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SJC-12016

   EDMUND LaCHANCE    vs.   COMMISSIONER OF CORRECTION & others.1



            Essex.    March 10, 2016. - October 21, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.2


Civil Rights, Attorney's fees.    Practice, Civil, Attorney's
     fees.



     Civil action commenced in the Superior Court Department on
June 20, 2006.

     Following review by this court, 463 Mass. 767 (2012), a
motion for attorney's fees was heard by Robert A. Cornetta, J.,
and a motion for reconsideration was considered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     William D. Saltzman for the defendants.
     James R. Pingeon for the plaintiff.

     1
       Additional defendants, sued in their individual or
official capacities, or both, include the superintendent, the
deputy superintendent for classification, and the former
assistant director of classification at Souza-Baranowski
Correctional Center (SBCC).
     2
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2



    GANTS, C.J.    This appeal concerns an award of attorney's

fees under the Federal Civil Rights Attorney's Fees Award Act of

1976, 42 U.S.C. § 1988(b), in a civil rights action brought by a

Massachusetts prison inmate, Edmund LaChance.    LaChance claimed

that the defendants violated his constitutional due process

rights by holding him in essentially solitary confinement in a

special management unit (SMU) for ten months, without a hearing,

while waiting to transfer or reclassify him.    That litigation

eventually resulted in our decision in LaChance v. Commissioner

of Correction, 463 Mass. 767 (2012) (LaChance I), where we

announced "for the first time that segregated confinement on

awaiting action status for longer than ninety days gives rise to

a liberty interest entitling an inmate to notice and a hearing,"

and a written posthearing decision.   Id. at 778.   See id. at

776-777.   On remand, a Superior Court judge entered declaratory

judgment in favor of LaChance and awarded him $28,578.69 in

attorney's fees and costs under 42 U.S.C. § 1988(b).    The

defendants are challenging that award in this appeal.

    The principal issue before us is whether LaChance qualified

for an award of fees as a "prevailing party" under § 1988(b),

even though he had already been discharged in 2006 from the SMU

detention that was the subject of his suit, long before he won

any relief in his favor.   The defendants argue that, in these
                                                                       3


circumstances, LaChance was not a prevailing party because the

declaratory judgment he ultimately won was moot, and did not

directly benefit him or materially alter his relationship with

the defendants, at the time it was entered.     We conclude,

however, that LaChance does qualify as a prevailing party in the

circumstances of this case, where the record demonstrates that

(1) the declaratory judgment he obtained was not moot when

entered, because it concerned a deprivation of civil rights of

short duration that was capable of repetition against LaChance;

and (2) LaChance directly benefited from that judgment at the

time it was entered.     We also reject the defendants' contention

that the judge's award of fees to LaChance was unreasonable.

Accordingly, we affirm the judge's award of attorney's fees and

costs to LaChance.

    Background.      We briefly summarize the facts that gave rise

to this litigation, which are detailed in LaChance I, 463 Mass.

at 769-773.   LaChance has been in the custody of the Department

of Correction (DOC) from the inception of this litigation

through at least the submission of his brief on appeal.       During

most of this time, he was an inmate at Souza-Baranowski

Correctional Center (SBCC), a maximum security prison in

Shirley.   In December, 2005, he was assigned to SBCC's SMU for

fourteen days as a sanction for throwing a cup of pudding at

another inmate and later threatening to harm him.     After
                                                                    4


completing this disciplinary detention, however, he continued to

be held in the SMU for another ten months, from January to

November, 2006, on "awaiting action" status pending his

reclassification or transfer to another facility.3   LaChance did

not leave the SMU and return to his previous placement until the

other inmate involved in the altercation had been moved out of

it.   During his ten-month detention in the SMU, LaChance was in

solitary confinement for all but a few hours per week.    He was

shackled whenever he left his cell; allowed only one hour of

recreation per day, five days per week, in an unsheltered,

outdoor cage; barred from educational, religious, vocational,

and rehabilitative programming available to other inmates; and

permitted only very limited visitation and library privileges.

Although a prison official informally reviewed LaChance's status

on a weekly basis and gave him written reports of the reviews,

he was not given a hearing.

      In an amended complaint filed in Superior Court in May,

2008, LaChance asserted claims under 42 U.S.C. § 1983 and G. L.

c. 12, § 11I, alleging that the conditions of his SMU detention


      3
       In LaChance v. Commissioner of Correction, 463 Mass. 767,
769 n.5 (2012) (LaChance I), we noted that, although "awaiting
action" was not defined in Department of Correction (DOC)
regulations pertaining to detention in a special management unit
(SMU), the phrase was used in other contexts, generally
referring to confinement pending investigation or a final
placement or transfer decision. See 103 Code Mass. Regs.
§ 421.06 (1994); 103 Code Mass. Regs. § 430.21(1) (2006).
                                                                  5


were at least as harsh as those in a departmental segregation

unit (DSU), but he was denied the right to a hearing guaranteed

in DOC regulations governing DSU confinement.   See 103 Code

Mass. Regs. §§ 421.00 (1994).   He requested compensatory and

punitive damages, a declaration that the defendants' actions

were unlawful, and an award of costs including reasonable

attorney's fees.

