Full opinion text
ORDER AND DECLARATORY JUDGMENT CHARLES R. SCOTT, District Judge. This is a class action with the Court having heretofore ruled that the action is properly maintainable by plaintiffs as a class action consisting of all persons, male and female, who are presently or in the future will be incarcerated in the Duval County Jail, Jacksonville, Florida. T?he purpose of this action is to improve the conditions which exist at the Duval County Jail. The Court finds that it has jurisdiction over the parties hereto and the subject matter hereof and the plaintiffs are entitled to a declaratory judgment against the defendants Dale Carson, individually and in his capacity as Sheriff of Duval County, Florida, and the Consolidated City of Jacksonville, Florida; Hans G. Tanzler, individually and in his capacity as Mayor of the Consolidated City of Jacksonville, Florida; Don Brewer, Jr., Joe Carlucci, Julian Fant, Jr., Joe Forshee, Jake M. Godbold, David Harrell, J. Earl Huntley, Frank Hampton, Earl Johnson, Preben Johansen, Mickey King, John G. Lanahan, Sal-lye Mathis, Lynwood Roberts, Johnny Sanders, I. M. Sulzbacher, Larry Teague, Charlie Webb, Walter Williams, Jr., individually and in their respective capacities as Councilmen and Councilwoman of the Consolidated City of Jacksonville City Council; Robert E. Page, individually and in his capacity as Deputy Director of Prisons and Jails, Consolidated City of Jacksonville, Florida; and R. W. Grant, individually and in his capacity as Chief of Jails, Consolidated City of Jacksonville, Florida, and against the successors, agents, servants and employees of each of said defendants with respect to the following: 1. The conditions found to exist in the Duval County Jail, being considerably worse than those to which many sentenced prisoners are subjected in Florida, even though the majority of plaintiffs and the subclass of pretrial detainees they represent have not been convicted and are not subject to punishment for any crime, are in violation of the rights of plaintiffs and the subclass of pretrial detainees they represent under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. 2. The conditions found to exist in the Duval County J ail are severely punitive in nature and effectively punish plaintiffs and the subclasses they represent, the large majority of whom are detained prior to trial before they have been convicted of any crimes, or given any sentence, thus depriving them of life and liberty without due process of law, and contravening the presumption that they are innocent until proven guilty, all in violation of their rights under the Fifth and Fourteenth Amendments to the Constitution of the United States. 3. The conditions found to exist in the Duval County Jail are so extreme as to constitute the infliction of punishment which is both cruel and unusual in violation of the Eighth and Fourteenth Amendments to the United States Constitution. 4. The conditions found to exist in the Duval County Jail relating to lack of access to a library and to law books, the restrictions on visiting privileges, the limitations on telephonic communications deprive plaintiffs and the subclasses they represent to effective assistance of counsel, the ability to assist in the preparation of a defense and to secure witnesses in their behalf, all in violation of their rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. 5. The restrictions on religious freedom found to exist in the Duval County Jail deprive plaintiffs and the subclasses they represent of their rights under the First and Fourteenth Amendments to the Constitution of the United States. 6. The arbitrary, capricious and unlawful summary discipline administered by the officials to the inmates at the Duval County Jail deprives plaintiffs and the subclasses they represent of due process of law in violation of their rights under the Fifth and Fourteenth Amendments to the Constitution of the United States. 7. The arbitrary and capricious limitations placed upon access to families and friends, and upon delivery of packages and the failure to provide even a daily newspaper to the inmates in the Duval County Jail deprive the plaintiffs and the subclass which they represent of their rights under the First and Fourteenth Amendments to the Constitution of the United States. Ordered and adjudged: That this Court retains jurisdiction for the purpose of implementation of this Order and Declaratory Judgment. ORDER TO SHOW CAUSE On January 31, 1975, this Court entered a declaratory judgment, with supporting findings of fact and conclusions of law, which declared that the conditions in the Duval County Jail were “so extreme as to constitute the infliction of punishment which is both cruel and unusual in violation of the Eighth and Fourteenth Amendments to the United States Constitution”; that those conditions were so severely punitive as to “effectively punish plaintiffs and the subclasses they represent,” the large majority of whom were pre-trial detainees, “thus depriving them of life and liberty without due process of law, and contravening the presumption that they are innocent until proven guilty”; that said conditions operated to deprive the plaintiffs of their right to effective assistance of counsel and their ability to assist in the preparation of a defense and to secure witnesses in their behalf, so as to violate their Sixth and Fourteenth Amendment rights. In addition, this Court declared that the restrictions on religious freedom found to exist in the Duval County Jail violated the plaintiffs’ rights under the First and Fourteenth Amendments; that the “arbitrary, capricious and unlawful summary discipline administered to inmates of the Duval County Jail deprived plaintiffs of their procedural due process rights under the Fifth and Fourteenth Amendments”; and that the restrictions imposed by the defendants upon access to families and friends, reading materials and the delivery of mail violated the First and Fourteenth Amendments. Finally, this Court declared that the conditions in the Duval County Jail, to the extent that they were worse than those to which most sentenced prisoners are subjected in Florida, violated the Equal Protection Clause of the Fourteenth Amendment as to those plaintiffs who were pre-trial detainees. On this basis, this Court, contemporaneously therewith, issued a preliminary injunction in order to partially remedy the constitutionally offensive practices of the defendants. On February 6, 1975, the city defendants filed a motion to modify and/or clarify certain portions of the preliminary injunction. A hearing was held thereon and this Court, on February 25, 1975, entered its order and memorandum opinion which did, in fact, modify and clarify certain provisions in the preliminary injunction. On February 13, 1975, this Court appointed the United States Magistrate for the Jacksonville Division of the Middle District of Florida as Ombudsman “to relieve the Court of the time-consuming attention required on a day-to-day basis in a case of this nature.” That order stated that the Ombudsman’s duty was “to aid this Court in developing and resolving issues that