Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 1 of 31

1 Kathleen E. Brody (Bar No. 026331)

ACLU FOUNDATION OF ARIZONA
2 3707 North 7th Street, Suite 235
Phoenix, Arizona 85013
3 Telephone: (602) 650-1854
Email: [email protected]
4 Attorneys for Plaintiffs Shawn Jensen, Stephen
5 Swartz, Sonia Rodriguez, Christina Verduzco,
Jackie Thomas, Jeremy Smith, Robert Gamez,
6 Maryanne Chisholm, Desiree Licci, Joseph
Hefner, Joshua Polson, and Charlotte Wells, on
7 behalf of themselves and all others similarly
situated
8 [ADDITIONAL COUNSEL LISTED ON
SIGNATURE PAGE]
9
10 UNITED STATES DISTRICT COURT

11 DISTRICT OF ARIZONA

12 Victor Parsons; Shawn Jensen; Stephen Swartz; No. CV 12-00601-PHX-DKD

Dustin Brislan; Sonia Rodriguez; Christina
13 Verduzco; Jackie Thomas; Jeremy Smith; Robert
Gamez; Maryanne Chisholm; Desiree Licci; Joseph PLAINTIFFS MOTION FOR
14 Hefner; Joshua Polson; and Charlotte Wells, on ATTORNEYS FEES AND
behalf of themselves and all others similarly COSTS
15 situated; and Arizona Center for Disability Law,
16 Plaintiffs,
17 v.
18 Charles Ryan, Director, Arizona Department of
Corrections; and Richard Pratt, Interim Division
19 Director, Division of Health Services, Arizona
Department of Corrections, in their official
20 capacities,
21 Defendants.
22
23
24
25
26
27
28

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1 TABLE OF CONTENTS
2 I. Introduction .............................................................................................................. 1
3 II. Recovery of Attorneys Fees and Costs under the Stipulation................................. 3
4 III. Plaintiffs are Entitled to Recover All of Their Requested Fees and Costs and
5 a 2.0 Multiplier Enhancement .................................................................................. 5

6 A. Calculation of Reasonable Attorneys Fees .................................................. 5

7 1. Documentation Supporting Reasonableness ...................................... 7

8 2. Determination of the Hourly Rate ...................................................... 7

9 3. Calculation of the Lodestar ................................................................ 8

10 B. The Kerr Factors Support an Award of the Full Lodestar and an

Enhancement ................................................................................................. 9
11 1. The Time and Labor Required ......................................................... 10
12 2. The Novelty and Difficulty of the Issues ......................................... 10
13 3. The Skill Required to Perform the Legal Services........................... 11
14 4. The Preclusion of Other Employment by the Attorneys
15 Involved in the Case ......................................................................... 11

16 5. The Customary Fee in Similar Litigation......................................... 12

17 6. Time Limitations Imposed by the Clients or Circumstances ........... 12

18 7. The Results Obtained by the Lawsuit .............................................. 13

19 8. The Experience, Reputation, and Ability of the Attorneys .............. 13

20 9. The Undesirability of the Case ......................................................... 13

21 10. The Nature and Length of the Professional Relationship with

the Clients ......................................................................................... 14
22 11. Awards in Similar Cases .................................................................. 14
23 12. A Fees Enhancement is Justified by Plaintiffs Counsels
24 Superior Performance and the Need to Attract Competent
Counsel ............................................................................................. 15
25 a. Superior Performance and Excellent Results ........................ 16
26 b. Attracting Competent Counsel .............................................. 22
27 C. Plaintiffs are Entitled to Recover Litigation Expenses and Costs,
28 Including Expert Costs ................................................................................ 22

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1 IV. Conclusion .............................................................................................................. 23

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 TABLE OF AUTHORITIES
2 CASES

3 Anderson v. Director, OWCP,

91 F.3d 1322 (9th Cir. 1996) ................................................................................... 23
4
Blum v. Stenson,
5 465 U.S. 886 (1984) .......................................................................................... 10, 13

6 Carruthers v. Israel,
No. 76-06086, ____ F. Supp. 3d ____, 2017 WL 3531471
7 (S.D. Fla. Aug. 15, 2017) .................................................................................... 7, 15

8 Chalmers v. City of Los Angeles,

796 F.2d 1205 (9th Cir. 1986) ................................................................................. 12
9
City of Burlington v. Dague,
10 505 U.S. 557 (1992) .................................................................................................. 9

11 Farrar v. Hobby,
506 U.S. 103 (1992) .............................................................................................. 4, 5
12
Fischer v. SJF-P.D. Inc.,
13 214 F.3d 1115 (9th Cir. 2000) ................................................................................... 5

14 Gates v. Deukmejian,
987 F.2d 1392 (9th Cir. 1992) ................................................................................... 8
15
Graves v. Arpaio,
16 633 F. Supp. 2d 834 (D. Ariz. 2009) ................................................................ passim

17 Hensley v. Eckerhart,
461 U.S. 424 (1983) .............................................................................................. 5, 6
18
Johnson v. Georgia Highway Express, Inc.,
19 488 F.2d 714 (5th Cir. 1974) ............................................................................ passim

20 Kelly v. Wengler,
822 F.3d 1085 (9th Cir. 2016) .......................................................................... passim
21
Kerr v. Screen Extras Guild, Inc.,
22 526 F.2d 67 (9th Cir. 1975) .............................................................................. passim

23 Klein v. City of Laguna Beach,

810 F.3d 693 (9th Cir. 2016) ..................................................................................... 5
24
Moore v. James H. Matthews & Co.,
25 682 F.2d 830 (9th Cir. 1982) ................................................................................... 14

26 Morales v. City of San Rafael,

96 F.3d 359 (9th Cir. 1996) ................................................................................. 9, 10
27
Oviatt v. Pearce,
28 954 F.2d 1470 (9th Cir. 1992) ................................................................................... 9

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1 CASES (CONT.)
2 Padgett v. Loventhal,
706 F.3d 1205 (9th Cir. 2013) ................................................................................... 6
3
Pennsylvania v. Del. Valley Citizens Council for Clean Air,
4 478 U.S. 546 (1986) .................................................................................... 10, 11, 13
5 Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542 (2010) .......................................................................................... 15, 16
6
Perez v. Cate,
7 632 F.3d 553 (9th Cir. 2011) ..................................................................................... 7
8 Planned Parenthood of Cent. & N. Ariz. v. State of Ariz.,
789 F.2d 1348 (9th Cir. 1986) ................................................................................. 13
9
Stivers v. Pierce,
10 71 F.3d 732 (9th Cir. 1995) .............................................................................................. 4
11 Tex. State Teachers Assn v. Garland Indep. School Dist.,
489 U.S. 782 (1989) .................................................................................................. 4
12
Webb v. Ada Cty.,
13 285 F.3d 829 (9th Cir. 2002) ..................................................................................... 7
14 Woods v. Carey,
722 F.3d 1177 (9th Cir. 2013) ................................................................................. 22
15
16 STATUTES
17 42 U.S.C. 1988 .................................................................................................................. 3

18 42 U.S.C. 1988(b) .............................................................................................................. 3

19 42 U.S.C. 1997e ........................................................................................................ passim

20 42 U.S.C. 1997e(d) et seq. ................................................................................................. 3

21 42 U.S.C. 1997e(d)(3) ....................................................................................................... 7

22
23 RULES

24 Fed. R. Civ. P. 23.................................................................................................................. 3

25 Fed. R. Civ. P. 23(h) ............................................................................................................. 3

