 F.2d 283,
Our real issue is whether in striving to attain constitutional objectives the District Court in a few respects went impermissibly beyond the requirements of the federal constitution; more specifically, did the Court supersede the duly constituted state authorities in the performance of vital state functions rather than compelling those authorities to perform those functions in a constitutional manner?
Federal courts must be constantly aware of the delicacy of the balance between federal equitable power and state administration of its own law. Rizzo v. Goode, 1976, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561. But, to quote again from Newman, “Most assuredly, however, in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States“.
Bearing in mind that about 85 percent8 of the inmates in the Duval Jail are unconvicted detainees and considering the offensiveness of the prison conditions, we hold that, with minor exceptions, the experienced trial judge fashioned remedies that were within his judicial power and comply with the standards set forth in Newman and Williams v. Edwards, 5 Cir. 1977, 547 F.2d 1206.
A. Contact Visitation.
“There can be no doubt that the necessity of assuring security must be balanced against the right to humane treatment of prisoners and that if contact visits [visits that permit inmates to touch their visitors] are incompatible with that need they must be sacrificed. The critical question is whether the two can coexist. We are persuaded that they can . . . .”
So said the court in Rhem v. Malcolm, 371 F.Supp. at 605. So said the trial judge in this case. So say we.
We have said that for convicted prisoners “visitation privileges are a matter subject to the discretion of prison officials“. McCray v. Sullivan, 5 Cir. 1975, 509 F.2d 1332, 1334; see also Newman v. State of Alabama, 5 Cir. 1977, 559 F.2d 283. We reserved, however, the question whether convicted prisoners have a constitutional right to visitation in some form. Martin v. Wainwright, 5 Cir. 1976, 525 F.2d 983, 984 n. 3. Here, the trial judge ordered the defendants to establish a program of “contact visitation”9 for pretrial detainees,
The district court pointed out that “the defendants have also failed to present direct evidence of the alleged threats to institutional security“. 401 F.Supp. at 895. Nevertheless, the court‘s adoption of the language of the opinion in Rhem v. Malcolm on the subject of security risks strongly points to the Duval jail authorities having discretion to apply different procedures to inmates who represent security risks. Of course, prison authorities are under a duty to adopt reasonable measures to prevent visitors from smuggling weapons or contraband to prisoners, whether the prisoners are convicted or unconvicted and whether they are classified as maximum or minimum security risks.
The trial judge was well aware that the program of contact visitation would take time to put into effect. Moreover, he recognized the concern the defendants expressed as to their ability to comply with the court order in light of the structural limitations of the jail. Accordingly, he allowed the defendants a year within which to establish a program of contact visitation. This period seems reasonable to us; on a showing that an extension of time is necessary, the trial judge will be able to decide whether to grant or to deny the extension.
The trial court based its order, as we have noted,10 on the physical conditions affecting visitation: visits were permitted only for two hours on one day a week; visits were confined to adult members of an inmate‘s immediate family; facilities consisted of three small scratched and cloudy visiting windows in each cellblock with malfunctioning speaker boxes. Inmates would crowd around these windows without supervision, a situation that resulted in (1) inequitable distribution of the available visiting time, and (2) a total lack of privacy in visitation. Inmates awaiting trial could not prepare their factual defenses, for witness11es could not visit the jail unless they were family members.11 The jail officials did not distinguish between pretrial detainees and convicts, or between inmates who constituted security risks and those who did not. By contrast, more than 95 percent of the convicted felons in the Florida State Prison system were allowed eight hours a week of contact visitation with families. 401 F.Supp. at 884.