    On April 6, 2010, a judge granted LaChance's motion for

partial summary judgment on his claims for declaratory relief.

Citing our decision in Haverty v. Commissioner of Correction,

437 Mass. 737 (2002), the judge concluded that LaChance's

confinement in the SMU was substantially similar to confinement

in a DSU, and that the defendants violated his constitutional

due process rights by failing to provide him with the same

procedural protections afforded by the DSU regulations.

    In the same order, the judge allowed in part and denied in

part the defendants' cross motion for summary judgment.     The

judge granted summary judgment in favor of all defendants on

LaChance's claim under the Massachusetts Civil Rights Act, G. L.

c. 12, §§ 11H and 11I, on the ground that LaChance had offered

no evidence that the defendants had employed threats,

intimidation, or coercion, a necessary element of that claim.

See Layne v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 406 Mass. 156, 158 (1989).   The judge also granted
                                                                   6


summary judgment in favor of two defendants on LaChance's claims

for money damages against them in their official capacities

under 42 U.S.C. § 1983, because money damages against State

officials are available only if they are sued in their

individual capacities.   See Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71 (1989); O'Malley v. Sheriff of Worcester

County, 415 Mass. 132, 140-141 (1993).   The judge denied the

defendants' summary judgment motion, however, insofar as they

argued that they could not be sued in their individual

capacities because they enjoyed qualified immunity as government

officials.   He reasoned that after this court's decision in

Haverty, supra, it should have been clear to the defendants that

the conditions of LaChance's SMU confinement were substantially

similar to those in a DSU and that LaChance was therefore

entitled to the same procedural protections.   The judge

concluded that the defense of qualified immunity would therefore

be unavailable to the defendants if they directly participated

in this violation of LaChance's clearly established rights.     See

O'Malley, 415 Mass. at 142 (plaintiffs can overcome government

officials' qualified immunity defense by showing that defendants

directly participated in violating plaintiffs' clearly

established rights).

    The defendants sought interlocutory appeal under the

doctrine of present execution from the judge's ruling on
                                                                   7


qualified immunity,4 and we transferred the case on our own

motion.   We held that the defendants were entitled to qualified

immunity and directed the Superior Court to enter summary

judgment in their favor as to the damages claims against the

individual defendants under 42 U.S.C. § 1983.   We noted,

"[g]overnment officials performing discretionary functions . . .

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known."   LaChance I, 463 Mass. at 777, quoting Rodriques v.

Furtado, 410 Mass. 878, 882 (1991).   We concluded that it would

not have been clear to reasonable officers that their behavior

violated LaChance's due process rights, because "neither State

nor Federal law ha[d] clearly articulated the outer limit of

what constitutes 'reasonable' segregated confinement on awaiting

action status without the safeguards of procedural due process."

LaChance I, supra at 778.



     4
       "The doctrine of present execution is a limited exception
to the finality rule. It permits the immediate appeal from an
interlocutory order if the order will interfere with rights in a
way that cannot be remedied on appeal from a final judgment."
Kent v. Commonwealth, 437 Mass. 312, 315 n.6 (2002). Where a
public official asserts immunity from suit as a defense, a
ruling allowing the suit to proceed may be appropriate for
appeal under the doctrine of present execution because otherwise
the benefits of immunity would be irrevocably lost. See Breault
v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass.
26, 31 (1987), cert. denied, 485 Mass. 906 (1988).
                                                                   8


     We then clearly articulated the outer limit of what Federal

due process requires for reasonable segregated confinement on

awaiting action status.5   We declared that, given the

restrictions imposed on LaChance in the SMU, his ten-month

detention on awaiting action status was not reasonable and gave

rise to a liberty interest that was entitled to the protection

of due process.   LaChance I, 463 Mass. at 775-776.   We further

held that the procedures followed by the DOC were insufficient

to safeguard that interest.   We concluded that "an inmate

confined to administrative segregation on awaiting action

status, whether such confinement occurs in an area designated as

an SMU, a DSU, or otherwise, is entitled, as a matter of due

process, to notice of the basis on which he is so detained; a

hearing at which he may contest the asserted rationale for his

confinement; and a posthearing written notice explaining the

reviewing authority's classification decision."   Id. at 776-777.

We left it to the DOC to promulgate appropriate regulations,

balancing the inmate's interest in challenging potentially

arbitrary detention with prison officials' interest in securing

reclassification or transfer of inmates.   But we concluded that


     5
       In considering the defendants' appeal in LaChance I, "it
was necessary to focus on LaChance's Federal due process claims
because LaChance would be entitled to damages under his § 1983
claims only if the defendants knowingly violated LaChance's
rights under the United States Constitution." Cantell v.
Commissioner of Correction, 475 Mass.    ,     (2016).
                                                                   9


"in no circumstances may an inmate be held in segregated

confinement on awaiting action status for longer than ninety

days without a hearing."   Id. at 777.

