The Third Circuit, in Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978), reversed and remanded where the district court attempted to make recovery of counsel fees proportional to the extent plaintiff prevailed in the action. Although the number of hours of service multiplied by the hourly rate totaled $3,850, the district court reduced the award by two-thirds to $1,275 since plaintiff prevailed on only one-third of the issues involved, and further reduced the award to $700 by finding that the work was "good" but "simple" The court of appeals held that the automatic reduction was legally impermissible and remanded the case for reconsideration. In doing so the court stated that legal services fairly devoted to successful claims are compensable even though they supported the prosecution of unsuccessful claims, and that the simplicity of issues is reflected only in determination of the number of hours reasonably devoted to the successful claims. Courts have held that the Attorney's Fees Awards Act of 1976 is applicable to cases which were pending at the time of its passage. Souza v. Southworth, 564 F.2d 609, 611 (1st Cir. 1977); Martinez Rodriguez v. Jimenez, 551 F.2d 877 (1st Cir. 1977); Miller v. Carson, 563 F.2d 741, 754 (5th Cir. 1977); Rainey v. Jackson State College, 551 F.2d 672, 676 (5th Cir. 1977); Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977); Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977). But see Zurcher v. Stanford Daily, 550 F.2d 464 (9th Cir. 1977), cert. granted, 434 U.S. 816, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 58 L.Ed.2d (1978) (presenting question of retroactivity of attorneys' fees amendment). In prisoner cases in which the Civil Rights Attorney's Fees Awards Act is not applicable, the court may award counsel fees to a successful plaintiff at the conclusion of the case where (1) they are authorized by statute or enforceable contract; (2) a common benefit is conferred by the recovery of a fund or property; (3) a party has willfully disobeyed a court order; or (4) the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 1620-23, 44 L.Ed.2d 26. See Carter v. Noble, 526 F.2d 677 (5th Cir. 1976) (single bad faith incident affecting one person sufficient to justify award of counsel fees to aggrieved party). 141, 153-56 (1975). Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 58 (3d Cir. 1976) concluded that a fifth situation in which counsel fees could be awarded would occur where there had been prelitigation vexation or oppression in resisting a just claim. However, such an award would not be available against an immune sovereign. E. Obtaining the Presence of Plaintiff When a hearing is required in a habeas corpus action, the witnesses are usually law enforcement officials who participated in some way in obtaining the plaintiff's conviction, and prosecution and defense attorneys. These witnesses can be summoned by subpoena. However, there are major problems in obtaining the presence in court of prisoner plaintiffs and their witnesses. In addition to the security problems presented when large numbers of prisoners must be brought to the court, further problems arise in determining the party responsible for bringing the witnesses to court and for paying the expenses. The plaintiff is usually proceeding in forma pauperis, and both the marshal and the institution officials object to being required to transport the prisoners and to paying for transportation of the plaintiff and his witnesses. The marshal takes the position that the costs cannot be imposed on the government. There is no clear cut legal precept that controls this problem. The courts have been solving it on an ad hoc basis. 27 One court's solution staying all proceedings - was until the plaintiff was released from custody rejected by the Court of Appeals for the Ninth Circuit. Wimberly v. Rogers, 557 F.2d 671 (9th Cir. 1977) stated: The district court's indefinite stay of all proceedings is tantamount to a denial of due process. Simply because a person is incarcerated does not mean that he is 27. See Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts (Tentative Report No. 2, May 20, 1977) 12-13. (Hereinafter Aldisert Report). stripped of free access to the courts is that: "This is governed by law and 557 F.2d at 673. Matter of Warden of Wisconsin State Prison, 541 F.2d 177 (7th Cir. 1976) held that prisoners do not have an absolute constitutional right to be present at their trials. In each case a discretionary decision must be made to determine whether the fulfillment of a fundamental interest of the prisoner so reasonably requires his being transported to court that it outweighs the state's interest in avoiding the risks and expense of such transportation: It can be granted that the right of a prisoner to file a civil action may have little meaning if success is reasonably dependent on his immediate presence in court, and such presence is denied. But we would