In sum, contact visits, especially to detainees, are an appropriate, humane remedy, within the court‘s constitutional exercise of its judicial power. Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d at 338-39; O‘Bryan v. County of Saginaw, E.D.Mich. 1977, 437 F.Supp. 582; Jordan v. Wolke, E.D.Wisc.1977, 75 F.R.D. 696; Forts v. Malcolm, S.D.N.Y.1977, 426 F.Supp. 464; Mitchell v. Untreiner, N.D.Fla.1976, 421 F.Supp. 886; Inmates, D.C. Jail v. Jackson, D.D.C.1976, 416 F.Supp. 119; Dillard v. Pitchess, C.D.Cal.1975, 399 F.Supp. 1225; see generally Comment, Confronting the Conditions of Confinement, 12 Harv.C.R.-C.L.L.Rev. 367, 373, 401 (1977); Note, United States ex rel. Wolfish v. Levi: The Limits of Administrative Discretion on Inmate Visitation, 3 New England J. Prison L. 291, 300-02 (1976). Moreover, the trial court did not “thrust itself into prison administration“, Bounds v. Smith, 1977, 430 U.S. 817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72, 86. The jail officials, not the trial court, will plan and supervise the contact visits.
B. Exercise and Recreation.
In an earlier case we reserved the question whether the Constitution and
We find that the remedy ordered by the district court, daily outdoor recreation, is an appropriate goal toward which jail authorities should work. That goal may not be immediately attainable because of lack of resources. See Smith v. Sullivan, 553 F.2d at 379. Or it may not be invariably attainable because of inclement weather, an outbreak of violence within the jail, or emergency situations. It is, however, a goal toward which the jail authorities should strive.
1. Detainees.
The issue of the right of pretrial detainees to outdoor recreation pits the paramount need for jail security against the principle found in the procedural branch of the fourteenth amendment‘s due process clause that citizens may not be punished without proof. We hold that presumably innocent pretrial detainees who are not classified as security risks and who have not been shown to have violated the disciplinary rules of the jail have a fourteenth amendment and 1983 right to regular access to the outdoors.
The reason for which presumably innocent detainees are incarcerated is to assure their attendance at trial. Any incarceration or detention might be deemed punitive, because it is a deprivation of liberty. But pretrial detention only becomes punishment violative of the fourteenth amendment due process clause when the conditions placed on the detainee are more restrictive than are necessary to assure his presence at trial or to preserve security. Duran v. Elrod, 7 Cir. 1976, 542 F.2d 998, 999; Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d 333, 336-37. “[W]here a person has not been convicted of a crime, any deprivation of his liberty by the state must be the least restrictive means of achieving the purpose of the deprivation.” Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale L.J. 941, 949 (1970), quoted in Hamilton v. Love, 1971, E.D.Ark., 328 F.Supp. 1182, 1192.
We agree with the trial court that conditions at the Duval County Jail were unnecessarily restrictive. Presumably innocent detainees were literally stored in a building designed as a maximum security penal institution—a building designed to punish as well as to hold. At the time of the trial of this case, at least 90 percent of the inmates in the jail never left their cellblocks, even for meals. 401 F.Supp. at 893. Inmates presumed innocent by the law were often kept for months in these cellblocks while waiting for trial. The trial court considered the continuous confinement of the inmates at the Duval County Jail and found that such uninterrupted incarceration was unnecessary for the purpose of maintaining their presence at that institution. We agree with that finding. The trial judge also surveyed the areas available for outdoor recreation at the municipal complex of which the jail is a part and found that there were adequate facilities for that purpose without a “large expenditure of funds“. 401 F.Supp. at 893. We find that the continuous incarceration of presumably innocent persons in an institution designed to punish, where outdoor recreation is reasonably possible, is unnecessarily restrictive and therefore punishes the innocent in violation of procedural due process. See Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d 333; Duran v. Elrod, 7 Cir. 1976, 542 F.2d 998; Haggy v. Solem, 8 Cir. 1977, 547 F.2d 1363 (per curiam); Hamilton v. Landrieu, E.D.La.1972, 351 F.Supp. 549, 550; Taylor v. Sterrett, N.D.Tex.1972, 344 F.Supp. 411, 422, aff‘d, 5 Cir. 1974, 499 F.2d 367, 368; Brenneman v. Madigan, N.D.Cal.1972, 343 F.Supp. 128, 140; Conklin v. Hancock, D.N.H.1971, 334 F.Supp. 1119, 1122;
