_________________________ 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, Chie f Judge, BRIGHT and WOLLMAN, Circuit

Judges.

___________The Honorable William G. Cambridge, Chief Judge, Unite d 1 Sta tes District Court for the District of Nebraska, adopting th e Report and Recommendation of the Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. The Honorab le Richard Kopf, United States District Judge for 2 the District of Nebraska. A fif th main housing unit was erected while this case wa s 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 a s "double celling," requires twomen 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. Th e def endants, the director of the Nebraska State Prison System an d the Warden of the NSP, appeal that decision. The plaintiffs crossappeal the portion of the order applicable to long-term inma tes and the District Court's holding that the defendants are entitled t o qualif iedimmunity, shielding them from damages. We affirm th e Distri ct Court's order. We also affirm the District Court's 2 subseq uent orders instructing the defendants to adopt a remedia l 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 Pe nitentiary. They brought this case under 42 U.S.C. § 1983 , 3 challe ngingthe conditions of their confinement in two respects
.-4-

Fir st, they contend that the practice of double celling violate s 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 Proces s Clause of the Fourteenth Amendment. An 18-day evidentiary hearing was held. The District Court rejected the due-process claim, but heldthat, while the practice of double celling inmates did no t itself violate the Constitution, the manner in which the def endants were conducting that practice did.

The District Court made extensive findings of fact in it s thoro ughopinion. Jensen v. Gunter , 807 F. Supp. 1463 (D. Neb
. 19 92). We will recount those findings here only to the exten t necess aryfor our review. The NSP, opened in 1981, is a maximum sec urityprison, housing the State's most violent offenders. I t consists of six housing units. Units one through four, the mai n housin gunits, are at issue in this case. The cells ar e approximately74 square feet in size, and were intended to hous e one in mate. Because of the large prison population, tha t limitation has never been possible. The population at NSP hovers at about 150% of capacity. To accommodate the large number o f prisoners, the NSP must double cell the inmates.

All adult male inmates in the Nebraska prison system ar e screened at the Lincoln Correctional Center prior to being a ssigned to an institution. Included i n this screening is an assessment of personal risk factors such as potential for suicide, propens ity for violence, victim potential, escape risk, security risk, and risk of drug a nd alcohol abuse. At the time this suit was filed, thi s assess ment was used only in determining to which institution a n inmate would be sent. It was not used to predict compatibility of inmates, or to help make cell assignments.
If prison officials are famili ar with an inmate, they rely on that familiarity when making c ell assignments. All other incoming inmates are assigned cells and cellmates on the basis o f-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 s mall window at eye level and a small vent . Monitoring is accomplished primarily through an interco m sy stem. The speakers and receivers for this system are in th e hal lwayoutside of the cells, requiring inmates to shout throug h the vent in the door in order to get the attention of the gu ards on duty.

The statistics introduced during the 18-day bench trial i n this cas e portray the NSP as an increasingly violent place. Th e number of inmates found guilty of violent offenses such as a ssault, aggravated assault, fights, and threatened bodily harm from 1983 to 1991 has increased at an alarming rate. Likewise, the number o f prisoners requesting protective custody because they were af raid to
re mainin the general population increased "dramatically" in a relativelyshort period of time. The District Court also note d amp le anecdotal evidence of violence in the prison. I t par ticularlyrelied on the testimony of inmates Jensen and Hart
. Inmate Jensen recounted how he was beaten by his cellmate whil e 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 undocumentedfor three reasons. First, if an inmate report s violence by another inmate, th e reporting inmate will be labeled a snitchby other inmates. Inmates do not want to be known a s sn itches, thus they often do not report violence. Also, if a n inmate r eports violence in which he is involved, both he and th e other inmate will receive misconduct reports, and may b e-8-

disciplined. Finally, if an inmate reports a violent incide nt, but there is neither a witness nor physical evidence of the reported-9-