may arise in the day-to-day operation of the Duval County Jail with regard to the preliminary injunction issued by this Court on January 31, 1975, and any subsequent injunctions or decrees entered herein.” On this basis, in response to numerous complaints concerning alleged violations of this Court’s preliminary injunction, the Ombudsman inspected the jail, talked to inmates and correctional staff, held conferences with counsel and conducted hearings at which evidence was adduced, both testimonial and documentary in nature. On March 4, 1975, the Ombudsman filed a report covering the period from the date of his appointment through March 1, 1975. The substance of the Ombudsman’s report is that this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25, 1975, have been violated in numerous respects, with specific details thereof. In each instance, the defendants either admitted the violations or adduced no evidence to the contrary. The Ombudsman’s conclusions can best be summarized in the concluding sentence in his report: The Ombudsman finds that this Court’s orders of January 31, 1975, and February 25, 1975, have been violated in the respects outlined above. Although there have been changes in administration, numerous conferences and memos, from the viewpoint of the plaintiffs, except for the reduced population, conditions at the Duval County Jail are no different today than on January 31, 1975, the date of the Court’s order. A review of the Ombudsman’s report yields the same conclusion, that is, that the plaintiffs’ constitutional rights are still being violated to the same degree that they were prior to January 31, 1975. Although the violations are varied and widespread, the Ombudsman focused on two conditions that were far more serious than the others: These two conditions—lack of personnel and plumbing—standing alone, render the Duval County Jail almost totally unsuitable as a facility for the housing of pretrial detainees (presumed to be innocent) and sentenced misdemeanants, (emphasis added) These two highlighted conditions, coupled with the other conditions shown to exist in the Duval County Jail, present a picture not totally unlike the Lucas County Jail in Toledo, Ohio, the conditions of which were declared to be unconstitutional in the case of Jones v. Wittenberg, 323 F.Supp. 93 (N.D.Ohio 1971): . In any event, when the total picture of confinement in the Lucas County Jail is examined, what appears is confinement in cramped and overcrowded quarters, lightless, airless, damp and filthy with leaking water and human wastes, slow starvation, deprivation of most human contacts, except with others in the same sub-human state, no exercise or recreation, little if any medical attention, no attempt at rehabilitation, and for those who in despair or frustration lash out at their surroundings, confinement, stripped of clothing and every last vestige of humanity, in a sort of oubliette. 323 F.Supp. at 99. Thereafter, the Court entered a farreaching injunction, Jones v. Wittenberg, 330 F.Supp. 707 (N.D.Ohio 1971), which was affirmed sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). In light of the Ombudsman’s findings, this Court cannot ignore the serious constitutional deprivations that are continuing- to occur despite this Court’s preliminary injunction entered over a month ago. These deprivations are subjecting the plaintiffs, the majority of whom are pre-trial detainees, to cruel and unusual punishment, when at the same time the law has afforded them a presumption of innocence. As pointed out in Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark. 1971): The inmates of the Pulaski County jail should not be referred to as “convicts” or even “prisoners”, considering the usual connotations of such terms. Furthermore, it is not really appropriate to judge the constitutionality of the conditions of their incarcerations by referring to the “cruel and unusual punishment” provisions of the Eighth Amendment. Having been convicted of no crime, the detainees should not have to suffer any “punishment”, as such, whether “cruel and unusual” or not. (emphasis in original) 328 F.Supp. at 1191. Thus, this Court is faced with the situation that its remedial orders are not being complied with and the grim constitutional deprivations are continuing apace. The appropriate solution to this problem lies not in civil contempt citations for those responsible for implementing this Court’s injunction since there is no direct evidence before this Court, at this time, of any recalcitrance or lack of diligence on their part so as to justify such a course of action. In addition, a contempt citation, even if justified, would, by virtue of its somewhat punitive nature, not necessarily eliminate or alleviate the most loathsome conditions in the Duval County Jail. Perhaps the elimination of the stench, the vermin, the human wastes, the intermittent lack of medical attention, sanitation, guard protection from inmate brutality, drinking water, commode facilities and outside human contacts, as well as the lack of light, fresh air and exercise, present insuperable difficulties which are directly attributable to lack of funds appropriated for such purposes. However, the Court cannot and will not allow these conditions to persist for either pre-trial detainees or sentenced prisoners. Therefore, this Court must seriously consider the strong possibility of closing, in whole or in part, the Duval County Jail as a facility for housing pre-trial detainees and sentenced prisoners. As further pointed out in Hamilton v. Love, supra: Inadequate resources can never be an adequate justification for the state’s depriving any person of his constitutional rights. If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons. The final decision may, indeed, rest with the qualified voters of the governmental unit involved. This Court, of course, cannot require the voters to make available the resources needed to meet constitutional standards, but it can and must require the release of persons held under conditions which violate their constitutional rights, at least where the correction of such conditions is not brought about within a reasonable time, (emphasis added) 328 F.Supp. at 1194. This approach has been upheld in the Fifth Circuit in the case of Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), with regard to a state prison system, wherein the Court cited Hamilton v. Love, supra, with approval. The Court specifically held therein that the “[s]hortage of funds is not a justification for continuing to deny citizens their constitutional rights.” 501 F.2d at 1320. See also Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974). This Court, likewise, must not shirk its constitutional responsibility. Therefore, it is Ordered and adjudged: 1. The Report of the Ombudsman, filed herein March 4, 1975, is hereby adopted and confirmed. 2. This Court finds the city defendants to be in material violation of this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25,1975. 