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BLACKMAN v. DISTRICT OF COLUMBIA

July 9, 1999

MIKEISHA BLACKMAN, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS. JAMES JONES, ET AL., PLAINTIFFS, V. DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  OPINION AND ORDER

This case is before the Court on the motion of plaintiffs Kenneth Ewell, Kieran Ewell, Shontay Alexander, Delonte Taylor, Shirita Taylor, De'Angelo McNeil, Jay Brown, Aaron Sanders, Marcus Taylor (DOB: 5/31/91), Antwon Lee, Mark Moore, Marcus Taylor (DOB: 3/30/93). Derrick Boney, Debra Moore, Teon Lindsay, Vincent Martin and Mirian Batista for attorneys' fees and costs incurred on a motion for immediate relief filed on their behalf on December 23, 1998.*fn1 Plaintiffs filed their motion for attorneys' fees and costs on May 6, 1999. On June 4, 1999, over four weeks after the motion for attorneys' fees was filed, defendants filed a nunc pro tunc motion for enlargement of time until June 16, 1999, to respond to plaintiffs' motion. On June 16, 1999, defendants filed another motion for extension of time, requesting until July 30, 1999, to respond to plaintiffs' motion.

These motions for extensions of time are unacceptable, especially since the first was filed a full two weeks after defendants' opposition was due. See Rule 6(b), Fed.R.Civ.P. (a motion for enlargement filed after the due date may be granted where the failure to act timely was the result of excusable neglect); Barton-Smith v. District of Columbia, Civil Action No. 98-3026, Order of June 1, 1999 at 2 (D.D.C.) ("The Office of the Corporation Counsel has made a habit of failing to respond to motions, appearing late for Court (when it appears at all), misplacing Court orders and notices of hearings, and failing to respond timely, if at all, to discovery requests in many cases on the calendar of the undersigned as well as in cases before other judges of this Court. It ill-behooves the District to request relief . . . when it has such a dismal record of compliance with Court rules and Court orders").

Moreover, there have been a number of other motions for attorneys fees filed by class members in these two consolidated cases, and when defendants actually have filed oppositions, those oppositions generally have been short, unhelpful memoranda assessing the District's continued position that Section 130 of the District of Columbia Appropriations Act of 1999 limits the fees that may be awarded. The Court already has ruled that Section 130 applies only to actions brought under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and not to actions brought pursuant to 42 U.S.C. § 1983. See Petties v. District of Columbia, Civil Action No. 95-0148, Order of May 14, 1999 (D.D.C.). Since the instant actions clearly were brought pursuant to Section 1983, see Opinion of June 3, 1998 at 8-15, the oppositions previously filed by the District would, if considered here, be singularly unhelpful. The Court therefore will deny the motions for extensions of time. Defendants are deemed to have waived any arguments except as expressly provided in this Opinion and Order. See Local Rule 108(b) ("Court may treat the motion as conceded" if opposition is not timely filed).

I

In an action brought pursuant to 42 U.S.C. § 1983, the Court, in its discretion, "may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." See 42 U.S.C. § 1988. The first issue is whether plaintiffs are prevailing parties. The history of plaintiffs' motion for immediate injunctive relief is somewhat complicated. Plaintiffs, seventeen members of the class certified in these two consolidated cases, filed a motion for immediate relief on December 23, 1998. At the time the motion was filed, the Court already had found the District liable to the class of plaintiffs and had set the case for trial on the issue of remedy. These seventeen class members alleged that they could not wait until the issue of class-wide remedy was resolved because they faced a threat of irreparable injury if they were not granted immediate relief.

On January 22, 1999, the Court held a hearing on plaintiffs' motion, and defendants represented that they were attempting to provide relief to these plaintiffs. The Court directed the parties to file a joint status report on their efforts to resolve the motion. On January 29, 1999, the parties filed a joint status report indicating that they had agreed on a schedule to resolve the outstanding issues with respect to all of the plaintiffs. With one exception, DCPS agreed to issue a Notice of Proposed Placement for each plaintiff by a date certain, the latest of which was February 26, 1999.*fn2 The motion for immediate injunctive relief therefore was held in abeyance until February 26, 1999, at which time plaintiffs would withdraw the motion if defendants had timely issued Notices of Proposed Placements for each of the plaintiffs.