violen ce, neither inmate is disciplined. These combined factor s cause the statistics to unders tate the actual level of violence at the NSP.
When we initially reviewed this case, we found it necessary to remand i t to the District Court for further findings in light o f Farme r v. Brennan , 114 S. Ct. 1970 (1994). Remand was require d be cause 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 findingof actual knowledge on the part of prison officials i n order to support an Eighth Amendment violation. Id . at 1981.
On remand, the District Court met that requirement. El Tabe ch
v. Gunte r , 922 F. Supp. 244 (D. Neb. 1996) ( El Tabech III ). I t found th at the defendants were aware of the level of violence a t 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 positi on that the plaintiffs had proved an Eighth Amendment violation.

II.

It is crucial at this point to understand thoroughly th e contours of the District Court's holding. All of the talk by the parties, and to some degree by the District Court, of doubl e cellingand overcrowding at the NSP has the potential o f overshadowingthe real issues. The District Court did not hol d that either double celling or overcrowding at the NSP violated the pl aintiffs' Eighth Amendment rights. In fact, it specificall y rejected those claims.-10-

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

noted th at "[t]his case is not an overcrowding case in the sens e that plaintiffs are asserting that the penitentiary houses mor e 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 thenumber 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 plaintiff s never made any such claim.
The plaintiffs did, however, claim that the practice of doub le celling at the NSP was an Eighth Amendment violation. This claim is based on the notion that do uble 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] oth er 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, h eld the plaint iffs' evidence that "double celling has taxed th e penitentiary beyond its limits to provide essential human se rvices, resources, and adequate physical structures" to be "lacking. " Jensen , 807 F. Supp. at 1481. Likewise, the plaintiffs wereunable to present sufficient evidence to establish that "double cel ling is the c ause of an increase in violence institution wide." Id. a t 1482. The plaintiffs do not appeal this decision. Thus, th is 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 th e inmates in the double cells in the four main housing unit s faced a p ervasive risk of harm in the form of violence o r-12-

threatened violence from cellmates. Id. at 1483. The defendants, moreover, had been deliberately indifferent to that risk by-13-

random lyassigning incoming inmates to cells without assessin g 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 violen ce" when making cell assignments, at least on an informa l basis. Ibid. Stated differently, we see the District Court' s order as holding that, while t he practice of double celling at the NSP is not constitutionally suspect, the manner in which tha t practice was being carried out prior to this lawsuit violated the EighthAmendment by exposing prisoners to a substantial risk o f harmthat is avoidable by simply considering whether incomin g inm ates will be compatible with their cellmates. Therefore, th e issues that we must address ar e whether the plaintiffs are exposed to a substantial risk of physical harm, and, if so, whether th e defendants have been deliberately indifferent to that risk by randomly double celling incoming inmates.

Before proceeding to a review of the merits of the Distric t Court's order, it is helpful to explain how this characterization of the District Court's holding disposes of part of the plai ntiffs' cross-appeal. The parties are of the opinion that the Distric t Court found a constitutional violationonly with respect to th e newly arriving inmates. The plaintiffs argue that such a holding is erroneous because a violent incoming inmate could be cell ed with
a n onviolent existing inmate, thus violating the right of th e existi nginmate to be free from assaults at the hands of the ne w inmate. They read the District Court's holding as ignoring thi s inevitability by finding a vio lation of only the incoming inmates' EighthAmendment rights. If the District Court had made such a n illogical finding, we would pr obably agree with the plaintiffs and reverse. However, it did not.

