_________________________

Nos. 95-1105NE, 95-1115NE

_________________________

Jerry Jensen, on behalf of *

himself and all others *

similarly situated; Reginald *

Pierce; Richard Duff; Al *

Wilson; Harold Crisp; Laddie *

Dittrich; Gus Dawson; Victor *

Carter; George Carter; Michael *

Kane; Ernest L. Sims; Mohamed *

Abdul Hafiz El-Tabech; and *

and Victor Luna, *

*

* On Appeal from the United

 Appellees/Cross-Appellants, * States District Court

* for the District of

v. * Nebraska.

*

*

Harold W. Clarke, individually *

and in his official capacity *

as Director of the Nebraska *

Department of Correctional *

Services; and Frank X. Hopkins, *

individually and in his *

official capacity as Warden of *

the Nebraska State *

Penitentiary, *

*

 Appellants/Cross-Appellees. *

___________

 Submitted: July 5, 1996

 Filed: September 5, 1996

___________
Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit

Judges.

___________
 The Honorable William G. Cambridge, Chief Judge, United

1

States District Court for the District of Nebraska, adopting the

Report and Recommendation of the Honorable David L. Piester, United

States Magistrate Judge for the District of Nebraska.

 The Honorable Richard Kopf, United States District Judge for 2

the District of Nebraska.

 A fifth main housing unit was erected while this case was

3

pending.

-3-

RICHARD S. ARNOLD, Chief Judge.

The Nebraska State Penitentiary (NSP) is forced to house many

of its prisoners two men to a cell. This practice, known as

"double celling," requires two men to share a 74-square-foot cell.

The District Court held that, while this practice is not a per se 1

constitutional violation, randomly placing two prisoners together

under conditions as they exist at the NSP violates the plaintiffs'

right to be free from cruel and unusual punishment. The

defendants, the director of the Nebraska State Prison System and

the Warden of the NSP, appeal that decision. The plaintiffs crossappeal the portion of the order applicable to long-term inmates and

the District Court's holding that the defendants are entitled to

qualified immunity, shielding them from damages. We affirm the

District Court's order. We also affirm the District Court's2

subsequent orders instructing the defendants to adopt a remedial

plan, and granting the plaintiffs attorneys' fees.

I.

The plaintiffs in this case are the class of inmates housed or

to be housed in the four main housing units of the Nebraska State

Penitentiary. They brought this case under 42 U.S.C. § 1983,

3

challenging the conditions of their confinement in two respects.
-4-

First, they contend that the practice of double celling violates

the Eighth Amendment under the circumstances of this case. Second,

they contend that the policy of holding both inmates responsible
-5-

for contraband found in a double cell violates the Due Process

Clause of the Fourteenth Amendment. An 18-day evidentiary hearing

was held. The District Court rejected the due-process claim, but

held that, while the practice of double celling inmates did not

itself violate the Constitution, the manner in which the defendants

were conducting that practice did.

The District Court made extensive findings of fact in its

thorough opinion. Jensen v. Gunter, 807 F. Supp. 1463 (D. Neb.

1992). We will recount those findings here only to the extent

necessary for our review. The NSP, opened in 1981, is a maximum

security prison, housing the State's most violent offenders. It

consists of six housing units. Units one through four, the main

housing units, are at issue in this case. The cells are

approximately 74 square feet in size, and were intended to house

one inmate. Because of the large prison population, that

limitation has never been possible. The population at NSP hovers

at about 150% of capacity. To accommodate the large number of

prisoners, the NSP must double cell the inmates.

All adult male inmates in the Nebraska prison system are

screened at the Lincoln Correctional Center prior to being assigned

to an institution. Included in this screening is an assessment of

personal risk factors such as potential for suicide, propensity for

violence, victim potential, escape risk, security risk, and risk of

drug and alcohol abuse. At the time this suit was filed, this

assessment was used only in determining to which institution an

inmate would be sent. It was not used to predict compatibility of

inmates, or to help make cell assignments.

If prison officials are familiar with an inmate, they rely on

that familiarity when making cell assignments. All other incoming

inmates are assigned cells and cellmates on the basis of
-6-

availability; in other words, randomly. The only exceptions occur

if an inmate identifies another inmate with whom he has a serious
-7-

problem, or if an inmate is clearly hostile toward another inmate

or group of inmates. By way of example, a white supremacist will

not be celled with a black inmate.

The guards in the control centers cannot see into the cells.

Cell doors are solid, with a small window at eye level and a small

vent. Monitoring is accomplished primarily through an intercom

system. The speakers and receivers for this system are in the

hallway outside of the cells, requiring inmates to shout through

the vent in the door in order to get the attention of the guards on

duty.