     Upon remand, a different judge6 issued an order for entry of

a final judgment in favor of LaChance, declaring that the

defendants had violated LaChance's constitutional due process

rights by failing to provide him with the procedural protections

that we announced in LaChance I.   The judge allowed the

defendants' motion for summary judgment as to all of LaChance's

remaining claims.   Final judgment was entered in accord with

this order on August 21, 2013.

     LaChance subsequently requested an award of $56,504.59 in

attorney's fees and $392.69 in costs under 42 U.S.C. § 1988 and

Mass. R. Civ. P. 54, as amended, 382 Mass. 829 (1981).     The

judge who had entered judgment in favor of LaChance concluded

that LaChance was a "prevailing party" and therefore entitled to

reasonable attorney's fees under § 1988, even though he had not

prevailed on his claims for money damages and no injunction had

entered.   The judge held that LaChance "clearly prevailed in

proving his constitutional claim" and "won a significant victory

for himself as well as any other inmate that could possibly be

held in segregated confinement" because, as a result of his


     6
       The judge who had decided the summary judgment motions had
retired.
                                                                  10


litigation, "the DOC is not permitted to hold an inmate in

segregated confinement for longer than ninety days without

providing procedural protections."   The judge also concluded

that the significance of this victory was not affected by the

issuance of a declaratory judgment rather than an injunction

because "the courts rely on public officials to comply with the

law as judicially defined and thus, injunctive orders are

redundant."   In determining the amount of the award, the judge

first calculated the total amount of attorney's fees under the

traditional "lodestar" formula,7 and then reduced this amount

($56,372) by fifty per cent to $28,186 "due to the discrepancy

between the claims brought and the claims won."   With the

addition of $392.69 in costs, the judge ordered a total award of

$28,578.69.

     The defendants asked the judge to reconsider this award in

light of a decision by the United States Court of Appeals for

the First Circuit, Ford v. Bender, 768 F.3d 15 (1st Cir. 2014),

that issued five days after the award was entered.   In Ford, the

court held that, where a pretrial detainee in a civil rights

action obtained declaratory relief regarding his pretrial

disciplinary segregated confinement that was moot when judgment

entered because the plaintiff was no longer a pretrial detainee,

     7
       The "lodestar" figure is derived by multiplying hours
reasonably spent by a reasonable hourly rate. See Stratos v.
Department of Pub. Welfare, 387 Mass. 312, 322 (1982).
                                                                   11


the plaintiff was not a prevailing party, and therefore not

entitled to attorney's fees and costs under § 1988.     Id. at 31.

The defendants argued that LaChance was similarly not a

prevailing party because he had been discharged from the SMU

before the declaratory relief was entered, so his declaratory

judgment was moot.

     The judge denied the defendants' motion for reconsideration

on the ground that mootness was not a new issue and could have

been raised earlier by the defendants.    The judge further held

that, even assuming that the Ford decision changed the governing

law, that change was not a sufficiently extraordinary

circumstance to justify reopening a final judgment under Mass.

R. Civ. P. 60 (b), 365 Mass. 828 (1974).8    The defendants

appealed the award of attorney's fees, and we transferred the

case on our own motion.

     Discussion.     Title 42 U.S.C. § 1988(b) provides that in an

action to enforce certain Federal civil rights statutes,

including 42 U.S.C. § 1983, "the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney's fee as

part of the costs."    Section 1988 thus creates an exception to

the "American Rule" that litigants must ordinarily bear their


     8
       The court reviewed the defendants' motion for
reconsideration under Mass. R. Civ. P. 60 (b), rather than Mass.
R. Civ. P. 59 (e), 365 Mass. 827 (1974), because it was filed
more than ten days after entry of the award of fees.
                                                                   12


own attorney's fees and expenses.   By authorizing awards of fees

to prevailing plaintiffs in civil rights actions, the statute

serves "to encourage suits that are not likely to pay for

themselves, but are nevertheless desirable because they

vindicate important rights."   Stratos v. Department of Pub.

Welfare, 387 Mass. 312, 323 (1982).   It "promote[s] civil rights

enforcement and . . . deter[s] civil rights violators, by

encouraging private lawsuits aimed against civil rights abuses."

Kadlick v. Department of Mental Health, 431 Mass. 850, 852

(2000).

    "Congress enacted § 1988 specifically because it found that

the private market for legal services failed to provide many

victims of civil rights violations with effective access to the

judicial process. . . .   These victims ordinarily cannot afford

to purchase legal services at the rates set by the private

market."   Riverside v. Rivera, 477 U.S. 561, 576 (1986)

(plurality opinion), citing H.R. Rep. No. 94-1558, at 1, 3; S.

Rep. No. 94-1011, at 2.   "[Fee] awards have proved an essential

remedy if private citizens are to have a meaningful opportunity

to vindicate the important Congressional policies which these

laws contain. . . .   If private citizens are to be able to

assert their civil rights, and if those who violate the Nation's

fundamental laws are not to proceed with impunity, then citizens

must have the opportunity to recover what it costs them to
                                                                      13


vindicate these rights in court."    Riverside, supra at 577-578,

quoting S. Rep. No. 94-1011, at 2.