The Di strict Court found that "a pervasive risk of har m-14-

exist[ed] in the four main housing units." Jensen , 807 F. S upp. at 1483. It did not limit this finding to newly arriving inmates.-15-

Then the District Court held that randomly assigning "newl y arrivi nginmates into double cells under the volatile condition s that exist in the four main housing units is not a reasonabl e response to the pervasive riskof harm." Id. at 1484. Once again, it did not limit its holding to the newly arriving inmates. W e read the District Court's opin ion as finding a substantial risk of serious harm to all inmates in the form of violence from cel lmates, to which risk the defendants h ave shown deliberate indifference by randomly assigning incoming inmates to cells. The District Court descri bedit as "an Eighth Amendment violation respecting rando m double-celling of newly arrived inmates." El Tabech v. Gunt er , 869 F. Sup p. 1446, 1467 (D. Neb. 1994) ( El Tabech II ). Tha t co nstitutional violation applies to every inmate who faces th e possibility of being randomly celled either as an incoming inmate or with an incoming inmate, wh ich is to say any inmate in the four main housing units. It is only the remedy, an injunction against randomlyassigning cells to incoming inmates, that applies t o incominginmates only. The plaintiffs need not appeal thi s holding, because it is exactly what they want.
We can dispose one of the arguments raised by the defendants in similar fashion. The Viole nt Crime Control and Law Enforcement Act of 1994 forbids federal courts from holding "prison or jai l 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 priso n overcrowding. The case before us, they continue, is a class -action suit challenging overcrowding.

We need not decide whether the defendants' reading of th e statut e, that it precludes class-action prison suits, is correc t because the statute does not apply to this case in any event. By-16-

its very terms, the statute applies to suits challenging "pr ison 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 simpl e crowdingcase. It is a failure-to-protect case, focusing not o n crowding but on the manner of assignment of new inmates to cells. Thus , regardless of what the Act means for class-actio n overcrow dingcases, an issue we do not decide, it does not appl y here. Furthermore, if the status did apply, the relief grante d here would not violate it. Individual plaintiffs have proved a violat ionof the Eighth Amendment, which is what the statut e requires.
We also reject the other half of the plaintiffs' cross-appea l, challenging the District Court 's grant of qualified immunity. The Dis trict Court correctly held that the precedents are diverse o n the i ssue of the constitutional necessity of classificatio n systems. See, e.g. , McGill v. Duckworth , 944 F.2d 344 (7th Cir
. 1991), cert. denied , 503 U.S. 907 (1992); Walsh v. Mellas , 8 37 F.2d 789 (7th Cir.), cert. denied , 486 U.S. 1061 (1988). This di versity prec ludes a holding that reasonable prison officials would hav e known that they were violatingthe plaintiffs' clearly established rights, Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982), by r andomly assigning incoming inmates to double cells. Kennedy v. Scha fer , 71 F.3d 29 2, 294 (8th Cir. 1995), cert. denied , 116 S. Ct. 254 8 (1996).

III.
The Eighth Amendment proscribes the infliction of "cruel and
unus ual punishments." The Supreme Court counsels that thi s amendment imposes upon prison officials the duty to "providehumane
co nditions of confinement." Farmer , 114 S. Ct. at 1976. Tha t duty, in part, requires those officials to take reasonable measures to "'protect prisoners from violence at the hands of othe r prisoners.'" Ibid . (quoting Cortez-Quinones v. Jimenez-Nett leship ,-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-

vio lent assaults is not "part of the penalty that crimina l offenders pay for their offens es . . .." Rhodes , 452 U.S. at 347.

In o rder to prevail in a failure-to-protect cases, inmate s must m ake two essential showings. First, they must demonstrat e that they are "incarcerated under conditions posing a substantial risk of serious harm." Farmer , 114 S. Ct. at 1977. This ob jective requirement ensures that the deprivation is sufficiently ser ious to amount to a deprivation of constitutional dimension.
The second requirement inquires into the subjective state of mind o f the prison official who is being sued. It mandates tha t the plaintiff inmates show that the official "knows of an d disreg ards an excessive risk to inmate health or safety; th e official must both be aware of facts from which the inferenc e could be drawn that a substantial risk of harm exists, and he must also drawthe inference." Id. at 1979. This subjective requiremen t
ens ures that "only the unnecessary and wanton infliction of pai n implicates the Eighth Amendmen t." Wilson v. Seiter , 501 U.S. 294, 297 (1991).