The statistics introduced during the 18-day bench trial in

this case portray the NSP as an increasingly violent place. The

number of inmates found guilty of violent offenses such as assault,

aggravated assault, fights, and threatened bodily harm from 1983 to

1991 has increased at an alarming rate. Likewise, the number of

prisoners requesting protective custody because they were afraid to

remain in the general population increased "dramatically" in a

relatively short period of time. The District Court also noted

ample anecdotal evidence of violence in the prison. It

particularly relied on the testimony of inmates Jensen and Hart.

Inmate Jensen recounted how he was beaten by his cellmate while

yelling for help. Inmate Hart described his numerous assaults on

inmates who had the misfortune of being assigned to his cell.

Moreover, many acts of violence at the NSP go unreported and

undocumented for three reasons. First, if an inmate reports

violence by another inmate, the reporting inmate will be labeled a

snitch by other inmates. Inmates do not want to be known as

snitches, thus they often do not report violence. Also, if an

inmate reports violence in which he is involved, both he and the

other inmate will receive misconduct reports, and may be
-8-

disciplined. Finally, if an inmate reports a violent incident, but

there is neither a witness nor physical evidence of the reported
-9-

violence, neither inmate is disciplined. These combined factors

cause the statistics to understate the actual level of violence at

the NSP.

When we initially reviewed this case, we found it necessary to

remand it to the District Court for further findings in light of

Farmer v. Brennan, 114 S. Ct. 1970 (1994). Remand was required

because the District Court, following our pre-Farmer precedents,

found only that the defendants knew or should have known that the

plaintiffs faced a pervasive risk of harm. Farmer requires a

finding of actual knowledge on the part of prison officials in

order to support an Eighth Amendment violation. Id. at 1981.

On remand, the District Court met that requirement. El Tabech

v. Gunter, 922 F. Supp. 244 (D. Neb. 1996) (El Tabech III). It

found that the defendants were aware of the level of violence at

the NSP, and that the violence spilled over to the double cells.

Id. at 257-61. It went on to find that newly arriving inmates are

randomly assigned to cells, Id. at 248-49, and that the defendants

are aware of that fact. Id. at 252-54. Thus, the District Court

reaffirmed its original position that the plaintiffs had proved an

Eighth Amendment violation.

II.

It is crucial at this point to understand thoroughly the

contours of the District Court's holding. All of the talk by the

parties, and to some degree by the District Court, of double

celling and overcrowding at the NSP has the potential of

overshadowing the real issues. The District Court did not hold

that either double celling or overcrowding at the NSP violated the

plaintiffs' Eighth Amendment rights. In fact, it specifically

rejected those claims.
-10-

In its initial opinion finding liability, the District Court
-11-

noted that "[t]his case is not an overcrowding case in the sense

that plaintiffs are asserting that the penitentiary houses more

inmates than it can manage" or for whom it can provide services.

Jensen, 807 F. Supp. at 1469. In addition, it stated that it was

using the term "overcrowding" to "refer to the fact that the number

of inmates exceeds the design capacity of the facilities; it does

not imply any judgment about that fact." Id. at 1468 n.3. Thus,

the issue in this case is not whether the NSP is overcrowded to a

constitutionally significant degree. Notably, the plaintiffs never

made any such claim.

The plaintiffs did, however, claim that the practice of double

celling at the NSP was an Eighth Amendment violation. This claim

is based on the notion that double celling can be a constitutional

violation when it leads "to deprivations of essential food, medical

care, or sanitation," or when it causes an "increase [in] violence

among inmates or create[s] other conditions intolerable for prison

confinement." Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Cody

v. Hillard, 830 F.2d 912, 914 (8th Cir. 1987) (en banc), cert.

denied, 485 U.S. 906 (1988). The District Court, however, held the

plaintiffs' evidence that "double celling has taxed the

penitentiary beyond its limits to provide essential human services,

resources, and adequate physical structures" to be "lacking."

Jensen, 807 F. Supp. at 1481. Likewise, the plaintiffs were unable

to present sufficient evidence to establish that "double celling is

the cause of an increase in violence institution wide." Id. at

1482. The plaintiffs do not appeal this decision. Thus, this case

is not a "double celling" case in the conventional sense.

What, then, are the issues in this case? After the detailed

factual development outlined above, the District Court found that

the inmates in the double cells in the four main housing units

faced a pervasive risk of harm in the form of violence or
-12-

threatened violence from cellmates. Id. at 1483. The defendants,

moreover, had been deliberately indifferent to that risk by
-13-

randomly assigning incoming inmates to cells without assessing

whether the new cellmates would be compatible. Id. at 1484.

However, where those inmates who have been at the NSP for some time

were concerned, prison officials consider their "propensities for

violence" when making cell assignments, at least on an informal

basis. Ibid. Stated differently, we see the District Court's

order as holding that, while the practice of double celling at the

NSP is not constitutionally suspect, the manner in which that

practice was being carried out prior to this lawsuit violated the

Eighth Amendment by exposing prisoners to a substantial risk of

harm that is avoidable by simply considering whether incoming

inmates will be compatible with their cellmates. Therefore, the

issues that we must address are whether the plaintiffs are exposed

to a substantial risk of physical harm, and, if so, whether the

defendants have been deliberately indifferent to that risk by

randomly double celling incoming inmates.