26
27
28

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1 Plaintiffs, by and through their undersigned counsel, hereby move this Court
2 pursuant to the Stipulation (Doc. 1185 43-44) for an order awarding Plaintiffs
3 attorneys fees and costs, including expert costs, incurred in enforcing the provisions of
4 the Stipulation through June 30, 2017.1
5 I. Introduction
6 In October 2014 the parties reached a settlement agreement (the Stipulation) in
7 this class action filed on behalf of approximately 34,000 Arizona Department of
8 Corrections (ADC) prisoners and the Arizona Center for Disability Law (Plaintiffs).
9 This Court found the Stipulation to be fair, adequate, and reasonable, and it went into
10 effect on February 18, 2015. [Doc. 1458 at 1] Under the Stipulation, Defendants agreed
11 to comply with the Stipulations terms as well as monitor their compliance with 103
12 health care performance measures. [Doc. 1185 8-10]
13 Since then, Plaintiffs have engaged in extensive and sustained efforts to enforce the
14 terms of the Stipulation, serving upon Defendants multiple notices of non-compliance
15 with the health care performance measures, and filing several motions to enforce, as well
16 as ongoing enforcement documentation requested by the Court.2 As a result of Plaintiffs
17
1
This motion for fees and costs is for the enforcement of the Health Care
18 Performance Measures only. Fees for enforcement of the Maximum Custody
Performance Measures will be sought separately. Fees in this motion are only sought for
19 the ACLU National Prison Project (NPP) and the Prison Law Office (PLO). Fees are
not being sought for the work performed by the ACLU of Arizona, Perkins Coie, LLP, or
20 the Arizona Center for Disability Law.
Plaintiffs attempted to reach agreement with Defendants on their fee claim for
21 successful enforcement from October 2015 to December 2016. But Defendants not only
objected to most of the time claimed by Plaintiffs counsel, they also refused a verbal
22 settlement offer during a meet and confer and failed to proffer any counter-offer. As a
result of Defendants responses to Plaintiffs efforts to resolve the fees issue it would be
23 futile to engage in further settlement discussions for the additional six months of time and
costs requested by this motion. [Declaration of Donald Specter (Specter Decl.), dated
24 August2 31, 2017, 10]
[See, e.g., Pls. Mot. to Enforce the Stipulation, Apr. 11, 2016 (Doc. 1535); Pls.
25 Citation Summary of Substantial Noncompliance Provided to Defs., May 3, 2016
(Doc. 1562); Pls. Resp. to Defs. Notice of Measures in Compliance, May 19, 2016
26 (Doc. 1581); Pls. Resp. to Defs. Notice of Service of Remediation Plan, June 20, 2016
(Doc. 1610); Mot. to Enforce the Stipulation (Para. 12, 14, 15 & PM 85, 86, 94, 95, 98),
27 July 12, 2016 (Doc. 1625); Mot. to Enforce the Stipulation (PM 47, 80, 81 and 94),
Aug. 17, 2016 (Doc. 1663); Pls. Response to Defs. Status Report on Remediation Plan,
28 Sept. 2, 2016 (Doc. 1668); Pls. Briefing regarding Cell Front Mental Health Encounters,

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1 efforts, the Court has issued numerous orders finding Defendants non-compliant with
2 various provisions of the Stipulation, ordering Defendants to properly monitor their
3 compliance with the Stipulations requirements, and enforcing its terms.3
4 Defendants repeated and sustained non-compliance has forced the Plaintiffs to
5 engage in over two years of ongoing enforcement activities. The culmination of this
6 overwhelming non-compliance is the Courts recent order on June 14, 2017 that
7 Defendants continued non-compliance shall result in an order to show cause as to why
8 fines of $1,000 should not be imposed for every single prisoner whose medical care did
9 not comply with the Stipulations requirements. [Doc. 2124]
10 The enormous amount of work, time, effort and costs expended by Plaintiffs to
11 enforce the Stipulation must now be compensated by the plain terms of the Stipulation.
12 Plaintiffs therefore request an award of attorneys fees in the amount of $593,109.80 as
13 compensation for enforcement work through June 30, 2017. Additionally, Plaintiffs seek
14 an enhancement to the lodestar fees of a 2.0 multiplier under the factors enumerated in
15
16 Sept. 20, 2016 (Doc. 1685); Pls. Br. Regarding Defs. Non-Compliance with Courts
Order, Oct. 19, 2016 (Doc. 1717); Pls. Statement Regarding Defs. August 2016 CGAR
17 Data and Defs. Ongoing Noncompliance with the Stipulation, Nov. 7, 2016 (Doc. 1739);
Pls. Statement re Unresolved Issues Related to Defs. Proposed Monitoring Guide and
18 Methodology to Measure Compliance, Nov. 15, 2016 (Doc 1755); Pls. Resp. in
Opposition to Defs. Mot. for Relief from Final Order, Dec. 7, 2016 (Doc. 1806); Pls.
19 Response to Defs. Status Update (PM 80, 94), Dec. 30, 2016 (Doc. 1841); Pls. Mot. to
Enforce3 the Stipulation, Jan. 13, 2017 (Doc. 1863)]
20 [See, e.g., Order, May 20, 2016 (Doc. 1583) (requiring Defendants to submit
remedial plan for PM 11, 13, 14, 37, 39, 46, 54, 66, 85, 92, 93, and 98); Order, Sept. 6,
21 2016 (Doc. 1673) (requiring compliance with paragraphs 12, 14, and 15 of the Stipulation;
agreeing with Plaintiffs as to the interpretation of the performance measures language
22 every X days and seen for purposes of mental health encounters; agreeing with
Plaintiffs that PM 33, 34, 75, and 76 apply to parole violators; finding non-compliance
23 with PM 85, 86, 98); Order, Oct. 7, 2016 (Doc. 1709) (requiring remedial plans for
PM 47, 80, 94 at certain facilities); Order, Nov. 8, 2016 (Doc. 1745) (finding cell front
24 visits to be non-compliant with Stipulation); Order, Nov. 10, 2016 (Doc. 1754)
(addressing proper monitoring of PM 86; requiring Defendants to use community health
25 care services for certain non-compliant performance measures); Order, Jan. 13, 2017
(Doc. 1862) (raising concerns re reliability of monitoring of PM 36-37); Order, Feb. 6,
26 2017 (Doc. 1917) (denying Defs. Motion for Relief); Order, Apr. 24, 2017 (Doc. 2030)
(finding non-compliance as to PM 35, 39, 40, 44, 45, 50, 51, 52, 94 at certain facilities);
27 Order, June 14, 2017 (Doc. 2124) (notifying Defendants that it would hold an Order to
Show Cause hearing as to certain performance measures at specific institutions if there
28 were no improvements in compliance in 30 days)]

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1 Section III, infra, in the amount of $593,109.80 for a total of $1,186,219.60 in fees. For
2 costs, Plaintiffs seek $161,461.27. In total, Plaintiffs seek $1,347,680.87 in fees, costs
3 and enhancements.
4 II. Recovery of Attorneys Fees and Costs under the Stipulation
5 Under Rule 23 of the Federal Rules of Civil Procedure a court may award
6 attorneys fees and costs that are authorized by law or by the parties agreement. Fed.
7 R. Civ. P. 23(h). In the Stipulation approved by the Court on February 18, 2015, the
8 parties agreed that:
9 In the event that Plaintiffs move to enforce any aspect of this
Stipulation and the Plaintiffs are the prevailing party with
10 respect to the dispute, the Defendants agree that they will pay
reasonable attorneys fees and costs, including expert costs, to
11 be determined by the Court. The parties agree that the hourly
rate of attorneys fees is governed by 42 U.S.C. 1997e(d).
12
13 [Doc. 1185 43]4 Thus, the award of attorney fees here is based upon the agreed terms of
14 the Stipulation. As a result, the award of fees in this matter is not contingent upon any
15 findings made pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C.
16 1997e(d) et seq. Pursuant to the plain terms of the Stipulation, the PLRA governs the
17 award of attorneys fees here only as to the hourly rate established under that statute.
18 While the award of attorneys fees and costs for work done to enforce the
19 Stipulation in this case is authorized by the Stipulation itself (Doc. 1185 43, 44), the
20 Stipulation uses the phrases prevailing party and reasonable attorneys fees, terms
21 borrowed from 42 U.S.C. 1988. Section 1988 provides that a Court may grant a
22 reasonable attorneys fee as part of the costs to the prevailing party in a civil rights
23 suit. See 42 U.S.C. 1988(b). Analysis of attorneys fees under Section 1988 begins
24 with a determination of prevailing party status. In the instant case, there can be no
25 question that Plaintiffs are the prevailing partythey have repeatedly prevailed in
26
4
[See also id. 44 (annual cap on monitoring fees shall not apply to any work
27 performed in mediating disputes before the Magistrate pursuant to paragraphs 22, 29, and
31 above, or to any work performed before the District Court to enforce or defend this
28 Stipulation)]

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1 enforcement motions; findings of non-compliance by this Court; and the relief repeatedly
2 ordered.
3 A prevailing party is one who has succeeded on any significant issue in litigation
4 which achieve[d] some of the benefit the parties sought in bringing suit. Tex. State
5 Teachers Assn v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (emphasis added)
6 (internal quotations omitted); see also Farrar v. Hobby, 506 U.S. 103, 111 (1992)
7 (Therefore, to qualify as a prevailing party, a civil rights plaintiff must obtain at least
8 some relief on the merits of his claim.). Here, Plaintiffs have continuously and
9 repeatedly prevailed in their efforts to enforce the Stipulation. As a result of Plaintiffs
10 efforts, this Court repeatedly (1) has found Defendants substantially noncompliant with a
11 myriad of performance measures at multiple institutions, (see, e.g., Docs. 1583, 1709,
12 2030, 2124); (2) has ordered Defendants to comply with the performance measure
13 requirements; (3) has ordered Defendants to develop remediation plans; and (4) has
14 ordered Defendants to take necessary measures, such as using community health care
15 resources when they cannot comply with the terms of the Stipulation. [See, e.g.,
16 Docs. 1583, 1673, 1709, 1745, 1754, 1862, 2030]
17 That Plaintiffs did not obtain every single aspect of relief they sought over the
18 course of multiple motions to enforce and multiple findings of Defendants non-
19 compliance with the Stipulation is irrelevant to the prevailing party determination.
20 Likewise, the fact that the Courts ultimate findings of substantial noncompliance do not
21 encompass every performance measure at every institution originally identified in a
22 Notice of Noncompliance does not negate the fact that Plaintiffs are the prevailing party.
23 To be considered a prevailing party [i]t is enough that [plaintiff] succeed on any
24 significant claim affording some of the relief sought, either pendente lite or at the
25 conclusion of the litigation. Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995) (quoting
26 Tex. State Teachers Assn v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989)).
27
28

