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June 18, 1979

Milton SHAPP et al.

The opinion of the court was delivered by: LORD, III


On November 4, 1970 this § 1983 action was commenced by twenty-one plaintiffs confined by the Commonwealth of Pennsylvania in six correctional institutions. The complaint alleged that certain of defendants' practices, regulations and omissions violated plaintiffs' constitutional rights. On October 20, 1972 I certified a class consisting of the named plaintiffs and "all other persons who are now or will be incarcerated in the Pennsylvania State Correctional Institutions . . .."

 Settlement negotiations were begun after definition of the class. Nearly four years later these talks culminated in the proposal of a consent decree, ultimately approved on May 22, 1978. Implementation and interpretation of that decree is a continuing task.

 During the long negotiations, three of the issues raised by plaintiffs were litigated. These were: (1) the availability of adequate law libraries; (2) the lawfulness of conditions of solitary confinement at four institutions; and (3) conjugal visits. The law library issue was resolved by stipulation in late 1977. In May of 1978 I enjoined on Eighth Amendment grounds continued use of three isolation cells at the correctional institution at Huntingdon and upheld against constitutional attack the Commonwealth's prohibition of conjugal visits. Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893 (E.D.Pa.1978). After extensive rehabilitation of the solitary confinement units, I dissolved my injunction against use of the cells on November 20, 1978. Imprisoned Citizens Union v. Shapp, 461 F. Supp. 522 (E.D.Pa.1978).


 The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, pertinently states:

"In any action . . . to enforce a provision of section . . . 1983 . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

 There is no Eleventh Amendment bar to applying the statute to litigation, such as this, in which the fee award, if any, will be paid with state funds. Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). Thus, if plaintiffs here were prevailing parties, Mr. Levine may, in my discretion, recover counsel fees nominally from defendants, although actually from the Commonwealth.

 Defendants do not dispute that plaintiff class was the "prevailing party" as to those issues for which compensation is now sought. On balance, the terms of the consent decree establish that plaintiffs prevailed on those questions resolved by the settlement. Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979). Likewise, plaintiffs prevailed in the December 20, 1977 stipulation ending the law library litigation. And the injunction issued against the Huntingdon cells of course made plaintiff class the prevailing party in that pocket of this suit. Mr. Levine, then, is statutorily eligible for a "reasonable attorney's fee as part of the costs" of this action.

 Section 1988 leaves to the discretion of the district court the decision whether counsel to the prevailing party should be awarded attorney's fees. The statute's animating presumption is that successful counsel should "ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Senate Report No. 94-1011, 94th Cong. 2nd Sess., p. 4, U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912. Defendants suggest no special circumstances that would rebut the presumption of an award and I can conceive of none. Accordingly, recovery of counsel fees will be allowed.

 The next step is to determine the "reasonable" attorney's fee to be awarded. The Third Circuit, in a series of thoughtful opinions, has pioneered a formula for computing an appropriate award. Lindy Brothers Builders of Philadelphia v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II ); Lindy Brothers Builders of Philadelphia v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ); Merola v. Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975); Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978). Concisely stated, the Lindy calculus requires first, determination of the number of hours reasonably spent on successful matters and second, determination of a reasonable hourly rate for counsel's time. Next, the hour and rate figures are multiplied to produce the much-ballyhooed "lodestar" amount. Finally, the lodestar number is adjusted, in the discretion of the court, to account for various factors, including especially the quality of counsel's work and the contingent nature of the case.

 Application of this several-fold operation is not automatic. Judgment necessarily intrudes at each seemingly-mechanical step. Further, each determination must be critically made and discussed. An unanalyzed calculation of the lodestar is unacceptable, Hughes v. Repko, 578 F.2d at 487, and any adjustment of that amount also must be explained to the extent possible given the fundamentally Ad hoc nature of such decisions. With this imperative of careful analysis in mind, I must now apply the Lindy Brothers family of cases to Mr. Levine's petition.

 Mr. Levine has moved for summary judgment on his motion for counsel fees. Defendants, citing a section of Lindy I, Lindy Brothers Builders of Philadelphia v. American Radiator and Standard Sanitary Corp., 487 F.2d at 169, insist that summary judgment is a forbidden procedure in a fee petition case. An evidentiary hearing, they argue, is a categorical prerequisite to a § 1988 award. Because only oral argument not an evidentiary hearing has been held here, defendants say the case is not ripe for decision. I do not agree that attorney's fee issues are beyond the scope of F.R.Civ.P. 56.

 Lindy I Does not mandate an evidentiary hearing in all cases. The Lindy language in which defendants divine an exemption from Rule 56 is the following passage:

"Opposing interests should be afforded a hearing to provide an evidentiary basis for resolution of Disputed factual matters . . ." 487 F.2d at 169 (emphasis supplied).

 The import of this statement could not be more plain. An evidentiary hearing is required when material facts are disputed. Necessarily, by implication, an evidentiary hearing is not required when the material facts are not in dispute. This of course is unassailable; the purpose of an evidentiary hearing being to find facts, none is needed when no facts are disputed. Neither Lindy nor logic precludes summary disposition of an attorney's fee petition where the facts to which the judge must apply his expertise and experience are uncontested.

 Further, I find nothing peculiar in the nature of a fee petition that precludes use of a summary procedure. As defendants themselves have stated, "(a) motion for attorneys' fees (is) like any other claim for a money judgment . . .." Defendants' Memo in Opposition to Plaintiffs' Former Counsel's Motion for an Award of Attorneys' Fees and Costs at 2. Claims for a money judgment are daily subjected to summary disposition and there is no reason why an attorney's fee petition, a species of the money judgment genus, should always be immune from that fate.

 Lastly, "Rule 56 makes the (summary) procedure available in All actions subject to the Rules . . ." 6 Moore's Federal Practice P 56.02(1) at 56-25 (2nd ed.). Certainly § 1988 suits are subject to the Federal Rules of Civil Procedure. Therefore, the terms of Rule 56 apply and the petition may be treated summarily if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." As concluded in II above, Mr. Levine is entitled to some recovery. I must thus determine here whether a genuine issue is raised as to any of the facts material to the Lindy analysis. If none is presented, then the suit is ripe for judgment.


 The first determination required by the Lindy analysis is the number of hours reasonably spent on successful issues. In his affidavit, Mr. Levine lists 43 items of time, totalling 229.75 hours, spent negotiating the consent decree and litigating the law library and solitary confinement questions. Defendants do not contest this accounting of hours. Defendants' Hearing Memorandum in Opposition to Plaintiffs' Former Counsel's Petition for Attorneys' Fees at 1. There is, then, no genuine issue of fact as to the number of hours reasonably supportive of those efforts for which Mr. Levine is entitled to compensation. Rule 56 permits disposition of this question without an evidentiary hearing.

 However, deciding that further evidence is unnecessary to determine the number of hours does not end the matter. Defendants' acceptance of Mr. Levine's requested time means only that there is no dispute as to "the facts to be weighed in light of the judge's expertise," Lindy Brothers Builders of Philadelphia v. American Radiator and Standard Sanitary Corp., 487 F.2d at 169, not that I may accept petitioner's hours without independent scrutiny for reasonableness. Chief Judge Seitz has recently written that "Lindy II and Merola II require the district court to determine . . . whether it was reasonably necessary to spend that ...

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