Before proceeding to a review of the merits of the District

Court's order, it is helpful to explain how this characterization

of the District Court's holding disposes of part of the plaintiffs'

cross-appeal. The parties are of the opinion that the District

Court found a constitutional violation only with respect to the

newly arriving inmates. The plaintiffs argue that such a holding

is erroneous because a violent incoming inmate could be celled with

a nonviolent existing inmate, thus violating the right of the

existing inmate to be free from assaults at the hands of the new

inmate. They read the District Court's holding as ignoring this

inevitability by finding a violation of only the incoming inmates'

Eighth Amendment rights. If the District Court had made such an

illogical finding, we would probably agree with the plaintiffs and

reverse. However, it did not.

The District Court found that "a pervasive risk of harm
-14-

exist[ed] in the four main housing units." Jensen, 807 F. Supp. at

1483. It did not limit this finding to newly arriving inmates. 
-15-

Then the District Court held that randomly assigning "newly

arriving inmates into double cells under the volatile conditions

that exist in the four main housing units is not a reasonable

response to the pervasive risk of harm." Id. at 1484. Once again,

it did not limit its holding to the newly arriving inmates. We

read the District Court's opinion as finding a substantial risk of

serious harm to all inmates in the form of violence from cellmates,

to which risk the defendants have shown deliberate indifference by

randomly assigning incoming inmates to cells. The District Court

described it as "an Eighth Amendment violation respecting random

double-celling of newly arrived inmates." El Tabech v. Gunter, 869

F. Supp. 1446, 1467 (D. Neb. 1994) (El Tabech II). That

constitutional violation applies to every inmate who faces the

possibility of being randomly celled either as an incoming inmate

or with an incoming inmate, which is to say any inmate in the four

main housing units. It is only the remedy, an injunction against

randomly assigning cells to incoming inmates, that applies to

incoming inmates only. The plaintiffs need not appeal this

holding, because it is exactly what they want.

We can dispose one of the arguments raised by the defendants

in similar fashion. The Violent Crime Control and Law Enforcement

Act of 1994 forbids federal courts from holding "prison or jail

overcrowding unconstitutional under the Eighth Amendment except to

the extent that an individual plaintiff" proves the violation. 18

U.S.C. § 3626(a)(1). This legislation, the defendants argue,

precludes class-action prison lawsuits challenging prison

overcrowding. The case before us, they continue, is a class-action

suit challenging overcrowding.

We need not decide whether the defendants' reading of the

statute, that it precludes class-action prison suits, is correct

because the statute does not apply to this case in any event. By
-16-

its very terms, the statute applies to suits challenging "prison or

jail crowding." This case, as we have seen, and as the District
-17-

Court held, El Tabech II, 869 F. Supp. at 1450 is not a simple

crowding case. It is a failure-to-protect case, focusing not on

crowding but on the manner of assignment of new inmates to cells.

Thus, regardless of what the Act means for class-action

overcrowding cases, an issue we do not decide, it does not apply

here. Furthermore, if the status did apply, the relief granted

here would not violate it. Individual plaintiffs have proved a

violation of the Eighth Amendment, which is what the statute

requires.

We also reject the other half of the plaintiffs' cross-appeal,

challenging the District Court's grant of qualified immunity. The

District Court correctly held that the precedents are diverse on

the issue of the constitutional necessity of classification

systems. See, e.g., McGill v. Duckworth, 944 F.2d 344 (7th Cir.

1991), cert. denied, 503 U.S. 907 (1992); Walsh v. Mellas, 837 F.2d

789 (7th Cir.), cert. denied, 486 U.S. 1061 (1988). This diversity

precludes a holding that reasonable prison officials would have

known that they were violating the plaintiffs' clearly established

rights, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), by randomly

assigning incoming inmates to double cells. Kennedy v. Schafer, 71

F.3d 292, 294 (8th Cir. 1995), cert. denied, 116 S. Ct. 2548

(1996).

III.

The Eighth Amendment proscribes the infliction of "cruel and

unusual punishments." The Supreme Court counsels that this

amendment imposes upon prison officials the duty to "provide humane

conditions of confinement." Farmer, 114 S. Ct. at 1976. That

duty, in part, requires those officials to take reasonable measures

to "'protect prisoners from violence at the hands of other

prisoners.'" Ibid. (quoting Cortez-Quinones v. Jimenez-Nettleship,
-18-

842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)).

The Eighth Amendment imposes this duty because being subjected to
-19-

violent assaults is not "part of the penalty that criminal

offenders pay for their offenses . . .." Rhodes, 452 U.S. at 347.

In order to prevail in a failure-to-protect cases, inmates

must make two essential showings. First, they must demonstrate

that they are "incarcerated under conditions posing a substantial

risk of serious harm." Farmer, 114 S. Ct. at 1977. This objective

requirement ensures that the deprivation is sufficiently serious to

amount to a deprivation of constitutional dimension.