Chief Judge Posner has provided an apt description of wha t prisoners must prove in deliberate-indifference cases.
[T]o be guilty of deliberate indifference [priso n officials] must know they are creating a substantial ris k of bodily harm. If they placea 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 co bra there), they are not guilty of deliberat e indi fference even if they should have known about th e risk, that is, even if they were negligent - even grossl y negligent or even reckless in the tort sense - in failin g 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 cobr a there, and do nothing, that is deliberate indifference.-20-

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

1995). In this case, the "cobra" in the cell is the potentiall y violent cellmate a prisoner faces each time he enters his cell at the NSP. The District Court f ound 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 f ree from liability if they responded reasonablyto the risk, even if the harm ultimately was no t averted." Farmer , 114 S. Ct. at 1982-83. This defense i s available because the "duty under the Eighth Amendment is toensure `reasonable safety,'" Id . at 1983 (quoting Helling , 113 S. Ct. at 2481) , a standard that is mindful of the very difficult task o f warehousing the most dangerous people our society has to offer in a safe environment. Ibid. Thus, "[w]hether one puts it in terms of dut y or deliberate indifference, prison officials who ac t
rea sonablycannot be found liable under the Cruel and Unusua l Punishments Clause." Ibid.

Eachstep 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.

Amost contentious point in this case is whether th e plaintiffs faced a substantial risk of serious harm, the fir st step in the inquiry outlined above. Assault at the hands of fello w 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 severa l intertwined pieces of evidence to reach this conclusion.-22-

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

systemreflecting the number of inmates found guilty of violen t 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 h ad been 179 findings of guilt. In total, 1,774 guilty findings were made during t hese years. Also indicative of the level of violence i s that the re has been a dramatic increase in the number of inmate s re questingprotective custody in recent years. Notably, thes e increases occurred while the number of prisoners being doubl e celled increased.

The de fendants challenge the District Court's reliance o n 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 con clusion that these statistics reflect a positive correlation betweendouble celling and increasing violence. It is true that these stat istics, 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 Di strict Court also found that the violence institutio n wide carried over into the double cells. In order to do so, th e District Court relied on anecdotal evidence of violence in t he 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 l ockdown status.
This e vidence is ample support for the District Court' s-24-

conclusion that inmates in the double cells face a substanti al risk of assault at the hands of their cellmates. This record compares-25-

favorablywith those in prior cases holding that a jury questio n 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 th e plaint iffs faced. Farmer counsels that this question, like th e first step in our analysis, is a question of fact. It is "subject to dem onstration in the usual ways, including inference fro m circumstantial evidence, . . . and a factfinder may conclude that
a pri son official knew of a substantial risk from the very fac t that the risk was obvious." 114 S. Ct. at 1981 (citation om itted). Furthermore, the Supreme Court in Farmerset forth certain t ypes of evidence that can be useful in making this determination. Whe n evidence is introduced

showingthat a substantial risk of inmat e at tacks was longstanding, pervasive, well

documented, or expressly noted by priso n officials in the past, and the circumstance s suggest that the defendant-off icial being sued had been exposed to informatio n 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 defendant

official had actual knowledge of the risk.

Id. at 1981-82.

The Di strict Court undertook just such an analysis in thi s case. Initially, the District Court found that the statistic s detailingthe level of violence at the NSP, the same statistic s utilizedby the District Court to find a substantial risk o f-26-

ser ious harm, were provided to the defendants. Thus, eac h defendant was actually informed "of virtually every verified-27-

incident of violence" that occurred at the NSP. El Tabech I II , 922 F. Supp. at 257-58. Notably, the defendants admitted as much i n their testimony. Id. at 258.