not accord him an automatic right to be present, and thus present the state, as was done by the relief granted here, with the choice of releasing him from custody, or bringing him to court at substantial expense. Have Some of the relevant considerations would seem to be: How substantial is the matter at issue? How important is an early determination of the matter? Can the trial reasonably be delayed until the prisoner is released? possible dispositive questions of law been decided? Has the prisoner shown a probability of success? Is the testimony of the prisoner needed? If needed, will a deposition be reasonably adequate? Is the prisoner represented? If not, is his presence reasonably necessary to present his case? 541 F.2d at 181. Although Stone v. Morris, 546 F.2d 730 (7th Cir. 1976) again recognized that a prisoner does not have a constitutional right to appear as a witness in his own civil rights action, it held that the district court had erred in summarily excluding the plaintiff from his trial. Factors to be considered in determining whether a prisoner should be permitted to attend the trial of his claim include cost and inconvenience of transportation; security risks; substantiality of matters at issue; the need for an early determination of the matter; possibility of delaying trial until the prisoner is released; probability of success on the merits; integrity of the correctional system; and the interests of the inmate in presenting his testimony in person rather than by deposition. 28 Heidelberg v. Hammer, 577 F.2d 429 (7th Cir. 1978) held that the district court had improperly dismissed plaintiff's action for failure to prosecute when plaintiff, who was in custody, had failed to apply for a writ of habeas corpus ad testificandum and therefore failed to appear for his trial: If the question of whether a writ of habeas corpus ad testificandum should issue was considered by the court and decided in the negative, a dismissal of the action could not properly be based on the fact that the plaintiff failed to come to court, at least until other possible methods of disposing of the case on the merits, such as a bench trial in the prison if the plaintiff waived a jury, or trial by depositions, had been explored and found not to be feasible. If the reason the writ was not issued was that plaintiff did not ask for it, we think dismissal was still not justified. 577 F.2d at 431. The court referred to its two earlier opinions, Stone v. Morris, supra, and Moeck v. Zajackowski, supra, and added to the factors considered in those cases the defendant's possible interest in having a claim against him decided within a reasonable time, rather than left pending. The court noted that if it appeared that the plaintiff would be released from incarceration within a reasonable time, postponement 28. See also Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965) (prisoner plaintiff not entitled to personal appearance at § 1983 hearing as a matter of right). of the trial might be a sensible alternative to requiring the plaintiff's presence in court. However, if plaintiff would be incarcerated for many more years, postponement would not be a satisfactory solution. Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977) upheld the district court's order issuing writs of habeas corpus ad testificandum requiring the state of Florida to deliver six prisoners into the custody of the United States marshal who was directed to bring the prisoners before the court so that they might appear and testify. The marshal argued that the state of Florida should bear complete responsibility for transportation, but the court noted that since the rights involved were federal in nature and were important to the constitutional scheme, the decision was within the discretion of the district court. As to the plaintiff's right to call witnesses, in Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975), the court stated: In regard to Cook's request for witnesses, the district court advised him that it was necessary that he demonstrate to the court the nature and materiality of the testimony. When Cook failed to do so, the court properly declined to order such witnesses to appear at the trial. 518 F.2d at 780. The Aldisert Report 29 suggests that the plaintiff be required to summarize in his pretrial statement his testimony and the anticipated testimony of witnesses who are incarcerated. F. Supp. Marks v. Calendine, (N.D. W. Va., filed June 13, 1978) (76-283-E) required the losing pro se plaintiff to pay both his costs (although he had been granted leave to proceed in forma pauperis) and those of the defendants, who obtained a jury verdict in their favor. The court found that the plaintiff did not bring the action in good faith. The plaintiff had sought to have seven guards and prison officials subpoenaed and to have twenty-three inmates brought in 29. Aldisert Report (supra, Section I,E, n. 27) at 70, 92 (1977 ed.). |