Richard K. Wolff, Plaintiff vs Thomas E. Moore, et al., Defendants



Case No. C-1-96-708



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION



104 F. Supp. 2d 892; 2000 U.S. Dist. LEXIS 12784



July 7, 2000, Decided

July 11, 2000, Filed







DISPOSITION: [**1] Plaintiff's requests for attorneys fees in total amount of $ 29,839.50 and costs of $ 1,107.14 granted.









COUNSEL: For RICHARD K WOLFF, plaintiff: Robert Franklin Laufman, Paul Montague Laufman, Laufman & Gerhardstein, Cincinnati, OH.


For THOMAS E MOORE, defendant: Thomas Russell Smith, Bunke Henkel Haverkamp Smith & Riehl, Cincinnati, OH.


For SANFORD WHITLOW, RAYMOND FUGATE, defendants: Carol Anne Hamilton O'Brien, Brian M Zets, Ohio Attorney General, Corrections Litigation, Columbus, OH.


For USA, movant: William R Kirschner, US Department of Justice, Washington, DC.


For USA, movant: Sharon Janine Zealey, United States Attorney's Office, Cincinnati, OH.



JUDGES: Timothy S. Hogan, United States Magistrate Judge.



OPINIONBY: Timothy S. Hogan



OPINION: [*893]

ORDER

(Hogan, M.J.)

This matter is before the Court on plaintiff's motion for award of attorneys' fees and costs. (Doc. 96).

Plaintiff is a former inmate at the Lebanon Correctional Institution (LeCI). On July 22, 1996, plaintiff, through counsel, filed this action pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights under the United States Constitution. The original complaint named [**2] Thomas E. Moore, a former corrections officer at LeCI, as the defendant. (Doc. 1). Plaintiff alleged that on October 15, 1995, defendant Moore used excessive force against him, resulting in a broken nose, swelling of both eyes, and other facial injuries. On April 28, 1997, plaintiff amended the complaint to add corrections officers Sanford Whitlow and Raymond Fugate as defendants in this matter. (Doc. 11). Plaintiff alleged that defendants Whitlow and Fugate conspired with Officer Moore to use excessive force against plaintiff. Plaintiff also alleged that defendant Whitlow was deliberately indifferent to plaintiff's safety during the commission of the use of excessive force by defendant Moore.

On July 2, 1998, defendants moved to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), contending that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321, and that such failure divested this Court of jurisdiction over this matter. (Docs. 29, 30). Plaintiff also moved for partial summary judgment on the issue of exhaustion of administrative remedies. [**3] (Doc. 35). Prior to a ruling on these motions, defendant Fugate was dismissed as a defendant.

On July 31, 1998, the Court denied plaintiff's and defendants' motions. (Doc. 47). The Court held that claims of excessive use of force are not "prison conditions" within the meaning of 42 U.S.C. § 1997e(a) and therefore not subject to the administrative exhaustion requirement. (Doc. 47 at 9). [*894]

On August 7, 1998, after a five day jury trial, a verdict was returned for plaintiff against defendant Moore on the Eighth Amendment excessive force claim in the amount of $ 8,250 in compensatory damages and $ 45,000 in punitive damages. A verdict was returned for plaintiff against defendant Whitlow on the Eighth Amendment deliberate indifference claim in the amount of $ 30,000 in punitive damages. (Doc. 59). The Court subsequently granted motions to alter or amend the judgment to reflect that the jury award of $ 8,250 in compensatory damages is joint and several against both defendants Moore and Whitlow. (Doc. 72).

Plaintiff then moved for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988 against defendants Moore and Whitlow. (Doc. [**4] 71). The Court found that plaintiff is a prevailing party within the meaning of § 1988, Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Northcross v. Bd. Of Ed. Of Memphis School District, 611 F.2d 624, 633 (6th Cir. 1979), cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980), and granted plaintiff's motion for attorneys' fees. (Doc. 81). However, pursuant to 42 U.S.C. § 1997e(d)(2), the Court offset the amount of attorneys' fees to be paid by defendants by 25 percent of the damage award to plaintiff. Plaintiff was awarded $ 48,406.50 for attorneys' fees and $ 2,956.90 in costs for a total award of $ 51,363.40. The Court ordered that $ 20,812.50 of the damages award to plaintiff be applied toward satisfying the $ 51,363.40 attorneys' fees awarded against defendants. Defendants were ordered to pay counsel for plaintiff $ 30,550.90 in attorneys' fees and expenses, to be awarded jointly and severally against both defendants. (Doc. 81 at 3).

Thereafter, defendant Whitlow moved for relief from judgment, arguing that the Court incorrectly determined [**5] that claims of excessive use of force are not "prison conditions" under 42 U.S.C. § 1997e(a) and therefore not subject to the PLRA exhaustion requirement. Whitlow also argued that plaintiff failed to exhaust his administrative remedies with respect to his deliberate indifference claim against Whitlow justifying relief from judgment. This motion was denied by Order of December 17, 1998. (Doc. 82).

Defendants appealed the Court's decisions on exhaustion of administrative remedies and ruling on an evidentiary issue concerning polygraph testimony at the trial. The Sixth Circuit Court of Appeals found that claims of excessive force are "prison conditions" subject to the PLRA exhaustion requirement found in 42 U.S.C. § 1997e(a). See Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999). However, the Court of Appeals affirmed the District Court's finding that plaintiff nevertheless exhausted his administrative remedies in this case. In addition, the Sixth Circuit found that the District Court erred in permitting testimony concerning a witness's willingness to take a polygraph examination. However, the Court of Appeals found such [**6] error to be harmless and affirmed the judgment of the District Court. (Doc. 94).