The Di strict Court also found, with justification, that th e 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 th e phys ical construction of the cells that made monitoring th e 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 priso n 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 mana gement" is that "a prison cell should not be used for more that on e prisoner." Id . at 260. To doso erodes the ability to manage the prison, and the potential for violence increases. Ibid . Li kewise, one of the defendants, Harold Clarke, when he became directo r, told the Nebraska legislature that "predatory behavior is increas ing and weaker inmates are forced to seek protective custody, which ha s increase dby 70 per cent. in less than two years." Id. at 261
. Fin ally, defendant Frank Hopkins testified that he knew that th e increase in misconduct reports was "substantial." Ibid.

While the defendants would have us read the evidenc e differentlyfrom the District Court, we cannot say that th e Distri ct Court's painstaking analysis, an analysis in complet e harm onywith Supreme Court precedent, resulted in a clearl y 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 th e plaint iffs. The defendants do not argue that random cel l assign ments are reasonable. Rather, they challenge the Distric t Court's factual conclusion that cell assignments for newly a rriving inmates were, indeed, random.
All adult male prisoners in the Nebraska prison system under go a deta iled evaluation called a classification study. El Tabec h III , 92 2 F. Supp. at 248. This evaluation, conducted at th e Diag nostic and Evaluation Center, considers factors such as th e crime for which the inmate was convicted, the inmate's crimina l hi story, his medical history and psychological status, and any part icular needs or problems the inmate may have. Ibid. A
con densedversion of the study called a scoring instrument i s createdfrom the classification study. Ibid. These studies, a s well as observations of the inmate while he is housed at th e Dia gnostic and Evaluation Center, are used to determine to whic h institution the inmate will be sent.

Either of these resources could be used to help predic t whe ther inmates who are slated to become cellmates will b e compat ible. However, the District Court found that neithe r resour ce is so utilized. El Tabech III , 922 F. Supp. at 248-49
. Rat her, the District Court found that cell assignments were mad e basedon "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 hearin g testi monyfrom numerous prison officials who are intimatel y familiar with the cell-assignment procedure. Virtually ever y witness, prison officials all, testified that the primary, if not sole, factors used in determin ing where an incoming inmate will be celled were "available bunks" and racial balance. El Tabech III ,-30-

922 F. Supp. at 249. The hous ing 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 fac tors in predicting compatibility. Id. at 249-50.

It is true, as the defendants point out, that this initia l cell assignment is not final i n a technical sense. Soon after the inmate's arrival at the NSP he is subjected to an initia l classification meeting with ho using personnel. The classification instruments are available for this meeting, and the inmate i s free, perh aps 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 cel l assignment can be changed on that basis. Id. at 250.

The problem with the defendants' argument, as the Distric t 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 cellmat e prior to the meeting. Ibid. Second, and most convincing, the District Co urt viewed the initial classification meeting more as a n orientation session than as a cell-assignment method. Id. at 251. Rarely, if ever, had the meeting resulted in a change in cel l assign ment. Thus, for all practical purposes, the initial cel l assignment was final. We have reviewed the record quite tho roughly and ca nnot find clear error in any of these findings or in th e ult imate finding to which they led: that incoming inmates ar e assigned on a random basis.

It is even less difficult to affirm the District Court' s find ingthat the defendants actually knew that incoming inmate s were randomly assigned to cells. As the District Court pointe d 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 wi th housing unit procedures." Id. at 253-54. They also were familiar with the regulations outlin ing the initial classification procedure, including the fact that th e regulationmade no provision for cell assignments and inmate

compat ibilitydeterminations. This evidence was sufficient t o allow the District Court to find that the defendants knew th at cell assignments were random.

IV.

Af ter liability was determined in this case, the Distric t Court f ashioned a remedy in the form of an injunction. Tha t injunctionimposes upon the defendants a duty to use th e cl assificationinstruments available to them to try to predic t whethe r 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 languag e from Farmer v. Brennan , supra , the defendants claim that this inj unction should not have been issued.

