Opinion
No. 92 C 5722.
October 5, 2000.
MEMORANDUM OPINION AND ORDER
In August 1992, plaintiffs filed suit against defendants pursuant to 42 U.S.C. § 1983, claiming that the State of Illinois' operation of nine institutions for the mentally ill violated their constitutional rights. Specifically, plaintiffs alleged that each of the institutions "houses patients in a dangerous, violent and filthy environment and denies them adequate care and treatment as a result of a systemwide failure to provide adequate management of the mental health system, adequate resources, and adequate numbers of trained and qualified staff for its operation." (Compl. ¶ 10.) The parties settled the suit in June 1997. Plaintiffs have now filed a petition pursuant to 42 U.S.C. § ("section") 1988 to recover the nearly $3 million in attorneys fees and expenses they expended in pursuing this litigation. For the reasons set forth below, we find that plaintiffs are prevailing parties who are entitled to recover a reasonable attorney's fee, which includes disbursement-type expenses, under section 1988, and costs under Federal Rule of Civil Procedure 54(d). Given the degree of success they achieved in this suit, the Court finds it appropriate to reduce their fees by 30%. Unfortunately, the Court cannot quantify the fee award or the taxable costs because we cannot determine from plaintiffs' submission whether their disbursement-type expenses and costs are reasonable. Thus, after plaintiffs submit supplemental information on the reasonableness issue, the Court will finalize the award of fees and costs, and take up the issue of fees for fees.
Discussion
In civil rights cases, "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." 42 U.S.C. § 1988. Before they can recover attorney's fees under section 1988, plaintiffs must first "cross the `statutory threshold' of prevailing party status." Texas State Teachers Ass'n v. Garland hide. Sch. Dist., 489 U.S. 782, 789 (1989). A party prevails if he "succeed[s] on any significant issue in litigation which achieves some of the benefit [he] sought in bringing the suit,"Id. (internal quotation marks and citation omitted). A plaintiff can prevail even if the defendant provides relief voluntarily, as long as the lawsuit is "causally linked to the achievement of the relief obtained" and the defendants did not act "wholly gratuitously, i.e., the plaintiff[s'] claim[s], if pressed, cannot have been frivolous, unreasonable or groundless." Zinn v. Blankenship, 35 F.3d 273, 274 (7th Cir. 1994) (internal quotation marks and citation omitted). "The lawsuit is causally linked to the relief obtained if it played a provocative role" or was a "material factor in obtaining concessions from the opponent."Nanetti v. University of Ill. at Chicago, 867 F.2d 990, 993 (7th Cir. 1989) (internal quotation marks and citations omitted). Though the parties entered into a settlement, plaintiffs say that they obtained most of the relief they sought through defendants' voluntary remediation efforts. Because their suit was a catalyst for those changes, and they were not gratuitously made, plaintiffs contend that they are prevailing parties within the meaning of section 1988.
Defendants argue that the Supreme Court's decision inFarrar v. Hobby, 506 U.S. 103 (1992) calls the continued vitality of the catalyst doctrine into question. (See Defs.' Resp. Pls.' Pet. Att'y Fees, Costs Expenses at 8, n. 3.) Our court of appeals disagrees: "We agree that Farrar does not preclude the award of fees when plaintiffs attain the relief they seek through defendants' voluntary action. We simply find it implausible that the Supreme Court meant to abolish a rule employed by nearly every circuit and previously recognized by the Court itself as `settled law,' without expressly indicating that it was doing so." Zinn v. Blankenship, 35 F.3d 273, 276 (7th Cir. 1994).
Defendants, of course, disagree. To start, they contend that plaintiffs did not actually obtain any of the relief they sought because: (1) defendants did not make any systemic changes in response to this suit or as a result of the settlement; (2) plaintiffs' claims for community-based services were dismissed; and (3) plaintiffs are bound by their admissions in the third amended complaint, filed shortly before the settlement, that the system-wide deficiencies on which the suit was based continued unabated.
The last contention is easily dispatched. "[A] district court has the discretion to treat an allegation in a party's pleading as a judicial admission." Cooper v. Carl A. Nelson Co., 211 F.3d 1008, 1014 (7th Cir. 2000). We decline to treat the allegations in plaintiffs' third amended complaint as admissions that there were no improvements made to the Illinois mental health system between August 1992, when plaintiffs first filed suit, and April 1997, when they filed their third amended complaint, for two reasons. First, it appears that plaintiffs amended their complaint in 1997 solely to add two plaintiffs. Therefore, plaintiffs motion to amend the complaint was, in essence, a Federal Rule of Civil Procedure ("Rule") 21 motion to add parties, a procedure that does not give rise to admissions. Second, defendants' argument assumes that plaintiffs had the obligation to update their allegations as conditions changed, an obligation that the Rules do not impose on them, See FED. R. Civ. P. 15(b) (permitting plaintiffs to amend complaint after judgment to conform to evidence adduced at trial). Because plaintiffs did not attempt, and were not required, to update their substantive allegations when they filed their third amended complaint, it would be inappropriate to treat the factual allegations they made in it as judicial admissions.
We say "it appears" because the Court file does not contain either plaintiffs motion for leave to file the third amended complaint or Judge Alesia's order granting the motion. Absent those documents, and given our inability to discern any substantive differences between the second and third amended complaints, we accept plaintiffs' representation that they amended the complaint solely to add plaintiffs.
