United States Court of Appeals,

Fifth Circuit.

No. 95-60260

Summary Calendar.

James COOPER, Individually and on behalf of all others similarly situated; Wayne Bowen,

Individually and on behalf of all others similarly situated; James A Plummer, Jr, Individually and on

behalf of all others similarly situated, Plaintiffs-Appellants Cross-Appellees,

v.

Daisy PENTECOST, Madison County Jailor, Defendant-Appellee.

Jessie Hopkins, Sheriff of Madison County; Marc Sharpe, member of the Madison County Board

of Supervisors, individually and in his official capacity; Bob Dowdle, member of the Madison County

Board of Supervisors, individually and in his official capacity; David H Richardson, member of the

Madison County Board of Supervisors, individually and in his official capacity; Karl Banks, member

of the Madison County Board of Supervisors, individuall y and in their official capacity; J L

McCullough, member of the Madison County Board of Supervisors, individually and in his official

capacity, Defendants-Appellees Cross-Appellants,

and

John W Watkins, Member of the Board of Corrections, Individually and in his official capacity; H

E Tinin, Member of the Board of Corrections, I ndividually and in his official capacity; Arthur W

Morton, Member of the Board of Corrections, Mississippi Department of Corrections, Individually

and in his official capacity; Charles Yo ung, Member of the Board of Corrections, Mississippi

Department of Corrections, Individually and in his official capacity; Frank Covington, Member of

the Board of Corrections, Mississippi Department of Co rrections, Individually and in his official

capacity; Lee J Edwards, Member of the Board of Corrections, Mississippi Department of

Correc t io ns, Individually and in his official capacity; Sarah E Arnold, Member of the Board of

Corrections, Mississippi Department of Corrections, Individually and in her official capacity; Charlie

Weeks, Member of the Board of Corrections, Mississippi Department of Corrections, Individually

and in his official capacity, Defendants.

March 14, 1996.

Appeals from the United States District Court for the Southern District of Mississippi.

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case involves an appeal and cross-appeal of a district court's order awarding attorneys'

fees, pursuant to 42 U.S.C. § 1988. Finding no reversible error, we affirm.

I

This civil rights case began in 1978, when a group of prison inmates (hereinafter "plaintiffs")1 Specifically, Madison County argued that the consent judgment's wording required each party

to bear its own costs, that requested fees concerning work occurring before the appeal of the

denial of the Rule 60(b) motion were time-barred by S.D.Miss.R. 15 (Local Rule 15), that the

hourly rate for the services of Welch and Wallace should be lessened because of their limited roles

in the case, and that the duplication of services overstated the total number of hours. in the Madison County Jail, Madison County, Mississippi, filed a class action lawsuit against Madison

County and its o fficials (hereinafter "Madison County"), pursuant to Title 42 U.S.C. § 1983. The

p arties reached an interim consent judgment which included a variety of remedial measures an d

directives aimed at bringing the jail into compliance with the requireme nts of the Uni ted States

Constitution.

More than a decade after entry of the final judgment , Madison County filed a motion,

pursuant to F ED .R.C IV .P. 60(b)(5) and (6), for relief from the consent judgment. After an evidentiary

h e aring, a magistrate judge entered a memorandum opinion and order on September 28, 1993,

denying Madison County's Rule 60(b) motio n and finding them in contempt of court for being in

continuing violation of the consent judgment. The magistrate judge did not enter a separate judgment

in accordance with F ED .R.C IV .P. 58.

Thereafter, Madi so n Co unty moved for permission to take an interlocutory appeal of the

magistrate judge's decision. This motion was initially denied. However, aft er reconsideration, a

magistrate judge amended the memorandum opinion and order of September 23, 1993, to provide

that interlocutory appeal could be taken. On appeal, this court affirmed the magistrate judge's denial

of Madison County's Rule 60(b) motion and the magistrate judge's finding of contempt. Cooper v.

Noble, 33 F.3d 540, 545 (5th Cir.), supplemented by, 41 F.3d 212 (1994).

Following this Court's opinion in Cooper v. Noble, the attorn eys for the plaintiffs, Ronald

Reich Welch, Tara Walker, and Terry Wallace, petitioned for attorneys' fees, pursuant to 42 U.S.C.

§ 1988(b). Madison County opposed the fee requests on several grounds. 1 The district court, in a

detailed memorandum opinion, awarded attorneys' fees to the three attorneys.

The plaint iffs' attorney s filed a t imely notice of appeal, and Madis o n County filed a t imely

notice of cross-appeal.

II2 The district court reduced the number of hours that Walker and Wallace submitted by

approximately fifty percent. The court found that Welch's reasonable attorney's fees were

$11,400 (56.25 hours × $150/hour). Walker's reasonable fees, according to the court, were

$13,060 (130.6 hours × $100/hour). The court found that Wallace was reasonably entitled to

$13,406.25 (107.25 hours × $125/hour). On appeal, the attorney s argue that the district court erred (1) in reducing their hours as

duplicative and repetitive, and (2) in failing to enhance their hourly rate or to grant a multiplier. On

cross-appeal, Madison County argues that the district court erred in awarding the attorney s their preSeptember 1993 attorneys' fees. "On appeal, we review the court's award of attorneys' fees for abuse

of discretion and the supporting factual findings for clear error." W atkins v. Fordice, 7 F.3d 453, 457

(5th Cir.1993).

