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JACKSON EX REL. JACKSON v. PHILADELPHIA HOUS. AUTH

July 18, 1994

SHERRY JACKSON, On Behalf Of PRISCILLA JACKSON
v.
PHILADELPHIA HOUSING AUTHORITY, et al.



The opinion of the court was delivered by: THOMAS J. RUETER

 THOMAS J. RUETER

 U. S. Magistrate Judge

 In 1850, lawyer Abraham Lincoln urged his fellow attorneys to attempt to settle disputes without resorting to litigation. Mr. Lincoln expressed this common-sense advice with his usual eloquent prose:

 
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser--in fees, expenses, and waste of time. As a peace-maker, the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation.

 Notes for Law Lecture, July 1, 1850, in 1 Complete Works of Abraham Lincoln, 142 (J. Nicolay and J. Hay, ed.). The issue before the Court tests the principles expressed by our sixteenth President: Should the Court award fees to an attorney who made no attempt to resolve an ordinary landlord-tenant dispute prior to filing a federal civil rights complaint against a public housing authority?

 I. PROCEDURAL HISTORY

 The plaintiff, Sherry Jackson, represented by the Community Legal Services, Inc. ("CLS"), a non-profit legal services organization, filed this action on November 29, 1993, alleging that her landlord, the Philadelphia Housing Authority ("PHA"), violated the civil rights of her mother, Priscilla, by failing: (1) to make repairs to her apartment; (2) to calculate correctly her rent; (3) to pay the correct utility allowance; and (4) to make necessary alterations to accommodate her mother's physical disabilities. *fn1" The case, filed pursuant to 42 U.S.C. § 1983, and the United States Housing Act, 42 U.S.C. § 1437, was assigned to the Honorable John R. Padova.

 On January 10, 1994, approximately forty days after the commencement of the case, the parties entered into a stipulation settling the case. The plaintiff later moved to enforce the settlement alleging that the PHA was not complying with the settlement agreement. On April 26, 1994, the parties executed a final settlement stipulation and the case was closed, except for the issue of plaintiff's attorney fees. During the course of the case, the parties conducted little discovery. The docket entries only show that the plaintiff served a set of interrogatories and a request for documents.

 CLS has filed a petition, pursuant to 42 U.S.C. § 1988, for an award of attorney fees in the amount of $ 5,103.00. The PHA opposes the award of any fees to the CLS, on the grounds that CLS should have attempted to resolve this "routine" tenant complaint without resorting to a federal lawsuit. Specifically, the PHA argues that before filing this action, CLS should have made an informal complaint to PHA or filed a formal grievance pursuant to a procedure established by PHA with the concurrence of CLS. PHA represents that it would have satisfied plaintiff's demands without the lawsuit -- all she had to do was make a request through the proper channels.

 Upon consent of both parties, the issue of the attorney fees was referred to me by Judge Padova for disposition pursuant to 28 U.S.C. § 636(c)(3). On June 13, 1994, I held an evidentiary hearing on the application for attorney fees. CLS later filed a Supplemental Fee Petition requesting an additional $ 4,791.00 in fees for time spent on the hearing.

 The evidence presented at the hearing and the arguments of counsel focused on two issues. First, whether the CLS, as attorneys paid with public funds, must exhaust available state remedies, or otherwise informally attempt to resolve their client's claims, prior to filing a federal lawsuit. Second, whether the request of CLS for fees should be denied or reduced for failure to make these pre-litigation efforts.

 II. FACTUAL BACKGROUND

 Priscilla Jackson is a PHA tenant, who resided with her mother, Mae Bell Thomas, in a rental unit at 2112 N. 16th Street, Apartment A, Philadelphia, Pennsylvania. Mae Bell Thomas was the "head of household" *fn2" until May 6, 1993, the date on which she died. Priscilla Jackson is a disabled person and is wheelchair bound. (Stipulation, dated 6/8/94, P 3, N.T. 6/13/94, 78). In April 1993, Sherry Jackson, Priscilla's daughter, moved into 2112 N. 16th Street, Apartment A, along with her two children. (N.T. 6/13/94, 88). She moved into the apartment to care for her ailing grandmother and handicapped mother. (N.T. 6/13/94, 90).