    Congress also recognized that a successful civil rights

plaintiff acts "not for himself alone but also as a 'private

attorney general,' vindicating a policy that Congress considered

of the highest importance."     Riverside, supra at 575, quoting

H.R. Rep. No. 94-1558, at 2.    Thus, in enacting § 1988, Congress

also "meant to promote" a "'private attorney general' role" for

plaintiffs in enforcing the civil rights laws.     Texas State

Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793

(1989).

    In this appeal, the defendants have challenged the judge's

award of fees on two grounds.    First, they assert that the judge

erred in concluding that LaChance is a prevailing party.

Second, they contend that the award of fees is excessive.        We

address each issue in turn.

    1.    Prevailing party.   Whether LaChance is a "prevailing

party" is an issue of law that we consider de novo.     See Newell

v. Department of Mental Retardation, 446 Mass. 286, 298, cert.

denied, 549 U.S. 823 (2006).    In general, under § 1988,

"plaintiffs may be considered 'prevailing parties' for

attorney's fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit the

parties sought in bringing suit."    Farrar v. Hobby, 506 U.S.
                                                                   14


103, 109 (1992), quoting Hensley v. Eckerhart, 461 U.S. 424, 433

(1983).   Following Farrar, we have held that to qualify for an

award of fees as a "prevailing party" under § 1988, first, a

civil rights plaintiff "must obtain at least some relief on the

merits of his claim"; second, the "plaintiff must obtain an

enforceable judgment against the defendant from whom fees are

sought"; and third, "[w]hatever relief the plaintiff secures

must directly benefit him at the time of the judgment or

settlement."   Mendoza v. Licensing Bd. of Fall River, 444 Mass.

188, 210 (2005), quoting Farrar, supra at 111.   We have further

said that "for a party to be considered a 'prevailing party'

under Federal fee-shifting statutes there must be a 'material

alteration of the legal relationship of the parties,' . . . and

there must be a 'judicial imprimatur on the change.'"   Newell,

supra at 297-298, quoting Buckhannon Bd. & Care Home, Inc. v.

West Virginia Dep't of Health & Human Resources, 532 U.S. 598,

604, 605 (2001).   See T & D Video, Inc. v. Revere, 450 Mass.

107, 108 (2007), quoting Buckhannon, supra at 605 (defining

"prevailing party" as "one who obtains a 'judicially sanctioned

change in the legal relationship of the parties'").

    Here, the defendants acknowledge that a declaratory

judgment in favor of a plaintiff, like that won by LaChance,

will usually suffice to establish that the plaintiff is a

"prevailing party" under § 1988. See Lefemine v. Wideman, 133 S.
                                                                  15


Ct. 9, 11 (2012).   They also acknowledge that, where the

declaratory judgment is directed to public officials, an

injunctive order is not necessary to create an enforceable

judgment and confer prevailing party status on a plaintiff,

because Massachusetts courts "assume that public officials will

comply with the law declared by a court and that consequently

injunctive orders are generally unnecessary."   Massachusetts

Coalition for the Homeless v. Secretary of Human Servs., 400

Mass. 806, 825 (1987).

     The defendants contend, however, that LaChance did not

qualify as a "prevailing party" because he was discharged from

the SMU in November, 2006, so the declaratory judgment he won

(1) was moot when entered,9 and (2) did not directly benefit

LaChance or materially alter his legal relationship with the

defendants.   We conclude that the declaratory judgment was not

moot when entered, and that it both directly benefited   LaChance

and materially altered his legal relationship with the



     9
       As noted above, the Superior Court judge declined to
address the defendants' mootness argument on the merits when he
denied their motion for reconsideration because, in his view,
the defendants should have raised the issue previously but
failed to do so. In fact, however, the defendants presented the
mootness argument in their opposition to LaChance's motion for
attorney's fees. Moreover, as LaChance concedes, the defendants
raised mootness in moving to dismiss his complaint and in
opposing his motion for partial summary judgment. We address
the issue in light of those facts and because the question of
mootness implicates the justiciability of the underlying case.
                                                                   16


defendants, and therefore LaChance was correctly determined to

be a "prevailing party" under § 1988.

    The concept of mootness, as applied in the Federal courts,

derives from the case or controversy requirement of art. III,

§ 2, cl. 1, of the United States Constitution.    Under art. III,

the subject matter jurisdiction of the Federal courts is limited

to "cases" and "controversies."   See Campbell-Ewald Co. v.

Gomez, 136 S. Ct. 663, 669 (2016).   To meet this jurisdictional

requirement, there must be an "actual controversy" between the

parties at all stages of the case.   See id.; Hollingsworth v.