Defendants' second contention is no more persuasive. The dismissal of plaintiffs community-based services claim does not, in and of itself, defeat prevailing party status. That was only one of the claims that plaintiffs pressed in this suit. Plaintiffs do not have to succeed on every issue to attain prevailing party status. Texas State Teachers Ass'n, 489 U.S. at 789. As long as plaintiffs received some of the relief they sought, the issue we take up next, the dismissal of their community-based services claim will not bar them from attaining prevailing party status.
Defendants' last claim is that plaintiffs did not prevail because they obtained no systemic relief, In their original complaint, plaintiffs sought "to enjoin the continuation of conditions and practices in [the state mental health facilities] which violate the plaintiffs' [constitutional] rights to safety, freedom of movement, and adequate medical and psychiatric care and treatment." (Compl. ¶ 1.) Those alleged conditions and practices included the failure to provide: adequate management (id. ¶¶ 10, 27), sufficient resources (id. ¶¶ 10, 13, 27), and adequate numbers of trained and qualified staff (id. ¶¶ 10, 12, 14), which resulted in an unsafe and unsanitary environment for the patients (id. ¶¶ 15-19) and inadequate medical and psychiatric care, including inappropriate treatment, excessive use of restraints and poor discharge planning (id. ¶¶ 20-26). Plaintiffs also alleged that defendants failed to discharge patients to appropriate community programs (id. ¶ 23) and failed to deliver follow-up care to discharged patients (id. ¶ 24). Defendants contend that the lawsuit provoked specific changes in individual institutions, but did not result in sweeping reforms as plaintiffs assert.
The lack of systemic relief, defendants claim, is illustrated by the terms of the settlement agreement. There are two problems with this argument. First, the settlement agreement does, in fact, provide systemic relief, at least in the area of staff training. It requires the Department of Human Services ("DHS") to contract with the University of Illinois at Chicago Department of Psychiatry to design training programs for staff in the nine hospitals that were the subject of the lawsuit in various areas of patient care. (Defs.' Resp. Pls.' Pet. Att'y Fees, Costs Expenses, Ex. A, Settlement Agreement, Ex. B see Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. V, Ex. 98 at D632709 ("One result of [the KL] settlement was the development of the University of Illinois Mental Health Training Institute to assist DHS with the development of tools necessary to increase the competencies of identified state hospital staff.").) Second, even if the settlement provided no systemic relief, that fact alone would not bar plaintiffs from attaining prevailing party status. As noted above, plaintiffs could be prevailing parties, even if there had been no settlement and they voluntarily dismissed their suit, as long as the suit prompted the State to effect some of the changes they sought. Zinn, 35 F.3d at 274-76. If plaintiffs can demonstrate a causal link between such non-gratuitous changes and their lawsuit, the terms of the settlement agreement will not prevent them from attaining prevailing party status.
To determine whether defendants made any other systemic changes, and whether they did so because of this lawsuit, we must examine the record. In May 1992, three months before this suit was filed, Governor Jim Edgar "announced that he had asked the Department of Mental Health and Developmental Disabilities [("DMHDD"), the predecessor to DHS,] to submit a plan to reform the state's mental health service system" to emphasize community-based, rather than institution-based, services. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. V, Ex. 93, FY 94 Budget Briefing at D312871.) Over the next several years, the DMHDD took a number of steps, which are discussed in more detail below, to increase the funding for, and responsibility of, community-based mental health care providers. (Id. at D312874-75; id., Ex. 94, FY 95 Budget Briefing at D313183.)
At about the same time, the DMHDD started to respond to this suit. In January 1993, Jess McDonald, Director of the DMHDD, organized the KL management team work group. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. III, Ex. 47, 1/13/93 Mem. toK.L. v. Edgar Management Team Workgroup from Jardine.) Its stated purpose was "[i]n context of K.L., [to] discover weaknesses in management and develope [sic] analysis of systemic issues before Plaintiffs or the court do." (Id., Ex. 48, 1/21/93 Meeting Minutes at D632137.) The method the work group chose to identify and address the weaknesses was the Quality Assurance Initiative Project ("QAI Project") clinical reviews. (Id., Ex. 46, Goldman Dep. at 167-68 (describing QAI Project as an off-shoot of the K.L. Management team).)
This lawsuit, unquestionably, provoked the QAI Project clinical reviews. In the words of Director McDonald:
In 1993, in anticipation of further proceedings in the litigation known as K.L. v. Edgar, I consulted with members of DMHDD's legal services about how I might inform myself and legal counsel about the conditions in the mental health facilities. I also consulted with the head of DMHDD's clinical services, Ivan Pavkovic. Subsequently, I requested that DMHDD's clinical services, and DMHDD's legal services, coordinate on a special project to review clinical services in the mental health facilities. The purpose of the project was to assess the potential liability of DMHDD in the litigation.
(Id., Ex. 62, 2/23/96 McDonald Aff. ¶ 2; see id., Ex. 63, 2/23/96 Pavkovic Aff. ¶ 4 ("I personally talked with each of the proposed clinical reviewers and advised them that the purpose of their review was to evaluate clinical services in connection with theK.L. v. Edgar litigation.").)