The second requirement inquires into the subjective state of

mind of the prison official who is being sued. It mandates that

the plaintiff inmates show that the official "knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could

be drawn that a substantial risk of harm exists, and he must also

draw the inference." Id. at 1979. This subjective requirement

ensures that "only the unnecessary and wanton infliction of pain

implicates the Eighth Amendment." Wilson v. Seiter, 501 U.S. 294,

297 (1991).

Chief Judge Posner has provided an apt description of what

prisoners must prove in deliberate-indifference cases.

[T]o be guilty of deliberate indifference [prison

officials] must know they are creating a substantial risk

of bodily harm. If they place a prisoner in a cell that

has a cobra, but they do not know that a cobra is there

(or even that there is a high probability that there is

a cobra there), they are not guilty of deliberate

indifference even if they should have known about the

risk, that is, even if they were negligent - even grossly

negligent or even reckless in the tort sense - in failing

to know. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.

1982). But if they know that there is a cobra there or

at least that there is a high probability of a cobra

there, and do nothing, that is deliberate indifference.
-20-

Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir.
-21-

1995). In this case, the "cobra" in the cell is the potentially

violent cellmate a prisoner faces each time he enters his cell at

the NSP. The District Court found that this risk existed and that

prison officials knew it existed.

Once that much is accomplished, prison officials still have a

defense. They may be "found free from liability if they responded

reasonably to the risk, even if the harm ultimately was not

averted." Farmer, 114 S. Ct. at 1982-83. This defense is

available because the "duty under the Eighth Amendment is to ensure

`reasonable safety,'" Id. at 1983 (quoting Helling, 113 S. Ct. at

2481), a standard that is mindful of the very difficult task of

warehousing the most dangerous people our society has to offer in

a safe environment. Ibid. Thus, "[w]hether one puts it in terms

of duty or deliberate indifference, prison officials who act

reasonably cannot be found liable under the Cruel and Unusual

Punishments Clause." Ibid.

Each step of this inquiry is fact-intensive. See Reece v.

Groose, 60 F.3d 487, 490 (8th Cir. 1995). We review the District

Court's factual conclusions for clear error. Fed. R. Civ. P.

52(a). 

A.

A most contentious point in this case is whether the

plaintiffs faced a substantial risk of serious harm, the first step

in the inquiry outlined above. Assault at the hands of fellow

inmates, as previously noted, is a "serious harm." The question,

then, is whether the District Court's finding that inmates at the

NSP faced a substantial risk of assault at the hands of cellmates

is clearly erroneous. The District Court relied on several

intertwined pieces of evidence to reach this conclusion. 
-22-

First, the Court examined statistics compiled by the prison
-23-

system reflecting the number of inmates found guilty of violent

offenses by a disciplinary committee since the NSP opened. These

statistics reveal that violent incidents have increased from a low

of 77 in 1983 to a high of 359 in 1987. Through June of 1991, the

last set of numbers available to the District Court, there had been

179 findings of guilt. In total, 1,774 guilty findings were made

during these years. Also indicative of the level of violence is

that there has been a dramatic increase in the number of inmates

requesting protective custody in recent years. Notably, these

increases occurred while the number of prisoners being double

celled increased. 

The defendants challenge the District Court's reliance on

these statistics. They explain the increase in guilty verdicts on

reporting changes and changes in the definition of assault, and the

increase in protective-custody requests on numerous factors other

than violence. They also challenge the District Court's conclusion

that these statistics reflect a positive correlation between double

celling and increasing violence. It is true that these statistics,

as is the case with most statistics, are subject to more than one

interpretation. That fact is not enough, however, for us to hold

that the District Court's finding is clearly erroneous. 

The District Court also found that the violence institution

wide carried over into the double cells. In order to do so, the

District Court relied on anecdotal evidence of violence in the form

of testimony from prisoners. It also found that inside the double

cells' tensions are increased by the cell size, lack of privacy,

the ineffective surveillance system, deterrents to reporting, the

contraband rule, and the excessive amount of time spent on lockdown

status.

This evidence is ample support for the District Court's
-24-

conclusion that inmates in the double cells face a substantial risk

of assault at the hands of their cellmates. This record compares
-25-

favorably with those in prior cases holding that a jury question

existed regarding whether there was a pervasive risk of harm. See,

e.g., Butler v. Dowd, 979 F.2d 661, 674-75 (8th Cir. 1992), cert.

denied, 508 U.S. 930 (1993). 

B.

We now address the subject of our earlier remand, whether the

defendants were deliberately indifferent to the risk that the

plaintiffs faced. Farmer counsels that this question, like the

first step in our analysis, is a question of fact. It is "subject

to demonstration in the usual ways, including inference from

circumstantial evidence, . . . and a factfinder may conclude that

a prison official knew of a substantial risk from the very fact

that the risk was obvious." 114 S. Ct. at 1981 (citation omitted).