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1
III. Plaintiffs are Entitled to Recover All of Their Requested Fees and Costs and a
2 2.0 Multiplier Enhancement
3 Having determined that Plaintiffs are prevailing parties, calculating the fee award is
4 a two-step process. First, the court calculates the lodestar figure by taking the number of
5 hours reasonably expended on the litigation and multiplying it by a reasonable hourly
6 rate. Fischer v. SJF-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (internal quotations
7 omitted); see also Klein v. City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 2016)
8 (same).
9 Second, the court must decide whether to enhance or reduce the lodestar figure
10 based on an evaluation of the Kerr factors that are not already subsumed in the initial
11 lodestar calculation.5 Fischer, 214 F.3d at 1119; see also Graves v. Arpaio, 633 F. Supp.
12 2d 834, 842 (D. Ariz. 2009) (citing an evaluation of the Kerr factors as the basis for
13 enhancing or reducing the lodestar).
14 A. Calculation of Reasonable Attorneys Fees
15 The most critical factor in determining the reasonableness of a fee award in a
16 civil rights suit is the degree of success obtained. Farrar, 506 U.S. at 114 (quoting
17 Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). In Hensley, the Supreme Court
18 considered whether the district court could grant attorneys fees for time expended on
19 claims on which plaintiffs did not prevail. 461 U.S. at 433. The Court held that even
20 though a plaintiff was not entitled to an award of fees for time spent on unsuccessful
21 claims unrelated to successful claims, id. at 434-35, [w]here a lawsuit consists of related
22 claims, a plaintiff who has won substantial relief should not have his attorneys fee
23 reduced simply because the district court did not adopt each contention raised. Id. at
24 440. Thus, a courts duty in a complex case is not to parse out and determine fees on a
25 claim-by-claim basis, since [m]uch of counsels time will be devoted generally to the
26
5
In Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), the
27 Ninth Circuit adopted as appropriate factors in determining a reasonable attorneys fee the
twelve guidelines originally set forth in Johnson v. Georgia Highway Express, Inc., 488
28 F.2d 714 (5th Cir. 1974).

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1 litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim

2 basis. Id. at 435.
3 The overwhelming majority of the hours spent by Plaintiffs related to the motions
4 to enforce the Stipulation due to Defendants ongoing noncompliance with the
5 Stipulations requirement of self-monitoring and their noncompliance with multiple
6 performance measures. All of Plaintiffs claims of noncompliance involved a common
7 core of facts and were based on related legal theories. Accordingly, Plaintiffs counsel
8 should recover a fully compensatory fee. See Hensley, 461 U.S. at 435 (where the
9 plaintiff presents different claims for relief that involve a common core of facts or are
10 based on related legal theories, the district court should not attempt to divide the request
11 for attorneys fees on a claim-by-claim basis; instead, the court should focus on the
12 significance of the overall relief obtained by the plaintiff in relation to the hours
13 reasonably expended on the litigation); see also Padgett v. Loventhal, 706 F.3d 1205,
14 1209 (9th Cir. 2013) (Often, attorney work will bear on multiple claims, only some of
15 which are successful. Fees for work which relates only to unsuccessful claims should not
16 be awarded. But where attorney work proves beneficial to a successful claim, district
17 courts should generally award these fees in full, even if the work is also useful to an
18 unsuccessful claim) (citing Hensley, 461 U.S. at 436).
19 The hours spent on prosecuting the motions to enforce, evaluating Defendants
20 efforts to comply, and informing the Court of Defendants continued non-compliance are
21 essentially indistinguishable; all involved the common issue of Defendants failure to
22 comply with the Stipulation and their resulting failure to protect class members from
23 harm. Accordingly, the hours spent on these enforcement activities are fully
24 compensable. Where a plaintiff has obtained excellent results, his attorney should
25 recover a fully compensatory fee. Normally this will encompass all hours reasonably
26 expended on the litigation, and indeed in some cases of exceptional success an enhanced
27 award may be justified. Hensley, 461 U.S. at 435.
28

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1 1. Documentation Supporting Reasonableness

2 Counsel has attached documentation indicating the identity of the biller, time spent
3 on the activity, specific description of the activity, and hourly rate charged by the biller.
4 [Specter Decl., Exs. A, B; Declaration of David C. Fathi (Fathi Decl.), August 31, 2017,
5 Ex. B] Billers kept contemporaneous track of their time and entered it in their
6 organizations respective billing system. [Specter Decl. 6; Fathi Decl. 10] As
7 appropriate, billing judgment was exercised to reduce the total number of hours. [Specter
8 Decl. 6; Fathi Decl. 7]
9 2. Determination of the Hourly Rate
10 Having determined the number of hours reasonably spent on various activities, the
11 next step is to determine appropriate hourly rates for the attorneys, paralegals, and law
12 clerks who billed time. However, because the Stipulation adopts the PLRA limit on the
13 hourly rate for attorneys fees150 percent of the hourly rate established for payment of
14 court-appointed counsel (Doc. 1185 43; 42 U.S.C. 1997e(d)(3))the rate here is
15 already pre-determined. The Ninth Circuit has held that the baseline for the PLRA hourly
16 rate is the amount authorized by the Judicial Conference. Webb v. Ada Cty., 285 F.3d
17 829, 839 (9th Cir. 2002). The current rate authorized by the Judicial Conference for the
18 payment of court-appointed counsel is $146 per hour, (see Doc. 2044-1, Ex. 1 at 37 (The
19 Judiciary FY 2017 Congressional Budget Summary)), and accordingly, 150 percent of that
20 rate is $219 per hour. See also Carruthers v. Israel, No. 76-06086, ____ F. Supp. 3d
21 ____, 2017 WL 3531471 at *6-7 (S.D. Fla. Aug. 15, 2017) (awarding the NPP attorney
22 fees at an hourly rate of $219, and law clerk fees at the requested rate of $160). Likewise,
23 the reasonable hourly rate for paralegals is also capped at $219 per hour. See Perez v.
24 Cate, 632 F.3d 553, 556-58 (9th Cir. 2011) (paralegal fees awarded to prevailing plaintiffs
25 in prison civil rights litigation are subject to same hourly cap under the PLRA as attorney
26 fees where award is below paralegal market rate in relevant area); see also Declaration of
27 Kathy Brody (Brody Decl.), August 31, 2017, 7 (the PLRA cap is generally lower
28

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1 than Arizona market rates for first-year attorneys); Specter Decl. 11 (the billing rate for
2 paralegals in Berkeley, California is $250).6
3 3. Calculation of the Lodestar
4 Plaintiffs counsel spent a total of 2,745.90 hours on enforcing the Stipulation.
5 Multiplying by the respective hourly rate of each biller yields a total lodestar of
6 $593,109.80:
7 Prison Law Office
8 Attorney/Staff Hours Hourly Total
Rate
9 Donald Specter 174.80 219.00 38,281.20
Corene Kendrick 723.00 219.00 158,337.00
10 Alison Hardy 245.30 219.00 53,720.70
11 Rita Lomio 89.30 219.00 19,556.70
Sara Norman 17.50 219.00 3,832.50
12 Mae Ackerman- 85.60 219.00 18,746.40
Brimberg
13
Gwen Wu 3.70 219.00 810.30
14 Paralegals
Amber Norris 10.50 219.00 2,299.50
15 Megan Lynch 60.40 219.00 13,227.60
16 Laura Graham 52.70 219.00 11,541.30
Sarah Hopkins 1.70 219.00 372.30
17 Bernadette Rabuy 7.60 219.00 1,664.40
Briana Zweifler 6.90 219.00 1,511.10
18 Local Counsel
Kirstin Eidenbach 337.70 219.00 73,956.30
19 Total 1816.70 397,857.30
Total with 2.0 $795,714.60
20 Multiplier
21
22
23
24
6
Given the lack of available counsel, see infra Section III.B.9, this case falls under
25 an exception to the local forum rule for attorneys fees. See Gates v. Deukmejian, 987
F.2d 1392, 1405 (9th Cir. 1992) ([R]ates, other than those of the forum, may be
26 employed if local counsel was unavailable, either because they are unwilling or unable to
perform because they lack the degree of experience, expertise, or specialization required
27 to handle properly the case.). Accordingly, Washington, D.C. and Berkeley, California
rates should be used as a starting point for calculating NPP and PLOs lodestar, subject to
28 the PLRA cap.