On January 18, 2000, plaintiff moved for an award of attorneys' fees and costs for post trial and appellate work on this action. (Doc. 96). In the memorandum in support of the motion, plaintiff argued that the limitation on the hourly rate for attorney's fees imposed by the PLRA is unconstitutional. Pursuant to 28 U.S.C. § 2403(a) and Fed. R. Civ. P. 24(c), the Court certified to the United States Attorney General that the constitutionality of the attorney's fees provision of the PLRA set forth in 42 U.S.C. § 1997e(d)(3) has been drawn into question in this case and invited the United States to intervene. (Doc. 100). The Court subsequently granted the motion of the United States to intervene in this matter. (Doc. 107).

On June 8, 2000, the Court heard oral argument from the parties and intervenor on the motion for attorneys' fees. [*895]

This matter is before the Court on the motion for attorneys' fees and costs (Doc. 96), the memorandum in support of the motion (Doc. 97), defendants' memorandum in opposition to the motion for attorneys' fees (Doc. 98), the [**7] United States' memorandum of law concerning the challenged provisions of the PLRA (Doc. 103), defendants' supplemental memoranda in opposition to the motion for attorneys' fees (Docs. 104, 105), and plaintiff's reply memorandum. (Doc. 106).


I. The Prison Litigation Reform Act's Limitation on Attorney's Fees Violates Plaintiff's Right to Equal Protection.

Sections 803(d) of the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-66, amended the provisions for awarding attorney's fees to successful prisoner civil rights plaintiffs. See 42 U.S.C. § 1997e(d). Section 1997e(d) provides:


(d) Attorney's 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 [ 42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that--

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under [ 42 U.S.C. § 1988]; and

(B)(i) the amount of the fee is proportionately [**8] related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.


(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.


(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, [the Criminal Justice Act,] for payment of court-appointed counsel. . . .

At issue in this case is section 1997e(d)(3) which limits the hourly rate for attorney's fees in successful prisoner civil rights cases to 150% of the hourly rate set forth in 18 U.S.C. § 3006A(d)(1), or $ 112.50 per hour. n1 Plaintiff contends that the fee cap set forth in § 1997e(d)(3) violates the equal protection component of the Due Process Clause of the Fifth Amendment [**9] to the United States Constitution. n2 Defendants and the United States argue that the fee cap is rationally related to legitimate governmental interest and withstands equal protection scrutiny.



n1 Section 3006A(d)(1) sets the maximum hourly rate at $ 75. 150% of $ 75 is $ 112.50.

n2 The fee shifting provision set forth in section 1997e(d)(2) is not at issue in this case since plaintiff's request for attorneys' fees does not exceed the 150% limitation of § 1997e(d)(2). The Court has already applied the 25% fee shifting provision set forth in the first sentence of section 1997e(d)(2). (See Doc. 81).


Because an enactment of the federal government is at issue, the equal protection principles of the Fifth Amendment's Due Process Clause apply in this case. Federal legislation must meet the same equal protection standards applicable to the states set forth in the Fourteenth Amendment. Mathews v. De Castro, 429 U.S. 181, 182 n.1, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976). See also Weinberger v. Salfi, 422 U.S. 749, 768-770, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). [**10] At the heart of equal protection is the principle that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 [*896] L. Ed. 2d 313 (1985). Classifications implicating a suspect class, such as race, or burdening a fundamental right are subject to a strict scrutiny analysis. Id. at 440. See also Clark v. Jeter, 486 U.S. 456, 461, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988). Classifications which burden neither a fundamental right nor target a suspect class will be upheld so long as they bear a rational relationship to a legitimate objective. Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996); Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993).

The classification drawn by the attorney's fees provision at issue here is between successful prisoner civil rights litigants and successful non-prisoner civil rights litigants. Sections 1997e(d)(3) limits the recovery of attorney's fees to those representing prisoners in civil rights actions, while fees to attorneys representing [**11] non-prisoners are not so limited.

To the extent that plaintiff argues that a prisoner's right of access to the courts is implicated by the limitation on attorney's fees and that strict scrutiny analysis applies (Doc. 97 at 6), the Court disagrees. The right of access to the courts is fundamental. Lewis v. Casey, 518 U.S. 343, 351, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996); Bounds v. Smith, 430 U.S. 817, 825, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Wilson v. Yaklich, 148 F.3d 596, 605 (6th Cir. 1998), cert. denied, 525 U.S. 1139, 119 S. Ct. 1028, 143 L. Ed. 2d 38 (1999). Inmates must be given "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis, 518 U.S. at 351, quoting Bounds, 430 U.S. at 825. The PLRA fee cap in this case does not deny inmates access to the courts because the cap does not prohibit inmates from filing and prosecuting their cases, the essence of this right. 518 U.S. at 351-53. So long as inmates are given the opportunity to submit their grievances to the courts, the right of access [**12] to the courts is fulfilled. Id. at 360. This right does not include the ability "to litigate effectively once in court." 518 U.S. at 354. Although the hourly rate fee cap of § 1997e(d)(3) may inhibit an inmate's ability to secure representation by private counsel, it does not deny prisoners the fundamental right of access to the courts. n3



n3 Plaintiff does not contend that inmates are a suspect class. In any event, it is well settled that prisoners are not a suspect class which would require strict scrutiny review. See Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998), cert. denied, 525 U.S. 1139, 119 S. Ct. 1028, 143 L. Ed. 2d 38 (1999); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997).


The question now becomes whether the distinction between successful prisoner civil rights litigants and non-prisoner civil rights litigants drawn by the PLRA fee cap in section 1997e(d)(3) is rationally related to a legitimate governmental [**13] interest. Romer, 517 U.S. at 631. See also Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997), citing United States v. Kras, 409 U.S. 434, 446, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973); City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976). Section 1997e(d)(3) is entitled to a presumption of constitutionality, see Heller, 509 U.S. at 319; City of Cleburne, 473 U.S. at 440, and must be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Heller, 509 U.S. at 320, quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993). See also Sullivan v. Stroop, 496 U.S. 478, 485, 110 L. Ed. 2d 438, 110 S. Ct. 2499 (1990). The distinction drawn must "have some relevance to the purpose for which the classification is made." Rinaldi v. Yeager, 384 U.S. 305, 309, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966)(citations and internal quotations omitted). However, where a classification "whose [**14] relationship [*897] to an asserted goal is so attenuated as to render the distinction arbitrary or irrational," the rational relationship standard is not satisfied. City of Cleburne, 473 U.S. at 446, citing Zobel v. Williams, 457 U.S. 55, 61-63, 72 L. Ed. 2d 672, 102 S. Ct. 2309 (1982); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 535, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973).