On March 2, 1999, plaintiffs filed a request for ruling on the motion for immediate relief with respect to nine of the plaintiffs. Plaintiffs first indicated that defendants had provided substantial relief according to the terms of the agreement of January 29, 1999, for seven of the plaintiffs — Kenneth Ewell, Kieran Ewell. Shontay Alexander, Delonte Taylor, Shirita Taylor, De'Angelo McNeil and Jay Brown. Plaintiffs also indicated that one plaintiff, Vincent Martin, had "moved from the jurisdiction without receiving any relief." See Pls' Request for Ruling at 1. With respect to the claims of the other nine, plaintiffs requested a ruling on their pending motion for immediate injunctive relief because defendants had failed to issue the promised notices of proposed placements. See id.

In the meantime, the Court had appointed a Special Master to facilitate a resolution of or to provide a report and recommendation on claims for immediate injunctive relief filed by members of the class certified in Blackman and Jones. See Order of February 12, 1999. The Court therefore referred the motion for immediate injunctive relief filed on behalf of the nine children to the Special Master. Prior to issuance of a report and recommendation by the Special Master, plaintiffs withdrew their request for immediate injunctive relief on behalf of Mirian Batista. It is not clear whether Mirian received any relief prior to withdrawing her motion. See Report and Recommendations of Special Master, Att. 1 (Letter from Charles Moran).

With respect to the claims of the remaining eight, the Court granted preliminary injunctive relief to seven — Aaron Sanders, Marcus Taylor (DOB: 5/31/91), Antwon Lee, Mark Moore, Marcus Taylor (DOB: 3/30/93), Derrick Boney and Debra Moore — and held in abeyance the motion with respect to Teon Lindsay. See Order of April 22, 1999. The status of relief provided to Teon Lindsay is not clear from the record. The motion for immediate injunctive relief was held in abeyance at the request of plaintiffs' counsel, presumably because a settlement of Teon's claims was being negotiated with defendants, but it is not clear whether he has since received any relief.

II

A plaintiff is a "prevailing party" for purposes of Section 1988 if she obtains "at least some relief on the merits of [her] claim" in the form of an enforceable judgment "or comparable relief through a consent decree or settlement." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Thus, if a court rules in a plaintiffs favor and grants her the relief she sought, she clearly is a prevailing party. If a plaintiff obtains relief through a settlement before a court has ruled on the merits, she still may be considered a prevailing party for purposes of Section 1988. See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) ("The fact that [plaintiff] prevailed through a settlement rather than through litigation does not weaken her claim to fees" pursuant to Section 1988); cf. National Black Police Ass'n v. District of Columbia, 168 F.3d 525, 528 (D.C.Cir. 1999) (plaintiffs were prevailing parties because injunction "alter[ed] the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff"). In such a case, however, the Court must determine that "there were colorable civil rights claims involved in the case and [that] they served as catalysts in securing the result" before plaintiff can be considered a prevailing party. Grano v. Barry, 783 F.2d 1104, 1110 (D.C.Cir. 1986) (emphasis added).

Applying that analysis to this case, the Court concludes that fourteen of the plaintiffs are prevailing parties for purposes of Section 1988. The seven whose requests for preliminary injunctions were granted — Aaron Sanders, Marcus Taylor (DOB: 5/31/91), Antwon Lee, Mark Moore, Marcus Taylor (DOB: 3/30/93), Derrick Boney and Debra Moore — clearly have prevailed for purposes of Section 1988 and are entitled to attorneys' fees. These seven plaintiffs received a ruling from the Court that defendants were liable to them and that they faced immediate and irreparable injury in the absence of immediate injunctive relief. By the Court's Order, plaintiffs received the substantial injunctive relief they sought by filing their motion, and they therefore are prevailing parties entitled to reasonable attorneys' fees and costs. See National Black Police Ass'n v. District of Columbia, 168 F.3d at 528 n. 2 ("`[O]nce a court has already ruled that the claims are actionable — not just colorable — civil rights claims, the question of whether the party meets the statutory requirement of having prevailed on the basis of "civil rights" claims has been unequivocally answered'") (quoting Grano v. Barry, 783 F.2d at 1111).

The seven plaintiffs who received relief from the District after the filing of their motion for immediate injunctive relief but before March 2, 1999 — Kenneth Ewell, Kieran Ewell, Shontay Alexander, Delonte Taylor, Shirita Taylor, De'Angelo McNeil and Jay Brown — also are prevailing parties. See Farrar v. Hobby, 506 U.S. at 111-12, 113 S.Ct. 566 (plaintiff is prevailing party if she receives substantial relief through consent decree or settlement). All seven of them received the substantial relief from the District that they had sought in their motion. Moreover, it is clear that there were "colorable" civil rights claims involved in the case. See Grano v. Barry, 783 F.2d at 1110. In fact, the underlying civil rights claims at issue in this case not only are ...


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