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1 ACLU National Prison Project

2 Attorney/Staff Hours Hourly Total
3 Rate
David Fathi 641.80 $219.00 $140,554.20
4 Amy Fettig 45.30 $219.00 $ 9,920.70
Jamelia Morgan 67.10 $219.00 $ 14,694.90
5 Sarah Goetz 35.30 $219.00 $ 7,730.70
Law Clerks 102.70 $160.00 $ 16,432.00
6 Paralegals 37.00 $160.00 $ 5,920.00
Total 929.20 $195,252.50
7 Total with 2.0 $390,505.00
Multiplier
8
B. The Kerr Factors Support an Award of the Full Lodestar and an
9 Enhancement
10 The lodestar method of calculating fees is strongly presumed to be reasonable.
11 Oviatt v. Pearce, 954 F.2d 1470, 1482 (9th Cir. 1992) (There is a strong presumption that
12 the lodestar figure is reasonable); Morales v. City of San Rafael, 96 F.3d 359, 363 n.8
13 (9th Cir. 1996) (the lodestar figure is presumed to be reasonable).
14 However, the twelve factors set forth in Kerr may be used to make adjustments to
15 the lodestar. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975) (citing
16 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). The Kerr
17 factors include:
18 (1) the time and labor required, (2) the novelty and difficulty of
the questions involved, (3) the skill requisite to perform the legal
19
service properly, (4) the preclusion of other employment by the
20 attorney due to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time limitations
21 imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience, reputation,
22 and ability of the attorneys, (10) the undesirability of the case,
23 (11) the nature and length of the professional relationship with
the client, and (12) awards in similar cases.
24
25 Id. at 70. Kerr factors 1 through 4 and 6 are used by the court to determine the

26 reasonableness of the award. See Kerr, 526 F.2d at 70; Graves, 633 F. Supp. 2d at 846.7

27
7
The Supreme Court has turned away from considering the fixed or contingent
28 nature of the fee being charged. City of Burlington v. Dague, 505 U.S. 557, 566 (1992)

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1
Any decision to adjust the initial lodestar figure is informed by Kerr factors 5 and 7
2
through 12. Kerr, 256 F.2d at 70; Graves, 633 F. Supp. 2d at 847. Such enhancements to
3
the lodestar for attorneys fees in prisoner rights cases for declaratory and injunctive relief
4
are recognized by the Ninth Circuit. See Kelly v. Wengler, 822 F.3d 1085, 1102-1106 (9th
5
Cir. 2016) (upholding attorneys fees enhancement in prisoner rights class action where
6
attorneys demonstrated superior performance and the need to attract competent counsel).
7
Below, Plaintiffs set forth each of the Kerr factors in turn to demonstrate that the
8
fees sought here are reasonable, and that not only should the full amount of fess requested
9
be granted, but a 2.0 multiplier enhancement is also warranted.
10
1. The Time and Labor Required
11
The first Kerr factor, the time and labor required, is already included in the
12
calculation of the lodestar. Morales, 96 F.3d at 364 n.9. Nevertheless, some general
13
comments about counsels efforts are warranted. Counsel staffed this case efficiently.
14
Kirstin Eidenbach, local counsel in Arizona, being closest to the prisons, performs client
15
visits and coordinates nearly all prison site visits. [Specter Decl. 8] The NPP used
16
lower-billing law clerks to perform legal research and related tasks. [Fathi Decl. 11]
17
Whenever possible, intensive document review and analysis was conducted by paralegals
18
and law clerks. [Id.]
19
2. The Novelty and Difficulty of the Issues
20
The novelty and difficulty of the issues presented is presumably reflected in the
21
calculation of the lodestar. Pennsylvania v. Del. Valley Citizens Council for Clean Air,
22
478 U.S. 546, 564-65 (1986). However, it is important to note that, for the purpose of
23
determining fees, Congress considered civil rights cases to be as complex as antitrust
24
cases. See Blum v. Stenson, 465 U.S. 886, 893 (1984); see also Declaration of Larry A.
25
Hammond (Hammond Decl.), August 30, 2017, 12. Indeed, the issues presented in
26
27 (Contingency enhancement is therefore not consistent with our general rejection of the
contingent-fee model for fee awards, nor is it necessary to the determination of a
28 reasonable fee.). Therefore, Kerr factor 6 is not discussed below.

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1 enforcing compliance with the Stipulation were difficult. While it is not unusual for pre-
2 judgment cases to be hard fought, in most cases once there is agreement on a remedy there
3 is much more cooperation and much less rancor between the parties. This case is very
4 unusual because the State and its lawyers have failed to cooperate in any meaningful way,
5 necessitating protracted litigation not only to enforce the Stipulation, but also to resolve
6 the meaning of plain and unambiguous terms. [Specter Decl. 4] In Plaintiffs counsels
7 decades of experience it is likely the hardest fought and most litigated post-judgment
8 prison or jail case. [Id.] This is not a run-of-the-mill case for other reasons as well; it
9 required the marshalling and analysis of complex evidence, often from thousands of pages
10 of medical records and other documents, working with prisoners and expert witnesses,
11 writing declarations, participating in mediations, preparing, briefing and arguing multiple
12 issues, and keeping up to date on ADCs efforts to comply with 103 health care
13 performance measures. [Specter Decl. 5]
14 3. The Skill Required to Perform the Legal Services
15 Likewise, the skill required to perform the legal services provided is presumably
16 reflected in the calculation of the lodestar. Del. Valley Citizens Council, 478 U.S. at 565.
17 Nevertheless, the trial judge should closely observe the attorneys work product, his
18 preparation, and general ability before the court. The trial judges expertise gained from
19 past experience as a lawyer and his observation from the bench of lawyers at work
20 become highly important in this consideration. Johnson, 488 F.2d at 718. This complex
21 case required highly skilled lawyers and advocates. Plaintiffs attorneys met this standard.
22
4. The Preclusion of Other Employment by the Attorneys Involved
23 in the Case
24 This guideline involves the dual consideration of otherwise available business
25 which is foreclosed because of conflicts of interest which occur from the representation,
26 and the fact that once the employment is undertaken the attorney is not free to use the time
27 spent on the clients behalf for other purposes. Johnson, 488 F.2d at 718; see also Kerr,
28 526 F.2d at 70. Plaintiffs counsel already represented the certified class of ADC

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1 prisoners at the beginning of the period for which fees are now sought. Nevertheless, all
2 of the work performed for which compensation is requested came with a significant
3 opportunity cost. David Fathi, Director of NPP, is a senior litigator who devoted the
4 overwhelming majority of NPPs total hours on this portion of the case. He was
5 precluded from accepting new, potentially fee-generating work while he worked on this
6 case. [Fathi Decl. 17] Donald Specter and Corene Kendrick at the PLO were likewise
7 limited in the new work that they could take on during the period covered by this motion.
8 [Specter Decl. 6]
9 5. The Customary Fee in Similar Litigation
10 Plaintiffs have indicated the market hourly rates for their attorneys and other staff.
11 The rates charged by the PLO are set based on prevailing market rates in the San
12 Francisco Bay Area. [See Specter Decl. 11] The rates charged by the NPP were set
13 with reference to the Laffey Matrix, which is intended by the U.S. Department of
14 Justice to be used to determine rates in the Washington, D.C. area in cases in which a fee-
15 shifting statute permits the prevailing party to recover reasonable attorneys fees. [See
16 Fathi Decl. 13-15; id., Ex. D] These rates would ordinarily be the customary fees
17 charged in similar litigation. However, since the Stipulation adopts the PLRAs cap on
18 hourly rates, the customary fee becomes the PLRA rate cap of $219 per hour. This is
19 orders of magnitude less than would be recovered in litigation not governed by the PLRA.
20 [See Hammond Decl. 12]
21 6. Time Limitations Imposed by the Clients or Circumstances
22 Priority work that delays the lawyers other legal work is entitled to some
23 premium. Johnson, 488 F.2d at 718; see also Kerr, 526 F.2d at 70 (listing preclusion of
24 other employment opportunities due to attorneys acceptance of case as one of the factors
25 courts must consider). However, for the purposes of determining an enhancement, this
26 factor is presumed to be already represented in the lodestar. See, e.g., Chalmers v. City of
27 Los Angeles, 796 F.2d 1205, 1212 (9th Cir. 1986).
28

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1 7. The Results Obtained by the Lawsuit