Under the auspices of the QAI Project, DMHDD psychiatrists "visit[ed] and inspect[ed] mental health DMHDD-operated facilities for the purpose of reviewing clinical programming and identifying areas of major vulnerability." (Id., Vol. IV, Ex. 67, Quality Assurance Initiative Project at D598172.) The clinical reviewers compiled lists of deficiencies in each facility and a list of system-wide programming problems that they felt needed further investigation. Id. at D598195-205, 207 (Alton); D598225-230 (Chicago-Read); D598236-39 (Choate); D598251-57 (Elgin); D598291-99 (Madden); D598453-62 (McFarland); D598485-02 (Singer); D598607 (Tinley Park); D598628-35 (Zeller); D598777 (system-wide programming).) In response to the clinical reviews, each facility developed a plan of correction to address the vulnerabilities noted. (Id., at D598208-09 (Alton); D598231-34 (Chicago-Read); D598241-49 (Choate); D598258-75 (Elgin); D598357-451 (Madden); D598463-67 (McFarland); D598502-602 (Singer); D598604-26 (Tinley Park); D598636-48 (Zeller); D598778-809 (system-wide programming).) At the same time, the DMHDD set up taskforces to address system-wide problems in: (1) the use of restraint and seclusion; (2) staff/patient interaction; (3) quality assurance; (4) sanitation and environment; (5) physician recruitment and leadership; (6) physician staffing; (7) clinical records; (8) computerization of clinical records; and (9) pharmacy. (Id. at D598650.)
By August 1993, DMHDD prepared draft work plans "in response to the statewide vulnerabilities identified during the clinical review process," including restraint/seclusion, staff/patient interaction, pharmacy, physician staffing, clinical records, sanitation, life safety/physical plant, attractive/therapeutic environment, recruitment of physicians, central guidance for physicians, and computerization of clinical records. (Id., Vol. III, Ex. 74, 8/19/93 Mem. to McDonald from Jardine Grzonka at D629564.)
Dr. Nada Stotland was responsible for the work plan on physician recruitment. (Id.) Pursuant to that plan: (1) a survey was conducted of the training and education of the staff who operated as psychiatrists and physicians at each state-operated facility; (2) the definition of psychiatrist was changed to require them to be residency-trained in psychiatry; (3) a policy was adopted that required the facilities to hire only physicians who were residency trained in internal medicine, family practice or, where applicable, pediatrics; (4) physician recruitment was centralized, recruitment materials were produced, and representatives of the DMHDD engaged in outreach to educational institutions and professional organizations to recruit; (5) salaries were increased for residency-trained adolescent and child psychiatrists; (6) greater efforts were focused on recruiting physicians for the facilities outside of the Chicago-area; and (7) steps were taken to speed up the hiring process. (Id., Ex. 77, Stotland Dep. at 35-44, 89-98.) Together, all of these measures enabled the DMHDD to recruit a few well-trained psychiatrists for some of the state operated facilities. (Id. at 43, 91, 93-94, 96.)
Dr. Fran Celia was responsible for the work plan on restraint/seclusion. Id., Ex. 74, 8/19/93 Mem. to McDonald from Jardine Grzonka at D629564.) Pursuant to that plan: (1) system-wide data on use of restraints and seclusion was collected by the DMHDD's Quality Assurance Division; (2) documentation on the usage of restraints and seclusion was improved; (3) comparative data was shared with the facilities; (4) uniform physical standards for seclusion rooms were developed; and (5) a list of permissible kinds of restraints was compiled. (Id., Ex. 58, Celia Dep. at 273-84, 291-95). The immediate result of these changes was a reduction in the Elgin facility's high volume of restraint use. (Id. at 282-83, 387-88.) The long-term, and as yet unrealized, goal of these measures is to permit the Department to analyze the appropriateness of restraint usage in individual cases. (Id. at 280-81.)
A work group was also established under Dr. Celia's supervision to investigate the issue of staff/patient interaction. (Id. at 298 id., Ex. 74, 8/19/93 Mem. to McDonald from Jardine Grzonka at D629564.) Though the work group concluded that it would be too difficult to monitor staff/patient interaction, it compiled a list of expectations for staff interaction with patients, which was distributed to all of the hospitals. (Id., Ex. 58, Celia Dep. at 298-300.)
The work plan for sanitation called for the DMHDD to hire an expert in the fields of sanitation and life safety/physical plant. (Id., Ex. 74, 8/19/93 Mem. to McDonald from Jardine Grzonka at D629572.) In January 1994, the Department did hire such an expert, Peter Kwasnik. (Id., Vol. VI, Ex. 115, Kwasnik Dep. at 20.) Mr. Kwasnik and others conducted surveys of the sanitation practices and physical conditions of the facilities from 1994 through early 1996. (See, e.g., id., Exs. 118-22, 128-29, 133-40.) Where possible, the facilities corrected the deficiencies noted in the inspection reports. (See, e.g., Exs. 131-36, 141-45.) The addition of Mr. Kwasnik to the DMHDD, top administrators believed, resulted in improvements to the physical environment of the facilities system-wide. (Id. Vol. III, Ex. 58, Cella Dep. at 372-74.)
Another change that occurred during the pendency of this suit was a significant increase in the staff-to-patient ratios system-wide. As defendants acknowledge, staff-to-patient ratios impact the safety of patients and staff as well as the existence and adequacy of treatment. (Id., Vol. II, Ex. 42, 1/25/93 Mem. to Montana from Field Jardine at D473272 (citing study that concluded "an overall [staff-to-patient] ratio of 2.31 to 1 is necessary to fully provide basic asylum, safety and minimal active treatment"); id., Vol V, Ex. 91 at D464546-47 (concluding that an overall average staff-to-patient ratio of 2.4 in the state operated facilities would "provide safety, security, and adequate treatment that would meet accrediting body standards.").) From 1983 through 1993, staff-to-patient ratios hovered between 1.6 to I and 1.7. to 1. (Id., Ex. 89.)
