Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:81-cv-01165-BLW
The opinion of the court was delivered by: Kleinfeld, Senior Circuit Judge:
Argued and Submitted April 13, 2011-Seattle, Washington
Before: Andrew J. Kleinfeld, Barry G. Silverman, and Kim McLane Wardlaw,*fn1 Circuit Judges.
Opinion by Judge Kleinfeld
We address an attorneys' fees award in a class action under the Prisoner Litigation Reform Act.
This is a class action, more than a quarter century old, by Idaho state prisoners at the Idaho State Correctional Institution (ISCI). The district court initially "was not successful in obtaining attorney representation"*fn2 for the prisoners, so they litigated pro se. They went to trial and won their case. The court found, in 1984, that because of deliberate indifference, without any connection to a legitimate penological purpose, the inmates were subjected to needless pain and suffering, on account of inadequate medical and psychiatric care.*fn3 That, plus overcrowding, and inadequate attention to housing and security, contributed to stabbings, assaults, gang rape, and sexual slavery.*fn4 Close custody (the classification for especially dangerous or vulnerable prisoners) was so badly managed that "[v]irtually every young man assigned to that custody level was brutally raped."*fn5 The court issued an injunction to remedy the constitutional violations.*fn6
Subsequently the court held hearings on compliance.*fn7 The prisoners were still pro se.*fn8 In 1987, the district court ruled that overcrowding had worsened, to the point where it amounted to "the unnecessary and wanton infliction of pain."*fn9
The court now made the injunction more precise and specific to each housing unit of the prison.*fn10 The court specifically limited double-celling-that is, two inmates in one cell-for some classifications, and also limited the number of prisoners housed in some units.*fn11 The court expressed particular concern about housing "close custody inmates," who "are often volatile, violent and predatory," with others upon whom these prisoners preyed.*fn12
The injunction remained in effect in 2008 and 2009, when the facts giving rise to this case occurred. The injunction prohibited, among other things: (1) putting "close custody" prisoners two in a cell instead of one in a cell, or housing more than 78 inmates in Unit 9; (2) housing more than 108 inmates in Units 10 or 11; and (3) housing more than 144 inmates in Unit 13.*fn13 The State was further enjoined from using "any other vehicle, scheme or mechanism designed to undermine the spirit and letter" of the injunction.*fn14 No question has been raised in this case regarding the continuing validity of the injunction.
The State of Idaho moved in 2007 to terminate the twenty-year-old injunction. The district court noted that it had previously appointed the Portland law firm, Stoel Rives LLP, to represent the prisoner class, "and the law firm worked on the litigation for almost two years without being paid for its work." The firm subsequently was awarded a portion of the fees it had earned, and withdrew as counsel. Because of the State's motion, the court determined that counsel was again necessary and gave notice that "the Court will attempt to locate counsel for Plaintiffs."
In April 2007, the State withdrew its motion to terminate the injunction. Evidently the injunction was still required to rectify constitutional violations, despite the injunction's decades-long duration. The district court concluded that it "must appoint counsel to represent the interests of the class members because the inmates cannot proceed pro se." After a lack of success finding anyone else, and considering Stoel Rives's experience and competence at representing the inmates, the court reappointed the firm. Stoel Rives submitted several interim bills. After considering objections to particular charges, the court ordered payment of amounts it calculated to be due. Those interim awards have not been appealed.
This appeal arises out of a crisis at the end of 2008 and the beginning of 2009. Idaho had been housing 650 of its prisoners in private prisons in Texas and Oklahoma. Idaho decided to terminate contracts with the private prison operators in those states, both out of a desire to save money and because of concerns about staff shortages at the private prisons. In October 2008, the State terminated the Texas contract and notified the Texas prison operator that it would remove the prisoners by January 5. But Idaho did not then have facilities in which to house the Texas prisoners. By late November, with the return date less than two months away, the Department of Correction had decided that it would convert a warehouse on the prison grounds, formerly used as an upholstery shop, into a new housing unit, to be called "Unit 24." The plan was to have a big open area housing all the prisoners in bunk beds. Inmates would use toilet facilities in two trailers outside the building.
Stoel Rives learned of the upholstery warehouse plan from the newspapers. On December 11, the firm wrote the deputy attorney general handling the case that the plan would appear to violate the prohibition in the injunction against double-celling and against housing inmates on "nondesigned cell areas," that is, areas not originally intended to be used as cells. Counsel asked the State for an explanation in hopes of avoiding litigation. The State responded that it would make the project manager available for a meeting, though "due to the holidays, the time for such a meeting is somewhat limited," to December 22, 23, 28 or 29. A December 22 meeting left a number of issues unresolved. In a January 2 email, the State advised Stoel ...