Perry, 133 S. Ct. 2652, 2661 (2013) ("Article III demands that

an 'actual controversy' persist throughout all stages of

litigation").   An actual controversy exists only when the

parties have a "personal stake" in the outcome.   See Genesis

Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013);

Camreta v. Greene, 563 U.S. 692, 702 (2011) ("So long as the

litigants possess [a] personal stake . . . , an appeal presents

a case or controversy . . .").    This personal stake "requirement

ensures that the Federal Judiciary confines itself to its

constitutionally limited role of adjudicating actual and

concrete disputes, the resolutions of which have direct

consequences on the parties involved."    Genesis Healthcare

Corp., supra at 1528.   If a plaintiff's circumstances change

such that he or she no longer has a personal stake in the
                                                                  17


outcome of the case, the case becomes moot; there is no longer

an actual controversy as required for Federal court

jurisdiction, and the case must be dismissed.   See id. ("If an

intervening circumstance deprives the plaintiff of a 'personal

stake in the outcome of the lawsuit,' at any point during

litigation, the action can no longer proceed and must be

dismissed as moot" [citation omitted]); Already, LLC v. Nike,

Inc., 133 S. Ct. 721, 726-727 (2013), quoting Murphy v. Hunt,

455 U.S. 478, 481 (1982) ("A case becomes moot -- and therefore

no longer a 'Case' or 'Controversy' for purposes of Article III

-- 'when the issues presented are no longer "live" or the

parties lack a legally cognizable interest in the outcome'").

    Plaintiffs cannot ordinarily "prevail" under § 1988 where

the court lacks subject matter jurisdiction to enter relief in

their favor because the case has become moot.   In Rhodes v.

Stewart, 488 U.S. 1 (1988), one of the principal cases cited by

the defendants, the United States Supreme Court held that two

plaintiff inmates were not entitled to attorney's fees as

prevailing parties under 42 U.S.C. § 1988, even though they had

won a favorable judgment, because their claims had become moot

long before the judgment entered.   The plaintiffs claimed that

their constitutional rights had been violated by correctional

officials who had refused them permission to subscribe to a

magazine.   A Federal District Court ruled that the officials had
                                                                   18


not applied the proper standards in denying the inmates'

request, ordered compliance with those standards, and

subsequently awarded attorney's fees to the plaintiffs.      See id.

at 2.   It later came to light, however, that one of the

plaintiffs had died, and the other had been paroled and given a

final release, long before the District Court entered its order.

See id. at 3.   Based on those facts, the Supreme Court

overturned the judgment and award of attorney's fees, reasoning

that "[a] modification of prison policies on magazine

subscriptions could not in any way have benefited either

plaintiff," and consequently "[t]he case was moot before

judgment issued, and the judgment therefore afforded the

plaintiffs no relief whatsoever."    Id. at 4.

      Similarly, in Ford, 768 F.3d at 31, as earlier noted, the

United States Court of Appeals for the First Circuit held that

the plaintiff inmate was not entitled to an award of attorney's

fees as a prevailing party under § 1988 for declaratory relief

he won in a Federal District Court arising from his pretrial

detainment because the defendant was no longer a pretrial

detainee when judgment entered.   The court reasoned that the

case was moot as to that issue when the relief was granted, so

there was no case or controversy and therefore no Federal court

jurisdiction to grant that relief.   See id.     See also id. at 29-

30.
                                                                  19


     A case is not moot under Federal law, however, where "it

falls within a special category of disputes that are 'capable of

repetition' while 'evading review.'"     Turner v. Rogers, 564 U.S.

431, 439 (2011), quoting Southern Pac. Terminal Co. v.

Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).     "A

dispute falls into that category, and a case based on that

dispute remains live, if '(1) the challenged action [is] in its

duration too short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable expectation that

the same complaining party [will] be subjected to the same

action again.'"   Turner, supra at 439-440, quoting Weinstein v.

Bradford, 423 U.S. 147, 149 (1975).    The Federal requirement

that a case must be capable of repetition as to the same

plaintiff ensures that the plaintiff still has an ongoing

personal stake in the matter sufficient to meet the case or

controversy requirement of art. III.10    See United States Parole


     10
       The Federal courts have not always applied this
requirement with strict consistency. See, e.g., Honig v. Doe,
484 U.S. 305, 335-336 (1988) (Scalia, J., dissenting) ("Roe, at
least one other abortion case, . . . and some of our election
law decisions, . . . differ from the body of our mootness
jurisprudence . . . in dispensing with the same-party
requirement entirely, focusing instead upon the great likelihood
that the issue will recur between the defendant and the other
members of the public at large" [citations omitted]); 13C C.A.
Wright, A.R. Miller, & E.H. Cooper, Federal Practice and
Procedure § 3533.9, at 488 (3d ed. 2008) ("Although it has not
been abandoned, the requirement that the individual plaintiff is
likely to be affected by a future recurrence of a mooted dispute
has been diluted in some cases"; citing cases).
                                                                    20


Comm'n v. Geraghty, 445 U.S. 388, 398 (1980) ("Since the

litigant faces some likelihood of becoming involved in the same

controversy in the future, vigorous advocacy can be expected to

continue").   The plaintiff need only show that "the controversy

was capable of repetition"; the plaintiff need not show "that a

recurrence of the dispute was more probable than not" (emphasis

in original).   Honig v. Doe, 484 U.S. 305, 318 n.6 (1988).