2. The Convicted Criminals.
We need not reach the question whether convicted criminals have a constitutional right to outdoor exercise.12 When the totality of conditions in a penal institution violates the Constitution, the trial court‘s remedies are not limited to the redress of specific constitutional rights. See Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1309. In Newman v. State of Alabama, 5 Cir. 1977, 559 F.2d 283, at 288, this Court found that “[s]ome of the steps [ordered by District Judge Frank M. Johnson], if considered in isolation, may have gone beyond constitutional mandates but they were justifiably invoked for the eradication of Eighth Amendment conditions.” In Newman, the district court found that conditions in the Alabama Prison System were “barbaric and inhumane“. 406 F.Supp. at 331. It ordered sweeping relief that included the following paragraph about recreation:
Each institution shall employ a qualified full-time recreation director with at least bachelor‘s level training, or its equivalent, in recreation or physical education. Adequate equipment and facilities shall be provided to offer recreational opportunities to every inmate. Space shall be available for inmates to engage in hobbies. Suitable vocational programs shall be provided. 406 F.Supp. at 335.
On appeal, although we did not approve all the trial court‘s remedies, we affirm[ed] the actions of the District Court designed to provide Alabama prison inmates with reasonable recreational facilities. We [did] this simply because
such facilities may play an important role in extirpating the effects of the conditions which undisputedly prevailed in these prisons at the time the District Court entered its order. 559 F.2d at 291.
Conditions in the Duval County Jail were similar to those in the Alabama prisons. In Alabama, “most inmates [had to] spend substantially all of their time crowded in dormitories in absolute idleness“. 406 F.Supp. at 326. In the Duval County Jail, as we have noted, over 90 percent of the inmates never left their cellblocks. Moreover, the trial court found from the evidence “that there is an extreme need for recreational facilities in the Duval County Jail“. 401 F.Supp. at 881. Given the totality of the circumstances at the Duval County Jail, we find that the district court did not abuse its discretion in ordering the jail authorities to work toward a program of daily outdoor recreation.
C. Restriction on Jail Population.
The defendants contend that the trial court erred in restricting the normal daily population13 of the Duval County Jail to 410 inmates, when the jail was originally designed to hold 432 inmates in the general population. The district court found, however, that overcrowding at the jail caused constitutional deprivations and that, whatever its original design, the jail provided adequate space for only 410 inmates. 401 F.Supp. at 899. We see no abuse of discretion in this part of the trial court‘s order.
The district court based its order to limit the population to 410 on the testimony of two experts on prison correction.14 Profes-
The defendants also argue that the trial judge should have included the jail‘s twenty one-person isolation cells in his determination of the design capacity of the jail and should have found that the jail had originally been designed to hold 452 inmates rather than 432.19 This argument too must fail. One part of the district court‘s order that was never appealed specifies that these isolation cells may be used only for disciplinary or medical reasons or upon the written request of an inmate. 392 F.Supp. at 523. We see no error in the trial judge‘s not considering cells that may be used only in extraordinary circumstances.20
D. Appointment of an Ombudsman.
The trial court ordered “the establishment of a permanent ombudsman to act as a middleman between the inmates and the correctional staff“. 401 F.Supp. at 898. (Emphasis in original.) He had the good judgment to appoint a Magistrate as ombudsman.
We cannot uphold the permanency of the ombudsman, but we find no fault with the trial court‘s exercise of its discretion in ordering this relief until it relinquishes jurisdiction over this matter.21
The appointment of an ombudsman is the kind of procedural innovation we sought to
We, too, are aware of the burdens imposed upon the federal judicial system by the increasing volume of prisoner litigation . . . . The federal courts, and particularly the district courts, must make every effort to devise procedural innovations that will readily separate meritorious claims from frivolous claims and that will encourage informal settlements of grievances while at the same time preserving the plaintiffs’ rights under
42 U.S.C. § 1983 . 517 F.2d at 298.
The ombudsman, like the monitor ordered by this Court in Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, should observe conditions at the jail and report his observations to the trial court, to assure compliance with the trial court‘s orders. To that end, he may report inmate complaints to the jail administration,22 for such reports may lead to the solution of some problems without involving a litigation. Cf. Newman v. State of Alabama, 559 F.2d at 289 (informal conferences between monitor and warden may lessen burden on trial court). The ombudsman may also, as the trial court suggested, serve as a channel of communication from the jail administrators to the inmates, if the officials see fit to use him in that way. The ombudsman, however, like the monitor, should have “no authority to intervene in daily prison operations“. Id. He is to be an arm of the court rather than an independent agent. See Newman for a discussion of the duties and powers of an ombudsman/monitor.
