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Berke v. Federal Bureau of Prisons

United States District Court, District of Columbia

April 29, 2013

LARRY BERKE, Plaintiff,

For LARRY BERKE, Plaintiff: Constantinos G. Panagopoulos, LEAD ATTORNEY, BALLARD SPAHR LLP, Washington, DC; Deborah Maxine Golden, LEAD ATTORNEY, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS, D.C. Prisoners' Project, Washington, DC.

For FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR., in his official capacity as Director of the United States Bureau of Prisons, Defendants: Javier M. Guzman, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


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ELLEN SEGAL HUVELLE, United States District Judge.

Plaintiff Larry Berke, a deaf individual, filed suit against the Federal Bureau of Prisons (" BOP" ) and Charles Samuels, Jr., in his official capacity as the Director of the BOP (" Defendants" ), alleging that defendants discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. § 790 et seq. , by failing to adequately accommodate his deafness. On September 25, 2012, this Court granted in part plaintiff's motion for a preliminary injunction, ordering defendants to determine whether

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the videophone system requested by plaintiff could be installed without resulting in " undue financial and administrative burdens," as required by 28 C.F.R. § 39.160(d). Plaintiff now seeks to recover attorney's fees and costs pursuant to 29 U.S.C. § 794a(b) and Federal Rule of Civil Procedure 54(d). (Plaintiff's Motion for Award of Attorney's Fees and Costs, Oct. 9, 2012 [ECF No. 20] (" Mot." ).) Upon consideration of plaintiff's motion, defendants' opposition thereto (Defendants' Opposition to Plaintiff's Motion for Attorney Fees and Costs, Jan. 31, 2013 [ECF No. 31] (" Opp'n" )), and plaintiff's reply (Reply in Further Support of Plaintiff's Motion for Award of Attorney's Fees and Costs, Feb. 7, 2013 [ECF No. 32] (" Reply" )), and for the reasons explained below, the Court will grant in part and deny in part plaintiff's motion.


In December 2011, plaintiff pled guilty to conspiracy to commit mail fraud under 18 U.S.C. § 1349. ( See Complaint Ex. 1, Aug. 14, 2012 [ECF No. 1-1] at 2.) The indictment asserted that Mr. Berke, along with his wife, son, and other individuals,[1] submitted fraudulent claims to the United States government for reimbursement for providing telephone services for hearing-impaired individuals. He was sentenced to 24 months in prison, followed by three years of supervised release. ( See id. at 3-4.)

On August 14, 2012, plaintiff filed a complaint alleging that defendants violated the Rehabilitation Act by planning to incarcerate him at U.S. Penitentiary Florence ADMAX Satellite Camp, a facility that he alleged did not have adequate accommodations for deaf inmates. (Mot. at 1-2.) Plaintiff initially moved for a temporary restraining order, which was later converted into a motion for a preliminary injunction.

After plaintiff filed his complaint, but before this Court ruled on the preliminary injunction, defendants reassigned plaintiff to the ADMAX Satellite Camp in Tucson, Arizona (" SPC Tucson" ). (Mot. at 2 n.1; Opp'n at 3 & n.1.) They also agreed to provide Mr. Berke with various accommodations at that facility, including closed-captioning on prison telephones, the assignment of an inmate disability helper, access to a TTY phone, access to a live interpreter for certain events, visual alarms, access to inmate email, dry erase boards and pens, and appropriate medical attention. ( See Mot. at 4.) Those accommodations were reduced to writing in a declaration by Scott Pennington, a Unit Manager at SPC Tucson. ( See Declaration of Scott R. Pennington, Sept. 24, 2012 [ECF No. 14-2].) Plaintiff nevertheless chose to proceed with this litigation to determine whether defendants were in violation of Section 504 of the Rehabilitation Act by failing to provide him with access to videophone technology, as opposed to a TTY phone. ( See Preliminary Injunction Hearing Transcript [ECF No. 25] (" Tr." ) at 5 (" [W]e're here on one issue and one issue only still . . . which has to do with whether they're required to provide an accommodation to the plaintiff regarding the videophone system." ).)[2]

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On September 25, 2012, this Court held a hearing on the preliminary injunction motion. Consistent with their written motions, defendants argued that the installation of a videophone " would result in undue financial and administrative burdens," especially given the difficulty in monitoring videophone communications, and thus they were not required to offer that accommodation in light of 28 C.F.R. § 39.160(d). ( See Tr. at 165-66.) However, as the Court pointed out, an agency's determination that the requested accommodation would result in such burdens must be " accompanied by a written statement of the reasons for reaching that conclusion." 28 C.F.R. § 39.160(d). Because defendants had not done any analysis to determine whether it could reasonably comply with plaintiff's request, the Court ruled that defendants had not met their burden of proving that the installation of a videophone system would result in undue financial and administrative burdens. ( See Tr. at 167-69.) The Court therefore granted plaintiff's motion for a preliminary injunction in part and ordered the defendants to " undertake an investigation or examination to determine whether or not [the videophone system] could be installed consistent with their security requirements." ( Id. at 167.) However, the Court denied plaintiff's motion insofar as it sought an order requiring the installation of the videophone system. ( Id. at 167-68.) The Court also signed off on the stipulation agreed to by the parties reflecting their agreement that the BOP would provide Mr. Berke with the above-mentioned accommodations. (Stipulation and Order, Sept. 27, 2012 [ECF No. 18] (" Stip." ).)


The Rehabilitation Act provides that " [i]n any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 29 U.S.C. § 794a(b). The Court must first determine whether, in light of the partial relief granted by this Court, plaintiff is properly considered a " prevailing party" under the Act. Then, assuming plaintiff is in fact entitled to recover costs, the Court must determine whether plaintiff's requested costs and attendant attorney's fees are reasonable under the law.


A prevailing party is " one who has been awarded some relief by a court." Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Supreme Court has long held that the " touchstone" of the prevailing party inquiry is " the material alteration of the legal relationship of the parties." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Thus, in Buckhannon, the Supreme Court rejected the application of the " catalyst theory," which allows an award of attorney's fees if the plaintiff's lawsuit brings about a voluntary change in the defendant's conduct.[3] 532 U.S. at 605. Instead, " for a litigant

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to be a 'prevailing party,' there must have been a 'judicially sanctioned change in the legal relationship of the parties.'" Edmonds v. F.B.I., 417 F.3d 1319, 1322, 368 U.S.App. D.C. 70 (D.C. Cir. 2005) (quoting Buckhannon, 532 U.S. at 605). Such changes are brought about by " enforceable judgments on the merits and court-ordered consent decrees." Buckhannon, 532 U.S. at 604. Following Buckhannon, this Circuit articulated a three-part test for determining prevailing-party status: " (1) there must be a 'court-ordered change in the legal relationship' of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief." Dist. of Columbia v. Straus, 590 F.3d 898, 901, 389 U.S.App. D.C. 58 (D.C. Cir. 2010) (quoting Thomas v. Nat'l Sci. Found., 330 F.3d 486, 492-93, 356 U.S.App. D.C. 222 (D.C. Cir. 2003)).

Plaintiff argues that he is a " prevailing party" based on two factors: (1) that " Defendants agreed [by way of a stipulation] to provide him numerous necessary accommodations," and (2) that " the Court granted his preliminary ...

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