    In Turner, 564 U.S. at 440, the Supreme Court held that a

father's due process challenge to his incarceration for civil

contempt based on his failure to make child support payments was

not moot even though he had completed his twelve-month sentence,

because his imprisonment was too short to be litigated fully

before its expiration and there was a reasonable likelihood that

he would again be subjected to the same action.    In so holding,

the Court cited evidence that the father had been the subject of

several civil contempt proceedings for which he had been

imprisoned on several occasions, including another six-month

term imposed shortly after his release from the imprisonment at

issue in his action.   See id. at 436-437, 440.   Other Federal

decisions involving plaintiff inmates have also held that their

cases were not moot because the alleged wrongs were likely to
                                                                 21


recur in the future, based on evidence that the plaintiffs had

been repeatedly subjected to similar conditions.11

     LaChance's circumstances in this case are similar to those

in Turner and the other cases just cited.   LaChance has remained

in DOC custody throughout the course of this litigation, and he

has demonstrated through an unrebutted affidavit that there was

a reasonable expectation when judgment entered that he would

again be subjected to segregated detention, because he has been

repeatedly confined in segregation units during his


     11
       See Washington v. Harper, 494 U.S. 210, 218-219 (1990)
(Court could properly decide case concerning administration of
antipsychotic drugs to prisoner against his will, even though
State had stopped doing so, because situation was likely to
recur; prisoner was still in custody, was still mentally ill,
had been twice transferred to center for treatment of felons
with serious mental illness, and remained subject to transfer);
Demery v. Arpaio, 378 F.3d 1020, 1026-1027 (9th Cir. 2004),
cert. denied, 545 U.S. 1139 (2005) (detainees' suit challenging
sheriff's policy of placing photographs of detainees on Internet
while they were held in jail awaiting trial was not moot, even
though they had been released from jail, because there was
evidence that they would likely again be detained there; one
plaintiff had been detained there twenty times, and eleven
others had been detained there on more than one occasion);
LeMaire v. Maass, 12 F.3d 1444, 1462 n.5 (9th Cir. 1993)
(prisoner's constitutional challenge to conditions in
disciplinary segregation unit was not moot, even though he was
no longer being held there, because he remained under control of
prison system, and practices and sanctions of which he
complained were capable of repetition); Ferreira v. Duval, 887
F. Supp. 374, 382 (D. Mass. 1995) (prisoner's suit alleging
constitutional violations during his departmental disciplinary
unit confinement was not rendered moot by his discharge from
unit because alleged violations were capable of repetition, yet
evading review, where plaintiff had poor disciplinary record and
five years left on his prison sentence and therefore had
reasonable expectation of again being confined in unit).
                                                                 22


incarceration.12    LaChance's affidavit also supports the

conclusion that SMU detentions are too short for prisoners to

obtain judicial relief before they are discharged, so that the

practice would evade review if LaChance's case and others like

it were dismissed on mootness grounds.

     These facts distinguish LaChance's case from the cases

cited by the defendants where prisoners' civil rights claims

were held to be moot, such as Rhodes v. Stewart, supra, and Ford

v. Bender, supra.    The plaintiffs in those cases were either

dead or released from the custody at issue when declaratory

judgment entered, and therefore there was no reasonable

possibility that they would again be subjected to the same

     12
        LaChance submitted the affidavit in response to the
defendants' motion for reconsideration of the award of
attorney's fees. He stated that he had been placed in
segregation units many times during his incarceration, including
placement in the SMU at SBCC as a pretrial detainee for
approximately fourteen months in 2000-2001; placement in a
segregation unit at the Massachusetts Correctional Institution
at Concord as a sentenced prisoner for about three months from
late 2001 to early 2002; subsequent placements in the SMU at
SBCC from September 29, 2002, to February 10, 2003, and from
December 21, 2005, to November 15, 2006 (the placement
challenged in this action), plus "at least a few other occasions
in 2007-2009" for which he did not recall the dates; placements
in the segregation unit at the North Central Correctional
Institution at Gardner "on at least three occasions," for which
he did not recall the dates; and a placement in the segregation
unit at the Massachusetts Correctional Institution at Cedar
Junction from June 5 to July 22, 2014. Although the motion
judge did not make any findings based on LaChance's affidavit,
the defendants did not dispute the assertions therein, and we
are in as good a position to assess it as the judge below. See
Gulf Oil Corp. v. Fall River Hous. Auth., 364 Mass. 492, 493
(1974).
                                                                  23


wrongs.   Here, by contrast, LaChance was still in custody when

judgment entered and, based on his prior history of segregated

confinement, there was a reasonable expectation that he would

again be returned to such confinement.13   Therefore, applying

Federal principles of justiciability, the denial of due process

at the SMU that was the basis of LaChance's civil rights claim

was capable of repetition as to him, so his claim was not moot

when judgment entered.