In the DMHDD's fiscal year ("FY") 1994 budget briefing, prepared in March 1993 by Director McDonald, he acknowledged that "Illinois' [staff-to-patient] ratios are the lowest in the nation for developmental centers and among the lowest for mental health centers." (Id., Ex. 93 at D312839.) He proposed to address that problem by "retaining staff when [patient] census declines," "and thus proposed no staff cuts in the DMHDD's FY 1994 budget proposal. (Id., at D312839-40.) Ultimately, the General Assembly passed a FY 1994 budget that included a 7.4% increase over the previous year. (Id., Ex. 103 at RD00754.) The budget, Director McDonald said, "includes funding to support the FY93 end of year headcount for all Department facilities and allows for some improvement in staffing levels by allowing facilities to retain staffing as their census decreases." (Id., at RD00756-57.) The Department projected a staff-to-patient ratio of 1.640 to 1 by the end of FY 1994. (Id. at RD00761.)
In his FY 1995 budget briefing, Director McDonald noted that "[s]ignificant decreases ha[d] been achieved in [state operated facility] admissions during the past year." (Id., Ex. 94 at D313214.) "These census reductions," he noted, "have allowed staff-to-patient ratios to increase at many of our state operated facilities. . . . This increase in staff-to-patient ratios is essential since we anticipate it will be a major contention in the K.L. v. Edgar lawsuit." (Id.) He did not, however, attribute the increased ratios to the K.L. lawsuit. Rather, he said: "Two primary factors are credited for these sharp census reductions: first LAN [Local Area Network] agency involvement with SOF [state operated facility] staff in treatment and discharge planning; and second, increased efforts by LAN and SOP staffs to ensure people are admitted to state facilities only when no other resources exist." (Id. at D313215.) Ultimately, the General Assembly passed a budget for FY 1995 that included an 8.5% increase in funds for the DMHDD. (Id., Ex. 107 at D313536.) The budget increase, the Department projected, would result in an average staff-to-patient ratio of 1.975 to 1 by the end of the fiscal year. (Id. at D313537.)
In the DMHDD's FY 1996 budget request. Acting Director Handy stated:
The state operated facilities must move toward higher staff-to-patient ratios to meet the reform objectives and to remedy the K.L. lawsuit. Increased ratios will be achieved through the reduction of inpatient populations as more effective interventions in the community mental health system are developed. The inpatient mental health facilities will experience in FY 96 a continued reduction in utilization leading to downsizing and redeployment of staff achieving a 2.4 to 1 ratio in all adult treatment units.
(Id., Ex. 91 at D464513-14.) Acting Director Handy was a bit more conservative in the DMHDD's FY 1996 budget briefing, where she projected a staff-to-patient ratio of 2.01 to 1 in adult treatment units by the end of the fiscal year. (Id., Ex. 95 at D313321.)
For FY 1997 and FY 1998, the Department requested funding to support staff-to-patient ratios of 2.21 to 1 and 2.1 to 1, respectively. (Id., Ex. 96 at D438475; id., Ex. 97 at D632407.) The record does not reveal whether those requests were granted.
The budget documents and the deposition testimony of DMHDD staff suggest that the increase in staff-to-patient ratios was the result of a variety of factors, including: (1) Governor Edgar's 1992 Mental Health Reform Plan, which emphasized community-based, rather than institution-based, mental health care (id., Ex. 94, FY 95 Budget Briefing at D313182, 313214-15;id., Ex. 93, FY 94 Budget Briefing at D312871; id., Ex. 95, FY 96 Budget Briefing at D313300 id. Ex. 96, FY 97 Budget Briefing at D438445; id., Vol III, Ex. 54, Steiner Dep. at 75-76, 83-84); (2) the negative impact managed care had on the practice of medicine in the private sector (id., Vol III, Ex. 54, Steiner Dep. at 79-80); (3) an increased willingness on the part of private hospitals to take Medicaid patients (Id., Vol III, Ex. 54, Steiner Dep. at 79-80; id., Ex. 46, Goldman Dep. at 33, 39); (4) improvements in pharmacology that enabled patients to remain in the community (id., Vol III, Ex. 54, Steiner Dep. at 79-80, 83-84;id., Ex 46, Goldman Dep. at 32-33, 38-39); and (5) this lawsuit. (See id., Ex. 55, Newbanks Dep. at 106-07, 118; id., Ex. 46, Goldman Dep. at 32; id., Vol. V, Ex. 91, FY 96 Budget Request at D464513-14; id., Ex. 94, FY 95 Budget Briefing at D313214.) Clearly, this suit was not the sole cause of the increased staff-to-patient ratios, but the record establishes that it was one of the material causes of that change.
