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OWENS-EL v. ROBINSON

October 16, 1980

Kenneth OWENS-EL and Inmates and Future Residents of Allegheny County Jail, Plaintiffs,
v.
William ROBINSON and James Jennings, Defendants



The opinion of the court was delivered by: COHILL

MEMORANDUM OPINION

We have before us a petition for an award of attorney's fees filed by Kenneth Owens-El under the Civil Rights Act, 42 U.S.C. § 1988 (1976), and a motion for a hearing with respect to certain alleged conditions at the Allegheny County Jail.

 I.

 Attorney's Fees

 The history giving rise to this motion is reflected in large measure, if not completely, in two opinions of this Court and one of the Third Circuit Court of Appeals: 442 F. Supp. 1368 (W.D.Pa.1978); 457 F. Supp. 984 (W.D.Pa.1978); 612 F.2d 754 (3d Cir. 1979). Petitioner Kenneth Owens-El is a former inmate of the Allegheny County Jail, Pittsburgh, Pennsylvania. In 1975, he filed a pro se suit challenging the constitutionality of the conditions under which the inmates of the jail were confined and seeking money damages and equitable relief.

 In 1976, Neighborhood Legal Services ("NLS") filed a class action suit in behalf of all jail inmates-past, present, and future-petitioning for a declaratory judgment holding that the confinement conditions at the jail violate the constitutional rights of the inmates. These two cases were consolidated for trial and certified as a class action. We permitted Calvin Milligan, a member of the class, and plaintiff, Kenneth Owens-El, to act as their own legal counsel in cooperation with the NLS attorneys.

 The plaintiffs filed their suit under 42 U.S.C.A. § 1983 (West Pamphlet 1980) (the Civil Rights Act of 1871), contending that the conditions within the Allegheny County Jail ("jail") constituted cruel and unusual punishment proscribed by the Eighth Amendment of the United States Constitution, violated their rights to due process and equal protection under the Fourteenth Amendment of the Constitution, and violated various rights under the First, Fourth, and Sixth Amendments of the Constitution. A six week non-jury trial began in this Court on August 15, 1977. The subsequent Opinion, Findings of Fact and Conclusions of Law, issued January 4, 1978, were reported under the designation Owens-El v. Robinson, 442 F. Supp. 1368 (W.D.Pa.1978). We found that in many areas the inmates had been deprived of their constitutional rights; our Order required changes in the conditions of the jail and provided for the appointment of an expert to serve as a court advisor for and monitor of the implementation of the order. We entered judgment in favor of the defendants on plaintiffs' claim for money damages, but we held that the defendants were to pay all costs. On August 17 and 18, 1978, a final hearing was held, at which the court advisor testified as the court's witness and was cross-examined by all counsel and the pro se plaintiff, Kenneth Owens-El. Our final opinion and order of October 11, 1978 incorporated the findings of the first opinion and amended the prior order. Owens-El v. Robinson, 457 F. Supp. 984 (W.D.Pa.1978). An appeal by the inmates of the Allegheny County Jail followed, seeking review of this Court's holding that three of the challenged conditions did not violate the constitutional rights of the inmates. The Third Circuit affirmed on two issues and remanded the question of the jail's handling of prisoners who have mental health problems. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979).

 Kenneth Owens-El participated in the original action filed against the jail as a pro se litigant-inmate. His petition for an award of attorney's fees as the prevailing party in a civil rights action is based on 42 U.S.C. § 1988 (1976). That statute provides:

 The issue for consideration in the present case is whether a pro se plaintiff in a civil rights action is entitled to an award of attorney's fees when he has been successful on significant issues. This issue was addressed by the United States Court of Appeals for the Eighth Circuit in the case of Davis v. Parratt, 608 F.2d 717 (8th Cir. 1979). The court of appeals affirmed a Nebraska district court order denying the pro se inmate attorney's fees under 42 U.S.C. § 1988 (1976). The facts in that case resemble those in the present case. In September, 1976, Cliff Davis filed a pro se complaint in forma pauperis under 42 U.S.C.A. § 1983 (West Pamphlet 1980) against several officers of the Nebraska Penal and Correctional Complex. His case was consolidated for trial with similar suits under section 1983 brought by other inmates who had received appointed counsel. The plaintiffs' complaint was that the inmate legal library was inadequate and that the plaintiffs had been denied reasonable access to that library. The district court found for the plaintiffs and entered orders requiring the defendants to take certain steps to improve the library. The court retained jurisdiction to ensure compliance. Davis argued that as a trained para-legal, he was entitled to attorney's fees under 42 U.S.C. § 1988 (1976) in the amount of $ 25.00 per hour for his work in preparing his case.

 The district court denied Davis' petition for attorney's fees, but awarded him $ 351.65 as costs. The court of appeals affirmed per curiam, holding that

 
(t)he legislative history of Section 1988 reveals that its purpose is not to compensate pro se litigants, but to provide counsel fees to prevailing parties in order to give private citizens a meaningful opportunity to vindicate their rights:
 
In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, ... (they) must have the opportunity to recover what it costs them to vindicate these rights in court.
 
S.Rep.No.94-1011, 94th Cong., 2d Sess. 2, reprinted in (1976) U.S. Code Cong. and Ad. News, pp. 5908, 5910.... This section presupposes a relationship of attorney and client that is lacking in the instant case. The district ...

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