     The declaratory judgment won by LaChance also benefited him

and materially altered his legal relationship with the

defendants because that judgment required the defendants to

provide him with additional procedural protections that he had

not previously received if he were again placed in segregated

detention on awaiting action status.   See Lefemine, 133 S. Ct.

at 11 (where Federal District Court ruled that defendants had

violated plaintiff abortion protester's rights and enjoined them

     13
       We are mindful of the United States Supreme Court's
observation that, "for purposes of assessing the likelihood that
state authorities will reinflict a given injury," it has
"generally . . . been unwilling to assume that the party seeking
relief will repeat the type of misconduct that would once again
place him or her at risk of that injury." Honig, 484 U.S. at
320. But we note that the DOC's SMU regulations provide that an
inmate may be placed in administrative segregation for
nondisciplinary reasons such as pending transfer or
classification, pending an investigation or hearing, or for the
inmate's own safety. 103 Code Mass. Regs. § 423.08(1) (1995).
Thus, we need not presume repeated misconduct by LaChance to
conclude that there was a reasonable expectation when judgment
entered that he would again be subjected to segregated
confinement.
                                                                   24


from engaging in similar conduct in future, that ruling

materially altered parties' relationship and therefore justified

award of fees because police had intended to stop plaintiff from

protesting with his signs but, as result of ruling, could not

prevent him from demonstrating in that manner).   Although

LaChance could only take advantage of this benefit in the

future, it was nevertheless a tangible present benefit to him.

See Mendoza, 444 Mass. at 210-211 (judgments that invalidated

adult entertainment ordinances challenged by plaintiff bar owner

materially altered his relationship with defendants, even though

he was still barred from presenting nude dancing by limitations

in zoning variance, because plaintiff was "eligible to apply for

a zoning variance that would permit nude dancing").

    In short, because LaChance has adequately shown that there

was a reasonable expectation when judgment entered that he would

again be held in segregated detention on awaiting action status,

he had a sufficient ongoing interest in his suit for it not to

be moot, even if he was no longer held in the SMU when

declaratory relief was entered in his favor.   And because he had

an ongoing interest in the outcome of his suit, the favorable

rulings he obtained benefited him.   We therefore conclude that,

even if this case had been brought in Federal court under the
                                                                25


constraints of Federal subject matter jurisdiction, LaChance

would qualify for an award of fees as a "prevailing party."14


     14
       We note that, because Federal limitations on
justiciability are grounded in the case or controversy
limitation in art. III of the United States Constitution, and
because art. III does not apply to State courts, State courts
remain free to define their own jurisdictional limits even when
adjudicating Federal claims. See ASARCO Inc. v. Kadish, 490
U.S. 605, 617 (1989) ("We have recognized often that the
constraints of Article III do not apply to state courts, and
accordingly the state courts are not bound by the limitations of
a case or controversy or other federal rules of justiciability
even when they address issues of federal law, as when they are
called upon to interpret the Constitution or . . . a federal
statute"). In Massachusetts, "we have on occasion answered
questions in moot cases where the issue was one of public
importance, where it was fully argued on both sides, where the
question was certain, or at least very likely, to arise again in
similar factual circumstances, and especially where appellate
review could not be obtained before the recurring question would
again be moot." Commonwealth v. Humberto H., 466 Mass. 562, 574
(2013), quoting Lockhart v. Attorney Gen., 390 Mass. 780, 783
(1984). Notably, under our principles of justiciability -- in
contrast with Federal jurisprudence -- it is not "indispensable
that the case be capable of repetition in respect only to the
particular claimant," because the "doctrine is designed to
assist in the clarification of the law generally, and not simply
to assist the situation of a particular party." Mendonza v.
Commonwealth, 423 Mass. 771, 777 (1996).

     We recognize that there is an unanswered question whether a
plaintiff may be a "prevailing party" under § 1988 in a
Massachusetts court where the plaintiff obtains a declaratory
judgment or injunctive relief after the case became moot, even
though the plaintiff could not be a "prevailing party" had the
case been brought in Federal court, where mootness would have
resulted in dismissal of the plaintiff's claims. It arguably
would thwart the congressional purpose in enacting § 1988 if a
Massachusetts court were to exercise its broader subject matter
jurisdiction to allow a moot civil rights case brought under 42
U.S.C. § 1983 to proceed to judgment where the challenged
conduct is likely to recur against others, and then, when the
plaintiff succeeds in obtaining a declaratory judgment or
injunctive relief, conclude that the plaintiff's attorneys are
                                                                     26


     2.   Reasonableness of the award of fees.   Having concluded

that LaChance was a prevailing party, we now address whether the

judge abused his discretion in his award of attorney's fees.

The defendants contend that the judge abused his discretion in

concluding that $28,186 was a reasonable award of attorney's

fees, because LaChance's success in relation to his goals was

minimal and his attorneys devoted considerably more effort to

claims on which they failed than to those on which they

succeeded.15   We do not agree.