3. The city defendants, either personally or through counsel, are hereby required to show cause, if any they have, on Wednesday, March 26, 1975, at 9:30 A.M. in Court Room No. 2, Fifth Floor, United States Court House and Post Office Building, 311 West Monroe Street, Jacksonville, Florida, why the Duval County Jail should not be closed, in whole or in part, as a facility for the incarceration of pre-trial detainees and sentenced prisoners, for failure to maintain said facility in accordance with minimum constitutional standards, and for failure to comply with this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25, 1975. ORDER CHANGING PARTIES This cause came before the Court with respect to the plaintiffs’ motion for leave of Court to amend their amended complaint, filed herein March 3, 1975. The plaintiffs seek to add as party defendants the following persons: (1) D. K. Brown, individually and as Undersheriff of Duval County and the Consolidated City of Jacksonville. (2) Fred W. Murray, Jr., individually and as Director of the Duval County Jail. (3) James R. McMillan, individually and as Acting Chief of the Duval County Jail. (4) John R. Smith, individually and as Director of Police Services. At the hearing on March 14, 1975, with regard to said motion, no objection was made as to the joinder of the proposed defendants Murray and McMillan in their official capacities since they would automatically be added as successors to defendants Page and Grant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. However, objection was made to any joinder of Murray and McMillan in their individual capacities because of the potential liability to which they might be subjected. However, the plaintiffs have orally stipulated in open court, and this Court adopts and confirms said stipulation, that said proposed defendants will not be accountable in damages for any events which transpired or for any actions which were taken or not taken prior to the date of their joinder. On the basis of that stipulation, this Court will allow joinder of the proposed defendants Murray and McMillan, both in their official and individual capacities, as party defendants, for the sole purpose of ensuring implementation of this Court’s injunctions, orders and decrees. As to the proposed defendants Brown and Smith, there has not been a sufficient showing of their direct involvement in the operations of the Duval County Jail so as to justify their joinder as party defendants at this time. However, this Court wishes to make it emphatically clear to the proposed defendants Brown and Smith, as “agents, servants and employees” of persons already made parties defendant in this cause, that they are as bound by the orders of this Court in this case as any of the parties defendant because of their substantial participation in the proceedings in this case and because of their close identification with parties before the Court. Mims v. Duval County School Board, 338 F.Supp. 1208 (M.D.Fla. 1971); United States v. Hall, 472 F.2d 261 (5th Cir. 1972). In addition, the preliminary injunction issued on January 31, 1975, at page three thereof, clearly enjoined “all successors, agents, servants and employees” (in which they are necessarily included) of each of the defendants from violating the constitutional and pendent statutory rights of the plaintiffs in specific, detailed ways. Consequently, they are subject to the same sanctions that would be applicable to parties defendant for interference with the implementation of any of this Court’s orders, injunctions or decrees. On that basis, then, the Court finds it appropriate to serve copies of the most significant orders heretofore entered in this case upon these two individuals. Therefore, the motion to amend will be denied as to the proposed defendants Brown and Smith without prejudice to the plaintiffs’ right to renew said motion on the basis that said individuals have become directly involved in the implementation of the preliminary injunction of January 31, 1975, and any other orders, injunctions and decrees of this Court. In addition, the plaintiffs have stipulated to the dismissal of the defendant Grant, who has been replaced as Chief of Jails for the Consolidated City of Jacksonville. However, at least for the present time, the defendant Page will remain a party defendant. Therefore, it is Ordered: 1. Plaintiffs’ motion for leave of Court to amend their amended complaint, filed herein March 3, 1975, is hereby granted to the limited extent set forth below. 2. Plaintiffs’ amended complaint is hereby amended to include as party defendants the following persons: (a) Fred W. Murray, Jr., individually and as Director of the Duval County Jail. (b) James R. McMillan, individually and as Chief of the Duval County Jail. 3. Defendants Murray and McMillan shall not be liable in damages for any events which transpired or for any actions which were taken or not taken prior to the date service of the amended complaint is obtained upon said defendants. 4. The United States Marshal for the Middle District of Florida, or his authorized representative, is hereby directed to serve copies of the declaratory judgment, the findings of fact and conclusions of law and the order and preliminary injunction of January 31, 1975, the modification order of February 25, 1975, the order of February 13, 1975, with regard to racial segregation, and the order to show cause and the posting order of March 6, 1975, upon the following persons : (a) Fred W. Murray, Jr., Director of the Duval County Jail Duval County Court House Jacksonville, Florida, 32202 (b) James R. McMillan, Chief of the Duval County Jail Duval County Court House Jacksonville, Florida, 32202 (e) D. K. Brown, Undersheriff of Du-val County and the Consolidated City of Jacksonville Duval County Court House Jacksonville, Florida, 32202 (d) John R. Smith, Director of Police Services Duval County Court House Jacksonville, Florida, 32202 5. The aforesaid motion is hereby denied as to the proposed joinder of D. K. Brown and John R. Smith without prejudice to the plaintiffs’ right to renew said motion on the basis that said individuals have become directly involved in the implementation of this Court’s orders, injunctions and decrees in this case. 6. This case is hereby dismissed as to defendant R. W. Grant, individually and in his capacity as Chief of Jails, Consolidated City of Jacksonville, Florida. ORDER AWARDING ATTORNEYS’ FEES This cause came before the Court with respect to the plaintiffs’ motion for interim attorneys’ fees and costs, with supporting affidavits, filed herein May 8, 1975. By virtue thereof, the plaintiffs seek to recover attorneys’ fees against all the city defendants in their official capacities and against the defendant Carson in both his official and his individual capacity. A hearing was held on this motion on May 21, 1975, and this Court, having considered the briefs and arguments of counsel, and the entire record in this case, hereby concludes that the plaintiffs’ motion will be granted. I. BACKGROUND On June 11, 1974, a handwritten pro se “Petition for Injunction” was filed in this Court by Richard Franklin Miller, a federal detainee temporarily housed in the Duval County Jail awaiting transfer to a federal institution. On June 14, 1974, this Court