The United States argues that the distinction drawn between successful prisoner civil rights litigants and successful non-prisoner civil rights litigants in the PLRA attorney's fee provision creates an economic disincentive for prisoners to file frivolous lawsuits. This Court has previously recognized that one of the primary purposes in Congress's passage of the PLRA was to reduce the number of frivolous prisoner lawsuits in the federal courts. (Doc. 47 at 3). See Hadix v. Johnson, 143 F.3d 246, 250 (6th Cir. 1998). Undoubtedly, as plaintiff admits, this goal is a legitimate one. See Wilson, 148 F.3d at 604. Nevertheless, the Court fails to find a rational connection between the goal of reducing frivolous prisoner lawsuits [**15] and the limitation on attorney's fees to successful prisoner plaintiffs.

Relying on Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999), the United States argues that "because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole." 190 F.3d at 996. The United States argues that it is rational to recognize that if prisoners had to bear some costs of litigation, they would have more of an incentive to limit suits to those that are meritorious. (Doc. 103 at 12).

This "justification" ignores the economic realities faced by lawyers who represent prisoner plaintiffs in civil rights cases. See Heller, 509 U.S. at 319 (the difference in treatment must have "some footing in the realities of the subject matter addressed by the legislation."). Unlike attorneys who accept criminal appointments from the court, attorneys in section 1983 cases are not guaranteed a fee for work performed in these cases. By accepting a § 1983 case, attorneys assume the risk that they will be paid only if they prevail on the merits, i.e., the case is "successful. [**16] "

Success in this instance means the case must survive numerous judicial hurdles before arriving at an attorney's fee award. The case must survive sua sponte screening by the Court upon the initial filing of the case. Pursuant to the PLRA, the Court must sua sponte review all prisoner complaints to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § § 1915A(a), (b). See also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). This occurs "before docketing" or "as soon as practicable after docketing" and throughout the litigation process. Id. The case must then survive motions to dismiss and motions for summary judgment on jurisdictional issues, exhaustion issues unique to prisoner civil rights cases, immunity grounds, and on the merits. The case must survive Rule 50, Fed. R. Civ. P., motions at trial. Finally, the plaintiff must ultimately prevail at trial on the merits of his [**17] case. Only when all these hurdles are surmounted will a plaintiff's lawyer be faced with the prospect of being paid for the work he or she has performed. When faced with all these hurdles, the attorney's decision to accept an appointment at the court's request, 28 U.S.C. § 1915(e)(1), or to bring a case of his or her own volition is driven by the potential merits of the case. Since only success is rewarded in a prisoner section 1983 case, it is irrational to believe that a financial incentive is offered to a lawyer who accepts a "frivolous" case since it is doomed to failure. To the contrary, the likelihood of success on the merits is the incentive for [*898] filing or accepting an appointment in a prisoner civil rights case. As the case approaches the 50% probability of success target, the potential expenses associated with litigating the case provide the determining factor in accepting or bringing a prisoner civil rights case. Capping attorney's fees has nothing whatsoever to do with the rate of frivolous filings by prisoners.

The United States contends that "the prospect of a large fee award can encourage frivolous suits as well as meritorious ones, because the [**18] person who contemplates filing a suit may not accurately perceive that it is frivolous." (Doc. 103 at 14-15). The Court takes judicial notice of the fact that the vast majority of prisoner civil rights cases are filed pro se by prisoners, who are not entitled to an award of attorney fees. Wright v. Crowell, 674 F.2d 521 (6th Cir. 1982)(per curiam). Thus, the argument waged by the United States applies only to cases filed by attorneys. A complaint is "frivolous" when it cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992). To accept the United States' argument ignores the weighty and very real disincentives posed by the sanctions an attorney faces for bringing a frivolous lawsuit. See Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. This is not rational. Likewise, the United States' citations to cases upholding other provisions of the PLRA which decrease the inducement to file frivolous legal actions have no bearing on the [**19] fee cap provision before the Court. (Doc. 103 at 14-15).

The Court declines to follow those courts holding that the PLRA fee caps are rationally related to curtailing frivolous prisoners' suits. See Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999); Collins v. Algarin, 1998 U.S. Dist. LEXIS 83, No. 95-4220, 1998 W.L. 10234, at *9 (E.D. Pa. Jan. 9, 1998)(unpublished), aff'd en banc by an equally divided court, Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 686 (3d Cir. 1999) n4; Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000)(Marbley, J.); Waterman v. Farmer, 84 F. Supp. 2d 579, 2000 U.S. Dist. LEXIS 2059 (D.N.J. March 1, 2000). These courts fail to explain the connection between the attorney's fees caps and limiting frivolous prisoner lawsuits. As explained above, by the time a prisoner's case proceeds to a trial on the merits, several judicial determinations have been made that the case is not frivolous. Successful § 1983 prisoner actions are, by definition, not "frivolous."



n4 Under the law of the Third Circuit, decisions of a divided en banc court are entitled to no weight. See Tunis Bros. Co., Inc. v. Ford Motor Co., 763 F.2d 1482, 1501 (3d Cir. 1985), vacated on other grounds, 475 U.S. 1105 (1986).