2 Plaintiffs counsel does not charge a surcharge for exceptional results. [Specter
3 Decl. 11; Fathi Decl. 19] However, as discussed above, there can be no dispute that
4 Plaintiffs counsel obtained excellent results for the class, vigorously and repeatedly
5 enforcing the terms of the Stipulation in the face of sustained intransigence by the
6 Defendants. See supra, Section I.
7 8. The Experience, Reputation, and Ability of the Attorneys
8 The use of this factor has been limited since Kerr was decided. Del. Valley
9 Citizens Council, 478 U.S. at 565. ([N]ovelty [and] complexity of the issues, the
10 special skill and experience of counsel, the quality of representation, and the results
11 obtained from the litigation are presumably fully reflected in the lodestar amount, and
12 thus cannot serve as independent bases for increasing the basic fee award.) (quoting
13 Blum, 465 U.S. at 898-900). It is nonetheless true that class counsel in this matter are
14 leading national experts in prisoners rights litigation. The NPP, founded in 1972, is one
15 of the most experienced groups of prisoners rights litigators in the nation. It has more
16 than forty years of litigating prison conditions class actions such as this case. [Fathi Decl.
17 4-5]. Federal courts have recognized the special expertise of NPP staff. [Id. 5]
18 Similarly, the PLO has decades of experience bringing successful system-wide class
19 action prisoner rights suits, including seminal cases in the Ninth Circuit and the Supreme
20 Court. [Specter Decl. 2]
21 9. The Undesirability of the Case
22 Class action cases on behalf of prisoners are generally considered undesirable
23 even by the civil rights bar, in part because they are so time-consuming and expensive to
24 litigate. See Fathi Decl. 18; see also Planned Parenthood of Cent. & N. Ariz. v. State of
25 Ariz., 789 F.2d 1348, 1354 (9th Cir. 1986) (We recognize that the undesirable nature of
26 a case is an appropriate factor in determining attorneys fees.). The PLRAs fee cap
27 serves to make such cases even more undesirable by cutting market rates substantially.
28 See e.g., Graves, 633 F. Supp. 2d at 847 (This case is considered undesirable because

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1 1983 class actions on behalf of prisoners involving the conditions of confinement are
2 exceedingly fact-intensive, time-consuming, and expensive to litigate, and the PLRA
3 restricts the hourly rate for attorneys fees below market.).
4 In the present case, finding counsel to represent the class was difficult. There are
5 no offices in Arizona like the PLO and the NPP. [See Brody Decl. 5] No lawyers in
6 Arizona have the degree of experience in prisoner rights litigation or the expertise to
7 litigate a complex, statewide, prisoner rights class action, and as a result it was necessary
8 to bring in outside legal expertise to conduct this case. [Brody Decl. 5] It is also the
9 case that no qualified lawyers in Arizona would have been willing to bring this case and
10 others like it for the low fee rate set by the PLRA. [Brody Decl. 6; Hammond Decl.
11 11-12] Moreover, if the NPP and the PLO had not joined the Parsons v. Ryan legal
12 team, this case would not have been brought by the ACLU of Arizona or other local
13 counsel. [Brody Decl. 6; Hammond Decl. 10]
14
10. The Nature and Length of the Professional Relationship with the
15 Clients
16 Plaintiffs counsel began their relationship with the plaintiff class approximately
17 six years ago, when the NPP and the PLO began investigating conditions in the Arizona
18 Department of Corrections. [Fathi Decl. 6] Since then, counsel has maintained close
19 contact with individual prisoners and the class as a whole, through regular visits, tours,
20 and interviews. [Fathi Decl. 6; Specter Decl. 3]
21 11. Awards in Similar Cases
22 The reasonableness of a fee may also be considered in the light of awards made in
23 similar litigation within and without the courts circuit. Johnson, 488 F.2d at 719; see
24 also Moore v. James H. Matthews & Co., 682 F.2d 830, 838 (9th Cir. 1982). It is
25 difficult, if not impossible, for the sake of comparison, to identify cases with identical fact
26 patterns, procedural histories, or time necessary to obtain relief. Indeed, every case will
27 be distinguishable from the instant case in at least one or more ways. Nevertheless, the
28 cases discussed below may be instructive. In Graves, a case from 2008, the attorneys

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1 representing a plaintiff class of people detained in the Maricopa County Jail successfully
2 defeated a motion to terminate a judgment involving conditions of confinement, although
3 some provisions of the judgment were terminated. As a result of the litigation in Graves,
4 the Court issued an amended, enforceable judgment. 633 F. Supp. 2d at 841. The Court
5 awarded the NPP the full amount of attorneys fees requested, even though some
6 provisions of the original judgment were terminated. Id. at 856 (awarding attorneys fees
7 in the amount of $1,239,491.63). And in Carruthers v. Israel, the court awarded the NPP
8 the full amount of fees and costs sought, approximately $800,000, plus interest from the
9 date of judgment. 2017 WL 3531471 at *7.
10 12. A Fees Enhancement is Justified by Plaintiffs Counsels
Superior Performance and the Need to Attract Competent
11 Counsel
12 Taken together, the Kerr factors support both the reasonableness of the fees
13 requested and the addition of a 2.0 lodestar enhancement. In Kelly v. Wengler, the Ninth
14 Circuit held that in both PLRA and non-PLRA cases, the district court may enhance the
15 lodestar when plaintiffs counsels superior performance and commitment of resources
16 is rare and exceptional as compared to run-of-the-mill representation in such cases.
17 822 F.3d at 1103 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553-54 (2010))
18 (internal citations omitted)). Citing Perdue, the Ninth Circuit further noted that the
19 district court appropriately justified an enhancement to the lodestar in finding that
20 plaintiffs counsel provided extraordinary performance yielding extraordinary results,
21 and that the quality of the work that produced these results [was] underrepresented in the
22 hourly fee. 822 F.3d at 1103.
23 In upholding an enhancement to the PLRA rate for plaintiffs counsel in Kelly, the
24 Ninth Circuit further noted that the district court had enhanced the lodestar because it
25 found that the limited fees available in prisoner civil rights cases, without enhancement,
26 are insufficient to induce private attorneys Id. at 1104. Citing Perdue, the Ninth
27 Circuit also noted that [w]hen the lodestar figure based on the PLRA rate is insufficient
28

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1 to induce competent attorneys to accept appointment in meritorious civil rights cases, it is

2 by definition not a reasonable fee. Id. at 1104 (citing Perdue, 559 U.S. at 552).
3 As set forth below, a 2.0 enhancement of Plaintiffs counsels fees here is clearly
4 justified under Ninth Circuit precedent in Kelly.
5 a. Superior Performance and Excellent Results
6 Like the attorneys in Kelly, Plaintiffs counsel here demonstrated superior
7 performance, commitment of resources, and excellent results for clients, justifying an
8 enhancement to the lodestar. Id. at 1102-04. In the face of sustained intransigence by
9 Defendants, Plaintiffs counsel have vigorously and repeatedly moved to enforce the
10 terms of the Stipulation, producing excellent results for the class. See, supra, Sections I,
11 III.B.7. This work has taken an enormous amount of resources to achieve. See, supra,
12 Section III.B.4. The outlay of resources and continuous work required in this case are
13 largely a product of Defendants conduct and litigation strategy.
14 Despite agreeing to the terms of the Stipulation, Defendants have persistently and
15 pervasively failed to comply with its terms. Plaintiffs counsel has worked tirelessly to
16 enforce Defendants compliance with the Stipulation. This work has uncovered repeated
17 violations of multiple measures across multiple facilities, for example:
18 After a year of monitoring, Plaintiffs demonstrated profound lapses in treatment
in critical measures such as access to medical care (HC PM #37); chronic care
19 visits (HC PM #54); provider encounters in the infirmary (HC PM 66);
administration of medication (HC PM #11); monitoring of psychotropic
20 medications (HC PM #81); and suicide prevention (HC PM #94). [Doc. 1535]
As a result of these systemic deficiencies, patients suffered serious injury,
21 illness and, in some cases, death. [Doc. 1535 at 2-3]

22 In the face of Defendants continued failure to address their ongoing and

substantial noncompliance with HC PM ## 11, 13, 14, 37, 39, 46, 47, 54, 66,
23 80, 85, 92, 93, 94, 98, in any meaningful way, Plaintiffs counsel rigorously
analyzes Defendants monthly data and their underlying monitoring
24 methodology to uncover Defendants failures and find better solutions to both
comply with the Stipulation and provide the necessary care to prevent
25 unnecessary pain, suffering and death for the Plaintiff class. [Doc. 1739]

26 Nearly two years after the Stipulation took effect, and after months of attempted
negotiation and mediation with Defendants, Plaintiffs again must move to
27 enforce multiple performance measures across multiple facilities in the face of
Defendants chronic and severe noncompliance, including HC PM ## 4, 35, 37,
28

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1 39, 40, 44, 45, 50, 51, 52, 55, 73, 74, 80, 86, 87, 88, 94, 95, 97, and 98. [Doc.
1863]
2
3 [See also Docs. 1562, 1581, 1610, 1625, 1663, 1717, 2214] The results of Defendants

4 violations are serious delays in and outright denials of health care that place class

5 members at serious risk of harm. Despite Plaintiffs counsels relentless efforts, and the

6 fact that the Court itself has provided Defendants over two years to try all of their

7 proposed solutions, for many performance measures, nothing has worked. [Doc. 2179

8 at 2] Defendants noncompliance and intransigence has reached such an extreme level

9 that the Court itself is considering appointing a Rule 706 expert because the issues are so

10 complex and the noncompliance so extensive and longstanding. [Docs. 2029, 2043,

11 2045, 2067, 2083, 2084, 2133, 2134, 2138, 2140]

12 Indeed, the problems of Defendants noncompliance, repeatedly pointed out by

13 Plaintiffs counsel in monthly updates, (see, e.g., Docs. 1581, 1610, 1668, 1739, 1841),

14 have forced the Court to finally consider the imposition of a $1,000 fine for any

15 continuing failure by Defendants to comply with certain performance measures.