The last major change to the mental health system that occurred in the period after this suit was filed was the shift from institution-based services to community-based services. This shift started in the Spring of 1992, when Governor Edgar announced his intention to reform the state's mental health system. (Id., Vol V, Ex. 92, FY 93 Budget Briefing at D312974;id., Ex. 93, FY 94 Budget Briefing at 312871.) Pursuant to that plan, the DMHDD organized Local Area Networks ("LANs") of "community providers, consumers and advocates" to manage "the service delivery system within [their] designated geographic area[s]." (Id., Ex. 93, FY 94 Budget Briefing at D312874-75; Id., Ex. 94, FY 95 Budget Briefing at D313183.) By 1994, the Department lauded LAN involvement in admission, treatment and discharge planning as a major contributor to the increase in staff-to-patient ratios. (Id., Ex. 94 at D313215.) The DMHDD's budget briefing for FY 1996 stated; "For the first time in the department's history, community services represent greater than 50% of the budget. . . . This is truly a milestone in our progress toward a community based system of care." (Id., Ex. 95 at D313300.) In its budget briefing for FY 1997, the DMHDD introduced the CONNECT97 initiative to connect patients with the "necessary care as they move from community to hospital and back to community again." (Id., Ex. 96 at D438470-71.) CONNECT97 received $7 million of funding in FY 1997 and an additional $12 million in funding in FY 1998. (Id. at D438446, D438470-72 id., Ex. 97, FY 98 Budget Briefing at D632344.)
Though defendants admit that community-based services increased greatly between 1992 and 1997, they contend that this suit was not the impetus for that expansion either as a matter of fact or as a matter of law. As a factual matter, defendants say that the expansion of community-based services was due solely to Governor Edgar's Mental Health Reform Plan. As a legal matter, they say that they have no obligation to provide mental health services to people who are not in state custody, and thus, their decision to do so was wholly gratuitous.
We agree with defendants' legal argument, but it misses the point. At this stage, plaintiffs do not, and cannot, argue that they have a legal right to community-based mental health services when they are not in state custody. See K.L. v. Edgar, 941 F. Supp. 706, 715-19 (N.D. Ill. 1996) (dismissing plaintiffs' claims that defendants' failure to provide them with community-based care after they were discharged from state hospitals violated their constitutional rights.) Rather, they claim that the expansion of such services improved the quality of the care offered by state hospitals by reducing the total number of patients in those hospitals. (Pls.' Mem. Supp. Pet. Att'y Fees, Costs Expenses at 43.) As discussed above, however, it is clear that this suit was one of the factors that led to the increase in staff-to-patient ratios in state hospitals from 1992 to 1997. Thus, whether it did so specifically through the CONNECT97 Program has no impact on the prevailing party analysis.
In sum, the record demonstrates that although they did not prevail on all fronts, plaintiffs succeeded on a number of issues in this litigation and obtained meaningful relief, including an increase in the resources devoted to the state-run hospitals, an increase in staff-to-patient ratios and in the number of qualified psychiatrists working in the system, improved staff training, and cleaner physical environments. These changes are causally related to the lawsuit, and are not wholly gratuitous. Accordingly, plaintiffs are prevailing parties within the meaning of section 1988 and are entitled to recover a reasonable attorney's fee.
Our next task is to determine what "a reasonable attorney's fee" is in this case. "The most useful starting point for determining the amount of a reasonable fee," the Supreme Court tells us, "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Plaintiffs seek compensation for 14,830.45 hours of work on this litigation, excluding the work in connection with the fee dispute. In the exercise of billing judgment, plaintiffs' counsel have deleted 1,606.48 hours of inefficient or duplicative work from their fee request. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. 1, Ex. 1, Wolf Decl. 6 ¶ 19; id., Vol. VII, Ex. 162.) Defendants do not challenge the reasonableness of the number of hours expended. (Id., Vol. I, Ex. 9, Defs.' Position Regarding Fees Expenses at I ("[D]efendants do not challenge the specific hours of plaintiffs' counsel's time as unreasonably inefficient or excessive.").)
They do, however, challenge various other aspects of the fee petition. First, they argue that plaintiffs should recover nothing for the time invested in this case by Schiff, Hardin Waite and Mayer, Brown Platt because those firms agreed to donate their time to the ACLU. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. 1, Ex. 9, Defs.' Position Regarding Fees Expenses at 3.) There is no question that nonprofit legal organizations are entitled to seek fees under section 1988, even if they charge none to their clients. Blanchard v. .Bergeron, 489 U.S. 87, 94 (1989). We see no distinction between nonprofit legal organizations and private counsel that agrees to work pro bono.See Witherspoon v. Sielaff, 507 F. Supp. 667, 670 (N.D. III. 1981) (rejecting argument that private law firm that represented plaintiff on pro bono basis was barred from seeking fees under section 1988.) Accordingly, we have no basis for categorically denying fees to plaintiffs' private counsel.
Next, defendants assert that plaintiffs' counsel should not be able to recover more than $175 per hour for their services because that is the rate defendants negotiated with their own lawyers. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. 1, Ex. 9, Defs.' Position Regarding Fees Expenses at 4.) Not surprisingly, defendants cite no authority to support the notion that plaintiffs' fee award must be based on defense counsel's billing rate because such an arrangement would frustrate the purpose of section 1988. As the Supreme Court said: "As we understand § 1988's provision for allowing a "reasonable attorney's fee,' it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more no less." Blanchard, 489 U.S. at 93. In short, reasonableness, not defense counsel's compensation, dictates the rates plaintiffs' counsel may recover under section 1988.