 Sherry Jackson did not inform management of PHA that she was moving into her grandmother's apartment because she "didn't really plan on staying there." (N.T. 6/13/94, 89). After her grandmother died, Sherry Jackson requested to be made "head of household" for the 2112 N. 16th Street apartment, because her mother, Priscilla, was not competent to handle her own affairs. (N.T. 6/13/94, 94-96, 99). Specifically, in May 1993, she met with the PHA assistant manager responsible for her grandmother's apartment and spoke to him about becoming head of household. She testified that at the time, she filled out some papers to accomplish this goal. (N.T. 6/13/94, 98). Ms. Jackson also testified that she told the PHA manager about the many defective conditions in the apartment that needed repair (N.T. 6/13/94, 102); but the manager told her she "had no reason to complain" because she had "no right to be there," since she was not listed on the PHA lease. (N.T. 6/13/94, 103-04). Ms. Jackson also testified that she "called" PHA and told them about the poor condition of the bathroom and the ceiling and floors of the apartment, but her testimony was vague about whom she spoke to and when the call was made. (N.T. 6/13/94, 102, 108-09).

 Ms. Jackson stated that shortly after meeting with the assistant manager at PHA, she contacted the Community Legal Services. (N.T. 6/13/94, 107). The time sheets submitted by CLS to support their fee application show that the first conference with the client occurred on November 23, 1993, when she met with Michael Donahue, Esquire, a supervising attorney at CLS who works in a two-lawyer unit in the CLS which specializes on issues concerning public housing in the City of Philadelphia.

 Mr. Donahue testified that approximately 80% of his caseload is representing individual tenants who are experiencing problems with the PHA. He testified that he personally files approximately one civil rights case a week in this Court against the PHA, for a total of about fifty (50) cases a year. (N.T. 6/13/94, 113, 188). *fn3" Mr. Donahue testified that he counseled Sherry Jackson to file "immediately" a civil rights action in federal court because he "thought there was irreparable harm going on" in that Priscilla Jackson needed assistance because of her handicap status and that there was "a threat from PHA management that, in fact, Sherry Jackson might be evicted as a squatter." In addition, Mr. Donahue stated that, in his experience, the PHA grievance process was futile, slow, "and so rarely complied with," and, as a result, he recommended that his client "go directly to court." (N.T. 6/13/94, 116).

 III. DISCUSSION

 A. Standard for Award of Attorney Fees

 The Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988, provides that "in any action or proceeding to enforce [ 42 U.S.C. § 1983] the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." A party represented by a nonprofit legal services organization may recover attorney's fees under section 1988. Blum v. Stenson, 465 U.S. 886, 895, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984).

 The party requesting attorney fees has the burden of demonstrating that her request is reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). To satisfy this burden, the fee petitioner must "submit evidence supporting the hours worked and rates claimed." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The party challenging the fee petition must make specific objections that are sufficient to give fee applicants notice of the objections to the requested fee. Rode v. Dellarciprete, supra at 1183. "Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections." Id.

 An attorney fee award is calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hughes v. Repko, 578 F.2d 483, 485 (3d Cir. 1978). The reasonable hourly rate multiplied by the reasonable hours is known as the lodestar. Generally, the lodestar is presumed to be the reasonable fee. However, the court "has the discretion to make certain adjustments to the lodestar." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Specifically, the lodestar may be adjusted downward if awarding the lodestar amount would be unreasonable. Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

 B. General Objections to the Fee Petition

 PHA has made three general objections to the award of attorney fees to the plaintiff: (1) plaintiff is not a prevailing party; (2) she did not exhaust available administrative remedies; and (3) given the special circumstances of this case, an award of attorney fees would be unjust. PHA also made specific objections to certain hours for which PHA seeks compensation. I will address the general objections now and later discuss the specific objections when making the lodestar analysis.

 1. Prevailing Party

 A prerequisite to an award of attorney's fees under 42 U.S.C. § 1988 is that the party must have been "prevailing." Baumgartner v. Harrisburg Housing Auth., 21 F.3d 541, 544 (3d Cir. 1994). To qualify as a prevailing party, a civil rights plaintiff must succeed on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). This success may be obtained through a consent decree or settlement. Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); Baumgartner v. Harrisburg Housing Auth., supra at 544. In short, a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Texas Teachers Assn. v. Garland School Dist., 489 U.S. 782, 792, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989).

 Here, the final settlement stipulation entered between the parties achieved virtually all of the benefit the plaintiff sought in her complaint. She was able to cause PHA to agree to calculate correctly plaintiff's monthly rent and utility allowance; make all necessary repairs to the unit; and to have Priscilla Jackson named the "head of the household." However, PHA claims that plaintiff did not gain anything from the suit that she could not have obtained without litigation and, therefore, she did not "prevail" within the meaning of 42 U.S.C. § 1988. See e.g., Coen v. Harrison County School Bd., 638 F.2d 24, 26 (5th Cir. 1981), cert. denied. 455 U.S. 938, 71 L. Ed. 2d 647, 102 S. Ct. 1427 (1982) (holding plaintiff not "prevailing party" because lawsuit was not necessary to relief). PHA claims it would have given plaintiff all the relief sought if only she made a formal request for the relief prior to the lawsuit. However, in this Circuit, the ...


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