16 [Doc. 2124 at 1-3]

17 For over two years, Plaintiffs counsel has worked to help Defendants implement

18 an appropriate and effective monitoring system. Prior to filing their motions to enforce,

19 Plaintiffs repeatedly notified Defendants that they were noncompliant with the terms of

20 the Stipulation because the methodology used to measure compliance was flawed,

21 haphazard, inconsistent and inaccurate. [See, e.g., Doc. 1625, Motion to Enforce the

22 Stipulation, July 12, 2016, at 6 (summarizing the extensive history of Plaintiffs raising

23 concerns with methodology prior to filing their enforcement motion)] These efforts were

24 unavailing. [See, e.g., Docs. 1673, 1745, 1754, 1755, 1833, 1895, 1915, 1933, 1951]

25 Plaintiffs counsel have repeatedly faced Defendants intransigence on specific

26 monitoring issues; repeatedly prevailed on Court orders; and repeatedly been forced by

27 Defendants failures to return to the Court for relief. The following are a few examples of

28

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1 specific areas where Defendants have persistently used incorrect monitoring methodology
2 or changed monitoring methodology to alter compliance findings:
3 Defendants failed to comply with the Courts September 6, 2016 order,
(Doc. 1673 at 4, 6), regarding the use of invalid monitoring methodology for
4 performance measures requiring that an act be performed every X days.
Defendants counsel claimed to be in compliance with the Courts order during
5 an October 5, 2016 status conference. Plaintiffs disagreed and the Court
directed the parties to discuss the issue to reach a common understanding. [See
6 Transcript of October 5, 2016 Status Conference at 23-26] Plaintiffs wrote to
Defendants but received no response and as a result were forced to brief the
7 issue for the Court once again. [Doc. 1717 ]

8 Defendants subsequently failed to comply with the Courts December 23, 2016
order, (Doc. 1833 at 1), regarding Performance Measures requiring action
9 every X days. [Doc. 2046 at 39-41; Doc. 2087 at 12-13; Doc. 2128, 2128-1]

10 Defendants continued to count group contacts for the requirement that a patient
be seen, in violation of the Courts Order of September 6, 2016. [Doc. 1673;
11 Doc. 2046 at 38; Doc. 2087 at 13-14]

12 On November 8, 2016, the Court ordered Defendants to discontinue using cell-

front contacts to satisfy the requirement that a patient be seen, (Doc. 1745 at
13 1); despite this the Defendants continued using this disallowed methodology.
[Doc. 2046 at 38-39; Doc. 2087 at 14]
14
Defendants suddenly made a unilateral change in monitoring methodology to
15 adopt a partial credit method, subsequently rejected by the Court. [Doc. 1831
at 1-2]
16
17 Defendants sustained non-compliance, despite multiple motions to enforce and

18 multiple court orders, ultimately resulted in a series of hearings over a two month period

19 to finally resolve their refusal to properly monitor the Stipulations performance measures.

20 [See Doc. 1964 (3/8/17); Doc. 1980 (3/21/17); Doc. 1996 (3/28/17); Doc. 2029 (4/17/17)]

21 After these hearings, Plaintiffs counsel submitted voluminous pleadings and expert

22 declarations to assist the Court in formulating a monitoring methodology that will both

23 further compliance with the Stipulation and reflect accurate compliance findings.

24 [Docs. 2046, 2047, 2048, 2087, 2088, 2089, 2090, 2091]

25 Rather than working to comply with the Stipulation or the Courts multiple orders,

26 the Defendants have engaged in a strategy of resistance and stonewalling at every turn.

27 For instance, they have repeatedly filed motions for reconsideration regarding issues of

28 noncompliance and motions for clarification on various monitoring methodology issues.

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1 [See, e.g., Docs. 1707, 1752, 1774, 1779, 1821, 1824, 1942, 2135, 2136] These frivolous
2 motions required repeated response from Plaintiffs counsel and hours of work. [See, e.g.,
3 Docs. 1772, 1806]
4 While Plaintiffs counsel has labored continuously to overcome Defendants
5 intransigence and non-compliance, Defendants have made this work much more difficult
6 because the representations of their counsel and even their witnesses are frequently false.
7 [See e.g., Transcript of July 10, 2017 Telephonic Discovery Dispute at 10:23-11:20
8 (submission of false declaration); Transcript of July 21, 2017 Emergency Telephonic
9 Status Hearing at 25:6-9 (THE COURT: I learned that when I told Mr. Bojanowski,
10 that I had learned yet another thing that was the opposite of what you had told me in court
11 when I spoke to a deputy warden); Doc. 1682 (Defendants Notice of Errata admitting
12 they had submitted false CGAR numbers)] The Court has already recognized Defendants
13 repeated false representations:
14 I have heard over and over again that this is going to be
addressed by a program that employs oftentimes the same
15 words. Were going to talk to the people. Were going to
make sure that the right person understands what they are
16 supposed to get. And then subsequent months show the same
errant numbers and the same representations are made so you
17 kind of at a certain point start to think people arent really
listening [to] what they are saying and not even believing it
18 themselves. They are just words that are being given that
dont seem to have a relationship to the reality.
19
20 [Transcript of June 14, 2017 Status Hearing at 24:11-20]8
21
8
The Court has also repeatedly expressed its displeasure with Defendants conduct
22 of the case. [See, e.g., Transcript of July 13, 2017 Status Hearing at 40:24-41:8 (The
second thing that happens is that after a while when I get continued reports that dont
23 seem to be borne out, I stop trusting them. And what that means is I look for other
sources of information and those other sources of information are potentially more costly,
24 less efficient, and disruptive to the operations of the state Department of Corrections. And
I dont want to be in that situation, but I feel like Im being funneled into a lane of traffic
25 that is necessary but undesirable. So I say these words because I think they need to be
said, because this is something that should not happen.); Transcript of July 14, 2017
26 Status Hearing at 5:17-23 (But as you know, I have got lots of problems with whats
happening on the defendants side of the case and they know about that with respect to
27 compliance with certain aspects of my orders and also facilitating what I think is efficient
management of the case. And you have heard, and defendants counsel have heard me go
28 over those things.)]

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1 The difficulties Plaintiffs counsel encounter on a daily basis in this case have been
2 multiplied and exacerbated by Defendants acts of intimidation and retaliation against
3 class members. These acts directly undermine a core function of Plaintiffs counsels
4 oversight role, which is to tour facilities and speak with clients. The Court-ordered
5 settlement grants Plaintiffs counsel reasonable access to the institutions [and] prisoners
6 necessary to properly evaluate whether Defendants are complying with the
7 performance measures and other provisions of this Stipulation. [Doc. 1185 29]
8 Despite the requirements of the Stipulation, however, Defendants actions have
9 created a climate of fear that makes it even more difficult for Plaintiffs counsel to
10 monitor compliance with the Stipulation because prisoners face the legitimate fear of
11 retaliation for even speaking with their counsel, much less testifying before the Court.
12 One such incident occurred during Plaintiffs counsels tour of the Tucson prison
13 complex on November 1-2, 2016, where a Deputy Warden engaged in a pattern of
14 intimidation of prisoners by standing in close proximity to attorney-client
15 communications, taking pictures of the cells, and announcing near the end of the visit that
16 everyone would be ticketed (disciplined). [Doc. 1819 at 2-3] As a result of the Deputys
17 actions, many clients refused to speak with Plaintiffs counsel and several indicated they
18 were afraid of retaliation. [Id. at 3] During that same tour a number of clients also
19 indicated that staff told them to say the right thing during the tour or their lives would be
20 made hell. [Id.]
21 At an emergency telephonic hearing on November 2, 2016 the Court heard
22 arguments from both parties and determined that Defendants threats to ticket everyone
23 in proximity to Plaintiffs counsels monitoring activities made it impossible for them to
24 carry out their Court-ordered monitoring: [T]he application of these infractions across
25 everybody whos participating in these interviews can reasonably be seen to chill the
26 environment for full disclosure. And so I cannot allow that to continue. [Transcript of
27 Nov. 2, 2016 Hrg. at 15:5-9] At that hearing the Court approved of the parties agreement
28 to provide a letter to the Plaintiff class assuring them that they would not face retaliation