Defendants also argue that the rates recovered by plaintiffs' private counsel should be no greater than those recovered by the ACLU because "[t]he ACLU has the greater expertise in the area of civil rights class actions." (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. 1, Ex. 9, Defs.' Position Regarding Fees Expenses at 4.) It may be that the most senior ACLU lawyers have more experience in civil rights class actions than do the private firm lawyers, but the senior private firm attorneys each have more than twenty years of experience in complex civil litigation, including class actions and civil rights suits. (Id., Ex. 2, Pascal Decl. ¶¶ 2, 4-5; id., Ex. 3, Gilford Decl. ¶¶ 2, 4-5.) Though their billing rates are higher than that which the ACLU lawyers are seeking, they are the rates that the private attorneys normally charge their paying clients. (Id., Ex. 2, Pascal Decl. ¶¶ 8-9; id., Ex. 3, Gilford Decl. ¶¶ 8-9.) Given their credentials and experience, we have no reason to depart from the general rule that for lawyers in private practice, "`the best evidence of the value of their time is the hourly rate which they most commonly charge their fee-paying clients for similar legal services.'" Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (quoting Berger, Court Awarded Attorneys Fees; What Is "Reasonable"?, 126 U, PA, L. REV. 281, 321 (1977)).
We confine the discussion to the senior lawyers because: (1) it is oxymoronic to compare the "expertise" of inexperienced lawyers; and (2) we assume that it is the rates of the senior private lawyers, which are about $100.00 more per hour than those of the senior ACLU lawyers, that trouble defendants the most.
Finally, defendants take issue with plaintiffs' use of 1997 billing rates to calculate the lodestar, rather than using the rates that actually prevailed in the market at the time the work was performed. Plaintiffs used 1997 rates across the board to compensate for the delay in payment from the time the work was performed until December 7, 1997, the date the parties submitted their positions on the fee issues to Judge Alesia. The Supreme Court has held that it is appropriate to adjust the lodestar for delay in payment when awarding attorney's fees in section 1988 cases. Missouri v. Jenkins, 491 U.S. 274. 284 (1989). Moreover, our court of appeals has held that there are two acceptable methods of making that adjustment: (1) by using current rates to calculate the lodestar; or (2) by using historical rates to calculate the lodestar and applying interest to that amount.Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994). Absent evidence that using the former method would result in a windfall for plaintiffs, evidence defendants have not provided, we find that the use of 1997 rates to calculate the lodestar is a reasonable method of compensating plaintiffs' counsel for the delay in payment of their fees.
Nearly three more years have passed since plaintiffs calculated the lodestar for this case. Rather than recalculating it based on 2000 rates, plaintiffs seek interest on the lodestar to compensate them for the delay in payment from the end of 1997 to the present. We find that this request is reasonable as well because: (1) applying interest to historical rates, which is what 1997 rates now are, is another acceptable method of compensating for delay in payment; and (2) defendants have presented no evidence to suggest that doing so would result in a windfall for plaintiffs.
In sum, having reviewed the billing records and affidavits submitted in support of them, the Court finds that the hourly rates charged by plaintiffs' counsel are reasonable in relation to that charged in Chicago by lawyers of comparable skill and experience. Moreover, the Court finds that 14,830.45 is a reasonable number of hours for plaintiffs' counsel to have expended on this complex and protracted litigation. Plaintiffs' counsel were required to analyze the care and conditions at nine different hospitals throughout the State, as well as the practices and policies employed by defendants system-wide, on behalf of the thousands of class members they represented. To do so, they had to obtain and digest thousands of documents, prepare for and attend site visits by four different groups of experts (two retained by the plaintiffs, one by the Court and one by the defendants), and prepare to and depose a variety of DMHDD staff members. Plainly, plaintiffs counsel devoted an enormous amount of time to this case. But, as defense counsel's billing records confirm, the scope and length of the case demanded it. (See Exs. Pls.' Pet. Att'y Fees Costs Expenses. Vol. VII, Ex. 158, 11/25/97 Letter to Connell from Patenode (stating that defense counsel devoted 23,024 hours to the K.L. litigation).) The reasonable hours multiplied by the reasonable hourly rates yields a lodestar of $2,029,083.25.
The analysis does not end with the lodestar, however. We must also consider the "results obtained" by the plaintiffs to determine whether the lodestar is a reasonable fee in this case.Hensley, 461 U.S. at 440. In the words of the Supreme Court:
The Court also said "[t]he district court also may consider other factors identified in Johnson v. Georgia Highway Express. Inc., 488 F.2d 714, 717-719 (CA5 1974)," including "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved . . .; (9) the experience, reputation, and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Hensley, 461 U.S. at 430 n. 3, 434 n. 9. It noted, however, that "many of these factors usually are subsumed within the initial calculation of hours reasonably expended." Id. at 434 n. 9.
Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.Id. Plaintiffs contend that their suit was a complete success and that they obtained all of the relief they sought. We disagree.
As an initial matter, plaintiffs obtained no relief on their constitutional claims for community-based services. Rather, those claims were dismissed by Judge Alesia in 1996. See K.L., 941 F. Supp. at 715-19. Because those claims were related to those that remained in the suit, we will not, and in all probability could not, identify and eliminate from the lodestar the attorney time devoted solely to those claims. The dismissal of those claims, however, refutes plaintiffs' proclamation of total victory.