In Farmer , the Supreme Court wrote that in order to "establi sh el igibilityfor an injunction, the inmate must demonstrate th e 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. Pa rties may rely on "developments that postdate the pleadings and pre trial motions" in order to determine whether an injunction is appropriate. Ibid. Furthermore, prison offici als who are violating prisoners' rights when a lawsuit i s filed can "prevent the issuance of an injunction by proving, during the litigation, that they [are] no longer unreasonably disre garding
anobjectively intolerable risk of harm and that they [will] no t revert to their obduracy upon cessation of the litigation." Ibid. n.9.-34-

Th e plaintiffs introduced sufficient evidence, in the firs t instance, to justify the District Court's finding that a-35-

con stitutional violation had occurred, as we have discussed
. Ra ther than immediately remedying that violation, the defendant s chose to take a premature appeal to this Court, which wa s 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 i nto the future.

We r ecognize that the defendants were merely proceeding a s they felt they had a right to proceed by appealing to this Court. However, an immediate appeal was not their only option, even i f such an appeal would have been proper. For example, they coul d easily have ceased random cell assignments, and then appealed the finding on liability. If we h ad eventually reversed the liability findin g, they could have reverted to their prior cell-assignmen t 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 th e District Court improperly impo sed the burden of proving the abovedescribed elements on them. When the District Court wrote t hat the defendants had not "met their burden of proving that an injunction is no lo nger necessary," El Tabech I , slip op. at 19, it was i n refere nce to the language in Farmer setting forth how priso n officials can avoid an injunction, not the language describi ng what th e plaintiff would have to prove to merit an injunction. Th e District Court correctly placed the burden of proof. Farmer , 114 S. Ct. at 1983 n.9 ("prison of ficials . . . could prevent issuance of an injunction by proving . . . that they were no longe r unreasonably disregarding an o bjectively unreasonable risk of harm and that they would not revert to their obduracy upon cessation of the litigation").-36-

The defendants make no attempt to argue that they had ceased-37-

violating the plaintiffs' rights prior to the injunction, no r could they. Indeed, they fought imposition of a change in cell

assignment methods every step of the way. The District Cour t correctly issued the injunction.

V.

After finding liability on the part of the defendants an d imposing the injunction, the D istrict Court awarded the plaintiffs attorneys' fees. The Court did so under the provisions of 4 2 U.S.C § 1988, which allows for the award of attorneys' fees to pre vailing partie s in Section 1983 cases. The defendants make thre e challenges to this award. We will address each in turn.

A.

In Hutto v. Finney , 437 U.S. 678 (1978), the Supreme Cour t heldthat the Eleventh Amendment does not bar an award o f attorn eys' fees ancillary to prospective relief, even though th e fees would be paid from the st ate 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)
. The re, the Supreme Court reiterated its rule that Congress coul d abrogate the sovereign immunit y that states enjoy by virtue of the Eleven thAmendment, but only if its "intention [is] unmistakabl y clear in the language of the statute," Id. at 1123 (quotin g 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 defendant s argue, has no "unmistakably clear" language, and, thus canno t abrogate sovereign immunity. (The fees in this case would be paid from the state's coffers, thus implicating the Eleventh Amendment).-38-

Thi s very argument was made, and rejected by the Suprem e Court, in Missouri v. Jenkins , 491 U.S. 274 (1989). There, the-39-

Sta te of Missouri argued that "the principle enunciated in Hutt o has been undermined by subsequ ent decisions of [the Supreme] Court that r equire Congress to `express its intention to abrogate th e EleventhAmendment in unmistakable language in the statut e itself.'" Id. at 279 (quoting Atascadero State Hospital v
. Scanlon , 473 U.S. 234, 243 (1985)); Welch v. Texas Dept. o f Highways and Public Transportation , 483 U.S. 468 (1987). Th e "flaw in th is argument," an argument identical to the one made by th e defendants in this case, with one more citation added to the list, "lies in its misreading of the holding of Hutto ." Jenkins , 49 1 U.S. at 279.