entered an order allowing the plaintiffs to proceed in forma pauperis and directed service of the complaint by the United States Marshal on the then sole defendant Sheriff Dale Carson. On June 19, 1974, the Court appointed William J. Sheppard, Esquire, of Sheppard, Fletcher, Hand & Adams, 215 Washington Street, Jacksonville, Florida, to represent the pro se plaintiffs in this case. An amended complaint was filed on July 26, 1974, which was answered on August 13, 1974. On September 17, 1974, the Court entered an order pursuant to motion filed by the plaintiff allowing this cause to proceed as a class action. The parties engaged in extensive discovery, including depositions, numerous sets of interrogatories, requests for production of documents, and the inspection of the Duval County Jail by a medical expert on behalf of the plaintiffs, Kenneth Babcock, M.D., a medical expert on behalf of the defendants, Samuel D. Rowley, M.D., as well as a corrections expert on behalf of the plaintiffs, Robert Charles Sarver, Esquire. In addition, the Federal Law Enforcement Assistance Administration conducted a survey of the Duval County Jail (and also the Jacksonville Correctional Institution) on behalf of the defendants, with recommendations for change. The plaintiffs filed a motion for partial summary judgment as to the city defendants. Subsequent to the filing of said motion, the plaintiffs entered into a stipulation with the city defendants providing that the motion would be redesignated as a “motion for partial summary judgment and motion for injunctive relief” pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. Thereafter defendants moved for a continuance of the hearing on said motion for partial summary judgment which was set for December 10, 1974. The Court, after hearing, ordered that the plaintiffs would be allowed to present any evidence in support of their motion for partial summary judgment on December 10, 1974, and that the defendants would be allowed to respond to said motion at a hearing, the date for which would be set thereafter by the Court. Plaintiffs presented evidence in support of their motion commencing December 10, 1974, and the defendants presented evidence in opposition thereto commencing January 13, 1975. At the hearing, the plaintiffs submitted affidavits, depositions of members of the plaintiff class, some of the defendants and employees of the defendants, numerous photographs of the interior and exterior of the Duval County Jail, interrogatories and the defendants’ answers thereto, reports of the experts heretofore mentioned, and voluminous documentary evidence obtained by requests for production of documents served on the defendants. Included in the documentary evidence were several hundred “incident reports”, which are reports required by jail personnel to be prepared with respect to all incidents of an unusual nature occurring in the operation of the Duval County Jail. The city defendants submitted a limited amount of documentary evidence and some affidavits. In rebuttal, the plaintiffs submitted additional documentary evidence and, by stipulation, called Captain Forrest Lind of the Jacksonville Sheriff’s Office for testimony. On January 31, 1975, this Court entered a declaratory judgment, with supporting findings of fact and conclusions of law, which declared that the conditions in the Duval County Jail were “so extreme as to constitute the infliction of punishment which is both cruel and unusual in violation of the Eighth and Fourteenth Amendments to the United States Constitution”; that those conditions were so severely punitive as to “effectively punish plaintiffs and the subclasses they represent,” the large majority of whom were pre-trial detainees, “thus depriving them of life and liberty without due process of law, and contravening the presumption that they are innocent until proven guilty”; that said conditions operated to deprive the plaintiffs of their right to effective assistance of counsel and their ability to assist in the preparation of a defense apd to secure witnesses in their behalf, so as to violate their Sixth and Fourteenth Amendment rights. In addition, this Court declared that the restrictions on religious freedom found to exist in the Duval County Jail violated the plaintiffs’ rights under the First and Fourteenth Amendments; that the “arbitrary, capricious and unlawful summary discipline administered to inmates of the Duval County Jail deprived the plaintiffs of their procedural due process rights under the Fifth and Fourteenth Amendments”; and that the restrictions imposed by the defendants upon access to families and friends, reading materials and the delivery of mail, violated the First and Fourteenth Amendments. Finally, the Court declared that the conditions of the Duval County Jail, to the extent that they were worse than those to which most sentenced prisoners are subjected in Florida, violated the Equal Protection Clause of the Fourteenth Amendment as to those plaintiffs who were pre-trial detainees. This declaratory judgment was never appealed. On this basis, this Court, contemporaneously therewith, issued a preliminary injunction in order to partially remedy the constitutionally offensive practices of the defendants. On February 6, 1975, the city defendants filed a motion to modify and/or clarify certain portions of the preliminary injunction. A hearing was held thereon and this Court, on February 25, 1975, entered its order and memorandum opinion which did, in fact, modify and clarify certain provisions in the preliminary injunction. On February 13, 1975, this Court appointed the United States Magistrate for the Jacksonville Division of the Middle District of Florida as Ombudsman “to relieve the Court of the time-consuming attention required on a day-to-day basis in a case of this nature.” That order stated that the Ombudsman’s duty was “to aid this Court in developing and resolving issues that may arise in the day-to-day operation of the Duval County Jail with regard to the preliminary injunction issued by this Court on January 31, 1975, and any subsequent injunctions or decrees entered herein.” On this basis, in response to numerous complaints concerning alleged violations of this Court’s preliminary injunction, the Ombudsman inspected the jail, talked to inmates and correctional staff, held conferences with counsel and conducted hearings at which evidence was adduced, both testimonial and documentary in nature. On March 4, 1975, the Ombudsman filed Ombudsman’s Report No. 1 covering the period from the date of his appointment through March 1, 1975. The substance of the Ombudsman’s report was that this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25, 1975, were being violated in numerous respects, with specific details thereof. In each instance, the defendants either admitted the violations or adduced no evidence to the contrary. The Ombudsman’s conclusions can best be summarized in the concluding sentence in his report: The Ombudsman finds that this Court’s orders of January 31, 1975, and February 25, 1975, have been violated in the respects outlined above. Although there have been changes in