     Section 1988(b) permits a prevailing party to recover "a

reasonable attorney's fee" (emphasis added).     The determination

of the amount of reasonable attorney's fees rests in the sound

discretion of the judge, to be exercised in accord with certain

governing principles.   See Hensley, 461 U.S. at 436-437;

Stratos, 387 Mass. at 321.   This determination should ordinarily

begin with the lodestar calculation, based on the number of

hours that are reasonably expended and adequately documented,

multiplied by a reasonable hourly rate.   The judge may then

adjust the lodestar calculation upward or downward in light of



not entitled to an award of attorney's fees because the
plaintiff himself or herself did not "prevail." Because the
plaintiff here would be a "prevailing party" even if his case
had been brought in Federal court, we need not reach that
unanswered question in this case.
     15
       The defendants do not challenge the $392.69 in costs
awarded by the Superior Court.
                                                                     27


the results obtained.    See Hensley, supra at 433-434.   Where the

plaintiff has obtained only partial success, it may be feasible

to exclude time devoted to claims on which the plaintiff did not

succeed.   In many civil rights cases, however, it may be

difficult to divide the hours expended on a claim-by-claim

basis, because "the plaintiff's claims for relief will involve a

common core of facts or will be based on related legal

theories," and "[m]uch of counsel's time will be devoted

generally to the litigation as a whole."    Id. at 435.   In those

cases, the "court should focus on the significance of the

overall relief obtained by the plaintiff in relation to the

hours reasonably expended on the litigation," and "it may simply

reduce the award to account for the limited success."      Id. at

435, 436-437.   "There is no precise rule or formula for making

these determinations."    Id. at 436.

     Bearing in mind the deference due the judge's "superior

ability to calibrate such awards to the nuances of the case,"

Diffenderfer v. Gomez-Colon, 587 F.3d 445, 452 (1st Cir. 2009),

we conclude that the judge did not abuse his discretion.      In our

view, the judge carefully and thoughtfully applied these

governing principles in determining an appropriate award of

fees.   He scrutinized the number of hours worked by the

plaintiff's counsel, noting that hours devoted to certain

claims, motions, and issues were properly excluded where they
                                                                     28


were unsuccessful, not related to the principal case, or not a

proper basis for an award of fees.    He also reduced the rates

proposed by the plaintiff's counsel based on the limitations in

the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d)(3).      He

multiplied these rates by the number of hours reasonably

expended to obtain a lodestar calculation of $56,372, which he

then assessed in light of "the degree of success obtained,"

Farrar, 506 U.S. at 114, quoting Hensley, 461 U.S. at 436,

including "the extent of relief, the significance of the legal

issue on which the plaintiff prevailed, and the public purpose

served" by the litigation, Farrar, supra at 122 (O'Connor, J.,

concurring).   The judge noted that LaChance did not succeed on

all of his claims.   Nevertheless, the judge concluded that our

ruling in LaChance I constituted a significant victory that

served a public purpose by establishing the due process rights

of inmates held in administrative segregation.    Taking into

account these factors and the common core of facts and related

legal issues involved, the judge reduced the lodestar

calculation by fifty percent "due to the discrepancy between the

claims brought and the claims won."

    In challenging this award, the defendants emphasize the

point that LaChance did not succeed on all his claims.     But our

holding in LaChance I was nevertheless a substantial victory for

LaChance on his most fundamental claim:    that his confinement in
                                                                     29


administrative segregation without a hearing violated his

Federal constitutional right to due process.    It also led to a

significant new statement of law, since we announced "for the

first time that segregated confinement on awaiting action status

for longer than ninety days gives rise to a liberty interest

entitling an inmate to notice and a hearing" and a written

posthearing decision.     LaChance I, 463 Mass. at 778.   See id. at

776-777.    This was much more than a de minimis success, even

when considered in the context of the other goals of LaChance's

suit.

     The defendants also argue that LaChance's award should have

been reduced further because his counsel devoted substantially

more effort to his unsuccessful claims than to his successful

claims.     In making this argument, the defendants primarily rely

on counting the relative number of claims in the pleadings and

the relative number of pages in briefs concerning LaChance's

successful and unsuccessful theories.     But such a mathematical

"ratio provides little aid in determining what is a reasonable

fee in light of all the relevant factors."     Hensley, 461 U.S. at

435 n.11.

     In sum, given that the Superior Court judge already reduced

the award of fees to half of the amount requested in light of

the discrepancy between the claims brought and the claims won by

LaChance, and considering that "[t]here is no precise rule or
                                                                   30


formula" for determining an appropriate fee reduction where, as

here, a civil rights plaintiff has achieved only partial

success, id. at 436, we conclude that the judge did not abuse

his discretion in calculating the award of attorney's fees.

    3.    Fees awarded on appeal.   Both LaChance and the

defendants have requested their attorney's fees and costs for

this appeal.   In light of our rulings above, we conclude that

LaChance is also entitled under § 1988 to recover his reasonable

attorney's fees and costs incurred in connection with this

appeal.   See Mendoza, 444 Mass. at 212 n.28, citing Ustrak v.

Fairman, 851 F.2d 983, 990 (7th Cir. 1988) (prevailing party

entitled to reimbursement of fees incurred in defending trial

court's award of fees).    We therefore invite LaChance to file

with the clerk of this court the appropriate documents detailing

and supporting his request for such fees and costs within

fourteen days of the issuance of the rescript in this case, in

accord with the procedure established in Fabre v. Walton, 441

Mass. 9, 10-11 (2004).    The defendants' fee request is denied.

    Conclusion.   For the reasons stated above, we affirm the

award of attorney's fees and costs entered by the judge in favor

of LaChance and conclude that LaChance is also entitled under

§ 1988 to recover his reasonable attorney's fees and costs

incurred in connection with this appeal.

                                     So ordered.