Furthermore, the Supreme Court in Farmer set forth certain types of

evidence that can be useful in making this determination. When

evidence is introduced 

showing that a substantial risk of inmate

attacks was longstanding, pervasive, welldocumented, or expressly noted by prison

officials in the past, and the circumstances

suggest that the defendant-official being sued

had been exposed to information concerning the

risk and thus `must have known' about it, then

such evidence could be sufficient to permit a

trier of fact to find that the defendantofficial had actual knowledge of the risk.

Id. at 1981-82.

The District Court undertook just such an analysis in this

case. Initially, the District Court found that the statistics

detailing the level of violence at the NSP, the same statistics

utilized by the District Court to find a substantial risk of
-26-

serious harm, were provided to the defendants. Thus, each

defendant was actually informed "of virtually every verified
-27-

incident of violence" that occurred at the NSP. El Tabech III, 922

F. Supp. at 257-58. Notably, the defendants admitted as much in

their testimony. Id. at 258.

The District Court also found, with justification, that the

defendants knew that the reported assaults understated the actual

level of violence at the NSP. Once again, the defendants admitted

as much in their testimony. Ibid. They were also aware of the

physical construction of the cells that made monitoring the

interior of the cells impossible, and the prison rules that acted

as a disincentive to reporting assaults.

The District Court also relied on statements by prison

officials, including the defendants, to support its finding. One

official, a former director of Nebraska prisons, told the Nebraska

legislature that "a widely accepted principle of prison management"

is that "a prison cell should not be used for more that one

prisoner." Id. at 260. To do so erodes the ability to manage the

prison, and the potential for violence increases. Ibid. Likewise,

one of the defendants, Harold Clarke, when he became director, told

the Nebraska legislature that "predatory behavior is increasing and

weaker inmates are forced to seek protective custody, which has

increased by 70 per cent. in less than two years." Id. at 261.

Finally, defendant Frank Hopkins testified that he knew that the

increase in misconduct reports was "substantial." Ibid.

While the defendants would have us read the evidence

differently from the District Court, we cannot say that the

District Court's painstaking analysis, an analysis in complete

harmony with Supreme Court precedent, resulted in a clearly

erroneous conclusion.

C.
-28-

The final issue is the reasonableness of the defendants'
-29-

actions in light of their knowledge of the risk faced by the

plaintiffs. The defendants do not argue that random cell

assignments are reasonable. Rather, they challenge the District

Court's factual conclusion that cell assignments for newly arriving

inmates were, indeed, random. 

All adult male prisoners in the Nebraska prison system undergo

a detailed evaluation called a classification study. El Tabech

III, 922 F. Supp. at 248. This evaluation, conducted at the

Diagnostic and Evaluation Center, considers factors such as the

crime for which the inmate was convicted, the inmate's criminal

history, his medical history and psychological status, and any

particular needs or problems the inmate may have. Ibid. A

condensed version of the study called a scoring instrument is

created from the classification study. Ibid. These studies, as

well as observations of the inmate while he is housed at the

Diagnostic and Evaluation Center, are used to determine to which

institution the inmate will be sent. 

Either of these resources could be used to help predict

whether inmates who are slated to become cellmates will be

compatible. However, the District Court found that neither

resource is so utilized. El Tabech III, 922 F. Supp. at 248-49.

Rather, the District Court found that cell assignments were made

based on "space availability." Jensen, 807 F. Supp. at 1477.

Space availability is just another way to say randomly. Ibid.

The District Court came to these conclusions after hearing

testimony from numerous prison officials who are intimately

familiar with the cell-assignment procedure. Virtually every

witness, prison officials all, testified that the primary, if not

sole, factors used in determining where an incoming inmate will be

celled were "available bunks" and racial balance. El Tabech III,
-30-

922 F. Supp. at 249. The housing unit managers, who actually made

the cell assignments, would not have seen either classification
-31-

resource prior to making cell assignments. Nor did they know the

inmate's size, age, or length of sentence, all important factors in

predicting compatibility. Id. at 249-50.

It is true, as the defendants point out, that this initial

cell assignment is not final in a technical sense. Soon after the

inmate's arrival at the NSP he is subjected to an initial

classification meeting with housing personnel. The classification

instruments are available for this meeting, and the inmate is free,

perhaps even encouraged, to inform housing personnel of any

particular problems he may have with his cell assignment.

Moreover, if prison officials know the prisoner, his cell

assignment can be changed on that basis. Id. at 250.

The problem with the defendants' argument, as the District

Court pointed out, is two-fold. First, the classification meeting

took place quite often well after the cell assignment. Thus, the

inmate would have to spend at least some time with a cellmate prior

to the meeting. Ibid. Second, and most convincing, the District

Court viewed the initial classification meeting more as an

orientation session than as a cell-assignment method. Id. at 251.