administration, numerous conferences and memos, from the viewpoint of the plaintiffs, except for the reduced population, conditions at the Duval County Jail are no different today than on January 31, 1975, the date of the Court’s order. As a result of the Ombudsman’s Report No. 1, this Court entered its order to show cause requiring the city defendants to show cause, if any they had, why the Duval County Jail should not be closed, in whole or in part, as a facility for the incarceration of pre-trial detainees and sentenced prisoners, for failure to maintain said facility in accordance with minimum constitutional standards, and for failure to comply with this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25, 1975. The hearing on said order to show cause was held on March 26, 1975. As of the date of this order, this Court has not decided on the fate of the order to show cause. The final hearing on the proposed forms of permanent injunction was held on June 6, 1975, so that this Court may shortly enter its permanent injunction. On the basis of the foregoing, it is clear that the plaintiffs have prevailed on the merits of this case and that plaintiffs’ counsel has rendered valuable services to his clients, the vast majority of whom are indigent and who individually could not possibly afford to retain private counsel to prosecute a lawsuit of this nature. It is also clear that the services of plaintiffs’ counsel were required to a much greater extent because of the city defendants’ inability to comply with this Court’s preliminary injunction of January 31, 1975, and the modification order of February 25, 1975. II. THE DEMISE OF THE PRIVATE ATTORNEY GENERAL THEORY On May 12, 1975, the Supreme Court of the United States in the case of Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, held that prevailing parties in federal litigation could not recover attorneys’ fees from the losing parties based on the “private attorney general” exception to the “American Rule” (which is that attorneys’ fees are not ordinarily recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization or contract. Although the narrow issue in that case involved the recovery of attorneys’ fees by an environmental interest group proceeding under the National Environmental Policy Act to protect statutory rights, the broad, sweeping language of the opinion indicates that a prevailing plaintiff may not recover attorneys’ fees under the “private attorney general” theory even where constitutional rights are at stake. Although this Court is hesitant to apply the Alyeska Pipeline Service Co., holding beyond the limited parameters of the factual situation in that case where, to do so would have the effect of possibly emasculating the constitutional protections embodied in Section 1983, it must do so where the language in the opinion is so clear and explicit that the holding is expanded to include any attempt to utilize the “private attorney general” theory to recover attorneys’ fees, regardless of the nature of the legal rights involved. Therefore, this Court holds that the plaintiffs cannot recover attorneys’ fees based on the “private attorney general” theory. III. OTHER THEORIES OF RECOVERY NOT PRECLUDED BY ALYESKA The plaintiffs, although conceding the application of the Alyeska Pipeline Service Co. case to the “private attorney general” theory, seek to recover attorneys’ fees on two other bases. One of these is “bad faith” on the part of the defendants. The other is the “common deceit” exception to the “American Rule.” The city defendants, however, contend that the Alyeska case applies not only to eliminate the “private attorney general” theory (which had previously been sustained by at least seven Courts of Appeal, including the Fifth Circuit) as a basis for the recovery of attorneys’ fees, but also serves to eradicate any exception whatsoever to the “American Rule.” This Court finds this reading of Alyeska, supra, to be unwarranted and holds that the “bad faith” and “common benefit” exceptions to the “American Rule” are still viable, despite the holding in Alyeska. At pages 257-258, at page 1621 of 95 S.Ct. in Alyeska, the court stated as follows: To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by § 1923. In Trustees v. Greenough, 105 U.S. 527 [26 L.Ed. 1157] (1881), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 [5 S.Ct. 387, 28 L.Ed. 915] (1885); Harrison v. Perea, 168 U.S. 311, 325-326 [18 S.Ct. 129, 134-135, 42 L.Ed. 478] (1897); United States v. Equitable Trust Co., 283 U.S. 738 [51 S.Ct. 639, 75 L.Ed. 1379] (1931); Sprague v. Ticonic National Bank, 307 U.S. 161 [59 S.Ct. 777, 83 L.Ed. 1184] (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970); Hall v. Cole, 412 U.S. 1 [93 S.Ct. 1943, 36 L.Ed.2d 702] (1973); cf. Hobbs v. McLean, 117 U.S. 567, 581-582 [6 S.Ct. 870, 876-877, 29 L.Ed. 940] (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorneys Fees from Funds, 87 Harv.L.Rev. 1597 (1974). Also a court may assess attorneys’ fees for the “willful disobedience of a court order ... as part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-428 [43 S.Ct. 458, 465-466, 67 L.Ed. 719] (1923).” Fleischmann v. Maier Brewing Co., supra, 386 U.S. [714], at 718 [87 S.Ct. 1404, at 1407, 18 L.Ed.2d 475]; or when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons. .” F. D. Rich Co., supra, 417 U.S. [116], at 129 [94 S.Ct. 2157, at 2165, 40 L.Ed.2d 703] (citing Vaughan v. Atkinson, 369 U.S. 527 [82 S.Ct. 997, 8 L.Ed.2d 88] (1962); cf. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 [66 S.Ct. 1176, 1179, 90 L.Ed. 1447] (1946)). These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress, but none of these exceptions is involved here. . One of the cases cited as authority for the “common benefit” exception is the case of Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), wherein the Court stated as follows: While the general American rule is that attorneys’ fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery. A primary judge-created exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself. See Fleischmann Corp. v. Maier Brewing Co., 386 U.S., at 718-719 [87 S.Ct. at 1407, 18 L.Ed.2d at 478, 479]. To allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense. This suit presents such a situation. The dissemination of misleading proxy solicitations was a “deceit practiced on the stockholders as a group,” J. I. Case Co. v. Borak, 377 U.S. [426], at 432, [84 S.Ct. 1555, at 1560, 12 L.Ed.2d 423 at 427], and the expenses of petitioners’ lawsuit have been incurred for the benefit of the corporation and the other shareholders. 