The trial court erred in ordering that the ombudsman have permanent office. Court-ordered permanency is an intrusion into state administration of prisons beyond the necessities of the case. We find only one
other disputed23 case in which a court ordered the use of an ombudsman or monitor without limiting the period such a person should serve. Hamilton v. Landrieu, E.D.La.1972, 351 F.Supp. 549, 552, ordered the employment of a “Prison Ombudsman” to investigate complaints and seek relief from the prison‘s administrators. That case was never appealed. Other cases more appropriately tie the duration of the official position created to the duration of the litigation spawning it.24 In Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1321, the trial court appointed a monitor to determine the degree of compliance with its order. In Morgan v. McDonough, 1 Cir. 1976, 540 F.2d 527, 533, the court appointed a temporary receiver for troubled South Boston High School. Inmates of Attica Correctional Facility v. Rockefeller, 2 Cir. 1971, 453 F.2d 12, authorized the appointment of federal monitors to implement an injunction against brutality; the “injunction [could] be vacated upon a showing that it [was] no longer required for the protection of the inmates“. In Pugh v. Locke, M.D.Ala.1976, 406 F.Supp. 318, 331, modified sub nom Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, the district court had appointed a thirty-nine-man Human Rights Committee for the Alabama Prison System to monitor compliance with the court‘s orders; on appeal this Court ordered the dissolution of the committee and the appointment of a monitor. In Morales v. Turman, E.D.Tex. 1973, 364 F.Supp. 166, 179 and E.D.Tex. 1974, 383 F.Supp. 53, 120-21, an ombudsman was appointed to report to the court on various matters, including possible violations of the court‘s orders. In Alberti v. Sheriff of Harris County, S.D.Tex.1975, 406 F.Supp. 649, 678, the court held that “There shall be an Office of the Ombudsman established to monitor defendants’ efforts in complying with [its] Order.”
IV.
On June 12, 1975, the trial court awarded William J. Sheppard of Jacksonville, Florida, the plaintiffs’ attorney, $45,792 in fees for his work in this litigation up to April 30, 1975. The joint and several award is to be “satisfied out of funds allocated to operate the Office of Sheriff of Duval County Florida“, or to be recovered from the defendants in their official capacities, or against Sheriff Carson in his individual capacity. 401 F.Supp. at 861-62. The defendants challenge this award in two ways: they contend that it was unauthorized by law, and that even if it was legal, it was excessive. We find that the award was proper in both respects.
A. The Civil Rights Attorney‘s Fees Awards Act of 1976
We base our holding that the award was authorized on the Civil Rights Attorney‘s Fees Awards Act of 1976,26
1. Retroactivity of the Act
The defendants-appellants argue that this case does not fit the statute for several reasons. They contend first that the statute should not be applied retroactively. After oral argument in this case, however, this Court resolved that issue in Rainey v. Jackson State College, 5 Cir. 1977, 551 F.2d 672, 674, n.2. We held that the Act “is retroactive and applies to cases pending at the time of its enactment [October 19, 1976]“.27 Since this action was pending on October 19, 1976, the Act applies to it.
2. Liability of defendants for attorney‘s fees
The defendants also allege that the trial court had no legal authority to assess attorney‘s fees against them in their official capacities or against the funds allocated to the Sheriff‘s Office, because “such an award would expend itself on the public treasury of Jacksonville, Florida“. Brief for Defendants-Appellants at 46. We find that the award could properly run against the public treasury of Jacksonville.