Rarely, if ever, had the meeting resulted in a change in cell

assignment. Thus, for all practical purposes, the initial cell

assignment was final. We have reviewed the record quite thoroughly

and cannot find clear error in any of these findings or in the

ultimate finding to which they led: that incoming inmates are

assigned on a random basis.

It is even less difficult to affirm the District Court's

finding that the defendants actually knew that incoming inmates

were randomly assigned to cells. As the District Court pointed

out, the defendants were intimately familiar with the workings of

the NSP. They held several positions within the NSP as they worked
-32-

their way up the Department's hierarchy. As they readily admitted,

they were "responsible for the overall operation" of the NSP, and
-33-

had "direct ongoing contact with housing unit procedures." Id. at

253-54. They also were familiar with the regulations outlining the

initial classification procedure, including the fact that the

regulation made no provision for cell assignments and inmatecompatibility determinations. This evidence was sufficient to

allow the District Court to find that the defendants knew that cell

assignments were random.

IV.

After liability was determined in this case, the District

Court fashioned a remedy in the form of an injunction. That

injunction imposes upon the defendants a duty to use the

classification instruments available to them to try to predict

whether incoming inmates and their cellmates will be compatible.

El Tabech v. Gunter, No. CV87-L-377, slip op. at 26 (D. Neb. 1994)

(El Tabech I). Citing language from Farmer v. Brennan, supra, the

defendants claim that this injunction should not have been issued.

In Farmer, the Supreme Court wrote that in order to "establish

eligibility for an injunction, the inmate must demonstrate the

continuance of [prison officials' disregard of a risk of harm]

during the remainder of the litigation and into the future."

Farmer, 114 S. Ct at 1983. Parties may rely on "developments that

postdate the pleadings and pretrial motions" in order to determine

whether an injunction is appropriate. Ibid. Furthermore, prison

officials who are violating prisoners' rights when a lawsuit is

filed can "prevent the issuance of an injunction by proving, during

the litigation, that they [are] no longer unreasonably disregarding

an objectively intolerable risk of harm and that they [will] not

revert to their obduracy upon cessation of the litigation." Ibid.

n.9.
-34-

The plaintiffs introduced sufficient evidence, in the first

instance, to justify the District Court's finding that a
-35-

constitutional violation had occurred, as we have discussed.

Rather than immediately remedying that violation, the defendants

chose to take a premature appeal to this Court, which was

dismissed. When, after months of waiting, the defendants filed a

remedial plan, it was inadequate and had to be modified. El Tabech

I, slip op. at 18-26. That is sufficient evidence to support the

District Court's finding that the violation would continue into the

future. 

We recognize that the defendants were merely proceeding as

they felt they had a right to proceed by appealing to this Court.

However, an immediate appeal was not their only option, even if

such an appeal would have been proper. For example, they could

easily have ceased random cell assignments, and then appealed the

finding on liability. If we had eventually reversed the liability

finding, they could have reverted to their prior cell-assignment

system if they had so desired. Thus, we cannot find error in the

District Court's holding that an injunction should issue.

We also disagree with the defendants' assertion that the

District Court improperly imposed the burden of proving the abovedescribed elements on them. When the District Court wrote that the

defendants had not "met their burden of proving that an injunction

is no longer necessary," El Tabech I, slip op. at 19, it was in

reference to the language in Farmer setting forth how prison

officials can avoid an injunction, not the language describing what

the plaintiff would have to prove to merit an injunction. The

District Court correctly placed the burden of proof. Farmer, 114

S. Ct. at 1983 n.9 ("prison officials . . . could prevent issuance

of an injunction by proving . . . that they were no longer

unreasonably disregarding an objectively unreasonable risk of harm

and that they would not revert to their obduracy upon cessation of

the litigation").
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The defendants make no attempt to argue that they had ceased
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violating the plaintiffs' rights prior to the injunction, nor could

they. Indeed, they fought imposition of a change in cellassignment methods every step of the way. The District Court

correctly issued the injunction.

V.

After finding liability on the part of the defendants and

imposing the injunction, the District Court awarded the plaintiffs

attorneys' fees. The Court did so under the provisions of 42 U.S.C

§ 1988, which allows for the award of attorneys' fees to prevailing

parties in Section 1983 cases. The defendants make three

challenges to this award. We will address each in turn.

A.

In Hutto v. Finney, 437 U.S. 678 (1978), the Supreme Court

held that the Eleventh Amendment does not bar an award of

attorneys' fees ancillary to prospective relief, even though the

fees would be paid from the state treasury. Id. at 693-98. The

defendants argue that this holding was overturned sub silentio by

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996).

There, the Supreme Court reiterated its rule that Congress could

abrogate the sovereign immunity that states enjoy by virtue of the

Eleventh Amendment, but only if its "intention [is] unmistakably

clear in the language of the statute," Id. at 1123 (quoting

Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989)), and Congress acts

"pursuant to a valid exercise of power." Ibid. (quoting Green v.