In Jenkins , the Supreme Court made it quite clear tha t "application of §1988 to the States did not depend on congre ssional abrogationof the States' immunity." Ibid. Rather, Hutto hel d that Section 1988 "imposes attorney's fees `as a part of costs. ' Costs have traditionally been awarded without regard for th e States' Eleventh Amendment immunity." Hutto , 437 U.S. at 695
. Indeed, following Huttoand Jenkins "it must be accepted as settled that an award of attorney's fees ancillary to prospective re lief is not subject to the strictures of the Eleventh Amendment." J enkins , 491 U.S. at 279. In short, Section 1988 attorneys' fees do no t depend on abrogation of sovereign immunity, and Seminole Tri be does not affect the fee award in this case.

B.
The defendants' second challenge to the fee award involves t he 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. Thi s legislation, enacted well after both the liability and attorneys' fee determinations in this cas e, alters how prison cases are to be prosecutedin various ways. One provision of the Act, Sectio n-40-

803(7)(d), applies to attorneys' fees. In order to affect thi s case, Section 803(7)(d) must have retroactive application. We hold-41-

that it does not.

Th e Supreme Court recently announced a procedure fo r determiningwhen a statute is to be applied to actions tha t occurred prior to enactment of the statute. Landgraf v. USI Film Products , 511 U.S. 244 (1994). Initially, a court should de termine whet her "Congress has expressly prescribed the statute's prope r reach." Id. at 1505. If so, the dictates of the statute sh ould be followed, barring some constitutional prohibition. Id. at 1 497-98. Abs ent an express command, "the court must determine whether th e statute would have retroactive effect, i.e. , whether it woul d impair rights a party possessed when he acted, increase a party's liabilityfor past conduct, or impose new duties with respect t o trans actions already completed." Id . at 1505. If so, then th e "traditional presumption" against retroactivity preclude s applic ation"absent clear congressional intent favoring such a result." Ibid.

Not hingin this portion of the Act expressly prescribes it s reach. The Act was not in effect when the plaintiffs' attorney s ac ceptedthis appointment, when liability and fee determination s were made, or even when we remanded this case to the Distric t 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 det ermined under Section 1988. If we apply the Act, those expectations will be foi led. Thus, application of the Act in this case would hav e the retroactive effect of disappointing reasonable realiance o n pri or law. That leaves us with the "traditional presumption " against retroactive application.

The defendants base their argument for retroactivity o n Bradley v. Richmond School Dist. , 416 U.S. 696 (1974). In B radley ,-42-

the District Court awarded attorney's fees and costs to pare nts who had prevailed in a school desegregation case on general equitable-43-

principles. Bradley , 416 U.S. at 706. While the appeal of th e case was pending, Congress pas sed a statute that allowed courts to
awar dfees to prevailing parties in school desegregation cases
. Id. at 709. The Supreme Court held that the statute appliedto the case at hand because courts ar e "to apply the law in effect at the time [they] render [their] dec isions, unless doing so would result in man ifest injustice or there is statutory direction o r legislative history to the contrary." Id. at 711.

Two clear distinctions between Bradleyand this case defeat the defendants' argument. First, in Bradley , there was n o "manifest injustice" in allowing the fee statute to apply because the lower courts had already awarded fees on general equitabl e principl es. As the Supreme Court wrote in Landgraf , it would b e difficult to imagine a "stronger equitable case for an attorney's fee award" than a school deseg regation case. Landgraf , 114 S. Ct. at 1503. Given the availability of fees under an alternativ e theory , the new fee statute did not impose an "unforeseeabl e obligation" on the school boar d. Bradley , 416 U.S. at 721. Thus, beingordered to pay attorneys' fees was no great surprise, eve n though the legal theory under which those fees were to be imposed changed.