[**20]

The Court can conceive of no rational relationship between limiting attorney's fees in successful prisoner civil rights cases and the objective of stemming the tide of frivolous prisoner cases which are, in any event, dismissed by the Court sua sponte at the screening stage. As recognized by the Court in McLindon v. Russell, C-1-95-676 (S.D. Ohio June 15, 2000)(Doc. 84), one conceivable aim of the cap on attorney's fees is to reduce the number of attorneys willing to represent prisoners because of reduced financial incentives. "But this purpose smacks of a desire to harm prisoners, a politically unpopular group, which is clearly not a legitimate governmental interest. Cleburne, 473 U.S. at 447; Weinberger v. Salfi, 422 U.S. 749, 772, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). The limitation on attorney's fees set forth in sections 1997e(d)(2) and (3) is simply unrelated in any rational way to limiting the filing of frivolous prisoner lawsuits." McLindon, Slip op. at 10. See also Walker v. Bain, 65 F. Supp. 2d 591, 602 (E.D. Mich. 1999)("Any relationship between an award of attorney fees to successful prisoner plaintiffs and the [**21] initial filing of frivolous civil rights [*899] suits is, at best, so attenuated as to be irrational.").

The United States also argues that the PLRA fee cap prevents windfall fee awards and conserves public resources from which attorney's fees under § 1988 are generally awarded. n5 Like the goal of reducing frivolous prisoner lawsuits, protection of the public fisc is a legitimate goal. See Shapiro v. Thompson, 394 U.S. 618, 633, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). However, this objective may not be accomplished "by arbitrarily singling out a particular class of persons to bear the entire burden. . . ." Walker, 65 F. Supp. 2d at 604 (citation omitted). The Supreme Court faced such a distinction in Rinaldi v. Yeager, 384 U.S. 305, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966). In Rinaldi, the Supreme Court struck down on equal protection grounds a state statute which distinguished between indigent criminal defendants sentenced to a prison term and indigent criminal defendants sentenced to probation or a fine. Only those defendants sentenced to a term of imprisonment were required to repay the cost of a transcript in an unsuccessful appeal. [**22] Rinaldi, 384 U.S. at 307. Those criminal defendants sentenced to probation or a fine had no obligation to repay such costs. The Supreme Court held that the distinction between persons sentenced to a prison term and those sentenced to probation or a fine was not rationally related to the underlying goal of repaying the expenses of unsuccessful appeals. The Rinaldi Court stated:


To fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions, however, is to make an invidious discrimination. Those appellants who have been sentenced only to pay fines have been accorded the same benefit by the county--a transcript used in an unsuccessful appeal, and all that distinguishes them from their institutionalized counterparts is the nature of the penalty attached to the offense committed. There is no defensible interest served by focusing on that distinction as a classifying feature in a reimbursement statute, since it bears no relationship whatever to the purpose of the repayment provision. Likewise, an appellant subject only to a suspended sentence or to probation is likely to differ from an inmate only in the extent of [**23] his criminal record. That, too, is a trait unrelated to the fiscal objective of the statute.


384 U.S. at 309-310. The statute was struck down as there was no rational basis for the distinction between unsuccessful appellants who were in prison and those who were not. See also Lindsey v. Normet, 405 U.S. 56, 77-79, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972)(law imposing double-bond requirement for appeals in forcible entry and wrongful detainer actions but not on other civil litigants arbitrarily discriminates against tenants appealing from adverse decision).



n5 Because § 1983 only permits suits against individuals acting under color of state law, attorney's fees are generally awarded against public officials and, by extension, the public treasury of the states. See Walker, 65 F. Supp. 2d at 604 and n.6.


Rinaldi is instructive in this case. The statute here imposes a cap on attorney fees for successful prisoner civil rights plaintiffs which is not imposed on [**24] other successful civil rights litigants. The only difference between these successful litigants, like those in Rinaldi, is that one class of persons is incarcerated. However, this distinction bears no rational relationship to the purported fiscal objective of the attorney's fee provision. As recognized by the Court in Walker v. Bain, the conservation of public funds through the disparate treatment of similarly situated persons violates equal protection:


There is no defensible interest served by focusing on the distinction between prisoners and nonprisoners, since it bears no relationship whatever to the purpose of either the attorney fee provision of § 1988 or the cap on such [*900] fees. . . . The only manner in which the distinction between prisoners and nonprisoners relates to the goal of protecting the public fisc is by making prisoners (or the pro bono attorney) bear the entire extent of that burden for no other reason than the fact that they are prisoners (or attorneys who have undertaken to represent prisoners). Such an arbitrary discrimination, as the cases discussed above demonstrate, is not a permissible means of guarding the state's purse.


65 F. Supp. 2d at 604-605 [**25] (internal quotations omitted), citing Plyler v. Doe, 457 U.S. 202, 227, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982); Shapiro v. Thompson, 394 U.S. 618, 633, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Rinaldi v. Yeager, 384 U.S. 305, 309-310, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966); Silbowitz v. Secretary of Health, Educ. & Welfare, 397 F. Supp. 862, 867 (S.D. Fla. 1975), summarily aff'd. sub nom. Califano v. Silbowitz, 430 U.S. 924, 51 L. Ed. 2d 768, 97 S. Ct. 1539 (1977); Westberry v. Fisher, 297 F. Supp. 1109, 1115 (D. Me. 1969). See also City of Cleburne, 473 U.S. at 447.

Equal protection requires "some rationality in the nature of the class singled out." Rinaldi, 384 U.S. at 308-309. The distinction between successful prisoner civil rights litigants and all other successful civil rights litigants bears no rationality to the fiscal objective of the statute because that goal is accomplished by arbitrarily singling out a particular class of persons, prisoners, to bear the entire burden of accomplishing the goal. Such arbitrary discrimination is an intolerable [**26] means of safeguarding the public fisc. "When Congress arbitrarily saddles one group with the burden of protecting the public fisc, it acts irrationally." 65 F. Supp. 2d at 605.