396 U.S. at 391-392, 90 S.Ct. at 625, 24 L.Ed.2d at 606. As authority for the “bad faith” exception, the court referred to F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703. In that case, a Miller Act plaintiff was awarded an attorney’s fee and the court in reversing this award stated, in pertinent part, as follows: The “American Rule” has not served, however, as an absolute bar to the shifting of attorneys’ fees even in the absence of statute or contract. The federal judiciary has recognized several exceptions to the general principle that each party should bear the costs of its own legal representation. We have long recognized that attorneys’ fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, or where a successful litigant has conferred a substantial benefit on a class of persons and the court’s shifting of fees operates to spread the cost proportionately among the members of the benefitted class. The lower courts have also applied a rationale for fee shifting based on the premise that the expense of litigation may often be a formidable if not insurmountable obstacle to the private litigation necessary to enforce important public policies. This “private attorney general” rationale has not been squarely before this Court and it is not so now; nor do we intend to imply any view either on the validity or scope of that doctrine. It is sufficient for our purposes here to observe that this case clearly does not fall within any of these exceptions, (emphasis added) 417 U.S. at 129, 94 S.Ct. at 2165, 40 L.Ed.2d at 713-714. Reading these three opinions together leaves this Court with the firm impression that the Supreme Court has consistently recognized two exceptions to the so-called “American Rule” regarding attorneys’ fees: (1) the “bad faith” exception, and (2) the “common benefit” doctrine and that, if it wished to overrule its prior decisions regarding these two well-established exceptions, it would have explicitly done so. The tenor of the language of the F. D. Rich opinion indicates the firmly entrenched nature of these latter two exceptions in contrast to the then unresolved nature of the “private attorney general” theory in the Supreme Court (notwithstanding the weight of authority in the lower federal courts regarding the “private attorney general” theory). In addition, there is nothing in the Alyeska Pipeline opinion to implicitly suggest any retreat from the judicially created “bad faith” and “common benefit” exceptions to the “American Rule”, which have been recognized and applied by the Supreme Court itself. Therefore, this Court concludes, as a matter of law, that the “bad faith” and “common benefit” exceptions to the “American Rule” regarding attorneys’ fees retain their viability despite the Alyeska Pipeline opinion. IV. THE APPLICABILITY OF THE “COMMON BENEFIT” DOCTRINE The plaintiffs contend that the “common benefit” doctrine, as enunciated in Mills v. Electric Auto-Lite Co., supra, is an appropriate theory upon which to base an award of attorneys’ fees in the instant case. This Court agrees. As already indicated, the Alyeska Pipeline case is authority for the proposition that “a party preserving or recovering a fund for the benefit of others in addition to himself, [may] recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit.” Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. at 257, 95 S.Ct. at 1621. Although the language in Alyeska was couched in terms of a situation where the prevailing party has recovered funds from which an award of attorneys’ fees can be made, there is explicit authority for the proposition that where a substantial benefit is conferred upon members of an ascertainable class, recovery of such a fund is not an absolute prerequisite to the applicability of the “common benefit” doctrine. In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), certain minority shareholders brought an action against corporations for filing a misleading proxy statement. The Supreme Court held, inter alia, that the absence of express statutory authorization did not preclude an award of counsel fees. In the course of its opinion, the Court stated as follows: The fact that this suit has not yet produced, and may never produce, a monetary recovery from which fees would be paid does not preclude an award based on this rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a “common fund” for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court’s power to order reimbursement of expenses. “[T]he foundation for the historic practice of granting reimbursement for the cost of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation.” Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 [1187] (1939). Other cases have departed further from the traditional metes and bounds of the doctrine, to permit reimbursement in cases where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them. This development has been most pronounced, in shareholders’ derivative actions, where the courts increasingly have recognized that the expenses incurred by one shareholder in the vindication of a corporate right of action can be spread among all shareholders through an award against the corporation, regardless of whether an actual money recovery has been obtained in the corporation’s favor. ... In these cases there was a “common fund” only in the sense that the court’s jurisdiction over the corporation as nominal defendant made it possible to assess fees against all of the shareholders through an award against the corporation. In many of these instances the benefit conferred is capable of expression in monetary terms, if only by estimating the increase in the market value of the shares attributable to the successful litigation. However, an increasing number of lower courts have acknowledged that a corporation may receive a “substantial benefit” from a derivative suit, justifying an award of counsel fees, regardless of whether the benefit is pecuniary in nature. A leading case is Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 101 N.W.2d 423 (1960), in which a stockholder was reimbursed for his expenses in obtaining a judicial declaration that the election of certain of the corporation’s directors was invalid. The Supreme Court of Minnesota stated: “Where an action by a stockholder results in a substantial benefit to a corporation he should recover his costs and expenses. . . . [A] substantial benefit must be something more than technical in its consequence and be one that accomplishes a result which corrects or prevents an abuse which would be prejudicial to the rights and interests of the corporation or affect the enjoyment or protection of an essential right to the stockholder’s interest.” Id., at 366-367, 101 N.W.2d, at 426-427. . . . (emphasis added) 396 U.S. at 392-395, 90 S.Ct. at 625. This Court, at pages 30-31 of its order, findings of fact and conclusions of law, entered on January 31, 1975, contemporaneously with its preliminary injunction, coincidentally observed: As a 1969 “Report of Grand Jury Relating to the County Jail of Duval County, Florida,”, observed, and with which this Court agrees, “. the operation and management of the jail should be in a business-like fashion. We consider the sheriff the President of a big corporation and the taxpayers as stockholders of this corporation.” The analogy between minority shareholders suing to vindicate their common law corporate rights and the plaintiff in this case, who are suing to vindicate their constitutional rights, is a viable one. The situation of the plaintiffs in this case is quite similar to that of the Minnesota stockholder mentioned in the Mills case who was reimbursed for his expenses in obtaining a judicial declaration of