A

Attorneys Walker and Wallace contend that the district court erred in reduc ing t heir fees

based on the court's belie f t hat, in several instances, the hours the attorneys submitted were

duplicative and repetitive. 2 In assessing attorneys' fees, a district court must examine the factors set

out in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717-19 (5th Cir.1974). However, it

is not necessary for the court to examine each of the factors independently if it is apparent that the

court has arrived at a just compensation based upon appropriate standards. C obb v. Miller, 818 F.2d

1227, 1232 (5th Cir.1987). The fee applicant bears the burden of proving that the number of hours

for which compensation is requested is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437, 103

S.Ct . 1933, 1941, 76 L.Ed.2d 40 (1983). "Where the documentation of hours is inadequate, t he

district court may reduce the award accordingly." I d. at 433, 103 S.Ct. a t 1939. Whether the

reported hours are repetitive and duplicative is a finding o f fact subject to the clearly erroneous

standard of review. A ssociated Builders & Contractors of LA, Inc. v. Orleans Parish Sch. Bd., 919

F.2d 374, 379 (5th Cir.1990).

We co nclude that the district court's finding that some of the attorneys' hours were

duplicati ve and repetitive was not clearly erroneous. The district court specifically listed several

examples of what it considered duplicative or repetitive work. One such example was that both the

attorneys claimed five hours for reviewing a transcript on one day. Then, on the next day, both the3 F ED .R.C IV .P. 58 provides that "[e]very judgment shall be set forth on a separate document.

A judgment is effective only when so set forth and when entered as provided in Rule 79(a)."

F ED .R.C IV .P. 79(a) "requires that all judgments and orders filed in each case be entered on the

civil docket kept by the clerk of the district court." Silver Star Enters., Inc. v. M/V

SARAMACCA, 19 F.3d 1008, 1012 (5th Cir.1994). attorneys claimed six and one-half hours for reviewing the same transcript "with co-counsel." The

district court also found that the attorney s submitted hours for tasks that, in its opinion, should have

taken less time to complete. A specific example t hat the district court cited was that Wallace had

submitted twenty-five hours for preparing a list of areas of non-compliance. It is the attorneys' duty

to provide sufficient documentation of their services, including the division of labor. In the absence

of such evidence, the district court's finding that the attorneys' services were repetitive and duplicative

was not clearly erroneous.

B

The district court's award included fees for legal services performed in opposing Mad i son

County's F ED .R.C IV .P. 60(b) motion before the magistrate judge in addition to services performed

in preparing and defending against Madison County's F ED .R.C IV .P. 60(b) appeal. Madison County

argues that fees for services performed before the appeal are time-barred by S.D. Mississippi Local

Rule 15. This local rule provides that "all motions for attorney's fees to be awarded by law as part

of the costs of

t he act io n, whether provided for by statute or otherwise, shall be served by the

prevailing party to whom cost s are awarded not later than 30 days after entry of judgment." The

district court concluded that the award of fees for services performed before the filing of the notice

of appeal from the Rule 60(b) order was not time-barred by Local Rule 15. The district court stated

that the rule's thirty-day time period did not begin to run until a F E D .R.C IV .P. 58 judgment was

entered, which never occurred in this case. 3

Although the Fifth Circuit has never directly addressed this issue, the district court relied on

Whitaker v. City of Houston, Tex., 963 F.2d 831 (5th Cir.1992), in holding that the thirty-day time

limit for filing a petition for attorne ys' fees did not begin to run after the September 1993

memorandum and order in the absence of a Rule 58 judgment. The W hitaker cour t noted that

although a court of appeals can elect to take jurisdiction over an appeal even without a separate Rule4 See also Shalala v. Schaefer, --- U.S. ----, ----, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239

(1993) (holding that because there was no Rule 58 judgment, the time period for filing a petition

for attorneys fees under 28 U.S.C. § 2412(d)(1)(B) did not begin to run).

5 We note that the importance of a Rule 58 judgment is illustrated by this case. When the

defendants moved for leave to file an interlocutory appeal of the September 1993 order, the

magistrate initially denied it, then granted it, stating that appeal was proper under either 28 U.S.C.

§ 1292(a)(1) or § 1292(b). If a Rule 58 judgment had been entered, the defendants, as well as the

magistrate, would have been on notice of the parties' right to appeal, and the plaintiffs would have

been on notice of their need to file a petition for attorneys' fees. The lack of a Rule 58 judgment

created confusion over the parties' rights and obligations. 58 judgment, "the absence of a Rule 58 judgment meant that neither the ten day s fo r serving a

F ED .R.C IV .P. 59 motion nor the thirty days for filing a notice of appeal (from either the district court's

dismissal order or its subsequent orders denying post-dismissal motions) started to run." I d. at 833.