Mansour, 474 U.S. 64, 68 (1985)). Section 1988, the defendants

argue, has no "unmistakably clear" language, and, thus cannot

abrogate sovereign immunity. (The fees in this case would be paid

from the state's coffers, thus implicating the Eleventh Amendment).
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This very argument was made, and rejected by the Supreme

Court, in Missouri v. Jenkins, 491 U.S. 274 (1989). There, the
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State of Missouri argued that "the principle enunciated in Hutto

has been undermined by subsequent decisions of [the Supreme] Court

that require Congress to `express its intention to abrogate the

Eleventh Amendment in unmistakable language in the statute

itself.'" Id. at 279 (quoting Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 243 (1985)); Welch v. Texas Dept. of

Highways and Public Transportation, 483 U.S. 468 (1987). The "flaw

in this argument," an argument identical to the one made by the

defendants in this case, with one more citation added to the list,

"lies in its misreading of the holding of Hutto." Jenkins, 491

U.S. at 279.

In Jenkins, the Supreme Court made it quite clear that

"application of §1988 to the States did not depend on congressional

abrogation of the States' immunity." Ibid. Rather, Hutto held

that Section 1988 "imposes attorney's fees `as a part of costs.'

Costs have traditionally been awarded without regard for the

States' Eleventh Amendment immunity." Hutto, 437 U.S. at 695.

Indeed, following Hutto and Jenkins "it must be accepted as settled

that an award of attorney's fees ancillary to prospective relief is

not subject to the strictures of the Eleventh Amendment." Jenkins,

491 U.S. at 279. In short, Section 1988 attorneys' fees do not

depend on abrogation of sovereign immunity, and Seminole Tribe does

not affect the fee award in this case.

B.

The defendants' second challenge to the fee award involves the

Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321,

to be codified at 18 U.S.C. § 3626 and 42 U.S.C. § 1997. This

legislation, enacted well after both the liability and attorneys'

fee determinations in this case, alters how prison cases are to be

prosecuted in various ways. One provision of the Act, Section
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803(7)(d), applies to attorneys' fees. In order to affect this

case, Section 803(7)(d) must have retroactive application. We hold
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that it does not.

The Supreme Court recently announced a procedure for

determining when a statute is to be applied to actions that

occurred prior to enactment of the statute. Landgraf v. USI Film

Products, 511 U.S. 244 (1994). Initially, a court should determine

whether "Congress has expressly prescribed the statute's proper

reach." Id. at 1505. If so, the dictates of the statute should be

followed, barring some constitutional prohibition. Id. at 1497-98.

Absent an express command, "the court must determine whether the

statute would have retroactive effect, i.e., whether it would

impair rights a party possessed when he acted, increase a party's

liability for past conduct, or impose new duties with respect to

transactions already completed." Id. at 1505. If so, then the

"traditional presumption" against retroactivity precludes

application "absent clear congressional intent favoring such a

result." Ibid.

Nothing in this portion of the Act expressly prescribes its

reach. The Act was not in effect when the plaintiffs' attorneys

accepted this appointment, when liability and fee determinations

were made, or even when we remanded this case to the District Court

in light of Farmer. When the plaintiffs' attorneys were exerting

what the District Court quite fairly described as "herculean"

efforts on their behalf, they expected to have their fee determined

under Section 1988. If we apply the Act, those expectations will

be foiled. Thus, application of the Act in this case would have

the retroactive effect of disappointing reasonable realiance on

prior law. That leaves us with the "traditional presumption"

against retroactive application.

The defendants base their argument for retroactivity on

Bradley v. Richmond School Dist., 416 U.S. 696 (1974). In Bradley,
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the District Court awarded attorney's fees and costs to parents who

had prevailed in a school desegregation case on general equitable
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principles. Bradley, 416 U.S. at 706. While the appeal of the

case was pending, Congress passed a statute that allowed courts to

award fees to prevailing parties in school desegregation cases.

Id. at 709. The Supreme Court held that the statute applied to the

case at hand because courts are "to apply the law in effect at the

time [they] render [their] decisions, unless doing so would result

in manifest injustice or there is statutory direction or

legislative history to the contrary." Id. at 711.

Two clear distinctions between Bradley and this case defeat

the defendants' argument. First, in Bradley, there was no

"manifest injustice" in allowing the fee statute to apply because

the lower courts had already awarded fees on general equitable

principles. As the Supreme Court wrote in Landgraf, it would be

difficult to imagine a "stronger equitable case for an attorney's

fee award" than a school desegregation case. Landgraf, 114 S. Ct.

at 1503. Given the availability of fees under an alternative

theory, the new fee statute did not impose an "unforeseeable

obligation" on the school board. Bradley, 416 U.S. at 721. Thus,

being ordered to pay attorneys' fees was no great surprise, even

though the legal theory under which those fees were to be imposed

changed.