invalidity of certain actions taken by the management of the corporation of which he was a part owner. The plaintiffs in this case have sought, and have in fact obtained, a judicial declaration that the actions of the defendants amounted to violations of their federal constitutional and pendent state statutory rights. In addition, they have obtained a judicial ruling in their favor on the merits and a preliminary injunction on behalf of an ascertainable class of citizens against the management of the body corporate, i. e., the Consolidated City of Jacksonville, of which they are part owners. On the basis of the strong language in Mills, supra, it is irrelevant that they have not recovered or may never recover a monetary fund to be distributed to members of the class. The fact that they have sought and obtained a ruling, which was never appealed, in their favor which vindicates their constitutional and statutory rights is sufficient under Mills to justify an award of attorneys’ fees. The fact that there may be certain stockholders of the body corporation, i. e., citizens of Duval County, perhaps a majority, that oppose the plaintiffs’ successful attempt to improve conditions at the Duval County Jail does not defeat the plaintiffs’ right to a reasonable attorneys’ fee incurred as a result of their seeking to vindicate their “corporate”, i. e., constitutional and statutory, rights. The Constitution is fun-damentally no different than a corporate charter. A citizen may sue to prevent acts which are unconstitutional just as a minority stockholder may sue to prevent acts which are ultra vires: Minority stockholders, in a proper case, may sue to enjoin or redress ultra vires acts or acts forbidden by statute or against public policy, which will result in a waste, misapplication or diversion of the corporate assets, or which may destroy the corporation or render it unable to carry out its objects, provided the stockholder is unable to obtain relief through the corporation or its proper officers, and providing there is no undue delay in suing or acts constituting an estoppel. This is based on the theory that a trust is created by implication, in favor of stockholders, that the corporation will manage the business so as not to defeat the objects for which it was created and will use and apply its assets for the purpose of carrying out those objects and not divert them to other purposes, (emphasis added) 13 Fletcher, Cyclopedia of the Law of Private Corporations, § 5823, at 134 (1970). In the case at bar, the city defendants, as directors of the corporation, have committed ultra vires, i. e., unconstitutional, acts and have thus violated the implied trust created in favor of all the stockholders, not just the majority. One of the purposes of both the Constitution and a corporate charter is to protect the rights of the minority from an oppressive majority. The plaintiffs, by bringing this lawsuit, have vindicated their own rights as citizens of the United States, the State of Florida, Duval County and the Consolidated City of Jacksonville. In addition, they have vindicated the rights of all the citizens of these governmental entities by preserving the integrity of the corporate charter, i. e., the Constitution of the United States, in conjunction with the laws of the State of Florida. The plaintiffs, by seeking to improve, and having to a certain extent successfully improved, the conditions in the Duval County Jail to a minimal constitutional and pendent statutory level, have rendered a “common benefit”, not only to themselves, but to all citizens of Duval County. Conditions in a jail which resulted in cruel and unusual punishment and a denial of equal protection and due process disserve the entire public by fostering recidivism and perpetuating antisocial behavior. As the plaintiffs correctly point out, citizens who bring actions to vindicate constitutional rights should enjoy at least the same status as corporate shareholders who bring actions to vindicate corporate property rights. To suggest otherwise would in fact denigrate constitutional rights to a lower status than private monetary rights and would make a mockery of the Constitution of the United States. Therefore, this Court concludes, that the plaintiffs, by rendering a clearly demonstrable “common benefit” involving the vindication of federal constitutional rights to an ascertainable class of persons, which may include all citizens of Duval County, are entitled to recover an attorneys’ fee from the city defendants in their official capacities. Y. “BAD FAITH” As pointed out in Section III of this opinion, the “bad faith” exception to the “American Rule” regarding attorneys’ fees remains extant despite the recent Supreme Court opinion in Alyeska, supra. This Court, upon a close review of the findings of fact entered in this case, concludes that there is solid basis for finding of bad faith on the part of the defendant Carson. On page 13 of the order, findings of fact and conclusions of law, entered on January 31, 1975, this Court observed: The Court finds from the evidence that the overcrowding at the Duval County Jail has existed for several years and that the defendants Carson and Page knew or should have known of said overcrowding. Reports were introduced on behalf of plaintiffs from Grand Juries of the Fourth Judicial Circuit of Florida, in and for Duval County, Florida, indicating Grand Juries’ awareness of the overcrowded conditions in the Jail in years past. Numerous “Reports of Inspections of County Jails and County Prisons” prepared by the prison inspectors under the supervision of Defendant Louie Wainwright, Director, Division of Corrections, State of Florida, indicate, and the Court finds, that the Jail as early as January 1973 was “already overcrowded.” At page 30 of the findings of fact and conclusions of law, this Court observed: The foregoing complex personnel crisis at the Duval County Jail compounded by the design of the structure and the overcrowded conditions results in a daily horror show of violence. Rapes, assaults and attempted suicides are a common occurrence in this institution. Plaintiffs introduced evidence in the form of “Incident Reports” prepared by Jail personnel documenting in excess of 150 occasions of brutality, in January—November, 1974, the majority of which incidents resulted in the need for medical care to injured inmates. Plaintiffs introduced “Incident Reports” showing that even during the course of the hearings in this cause, incidents of violence were occurring in the Duval ■County Jail, (emphasis added) Continuing on pages 30-31 thereof, this Court further observed: From the totality of the evidence it is impossible for this Court not to conclude that many of the other problems existing in the Duval County Jail are attributable to the personnel problem. The inability to provide adequate medical care, food services, sanitation practices, recreational and rehabilitative efforts cannot be changed without a solution to the staffing crisis. As a 1969 “Report of Grand Jury Relating to the County Jail of Duval County, Florida,” observed, and with which this Court agrees, “ . the