The district court in this case concluded that because there was not a F ED .R.C IV

. P. 58 judgment

following the September memorandum and order, the time limit for petitioning for attorneys' fees for

services performed in connection with the memorandum and order did not begin to run.

The Seventh Circuit's decision in Smith v. Village of Mayw ood, 970 F.2d 397 (7th Cir.1992),

provides additional support for the conclusion that absent a F ED .R.C IV .P. 58 judgment, the time limit

for filing a petition

fo r attorneys' fees does not begin to run. 4 Following an order by a court, but

absent a Rule 58 judgment, the prevailing party in Smith filed his fee petition outside the time limit

set by local rule for filing such petitions. The opposing party then argued that the fee petition was

time-barred by the local rule. The Seventh Circuit noted that the purpose of the F E D .R .C IV

. P. 58

requirement was to simplify the determination of the proper time for filing an appeal. The court

stated that the same rationale applied to determining the proper time to file a fee petition. I d. at 400.

Because there was no F ED .R.C IV .P. 58 judgment until after the plaint iff filed his petition for fees, the

court concluded that "the petition was, at worst, early." Id. 5

Consequently, this case is distinguishable from other Fifth Circuit cases in which we have held

that the requirements of Rule 58 should be relaxed where a court order is succinct and precise,

indicating a court's intent to take final, dispositive, and adjudicatory action on a matter. S ee Ellison

v. Conoco, Inc., 950 F.2d 1196, 1200-1201 (5th Cir.1992) (noting that "order was "succinct and to

the point,' and expressly granted the full relief requested"), cert. denied,

--- U.S.

----, 113 S.Ct. 3003,6 Although parties can waive the requirement of a Rule 58 judgment, Bankers Trust Co. v.

Mallis, 435 U.S. 381, 387-88, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978), the parties here did

not waive this requirement; the plaintiffs opposed Madison County's motion for leave to file a

permissive interlocutory appeal, under 28 U.S.C. § 1292(b). 125 L.Ed.2d 695 (1993); I nterFirst Bank Dallas, N.A. v. Federal Deposit Ins. Corp., 808 F.2d 1105,

1109 (5th Cir.1987) (noting that order was "a document separately executed and docketed to dispose

of a post-tri al motion" which both p art ies treated as a "final appealable order"); U nited States v.

Perez, 736 F.2d 236, 237-38 (5th Cir .1984) (noting that one-page order meets the "separate

do cument" requirement of Rule 58 where it is succinct and to the point, and "[t]here is no t t he

slightest indication or claim that anyone understood the matter in any other way ... but as the final

dispositive and adjudicatory action of the district court"). Here, the magistrate's order was several

pages, and obviously confused both parties and the magistrate as to whether it was a final appealable

order. In addition, the order was not a final resolution of the relief requested.

We conclude that because there was no F ED .R.C IV .P. 58 judgment following the September

memo r andum and order, the thirty-day time limit for petitioning for fees earned before September

1993 did not begin to run. Therefore, the attorneys' fee petition was not barred by Local Rule 15. 6

C

The at t o rneys argue that the district court erred in denying their request for a five dollar

enhancer of their hourly rate, based on the undesirability of the case. They also argue that the court

should have mult iplied their hourly rate by two as punishment for Madison County's failure to comply

with the 1981 consent judgment.

It is appropriate for a court to enhance the lodestar amount only in certain exceptional cases

where the prevailing party demonstrates that the enhancement is necessary to make the lodestar

reasonable. Watkins, 7 F.3d at 459; Von Clark v. Butler, 916 F.2d 255, 260 (5th Cir.1990). The

district court did not abuse its discretion in deciding not to enhance the attorneys' award in this case.

The court considered the undesirability of the case as one of the Johnson factors the court used in

calculating the lodestar. Furthermore, the court concluded that despite any general negative stigma

associated with prisoner cases, the attorney s did not demonstrate that they were subj ected to"oppressive, unpleasant, or intimidating conditions" that would have supported an enhancement.

In rejec t ing t he at t o rneys' request for a multiplier, the court concluded that there was no

authority to support such relief and that the case did not justify p unitive compensation. It is

questionable whether a district court may multiply an award of attorneys' fees as punishment under

§ 1988. Cf. Hutto v. Finney, 437 U.S. 678, 691-92, 98 S.Ct. 2565, 2574, 57 L.Ed.2d 522 (1978)

(upholding attorneys' fees awarded as a result of party's bad fait h failure to cure constitutional

violations identified earlier by district court). However, even if a punishment multiplier is permissible,

t he at t o rneys were not pursuing noncompliance with the 1981 consent judgment when Madison

County brought the Rule 60(b) motion. Therefore, the district court did not abuse its discretion in

refusing to award the multiplier.

III

For the foregoing reasons, we AFFIRM.