Nor did plaintiffs achieve unqualified success on their remaining claim that the level of care in the state hospitals was constitutionally deficient, (See generally Exs. Pls.' Pet. Att'y Fees Costs Expenses, Vol. I, Ex. 7, 3/28/97 Pls.' Experts' Report (discussing the myriad of serious problems and deficiencies that continued to exist in six of the nine hospitals at issue in this case).) One of plaintiffs' major contentions was that the state hospitals provided inadequate psychiatric and medical care because there were not enough trained and qualified staff to run them. (Compl. ¶¶ 10, 12, 14, 15, 20-23, 25.) In particular, Dr. Stotland testified that "[t]here was a dearth of psychiatrists. especially in the [hospitals in the] rural areas of the State." (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. III, Ex. 77, Stotland Dep. at 32.) To increase recruitment, she suggested, among other things, that salaries be boosted, benefits be increased, and flexible work weeks be instituted. (Id. at 94-95.) With two narrow exceptions, these suggestions were not implemented. (Id.) In the end, defendants hired "under five" residency-trained psychiatrists for the rural hospitals. (Id., at 95-96.) Dr. Stotland also testified that the "level of expertise in handling problems of internal medicine at the facilities was inadequate" when she was hired in 1993. (Id., at 38-39.) She suggested that "an internist . . . be hired at a central level to help both with education and with the assessment of the quality of the general medical [care]," and that defendants adopt a policy requiring that only physicians who were residency-trained in internal or family medicine be hired to work at the hospitals. (Id. at 37-38, 91-93.) The first suggestion was never implemented. (Id. at 37.) The second was, but there is no evidence that any doctors who were residency-trained in internal medicine or family practice were actually hired as a result. (Id. at 93.) Moreover, treatment teams in the state hospitals typically involve social workers, nurses and psychologists as well as physicians. (Id. at 137-38.) There is no evidence that this suit caused defendants to hire more or better trained members of those disciplines. In short, the record shows that this suit caused defendants to increase the number of qualified professionals working in the system, but only modestly.
Another of plaintiffs' major contentions was that the state hospitals provided little or no active psychiatric treatment to the patients. (Compl. ¶¶ 21-23). In response to this suit, the Department formed a work group to investigate staff/patient interaction system-wide. Ultimately, however, the work group concluded that monitoring such interaction would be impossible. Instead, it complied a list of expectations for staff/patient interaction and distributed the list to each hospital. (Id., Ex. 58, Cella Dep. at 298-300.) Moreover, though the lack of active treatment was noted as vulnerability for every facility during the clinical reviews (see id., Vol. IV at D598207 (Alton); D598230 (Chicago Read); D598239 (Choate); D598251, 598254, 598256 (Elgin); D598294-98 (Madden); D598455, 598461 (McFarland); D598500 (Singer); D598607 (Tinley Park); D598631-33, D598635 (Zeller)), and most of the facilities pledged to address the issue (Id., at D598208-09 (Alton); D598234 (Chicago Read); D598242-43 (Choate); D598261 (Elgin); D598358, 598360 (Madden); D598465 (McFarland); D598526 (Singer); D598636-38 (Zeller)), the record contains confirmation that steps were taken to implement those plans in only four of the nine facilities (Id., at D598234,id., Vol. III, Ex. 77, Stotland Dep. at 140-41 (Chicago Read); D598261-62 (Elgin); D598358 (Madden); D598465 (McFarland)), and documents actual improvement in only three (id., Vol. I, Ex. 7, 3/28/97 Pls.' Experts' Report at 57 (Singer), 117 (McFarland), 122 (Madden)).
Plaintiffs also alleged that defendants' care was constitutionally inadequate because they overused chemical and physical restraints. (Compl. ¶ 26.) This suit prompted defendants to collect data on the use of restraints system-wide, share that data with the hospitals, and develop uniform standards for seclusion rooms and physical restraints. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Vol. III, Cella Dep. at 273-84, 291-95). These measures, however, only reduced restraint usage in one facility. (Id. at 282-83, 387-88.) Though defendants hope that their continued collection of this data will eventually permit them to analyze the appropriateness of restraint usage in individual cases, that hope was not realized when the suit was settled. (Id. at 280-81,)
Finally, plaintiffs alleged that the state hospitals were "dangerous, violent and filthy environment[s]." (Compl. ¶ 10.) In 1991 alone, plaintiffs asserted, the state hospitals reported:
over 900 instances of patients abused or neglected by staff, 6,000 injuries to patients caused by other patients, over 350 cases of sexual misconduct, 500 occasions where patients ran away from an institution while supposedly under staff supervision, and over 100 patient deaths while under the care of the institutions
(Id. ¶ 15.) Plaintiffs also alleged that "[o]ver 2,200 staff members were assaulted by patients" in the same year. (Id. ¶ 17.) The record shows that this suit prompted improvements in housekeeping system-wide and in the physical plants of certain hospitals. (Exs. Pls.' Pet. Att'y Fees, Costs Expenses, Ex. 74 at D629572; id., Ex. 58 Cella Dep. at 372-73, id., Vol VI, Ex. 115, Kwasnik Dep. at 20; id., Exs. 118-22, 128-29, 131-45.) Plaintiffs have pointed to no evidence, however, that those, or any other improvements, caused the reported number of abuse and neglect cases, sexual assaults, injuries, run aways, suicides or other deaths to decrease.