operation and management of the Jail should be in a business-like fashion. We consider the Sheriff the President of a big corporation and the taxpayers as stockholders of this corporation.” The same Grand Jury concluded that the Sheriff did not have knowledge of the conditions at the Jail at that time due to his failure to regularly visit the Jail. From evidence presented by plaintiffs it affirmatively appears from the Sheriff’s own admission in deposition that he had not been present in the Duval County Jail but two times in a sixteen-month period ending in August 1974- The absence of regular visits occurred despite Defendant Carson’s representation to the aforesaid Grand Jury in response to their Report that he would inspect the Jail personally on a monthly or semi-monthly basis for the purpose of verifying “Inspection Reports” prepared by prison inspectors for the Division of Corrections, State of Florida. Plaintiffs introduced such reports for a five-year period and as this Court has on several occasions found, present conditions were referred to and criticized by these reports. Plaintiffs further introduced unequivocal evidence that despite a budgetary appeal procedure available to the Sheriffs in the State of Florida pursuant to Fla.Stat. § 30.49, Defendant Sheriff Carson has never utilized this appeal procedure. The procedure provides for appeals to a State agency in the event a Sheriff in Florida does not in his opinion obtain adequate funds to perform his office from the local legislative branch and which procedure specifically refers to inadequate budgets for operating county jails. The evidence shows that for the last five fiscal years the following sums were provided from Defendant Carson’s budget for the operation of the Duval County Jail. The percentages reflect the percentage each sum was of the total budget of the Jacksonville Sheriff’s office. Fiscal Year Total Budget Percentage 1974-1975 $1,938,677.00 8.9% 1973-1974 $1,556,970.00 9.1% 1972-1973 $1,529,034.00 9.8% 1971-1972 $1,333,763.00 9.2% 1970-1971 $1,057,286.00 8.7% (emphasis added) The numerous constitutional deprivations detailed in the findings of fact and conclusions of law are totally repugnant to the standards set forth in the Guidelines for Jail Operations of the National Sheriffs’ Association (1972), the Manual of Correctional Standards issued by the American Correctional Association and the Corrections Manual of the National Advisory Commission on Criminal Justice Standards and Goals (1973). As an example, the Guidelines for Jail Operations of the National Sheriffs’ Association, at page 72, provides that: Prisoners’ rights include, but are not necessarily limited to, nutritious and well-balanced diets in adequate quantities, prompt and complete medical and dental care, provisions for an acceptable level of sanitation (proper bedding and clothing and laundry service), personal hygiene (toilet articles and an opportunity to bathe frequently), proper ventilation and fresh air, adequate heating in winter months, adequate light, and a generally healthful environment, proper housing (not less than 50 square feet of floor space in any confined sleeping area is a nationally accepted standard), reasonable opportunities for physical exercise and recreational activities, and protection against any physical or psychological abuse or unnecessary indignity. The evidence in this case indicates a total lack of compliance with these nationally accepted standards, which are adopted by the National Sheriffs’ Association itself. Op page 73 of the same manual, it states: “Any racial segregation in a jail is unconstitutional.” On page 14 of the findings of fact and conclusions of law, this Court observed: It is uncontroverted that housing assignments in the holding cells of the Duval County Jail are made solely on account of race, that is to say there are all black and all white holding cells. Upstairs housing assignments according to the defendants are made on the basis of 70% white to 30% black. The evidence, however, shows that the racial makeup of the population in the Duval County Jail is approximately 50% white and 50% black with frequent change as to which race is in the majority. Such an attempt to classify by race in the upstairs housing areas in the Duval County Jail results in numerous all-black cells. Gn this basis, this Court, at page 7, Section IV, paragraph 1 of its preliminary injunction of January 31, 1975, ordered as follows: No racially discriminatory practices of any nature shall occur during the operation or administration of the Du-val County Jail, including housing assignments by race. Despite this clear mandate, the defendants refused to desist from discriminating on the basis of race as to housing assignments unless they were given a “clear order” to the contrary, thus requiring this Court to enter a further order on February 12, 1975, which ordered as follows: ****** 2. The defendants shall forthwith cease and desist from using race as a factor in the classification of inmates in any manner or form whatsoever. 3. The defendants shall immediately abolish and refrain from utilizing any systems, plan, regulations, direction or policy toward maintaining ratios based on race in any particular housing unit in the Duval County Jail. This case is strikingly similar to the situation which existed in Gates v. Collier, 371 F.Supp. 1368 (N.D.Miss.1973), aff’d 489 F.2d 298 (5th Cir. 1973), wherein the defendants staunchly denied the existence of unconstitutional practices and conditions at Parchman Prison in Mississippi and wherein the Court awarded attorneys’ fees based on a finding of bad faith: In the instant case, we have no difficulty in finding that defendants’ actions were unreasonable and obdurately obstinate. From commencement of the suit on February 8, 1971, defendants staunchly denied the existence of unconstitutional practices and conditions at Parchman. Defendants continued to adhere to this position at several lengthy evidentiary hearings of an interlocutory nature. The position thus consistently maintained by defendants compelled plaintiffs’ attorney to expend time and expenses which otherwise would have not been incurred. Consequently, in preparation of plaintiffs’ case, plaintiffs’ attorney engaged in extensive pre-trial discovery, made numerous trips to Parch-man, interviewed hundreds of inmates, and submitted a plethora of motions and accompanying legal memoranda. We are convinced that only because of the overwhelming magnitude of evidence gathered by plaintiffs’ attorney in cooperation with the Department of Justice in support of the allegations contained in the complaint did defendants in effect recognize the futility of a full evidentiary hearing and submit the ease on á virtually agreed record. 371 F.Supp. at 1371. In addition, the city defendants cannot reasonably contend that there is not a well-established body of law with respect to the legal rights of pre-trial detainees. There is a veritable plethora of cases on the subject: Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157 (E.D.Wis.1973); Wilson v. Beame, 380 F.Supp. 1232 (E.D.N.Y. 1974); Rhem v. Malcolm, 371 F.