(d) Attorney Fees. (1) In any action brought by a prisoner who is confined to any jail, prison or other correctional facility, in which attorney's fees are authorized under section 2 of the Revised Statutes of the United States (42 U.S.C. 1988), such fees shall not be awarded, except to the extent that -- [and several onerous limitations on attorney fees follow].
Not surprisingly, the effect of this change is to limit the ability of most attorneys to litigate prison conditions cases since the fee rate now apparently allowed is sometimes half or even less of the attorney's ususal rate for cases with such high risks. However, one type of case which is being litigated for prisoners is not affected by this provision.
Despite some rapidly waning doubt about its applicability to prisons and jails, the Americans with Disabilities Act of 1990 (ADA), 42 USC § 12131 to 12134 (and its predecessor and parallel statute, the Rehabilitation Act of 1973 (Rehabilitation Act), 29 USC §794, as amended) is being used repeatedly to improve accessibility for the disabled prisoner and even win damages. See: Cleo Love v Westville Correctional Center, 103 F.3d 558 (7th Cir 1996) [PLN Sept. '97].
While prison life can be bad for any prisoner, it is very often even worse for those with disabilities. As Judge Posner said, "[Disabled prisoners] have no right to more services than the able-bodied inmates, but they have the right, if the Act is given its natural meaning, not to be treated even worse than those more fortunate inmates." Ricky Crawford v Indiana Department of Correction, see preceding article (holding that the ADA does apply to prisoners). Litigation is usually the only way to remedy the inequities for disabled prisoners.
For attorneys pursuing prisoner ADA litigation, there is a bright spot in spite of the PLRA. The ADA provides:
'In any action or administrative proceeding commenced pursuant to this Act [ADA], the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. 42 USC §12205. See also: 28 CFR §35.175.
This provision while similar to 42 USC § 1988 in many respects significantly allows "litigation expenses" and attorney fees in addition to costs. For that reason attorney fees and litigation expenses fall outside those cases defining or limiting costs under 42 USC §1988. Moreover and because the PLRA expressly refers to 42 USC 51988 and does not mention any other statute, including the ADA, it is a fair conclusion that attorney fees for actions under the ADA are not limited in any way by 42 USC §1997e(d). Until the PLRA or the ADA are changed, the attorney willing to pursue prisoner litigation can still be paid a reasonable hourly rate for prevailing under the ADA.
For the time being, there does not appear to be any movement to change either the PLRA or the ADA to stop interested attorneys and no apparent intention on the part of most departments of correction to improve access for the disabled. There is, therefore, still plenty of business in the ADA area of prisoner litigation.
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