Conversely, in this case the plaintiffs and their attorneys

have proceeded from the outset under the assumption that Section

1988 would apply to this case. They have litigated for literally

years under that assumption. The Act was passed after our remand

to the District Court, and after the District Court's findings on

remand. Indeed, it did not become law until shortly before we were

prepared to decide this case once and for all. It would be

"manifestly unjust" to upset those reasonable expectations and

impose new guidelines at this late date.
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Furthermore, there is evidence of congressional intent

contrary to retroactive application of this portion of the Act. 
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Section 802, the section of the Act dealing with prospective

relief, specifically provides that it "shall apply with respect to

all prospective relief whether such relief was originally granted

or approved before, on, or after the date of enactment of this

title." § 802(b)(1). Section 803, conversely, is silent on

retroactive application. Congress saw fit to tell us which part of

the Act was to be retroactively applied, Section 802. The

exclusion of Section 803 and its fee provisions from that clear

statement is inconsistent with the defendants' argument for

retroactivity.

C.

Finally, we reach the issue of the correctness of the District

Court's attorneys' fee award. Section 1988 provides for the

payment of attorneys' fees to prevailing parties at the discretion

of the court in Section 1983 cases. A fee award will not be

altered absent an abuse of discretion. Butler, 979 F.2d at 676. 

The plaintiffs in this Section 1983 case are clearly

prevailing parties. The District Court, employing the procedure

described by the Supreme Court in Hensley v. Eckerhart, 461 U.S.

424 (1983), awarded them $178,865.10 in fees and expenses. This

method, known as the "lodestar" method, id. at 433, focuses on "the

significance of the overall relief obtained by the plaintiff in

relation to the hours actually expended on the litigation." Id. at

435. The district court multiplies the number of hours reasonably

expended by the relevant market rate for legal services, then

reduces the amount for partial success, if necessary.

The defendants challenge two elements used in the calculation

of that award. First, they argue that the number of hours

reasonably expended should have been lowered because of inadequate
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records on the part of the plaintiffs' attorneys. Second, they

argue that the District Court should have allowed a greater
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reduction for limited success. 

The gravamen of the defendants' argument regarding the number

of hours reasonably expended is that the plaintiffs' lawyers'

records were inadequate to inform the court of the nature and

reasonableness of the services rendered. The District Court

considered this argument in its thorough and detailed opinion on

fees. It noted that "the documentation submitted by the

plaintiffs' counsel was voluminous, detailed, and in most cases,

fully in compliance with our local rules of practice." El Tabech

II, 869 F. Supp. at 1460. However, "there were certain instances

where the documentation was simply not sufficient to make an

intelligent determination as to whether the hours expended were in

fact reasonable." Ibid. Therefore, the District Court imposed an

across-the-board reduction in hours of 10%. 

Though this deduction is significant, the defendants would

have us add another 50% deduction. As we have consistently held,

"[t]he trial court is in a much better position than this court to

view the evidence and to evaluate the testimony and work product of

the attorney." Vosburg v. Solem, 845 F.2d 763, 770 (8th Cir.),

cert. denied, 488 U.S. 928 (1988). Here, the District Court

clearly considered, and to a degree accepted, the arguments of the

defendants. However, it held that the severe deduction advocated

by the defendants was far too great given the amount of detail and

explanation provided by the plaintiffs' attorneys. We see no abuse

of discretion in that holding.

Likewise, the District Court rejected the defendants' request

to reduce the fee award by 75% for partial success, choosing

instead a 15% reduction. El Tabech II, 869 F. Supp. at 1464. The

defendants request a 75% reduction in the award because the

plaintiffs failed altogether on their Fourteenth Amendment claim
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related to the contraband rule, and enjoyed only partial success on

their Eighth Amendment claims. The Eighth Amendment claim that
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double celling was causing a deprivation of essential services was

rejected.

As the District Court noted, the defendants' argument ignores

the fact that the plaintiffs prevailed on their "main claim" that

the prison was unsafe. Id. at 1467-68. They obtained injunctive

relief for that constitutional violation designed to make the

prison safer for all inmates. It is of little significance that

the plaintiffs' claims regarding services and the contraband rule

were rejected, particularly given that those claims, and the

evidence introduced in their support, helped significantly in

proving that the NSP was unsafe. Those conditions, though short of

a constitutional violation, contributed to the tense and hostile

environment in which the plaintiffs existed. Finally, we reiterate

that the constitutional violation affects any inmate who may be

celled with a newly-arriving inmate, not just newly-arriving

inmates. The relief obtained is major, and we see no abuse of

discretion on the part of the District Court. The fee award is

affirmed.

VI.

The order of the District Court is affirmed in all respects.

We join the District Court in commending the parties for the

quality and thoroughness of their work before the Court. Their

briefs have been literate and their arguments well-reasoned. We

also commend the District Court for its detailed and exhaustive

work on this difficult and fact-intensive case. Its meticulous

opinions have been most helpful to us.

Affirmed.
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A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.