Nor is the distinction between successful prisoner civil rights plaintiffs and all other civil rights plaintiffs rationally related to the stated goal of preventing windfall attorney's fees awards. Judges do not simply make an award of attorney's fees based on the fee application alone. Rather, in attempting to award reasonable attorney's fees, judges consider, among other factors, the experience and skill of the attorney, the complexity of the case, the number of hours reasonably expended, the hourly rate charged by the attorney as well as the market rate for attorneys with similar skill and experience, and the extent to which the successful party achieved success on the claims presented. Blanchard v. Bergeron, 489 U.S. 87, 94, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989); Blum v. Stenson, 465 U.S. 886, 895, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Coulter v. State of Tennessee, 805 F.2d 146, 149 (6th Cir. 1986), [**27] cert. denied, 482 U.S. 914, 96 L. Ed. 2d 674, 107 S. Ct. 3186 (1987); Louisville Black Police Officers Organization, Inc. v. City of Louisville, 700 F.2d 268, 278 (6th Cir. 1983); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980). To assume that judges award windfall fees in prisoner civil rights cases is both contrary to law and irrational. See also Farrar v. Hobby, 506 U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992).

The United States also contends that the fee cap in section 1997e(d)(3) encourages uniformity and brings attorney's fees in prisoner civil rights cases on par with fees paid in criminal appointments. Unlike prisoner civil rights cases, however, payment to criminal defense attorneys under 18 U.S.C. § 3006A is not dependent on success. The breadth of the fee cap at issue is so far removed from the proposed justification that it deserves no credence. Romer, 517 U.S. at 635. The United States fails to explain how the classification, [**28] by targeting only inmates who are successful in civil rights litigation, furthers the goal of uniformity. "Even in the ordinary equal protection case calling for the most deferential of standards, we [*901] insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause. . . ." Romer, 517 U.S. at 632. As explained above, the fee cap arbitrarily singles out successful prisoner civil rights litigants, a politically unpopular group, and "raises the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id. at 634.

Defendants contend that the limitation on attorney's fees is rationally related to the "disruptive impact that prisoner cases have on government operations by removing subsidies for such cases." (Doc. 98 at 6). They contend that Congress could have been concerned with the operational impact prisoner litigation has on prisons. Defendants state that prisoner litigation diverts prison staff from other duties, increases tension between inmates and staff, and [**29] has a negative effect on staff morale. Limiting attorney's fees, according to defendants, fosters the goal of limiting the disruptive impact of prisoner cases on institutional operations.

Defendants made this same argument in McLindon v. Russell, C-1-95-676 (S.D. Ohio June 15, 2000)(Doc. 84). The McLindon Court found:


The unstated assumption in this argument is that reducing attorney fees will discourage attorneys from becoming involved in prisoner cases. Even if this is true, cases which are meritorious and survive summary judgment will go forward pro se. Defendants and prison officials must still engage in discovery, confer with attorneys, prepare for trial, and participate in trial. Defendant fails to show how eliminating attorneys from this process is rationally connected to saving time spent in defending prisoner litigation. It is arguable that cases proceeding pro se, because of the inexperience and often ineptitude of prisoners, cost more time to prison officials and the courts. Defendant fails to explain how limiting attorney's fees in prisoner civil rights cases somehow reduces tension in the prison or increases staff morale. The rationale set forth by defendant [**30] is really an indictment of the impact of prison litigation in general, not merely litigation brought by or pursued by an attorney on behalf of a prisoner. If the number of cases are lessened, this goal is achieved. Successful or meritorious prisoner cases, proceeding pro se or with counsel, will have the same impact on the concerns raised by defendant. Because the connection between the attorney's fees provisions and this goal is so attenuated, the distinction drawn between successful prisoner civil rights litigants and successful non-prisoner civil rights litigants is irrational. City of Cleburne, 473 U.S. at 446.


McLindon, slip op. at 13. This Court agrees with the rationale set forth in McLindon.

Finally, defendants contend that the PLRA fee cap furthers Congress's interest in reducing perceived abuses by prisoner civil rights lawyers. Defendants contend that Congress believed that lawyers in prisoner cases raise numerous claims of dubious validity in the hopes of prevailing on at least one claim to secure a fee award. They cite to excerpts from committee hearings and the Congressional record in support of this contention. (Doc. 98 at 10).

"The [**31] authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which 'represent the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.'" Garcia v. United States, 469 U.S. 70, 76, 83 L. Ed. 2d 472, 105 S. Ct. 479 (1984)(citations omitted). The Supreme Court has "eschewed reliance on the passing statements of one Member . . . and casual statements from the floor debates." Id. While the comments of the director of the Utah Department of Corrections and the two individual legislators cited by defendants [*902] may suggest some support for their contention, they are not persuasive of Congress's intent in enacting the attorney's fee cap provision. Statements by witnesses at committee hearings are not significant indicators of legislative intent, but rather reflect the biases and beliefs of the individual witnesses. See Kelly v. Robinson, 479 U.S. 36, 51 n. 13, 93 L. Ed. 2d 216, 107 S. Ct. 353 (1986)("We acknowledge that a few comments in the hearings . . . may suggest that the language bears the interpretation. . . . We decline to accord any significance [**32] to these statements."). See also McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493-94, 75 L. Ed. 1183, 51 S. Ct. 510 (1931). In addition, the comments of individual legislators are entitled to little weight in discerning congressional intent. Garcia, 469 U.S. at 76; Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 118, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979). n6 The sweeping pronouncements by individual legislators and others cited by defendants are "divorced from any factual context from which [the court] could discern a relationship to legitimate [governmental] interests. . . ." Romer, 517 U.S. at 635.



n6 Defendants cite to comments by Representative Hoke. See 141 Cong. Rec. H3289 (Feb. 1, 1995). The colloquy cited is not a discussion of the merits of the PLRA attorney's fees provisions, but is rather a passing comment made to another legislator in a much larger discussion on the "Progress on the Contract With America." In response to a comment concerning frivolous lawsuits by inmates, Representative Hoke states: "In fact there is an element of the bar that makes a full-time living in contacting prisoners and then using shotgun approach lawsuits to file for all kinds of ridiculous and frivolous things like, for example, the food is not good enough, we want better food, we want different kinds of silverware, we want towels that are not so scratchy. . . . The reason they do this is because the bar, the attorneys, can actually be reimbursed their fees, all of them, by the Federal Government, when they bring these lawsuits, civil lawsuits, on behalf of prisoners." Id. These statements are simply inaccurate. As explained above, frivolous claims such as "we want different kinds of silverware" are dismissed sua sponte by the court and when attorney fees are awarded on meritorious claims, numerous factors, including limited success, are considered in awarding a reasonable attorney fee. See Hensley, 461 U.S. at 436-37. In addition, the federal government does not pay attorney fees in section 1983 civil rights cases. Rather, they are awarded against individual defendants acting under color of state law pursuant to section 1983 and may be reimbursed through the state treasuries. See footnote 5, supra.