First, the legislative history shows that Congress meant to allow awards against governmental units even when the units are
In several hearings held over a period of years, the Committee has found that fee awards are essential if the Federal statutes to which S. 2278 applies are to be fully enforced. We find that the effects of such fee awards are ancillary and incident to securing compliance with these laws, and that fee awards are an integral part of the remedies necessary to obtain such compliance. Fee awards are therefore provided in cases covered by S. 2278 in accordance with Congress’ powers under, inter alia, the Fourteenth Amendment, Section 5. As with cases brought under
20 U.S.C. § 1617 , the Emergency School Aid Act of 1972, defendants in these cases are often State or local bodies or State or local officials. In such cases it is intended that the attorneys’ fees, like other item of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party). (Footnotes omitted) (emphasis added). S.Rep.No.1101, 94th Cong., 2nd Sess. 5 (1976) U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913.
After this report was issued, the Senate twice tabled attempts to exempt state and local governments from the operation of the Act by votes of 59-28 and 52-20. 122 Cong.Rec. S16,432, 16,434 (daily ed. Sept. 22, 1976); id, S16,567 (daily ed. Sept. 24, 1976); id, S16,656, 16,657 (daily ed. Sept. 27, 1976).
The Report of the House of Representatives Committee on the Judiciary on the Act, then House Bill 15460, shows a similar intention to allow the assessment of fees against public treasuries:
With respect to the awarding of fees to prevailing defendants, it should further be noted that governmental officials are frequently the defendants in cases brought under the statutes covered by H.R. 15460. See, e. g., Brown v. Board of Education, [1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873]; Gautreaux v. Hills, [1976, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792]; O‘Connor v. Donaldson, [1975, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396]. Such governmental entities and officials have substantial resources available to them through funds in the common treasury, including the taxes paid by the plaintiffs themselves. Applying the same standard of recovery to such defendants would further widen the gap between citizens and government officials and would exacerbate the inequality of litigating strength. The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities. H.R.Rep.No.1558, 94th Cong., 2nd Sess. 7 (1976) (footnote omitted).
Second, the defendants argue that Muzquiz v. City of San Antonio, 5 Cir. 1976 (en banc), 528 F.2d 499, prevents an award of attorney‘s fees against a governmental unit because a governmental unit cannot be sued for money damages under
Third, this Court has already held that a court may assess attorney‘s fees under the Act against a state governmental unit, because of the Supreme Court‘s holding in Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614, that Congress may authorize awards of damages and fees against a state under section 5 of the fourteenth amendment in spite of the eleventh amendment. Rainey v. Jackson State Col-
Fourth, the defendants contend that the plaintiffs’ attorney may not receive an award because he is court appointed. Pre-Act cases denied attorney‘s fees to court-appointed counsel. Dragon v. United States, 5 Cir. 1969, 414 F.2d 228 (per curiam); Gardner v. Joyce, 5 Cir. 1973, 482 F.2d 283 (per curiam). Those cases, however, were based on lack of judicial authority to order attorney‘s fees. Now that the Act gives trial courts discretion to award attorney‘s fees we see no reason to discriminate against court-appointed lawyers. Cf. Armstrong v. O‘Connell, E.D.Wis.1976, 416 F.Supp. 1325, 1342-43 (allowing attorney‘s fees to appointed counsel under
B. The Amount of the Fee
We find that the trial court did not abuse its discretion in setting the attorney‘s fee at $60 an hour for in-court time and $40 an hour for out-of-court time for Sheppard, with $30 an hour for less experienced lawyers working with him. The district court properly based its award on an examination of the factors listed in Johnson v. Georgia Highway Express, Inc., 5 Cir. 1974, 488 F.2d 714. 401 F.Supp. at 857-60. We find no error in its award of fees. Cf. Brown v. Culpepper, 5 Cir., 1977, 561 F.2d 1177 (hourly fees of $75 and $65 for two attorneys).
The judgment is affirmed in part, modified in part, and remanded for proceedings consistent with this opinion and for such further action as the district court, pending the termination of this litigation, may take for the vindication of the plaintiffs’ rights under Section 1983 and the Constitution of the United States.
COLEMAN, Circuit Judge, concurring:
I concur in the foregoing opinion prepared for the Court by Judge Wisdom, except that I would defer decision of the attorneys’ fees issue until the Supreme Court decides Hutto v. Finney, on which certiorari has been granted [46 L.W. 3256].