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1 for communicating with Plaintiffs counsel. [Doc. 1819 at 4] However, over a month
2 after Plaintiffs counsel wrote to Defendants asking them to make good on the agreement,
3 they had not responded, necessitating further enforcement action by Plaintiffs counsel.9
4 [Id.; see also Doc. 1897]
5 Despite these numerous obstacles, Plaintiffs counsel has continuously provided far
6 more than run-of-the-mill representation for the Plaintiff classindeed, excellent
7 results have been achieved. As a result of Plaintiffs efforts, the Court has issued
8 numerous orders finding Defendants non-compliant with various provisions of the
9 Stipulation, ordering Defendants to properly monitor their compliance with the
10 Stipulations requirements, and enforcing its terms. [See, e.g., Docs. 1583, 1673, 1709,
11 1745, 1754, 1862, 1917, 2030] These continued and strenuous efforts most recently
12 resulted in the June 14, 2017 order stating that every single failure to comply with certain
13 health care performance measures under the Stipulation will result in an order to show
14 cause as to why the court should not impose a $1,000 fine on Defendants for each
15 violation. [Doc. 2124]
16 While vigorously enforcing the terms of the Stipulation and its 103 health care
17 performance measures, Plaintiffs counsel has worked tirelessly to demonstrate
18 Defendants monitoring flaws and worked to improve and standardize their processes. As
19 a result the Court has found that much of the methodology Defendants have used for the
20
21 9
Despite the Courts clear admonition to Defendants related to retaliatory action
against Plaintiffs, such obstruction continues. Just recently Plaintiffs counsel notified the
22 Court that witnesses called to testify at a hearing were repeatedly retaliated against by
Defendants. [Docs. 2190, 2191] As a result the Court held an emergency telephonic
23 hearing finding changes in status of incarcerated witnesses close in time to their
testimony. [Doc. 2205] The Court ordered Defendants not to harass, intimidate or
24 otherwise retaliate against witnesses and to submit a detailed declaration outlining steps
taken to ensure the Courts orders are followed. [Doc. 2209 at 4] The Court subsequently
25 ordered Defendant Charles Ryan to appear in Court to testify regarding compliance with
its order during a Status Conference held on August 8-9, 2017. [Doc. 2226] Thereafter
26 the Court scheduled further hearings to address these matters on September 11, 12, and
13, 2017. [Doc. 2236] Plaintiffs are not seeking fees for this work at this time, as it post-
27 dates the June 30, 2017 cut-off for this motion. These events are mentioned here as
illustrative examples of the ongoing and enormous amount of work required to monitor
28 and enforce the Stipulation.

LEGAL136820538.1 -21-
 Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 27 of 31

1 past two years is faulty. [See, e.g., Docs. 1673, 1745, 1831, 1833, 1907, 1915, 1933,
2 1951] As a result of Plaintiffs counsels continuous and meticulous monitoring and
3 evaluation of Defendants compliance and the Courts resulting orders, the parties are now
4 jointly developing a monitoring guide for all performance measures under the Stipulation.
5 [See, e.g., Docs. 1889, 1921, 1931, 1998, 2046]
6 b. Attracting Competent Counsel
7 Like the Plaintiffs counsel in Kelly, counsel here have also demonstrated the need
8 to attract competent counsel to difficult and important cases, such as this one, as a
9 justification for lodestar enhancement. See 822 F.3d at 1104-05. Attracting competent
10 counsel to this critically important case brought on behalf of prisoners was extremely
11 difficult due to the lack of lawyers willing and able to bring such a complicated, time-
12 intensive case under the PLRA fee cap in the State of Arizona. See, supra, Section
13 III.B.9. Experienced Arizona practitioner Larry Hammond states that the low rates
14 available to attorneys under the PLRA fee cap for injunctive and declaratory prisoner
15 rights cases foreclose qualified lawyers in Arizona from taking these important cases,
16 despite the great need in the State for such representation. [Hammond Decl. 9-14] As
17 in Kelly, an enhancement here is justified by the evidence demonstrating that an increased
18 attorneys fees award is necessary to ensure competent counsel in comparable cases. 822
19 F.3d at 1105-06.
20
C. Plaintiffs are Entitled to Recover Litigation Expenses and Costs,
21 Including Expert Costs
22 A reasonable attorneys fee includes reimbursement for expenses incurred in the
23 litigation. See Woods v. Carey, 722 F.3d 1177, 1179 n.1 (9th Cir. 2013) ( 1988 allows
24 for recovery of reasonable out-of-pocket expenses that would normally be charged to a fee
25 paying client, including photocopying, paralegal expenses, and travel and telephone
26 costs) (internal quotation marks, citations omitted). Moreover, the Stipulation
27 specifically allows Plaintiffs to seek costs, including expert costs. [Doc. 1185 43]
28

LEGAL136820538.1 -22-
 Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 28 of 31

1 Itemized lists of expenses are appended to the Specter and Fathi Declarations.
2 [Specter Decl., Ex. C; Fathi Decl., Ex. C] [See also Fathi Decl. 20-25] Expenses for
3 which reimbursement is sought include, but are not limited to, expert consultation fees,
4 photocopying, out-of-town travel (e.g., airfare, taxis, meals, hotel), long-distance
5 telephone charges, postage and courier fees, transcripts, and other expenses that would
6 typically be billed to clients. [See generally Specter Decl. 9; Fathi Decl. 20]10
7 IV. Conclusion
8 For the foregoing reasons, Plaintiffs respectfully request that the Court award them
9 $593,109.80 in attorneys fees, a $593,109.80 enhancement to those fees under the Kerr
10 factors, and $161,461.27 in expenses. In total, Plaintiffs seek $1,347,680.87 in fees, costs
11 and enhancements.
12 Respectfully submitted,
13 Dated: August 31, 2017 ACLU NATIONAL PRISON PROJECT
14 By: s/ Amy Fettig
David C. Fathi (Wash. 24893)*
15 Amy Fettig (D.C. 484883)**
Victoria Lopez (Ill. 6275388)*
16 915 15th Street N.W., 7th Floor
Washington, D.C. 20005
17 Telephone: (202) 548-6603
Email: [email protected]
18 [email protected]
[email protected]
19
*Admitted pro hac vice. Not admitted
20 in DC; practice limited to federal
courts.
21 **Admitted pro hac vice
22
23
24
25
26
27 10
Plaintiffs are also entitled to fees on fees as compensation for their time spent
on the instant motion. See Anderson v. Director, OWCP, 91 F.3d 1322, 1325 (9th Cir.
28 1996).

LEGAL136820538.1 -23-
 Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 29 of 31

1 Daniel C. Barr (Bar No. 010149)

Amelia M. Gerlicher (Bar No. 023966)
2 John H. Gray (Bar No. 028107)
PERKINS COIE LLP
3 2901 N. Central Avenue, Suite 2000
Phoenix, Arizona 85012
4 Telephone: (602) 351-8000
Email: [email protected]
5 [email protected]
[email protected]
6
Kathleen E. Brody (Bar No. 026331)
7 ACLU FOUNDATION OF
ARIZONA
8 3707 North 7th Street, Suite 235
Phoenix, Arizona 85013
9 Telephone: (602) 650-1854
Email: [email protected]
10
Donald Specter (Cal. 83925)*
11 Alison Hardy (Cal. 135966)*
Sara Norman (Cal. 189536)*
12 Corene Kendrick (Cal. 226642)*
Rita K. Lomio (Cal. 254501)*
13 PRISON LAW OFFICE
1917 Fifth Street
14 Berkeley, California 94710
Telephone: (510) 280-2621
15 Email: [email protected]
[email protected]
16 [email protected]
[email protected]
17 [email protected]
18 *Admitted pro hac vice
19 Kirstin T. Eidenbach (Bar No. 027341)
EIDENBACH LAW, PLLC
20 P. O. Box 91398
Tucson, Arizona 85752
21 Telephone: (520) 477-1475
Email: [email protected]
22
Caroline Mitchell (Cal. 143124)*
23 JONES DAY
555 California Street, 26th Floor
24 San Francisco, California 94104
Telephone: (415) 875-5712
25 Email: [email protected]
26 *Admitted pro hac vice
27
28

LEGAL136820538.1 -24-
 Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 30 of 31

1 John Laurens Wilkes (Tex. 24053548)*

JONES DAY
2 717 Texas Street
Houston, Texas 77002
3 Telephone: (832) 239-3939
Email: [email protected]
4
*Admitted pro hac vice
5
Attorneys for Plaintiffs Shawn Jensen;
6 Stephen Swartz; Sonia Rodriguez;
Christina Verduzco; Jackie Thomas;
7 Jeremy Smith; Robert Gamez; Maryanne
Chisholm; Desiree Licci; Joseph Hefner;
8 Joshua Polson; and Charlotte Wells, on
behalf of themselves and all others
9 similarly situated
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

LEGAL136820538.1 -25-
 Case 2:12-cv-00601-DKD Document 2276 Filed 09/05/17 Page 31 of 31

1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 31, 2017, I electronically transmitted the above

3 document to the Clerks Office using the CM/ECF System for filing and transmittal of a

4 Notice of Electronic Filing to the following CM/ECF registrants:

5
Michael E. Gottfried
6 Lucy M. Rand
Assistant Arizona Attorneys General
7 [email protected]
[email protected]
8
Daniel P. Struck
9 Rachel Love
Timothy J. Bojanowski
10 Nicholas D. Acedo
Ashlee B. Fletcher
11 Jacob B. Lee
Kevin R. Hanger
12 STRUCK WIENEKE, & LOVE, P.L.C.
[email protected]
13 [email protected]
[email protected]
14 [email protected]
[email protected]
15 [email protected]
16 [email protected]