[**33]

Defendants also cite to a House of Representatives report in support of this contention. (Doc. 98 at 10). A review of this report indicates a concern that attorney's fees are sometimes awarded in a disproportionate amount in comparison to the court ordered relief. See H.R. Rep. No. 21, 104th Cong., 1st Sess. at 6, 28 (Feb. 6, 1995). n7 However, the fee cap at issue in this case, section 1997e(d)(3), was not included as part of the bill discussed in the House Report. Rather, the attorney's fees provisions of what are now sections 1997e(d)(1)(A) and (B) which require attorney's fees to be "directly and reasonably" incurred in proving a constitutional violation and "proportionally related" to the court ordered relief address the concerns raised in the House Report, not the fee cap at issue in this case. Thus, the Court cannot discern a rational relationship between the attorney's fee cap at issue in [*903] this case and the proffered justification by defendants.



n7 The attorney's fees provision in the House of Representatives Report states:


ATTORNEY'S FEES- No attorney's fee under section 722 of the Revised Statutes of the United States (42 U.S.C. 1988) may be granted to a plaintiff in a civil action with respect to prison conditions except to the extent such fee is--

(1) directly and reasonably incurred in proving an actual violation of the plaintiff's Federal rights; and

(2) proportionally related to the extent the plaintiff obtains court ordered relief for that violation.


H.R. Rep. No. 21, 104th Cong., 1st Sess. at 6 (Feb. 6, 1995), Title III, Sec. 3626(f).


[**34]

The PLRA's limitation on the hourly rate of attorney's fees to successful prisoner civil rights litigants lacks a rational relationship to the governmental interests advanced by the United States and defendants. Rather, "its sheer breadth is so discontinuous with the reasons offered for it that the [fee cap] seems inexplicable by anything but animus toward the class that it affects." Romer, 517 U.S. at 632. The "link" between the classification at issue and the proffered objectives is noticeably absent in this case. It is irrational to penalize successful prisoner civil rights litigants for vindicating their constitutional rights. The "inevitable inference" that arises from a law of this sort is that it is "born of animosity toward the class of persons affected." Id. at 634. Accordingly, the Court holds that the section 1997e(d)(3) fee cap is not rationally related to any legitimate governmental interest and violates the equal protection component of the Fifth Amendment. Therefore, plaintiff is entitled to an award of attorney's fees without regard to the hourly rate limitations set forth in section 1997e(d)(3).


II. Plaintiff is Entitled [**35] to an Award of Attorneys' Fees.

The Court GRANTS plaintiff's request for attorneys' fees. (Doc. 96).

Pursuant to 42 U.S.C. § 1988:


In any action or proceeding to enforce a provision of section [ ] . . . 1983 . . . of this title, ... the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.


42 U.S.C. § 1988(b). In addition, plaintiff's request for attorney's fees is governed by section 803(d) of the PLRA which requires that the fee request be directly and reasonably incurred in proving a violation of plaintiff's rights and that the fee be proportional to plaintiff's relief. 42 U.S.C. § 1997e(d)(1); see Walker v. Bain, 65 F. Supp. 2d at 597; Clark v. Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997).

As defendants concede, plaintiff is a prevailing party pursuant to 42 U.S.C. § 1988. See Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Northcross v. Bd. of Ed. of Memphis School District, 611 F.2d 624, 633 (6th Cir. 1979), [**36] cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980). Plaintiff prevailed both at trial and on appeal. He now seeks an award of $ 29,839.50 in attorneys' fees and $ 1,107.14 in expenses in connection with the appeal.

Section 1997e(d)(1)(A) requires that the fee be "directly and reasonably incurred in proving an actual violation of the plaintiffs rights." 42 U.S.C. § 1997e(d)(1)(A). In the instant case, plaintiff proved by a preponderance of the evidence at trial that defendants Moore and Whitlow violated his Eighth Amendment rights under the Constitution. Subsequent to the trial, defendant Whitlow sought relief from judgment under Fed. R. Civ. P. 60(b) on the issue of exhaustion of administrative remedies. Plaintiff's attorneys expended 21.0 hours in responding to the Rule 60(b) motion (Robert Laufman: 19.3 hours; Paul Laufman: 1.7 hours). This Court denied the motion and defendants appealed.

On appeal, plaintiff's attorneys spent 134.5 hours on appellate activities, including brief writing (Robert Laufman: 59.5 hours; Paul Laufman: 75 hours). Plaintiff's attorneys researched and briefed several critical issues [**37] involving the PLRA which had not yet been decided by the Sixth Circuit. These included whether exhaustion is required when damages are not available through the grievance system; whether a claim of excessive force is a "prison condition" within the meaning of the PLRA requiring exhaustion; whether a claim of deliberate indifference (failure to protect) is a prison condition subject to exhaustion; and whether substantial compliance constitutes exhaustion even where the grievance system is not completely [*904] exhausted. Plaintiff's attorneys also researched and briefed the issue of admissibility of polygraph evidence at trial. After briefing was complete and shortly before oral argument, the Sixth Circuit decided that the exhaustion requirement applies to claims of excessive force, Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999), and where plaintiff seeks only monetary relief. Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999). In view of the Freeman decision, the Court of Appeals found this Court erred in holding that the term "prison condition" as used in section 1997e(a) includes claims of excessive force. Nevertheless, the Sixth Circuit upheld this Court's [**38] ruling that plaintiff had in fact exhausted his administrative remedies prior to filing his federal complaint. Wolff v. Moore, 199 F.3d 324, 328-29 (6th Cir. 1999). The Court of Appeals also found this Court's ruling on the polygraph evidence to be harmless. Id. at 329. Thus, plaintiff prevailed on the appeal.