Conver sely, in this case the plaintiffs and their attorney s hav e proceeded from the outset under the assumption that Sectio n 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 preparedto decide this case once and for all. It would b e "manif estlyunjust" to upset those reasonable expectations an d impose new guidelines at this late date.-44-

Furthermore, there is evidence of congressional inten t contrary to retroactive application of this portion of the Act.-45-

Sectio n802, the section of the Act dealing with prospectiv e 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 thi s title." § 802(b)(1). Section 803, conversely, is silent o n retroactive application. Congress saw fit to tell us which part of the Act was to be retroactively applied, Section 802. Th e exclusionof Section 803 and its fee provisions from that clea r state ment is inconsistent with the defendants' argument fo r retroactivity.

C.
Finally, we reach the issue of the correctness of the Distri ct Court' s attorneys' fee award. Section 1988 provides for th e payment of attorneys' fees to prevailing parties at the discretion of the court in Section 1983 cases. A fee award will not b e altered absent an abuse of discretion. Butler , 979 F.2d at 676.

The plaintiffs in this Section 1983 case are clearl y prevai lingparties. The District Court, employing the procedur e describedby the Supreme Court in Hensley v. Eckerhart , 461 U.S
. 424 (1983), awarded them $178,865.10 in fees and expenses. Thi s method, known as the "lodestar" method, id. at 433, focuses on "the signif icance of the overall relief obtained by the plaintiff i n relation to the hours actually expended on the litigation." Id. at 435. The district court multi plies the number of hours reasonably exp endedby the relevant market rate for legal services, the n reduces the amount for partial success, if necessary.
The defendants challenge two e lements used in the calculation of that award. First, they argue that the number of hour s reasonably expended should hav e been lowered because of inadequate-46-

records on the part of the plaintiffs' attorneys. Second, the y argue that the District Court should have allowed a greater-47-

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 an d
reason ableness of the services rendered. The District Cour t con sideredthis argument in its thorough and detailed opinion o n fees. It noted that "the documentation submitted by th e plaint iffs' 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 a n intelligent determination as t o whether the hours expended were in fact reasonable." Ibid. Ther efore, the District Court imposed an across-the-board reduction in hours of 10%.

Thou ghthis deduction is significant, the defendants woul d have us add another 50% deduction. As we have consistently held, "[t]he trial court is in a muc h better position than this court to view the evidence and to evaluate the testimony and work pro duct of the a ttorney." Vosburg v. Solem , 845 F.2d 763, 770 (8th Cir.) , cert. denied , 488 U.S. 928 (1988). Here, the District Cour t clearly considered, and to a d egree 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 n o abuse of discretion in that holding.
Likewise, the District Court r ejected the defendants' request to reduce the fee award by 75% for partial success, choosin g instead a 15% reduction. El T abech II , 869 F. Supp. at 1464. The defendants request a 75% reduction in the award because th e pl aintiffs failed altogether on their Fourteenth Amendment clai m-48-

related to the contraband rule, and enjoyed only partial suc cess on their Eighth Amendment claims. The Eighth Amendment claim that-49-

double celling was causing a d eprivation of essential services was rejected.
As the District Court noted, t he 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 th e prison s afer for all inmates. It is of little significance tha t the plaintiffs' claims regarding services and the contraband rule
were r ejected, particularly given that those claims, and th e evidence introduced in their support, helped significantly i n proving that the NSP was unsafe. Those conditions, though s hort of
a cons titutional violation, contributed to the tense and hostil e environment in which the plaintiffs existed. Finally, we re iterate that t he constitutional violation affects any inmate who may b e cel ledwith a newly-arriving inmate, not just newly-arrivin g inmate s. The relief obtained is major, and we see no abuse o f discretionon the part of the District Court. The fee award i s affirmed.

VI.
The order of the District Court is affirmed in all respects. We join the District Court in commending the parties for th e qualityand thoroughness of their work before the Court. Thei r bri efs have been literate and their arguments well-reasoned. W e also c ommend the District Court for its detailed and exhaustiv e work o n this difficult and fact-intensive case. Its meticulou s opinions have been most helpful to us.

Affirmed.-50-

A true copy.

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