17 Attorneys for Defendants

18 Sarah Kader
Asim Dietrich
19 Rose A. Daly-Rooney
J.J. Rico
20 Jessica Jansepar Ross
Maya Abela
21 ARIZONA CENTER FOR DISABILITY LAW
[email protected]
22 [email protected]
[email protected]
23 [email protected]
[email protected]
24 [email protected]

25 Attorneys for Plaintiff Arizona Center for Disability Law

26 s/ D. Freouf
27
28

LEGAL136820538.1 -26-
 Case 2:12-cv-00601-DKD Document 2276-1 Filed 09/05/17 Page 1 of 4

1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA
8 Victor Parsons; Shawn Jensen; Stephen Swartz; No. CV 12-00601-PHX-DKD
Dustin Brislan; Sonia Rodriguez; Christina
9 Verduzco; Jackie Thomas; Jeremy Smith; Robert
Gamez; Maryanne Chisholm; Desiree Licci; Joseph [PROPOSED] ORDER
10 Hefner; Joshua Polson; and Charlotte Wells, on GRANTING PLAINTIFFS
behalf of themselves and all others similarly MOTION FOR ATTORNEYS
11 situated; and Arizona Center for Disability Law, FEES & COSTS
12 Plaintiffs,
13 v.
14 Charles Ryan, Director, Arizona Department of
Corrections; and Richard Pratt, Division Director,
15 Division of Health Services Monitoring Bureau,
Arizona Department of Corrections, in their official
16 capacities,
17 Defendants.
18
19 This Court, having reviewed Plaintiffs Motion for Attorneys Fees and Costs
20 incurred in enforcing the provisions of the Stipulation through June 30, 2017, hereby
21 FINDS that Plaintiffs are entitled to their reasonable fees and costs as prevailing parties
22 under the terms of the Stipulation. [Doc. 1185 43, 44] Plaintiffs established prevailing
23 party status here because they repeatedly prevailed in enforcement motions; findings of
24 non-compliance made by this Court; and the relief repeatedly ordered. [See, e.g.,
25 Docs. 1583, 1673, 1709, 1745, 1754, 1862, 1917, 2030, 2124]
26 The Court further FINDS that Plaintiffs are entitled to recover all of the attorneys
27 fees requested because their fee request is reasonable as demonstrated by the Declarations
28 of Counsel and the billing records submitted to the Court. [See Declaration of Donald

136795825.1
 Case 2:12-cv-00601-DKD Document 2276-1 Filed 09/05/17 Page 2 of 4

1 Specter (Specter Decl.); Declaration of David C. Fathi (Fathi Decl.)] The work done
2 here took considerable legal skill and precluded counsel from accepting other, potentially
3 fee-generating work. [See Fathi Decl. 17; Specter Decl. 6] It required Plaintiffs
4 counsel to marshal and analyze complex evidence, often from thousands of pages of
5 medical records and other documents. Additionally, counsel worked extensively with
6 both prisoner and expert witnesses, wrote declarations, participated in mediations,
7 prepared, briefed and argued multiple issues, while keeping up to date on ADCs efforts to
8 comply with 103 health care performance measures. [Specter Decl. 5] This complex
9 case required highly skilled lawyers and advocates. Plaintiffs counsel met this challenge.
10 Furthermore, Plaintiffs have demonstrated that billing judgment was exercised to
11 reduce the total number of hours for which fees were requested. [Specter Decl. 6; Fathi
12 Decl. 7] Plaintiffs have also demonstrated that they engaged in cost-effective measures
13 by having local counsel perform onsite tasks to keep travel costs low. [Specter Decl. 8]
14 Additionally, lower-billing law clerks and paralegals were utilized to perform document
15 review and analysis, legal research and related tasks. [Fathi Decl. 11]
16 The hourly rate in this matter is predetermined by the Stipulation which adopts the
17 PLRA limit on the hourly rate for attorneys fees. [Doc. 1185 43]. This rate is currently
18 $219.00. [Doc. 2044-1, Ex. 1 at 37 (United States Courts FY 2017 Congressional Budget
19 Summary)] Plaintiffs counsel spent a total of 2,745.90 hours on enforcing the
20 Stipulation. Multiplying by the respective hourly rate of each biller yields a total lodestar
21 of $593,109.80 in fees.
22 Plaintiffs have also requested a multiplier enhancement of 2.0 to attorneys fees in
23 this matter. Such enhancements to the lodestar for attorneys fees in prisoner rights cases
24 for declaratory and injunctive relief are recognized by the Ninth Circuit. See Kelly v.
25 Wengler, 822 F.3d 1085, 1102-1106 (9th Cir. 2016) (upholding attorneys fees
26 enhancement in prisoner rights class action where attorneys demonstrated superior
27 performance). Like the Plaintiffs attorneys in Kelly, counsel here have demonstrated
28 superior performance and commitment of resources in this matter.

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 Case 2:12-cv-00601-DKD Document 2276-1 Filed 09/05/17 Page 3 of 4

1 Plaintiffs counsel has worked for over two years to monitor Defendants
2 compliance with the Stipulation. This has not been run-of-the-mill litigation. It has
3 required a sustained course of work and remarkable persistence. As a result, Plaintiffs
4 counsel has uncovered repeated violations of multiple measures across multiple facilities.
5 [See, e.g., Docs. 1535, 1562, 1581, 1610, 1625, 1663, 1717, 1739, 1863, 2214] The work
6 produced has been exceptional, in the face of remarkable intransigence by Defendants.
7 Despite this, Plaintiffs counsel has repeatedly faced down Defendants intransigence on
8 specific monitoring issues; repeatedly prevailed on Court orders; and repeatedly been
9 forced by Defendants failures to return to the Court for relief. [See, e.g., Docs. 1673,
10 1717, 1831, 1833, 2046, 2087, 2128]
11 Plaintiffs counsel has also demonstrated exceptional work despite the false
12 representations made by Defendants. [See, e.g., Tr. of July 10, 2017 Telephonic Disc.
13 Dispute at 10:23-11:20 (submission of false declaration); Tr. of July 21, 2017 Emergency
14 Telephonic Status Hrg. at 25:6-9 (THE COURT: I learned that when I told
15 Mr. Bojanowski, that I had learned yet another thing that was the opposite of what you
16 had told me in court when I spoke to a deputy warden); Doc. 1682 (Defendants Notice
17 of Errata admitting they had submitted false CGAR numbers)] Moreover, the difficulties
18 Plaintiffs counsel has faced in this litigation have been multiplied and exacerbated by
19 Defendants acts of intimidation and retaliation against class members. Such acts have
20 been recognized and disapproved by this Court. [See Tr. of Nov. 2, 2016 Hrg. at 15:5-9]
21 Despite this difficult course of litigation, Plaintiffs counsel has still managed to
22 produce excellent results for the Plaintiff class by vigorously enforcing the terms of the
23 Stipulation and its 103 health care performance measures. As a result the Court has found
24 that much of the methodology Defendants have used for the past two years is faulty. [See,
25 e.g., Docs. 1673, 1745, 1831, 1833, 1907, 1915, 1918, 1933, and 1951] Moreover, the as
26 a result of Plaintiffs counsels continuous and meticulous monitoring and evaluation of
27 Defendants compliance and the Courts resulting orders, the parties are now jointly
28 developing a monitoring guide for all performance measures under the Stipulation. [See,

136795825.1 -3-
 Case 2:12-cv-00601-DKD Document 2276-1 Filed 09/05/17 Page 4 of 4

1 e.g., Docs. 1889, 1921, 1931, 1998, 2046] This monitoring guide and its accompanying
2 methodology should help rectify many of the inconsistencies and inaccuracies Defendants
3 have continued to perpetrate in the monitoring process.
4 Due to the superior performance of Plaintiffs counsel and the excellent results
5 achieved for the Plaintiffs, the Court FINDS that a 2.0 enhancement is warranted here.
6 Reasonable attorneys fees include reimbursement of expenses and the Stipulation
7 specifically allows Plaintiffs to seek costs when they are a prevailing party. [Doc. 1185
8 43] Plaintiffs counsel have provided the Court itemized lists of expenses appended to
9 the Specter and Fathi Declarations. [Specter Decl., Ex. C; Fathi Decl., Ex. C] The
10 expenses reflected in Plaintiffs counsels records are those for which reimbursement is
11 typically billed to clients. [See Specter Decl. 9; Fathi Decl. 20] The Court FINDS
12 that Plaintiffs expenses in the amount of $161,461.27 are reasonable.
13 IT IS THEREFORE ORDERED that Defendants shall pay $593,109.80 in
14 attorneys fees, a $593,109.80 enhancement to those fees, and $161,461.27 in expenses.
15 In total, Defendants shall pay Plaintiffs counsel $1,347,680.87 in fees, costs, and
16 enhancements plus interest from the date of this order pursuant to 28 U.S.C. 1961.
17
18
19
20
21
22
23
24
25
26
27
28

136795825.1 -4-