A review of the attorney's fees application submitted by counsel for plaintiff shows that the time spent by counsel in responding to the Rule 60(b) motion and on appeal was directly related to the issue of plaintiff's right to bring suit in the first instance and to the finding of an Eighth Amendment violation. Thus, the fees sought were necessarily incurred in seeking redress for the Eighth Amendment violations. Therefore, the Court finds that the attorneys' fees sought were directly and reasonably incurred in proving that plaintiff's constitutional rights were violated within the meaning of § 1997e(d)(1)(A). See Clark, 965 F. Supp. at 334, citing Weaver v. Clarke, 933 F. Supp. 831, 836 (D. Neb. 1996). See also Northcross, 611 F.2d 624 (services relating to appeals are compensable under section [**39] 1988).

Section 1997e(d)(1)(B) further requires that the amount of the fee be "proportionately related to the court ordered relief for the violation" or that "the fee was directly and reasonably incurred in enforcing the relief ordered for the violation." 42 U.S.C. § 1997e(d)(1)(B)(i) & (ii). This "proportionality" requirement merely codifies pre-existing law regarding attorney's fees under 42 U.S.C. § 1988. See Boivin v. Merrill, 66 F. Supp. 2d 50, 52 (D. Me. 1999). In Boivin, the Court found that an award of attorney fees of $ 3,892.50 was reasonable and appropriate even though nominal damages of only $ 1.00 was awarded. The court, relying on the rationale set forth in the First Circuit in O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997) and the Supreme Court in Farrar v. Hobby, 506 U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992), found the fees requested to be "eminently reasonable" in view of "the deterrent impact of the litigation on those who otherwise would violate a prisoner's constitutional rights and the need to provide attorneys with an incentive to represent litigants [**40] seeking to vindicate such rights." 66 F. Supp. 2d at 52. Likewise, the Court in Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000)(Marbley, J.), found that in view of the plaintiff's vindication of his Eighth Amendment rights at trial and the deterrent effect of the punitive damages award, a fee award of $ 53,792.25 was not inherently disproportionate to an award of $ 15,000.00 in damages. See also Searles v. Van Bebber, 64 F. Supp. 2d 1033, 1042 (D. Kan. 1999)(fee award $ 30,621.83 was sufficiently proportional to jury award of actual damages of $ 3,650 and punitive damages of $ 42,500); Clark v. Phillips, 965 F. Supp. 331, 334 (N.D.N.Y. 1997) (award of $ 7921.96 in attorney's fees was 79% of the judgment award of $ 10,000 and "proportionately related" to judgment).

In this case, plaintiff was awarded $ 8,250 in compensatory damages and $ 75,000 in punitive damages for the Eighth Amendment violations. He vindicated significant constitutional rights to be free from cruel and unusual punishment. The punitive damage awards will have a significant deterrent impact on those "who otherwise would violate a prisoner's constitutional [**41] rights." Boivin, 66 F. Supp. 2d at 52. Plaintiff seeks an award of $ 29,839.50 in [*905] attorneys' fees. The fees requested are approximately 36% of the judgment awarded. Thus, the Court finds that the fees requested are proportionately related to the total jury award of $ 83,250.00.

Since plaintiff has met the requirements of section 1997e(d)(1)(A) and (B), the Court now determines the amount of attorneys' fees to be awarded. The recognized method for calculating an award of attorney's fees is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The Court must consider the degree of success obtained by plaintiff in determining an appropriate award of attorney's fees. Id. at 436. See also Farrar, 506 U.S. at 114; Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1169 (6th Cir. 1996); Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir. 1994). There is no decisive formula or rule for determining the degree of success achieved. "The district court may attempt to identify [**42] specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Hensley, 461 U.S. at 436-37. Where the Court decides to eliminate or reduce the hours of service documented by counsel's affidavit, it must identify the hours eliminated and articulate its reasons for any such reduction. Northcross v. Bd. of Educ. of Memphis City Schools, 611 F.2d 624, 636-37 (6th Cir. 1976), cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980). Hourly rates should not exceed the market rate necessary to encourage competent lawyers to undertake representation. Reed v. Rhodes, 179 F.3d 453, 472-73 (6th Cir. 1999); Coulter v. Tennessee, 805 F.2d 146, 150 (6th Cir. 1986). See also Blum v. Stenson, 465 U.S. 886, 897, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984)(a reasonable attorney fee is one that is adequate to attract competent counsel, yet does not produce a windfall to attorneys).

Plaintiff seeks compensation for a total of 163.3 hours. Plaintiff submits the declaration of Robert Laufman and detailed time sheets showing a total [**43] of 86.6 hours expended after the judgment was entered. (Doc. 96, Declaration of Robert Laufman, Exh. 1). Plaintiff also submits the declaration of Paul Laufman and a detailed time billing statement showing a total of 76.7 post-judgment hours expended by Paul Laufman. (Doc. 96, Declaration of Paul Laufman, Exh. 3). As explained above, the hours expended in responding to the Rule 60(b) motion and on appeal were reasonable. This request includes compensation for 7.8 hours for preparation of the motion for fees and for the separately filed memorandum challenging the PLRA fee limits, which is permissible. See Northcross, 611 F.2d at 637; Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979), cert. denied, 444 U.S. 880, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979). See also Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998)(fees for preparing and litigating motion requesting fees and costs are recoverable under the PLRA). Plaintiff's attorneys have exercised billing judgment and have eliminated claims for an additional 44.2 hours (Robert Laufman 39.2 hours; Paul Laufman 5 hours)(Doc. 96, Exhs. 3, 4). See Hensley, 461 U.S. at 437. [**44] Attorney Robert Laufman requests an hourly rate of $ 225. Attorney Paul Laufman requests an hourly rate of $ 135. Plaintiff also requests $ 1,107.14 in costs.