In short, though this suit prompted defendants to make changes to the Illinois mental health system, plaintiffs achieved only some of the relief they sought. Their claims for community-based mental health services were dismissed, and they received meaningful, but not total, relief on their claims that in-patient mental health care was constitutionally deficient. Given the limited degree of success obtained by plaintiffs, the Court finds it appropriate to reduce by 30% the fees requested by plaintiffs, resulting in a lodestar of $1,420,358.28 (Id., $2,029,083.25 — $608,724.97),
That does not end the matter, however. A fee award under section 1988 is not comprised solely of the cost of attorney time reflected in the lodestar. Rather, our court of appeals has held, a reasonable attorney's fee also includes "expenses that are distinct from . . . statutory costs or the costs of the lawyer's time reflected in his hourly billing rates," and includes such things as postage, long-distance calls, travel, expert witness costs, and costs for computerized legal research. Heiar v. Crawford County, 746 F.2d 1190, 1203 (7th Cir. 1984); Haroco. Inc. v. American Nat'l Bank Trust Co., 38 F.3d 1429, 1440 (7th Cir. 1994) (characterizing computerized legal research expenses as attorneys' fees not costs). Such expenses are recoverable because "a lawyer's billing rate includes expenses that are indistinguishable from those that lawyers usually bill separately under the heading of disbursements or expenses." Heiar, 746 F.2d at 1204.
Such expenses, as the Heiar court pointed out, must be distinguished from statutory costs that are recoverable under Federal Rule of Civil Procedure ("Rule") 54(d). The costs recoverable under that Rule are set forth in 28 U.S.C. § 1920, which provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title,
The Seventh Circuit has interpreted this statute to include costs for deposition transcripts and photocopies. Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998). To award costs under Rule 54(d), we must determine that there is statutory authority for the costs sought to be recovered and that the costs are reasonable and were necessary to the litigation.Id.
Plaintiffs seek to recover both types of costs; that is, expenses normally billed by attorneys as disbursements and statutory costs recoverable under Rule 54(d). Defendants have lodged no specific objections to plaintiffs' cost requests. Having waived their opportunity to do so, we will proceed to the merits of these requests without further input from defendants.
Plaintiffs' costs submissions have two flaws. First, they do not segregate the two different kinds of costs. This ostensibly ministerial task is necessary because only the disbursement-type expenses, which are treated as fees, will be subject to the 30% reduction. Second, they did not give us any basis for determining whether the disbursement-type costs are reasonable, and whether the Rule 54(d) costs are reasonable and necessary to the litigation. With respect to the disbursement-type costs, we particularly question the ACLU's "BSW misc. expenses" category, which has no explanation, all counsel's charges for meals, parking and cab fares that were not incurred in connection with out-of-town trips, the necessity of which seems questionable, and all counsel's overnight and messenger delivery charges, especially those paid to transmit documents from one downtown Chicago location to another.
With respect to the Rule 54(d) costs, we particularly question counsel's photocopying and transcript charges. As to the former, plaintiffs' submission does not set forth the price per page charged by each firm and outside copy service, and whether plaintiffs' counsel made multiple copies of pleadings, correspondence or other documents solely for attorney convenience, a noncompensable cost. See Haroco, 38 F.3d at 1441;McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990). As to the latter, plaintiffs' submission does not explain why the transcripts of various hearings and depositions were necessary to the case, nor do they provide enough information for us to determine whether the costs they seek are compensable under Local Rule 54.1, which provides:
If in taxing costs the clerk finds that a transcript or deposition was necessarily obtained, the costs of the transcript or deposition shall not exceed the regular copy rate as established by the Judicial Conference of the United States and in effect at the time the transcript or deposition was filed unless some other rate was previously provided for by order of court. Except as otherwise ordered by the court, only the cost of the original of such transcript or deposition together with the cost of one copy each where needed by counsel and, for depositions, the copy provided to the court shall be allowed.See Cengr, 135 F.3d at 456 (noting that Judicial Conference rates "apply to deposition charges by private court reporters" as well as transcript charges by official court reporters); VI JUDICIAL CONFERENCE OF THE UNITED STATES, GUIDE TO JUDICIARY POLICIES PROCEDURES, COURT REPORTERS MANUAL, ch. 20, pt. 20.3 (1998) (setting forth the following prices per page for transcripts:
Type of Transcript Original Copy to Each Party Each Add'l Copy to Same Party
Ordinary $3.00 $.75 $.50
Expedited $4.00 $.75 $.50
Daily $5.00 $1.00 $.75
Hourly $6.00 $1.00 $.75).
Accordingly, we must order plaintiffs' counsel to submit a revised bill of costs, as contemplated by Rule 54(d), which contains only those items that are allowable expenses, and an explanation of the reasonableness and necessity of those costs. We further order plaintiffs to submit a revised request for disbursement-type expenses that explains why they are reasonable in this case. We are not suggesting that plaintiffs' counsel compile a list of every sheet of paper photocopied or sent by courier, and justify each decision to do so. But we must have more of an explanation than "document reproduction" or "courier service" to make a reasonableness determination. After plaintiffs have submitted their revised cost documents, the Court will make a determination of the reasonable fees and costs for this portion of the litigation, and then we will move on to fees for fees.
Conclusion
For the reasons set forth above, the Court finds that plaintiffs are prevailing parties within the meaning of section 1988 and Rule 54(d). They are, therefore, entitled to recover a reasonable attorney's fee, including reasonable disbursement-type expenses, and statutory costs. Given the degree of success plaintiffs obtained in this case, the Court has determined that a reasonable attorney's fee is 30% less than that which plaintiffs expended. The Court cannot determine what that amount is, however, until plaintiffs' counsel submits revised cost documents, which they are ordered to do within fourteen days of the date of this Memorandum Opinion and Order. After they have done so, and the Court determines the reasonable fees and costs, we will take up the issue of fees for fees.