With the exception of the issues relating to the constitutionality of the PLRA attorney fees provision, defendants do not dispute the number of hours expended and rate requested by counsel in this case. Nor do defendants object to reimbursement of the expenses claimed by plaintiff. (Doc. 98 at 1).

After carefully reviewing the declarations, time sheets, and billing statements of Messrs. Robert and Paul Laufman, the Court determines that $ 29,839.50 is a reasonable award of attorneys fees in this case. In addition, the Court determines [*906] that an award of costs in the amount of $ 1,107.14 is appropriate. See Northcross, 611 F.2d at 639. For the reasons stated by plaintiff at pages 6 through 9 of his memorandum in support of attorneys fees, the Court accepts the hourly rate of $ 225 for attorney Robert Laufman and $ 135 for attorney Paul Laufman. (Doc. 96 at 6-9). The Court also finds the time expended by plaintiff's attorneys on responding to the Rule 60(b) motion and on appeal to be reasonable. Counsel for plaintiff [**45] obtained exceptional results in this matter. Not only did counsel prove that defendants violated plaintiff's Eighth Amendment rights, they obtained significant compensatory and punitive damages in this case. These exceptional results dictate a fully compensatory attorneys fee in this matter. See Hensley, 461 U.S. at 435.

Nor should the fee be reduced because plaintiff did not ultimately prevail on the issue of whether excessive force claims are "prison conditions" within the meaning of the PLRA requiring exhaustion of administrative remedies. Although the Sixth Circuit ultimately interpreted the PLRA exhaustion requirement to require exhaustion for such claims, it was reasonable for plaintiff to expend time advancing his interpretation of the statute on this issue. This Court found in plaintiff's favor on this issue and it was not until after plaintiff researched and briefed the issue on appeal that the Sixth Circuit actually ruled on the precise issue in Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999). Plaintiff advanced this contention in good faith, and ultimately prevailed on the alternative ground that he nevertheless exhausted his administrative [**46] remedies in this case. See Hensley, 461 U.S. at 435. The Sixth Circuit's rejection of plaintiff's interpretation of "prison conditions" is not a sufficient reason for reducing the fee. Id. In the end, plaintiff obtained the result he sought: a decision upholding of the finding of liability against both defendants and the award of compensatory and punitive damages. Therefore, the Court declines to reduce the fee award in this case.

In conclusion, the Court grants plaintiff's requests for attorneys fees in the total amount of $ 29,839.50 and costs of $ 1,107.14. The award of attorneys fees and costs shall be joint and several against both defendants since both defendants pursued an appeal of this matter.

IT IS SO ORDERED.


Date: July 7, 2000

Timothy S. Hogan

United States Magistrate Judge

W. C. McLindon, Plaintiff, vs. Harry K. Russell, et al., Defendants.



Civil Action No. C-1-95-676



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION



108 F. Supp. 2d 842; 1999 U.S. Dist. LEXIS 22263



December 13, 1999, Decided

December 16, 1999, Filed







DISPOSITION: [**1] Plaintiff's request for attorney fees GRANTED.









COUNSEL: For W C MCLINDON, plaintiff: Alphonse Adam Gerhardstein, Laufman & Gerhardstein, Cincinnati, OH.


W C MCLINDON, plaintiff, Pro se, Lebanon, OH.


For W C MCLINDON, plaintiff: Lynn D Pundzak, Cincinnati, OH.


For OHIO DEPT. OF REHAB., JAMES E GUARD, defendants: Carol Anne Hamilton O'Brien, Ohio Attorney General, Corrections Litigation, Columbus, OH.


For HARRY RUSSELL, G WYATT, HOILETTE, GREG GAINEY, defendants: Carol Anne Hamilton O'Brien, Janet R Hill Arbogast, Ohio Attorney General, Corrections Litigation, Columbus, OH.



JUDGES: Jack Sherman, Jr., United States Magistrate Judge.



OPINIONBY: Jack Sherman, Jr.



OPINION: [*844]

ORDER

(Sherman, M.J.)

This matter is before the Court on plaintiff's motion for award of attorney's fees and costs (Doc. 53), defendant Guard's objection thereto (Doc. 55), plaintiff's reply in support of the motion (Doc. 57), defendant's supplemental authorities and objection (Docs. 58, 60), and plaintiff's supplemental memoranda. (Docs. 61, 62).

Plaintiff initially brought this action pro se pursuant to 42 U.S.C. § 1983 against Lebanon Correctional Institution (LeCI) defendants James [**2] Guard, Greg Gainey, Warden Harry Russell, Captain Wyatt, and Lt. Hoilette alleging a violation of his constitutional rights. Plaintiff alleged that defendant Guard assaulted him while defendants Gainey, Russell, Wyatt, and Hoilette failed to protect him from this assault. Summary judgment was granted against plaintiff on his Eighth Amendment failure to protect claim against defendants Russell, Wyatt, and Hoilette. (Doc. 17). Summary judgment was also granted against plaintiff on his equal protection, due process, and state law claims. Id. However, summary judgment against plaintiff was denied as to his use of excessive force claim against defendant Guard and his failure to protect claim against defendant Gainey. Id. Thereafter, Lynn D. Pundzak was appointed counsel for plaintiff. (Doc. 18).

Defendants Guard and Gainey moved for summary judgment, which motion was denied by Order of December 8, 1998. (Doc.36). On February 18, 1999, after a three day jury trial, a verdict was returned for defendant Gainey on plaintiff's Eighth Amendment deliberate indifference claim. The jury returned a verdict for plaintiff against defendant Guard on plaintiff's Eighth Amendment excessive force [**3] claim. A judgment was entered against defendant [*845] Guard in the amount of $ 1.00 nominal damages and $ 200.00 punitive damages. (Docs. 50, 51, 52). Plaintiff now moves for an award of $ 14,616.00 in attorney's fees and $ 870.28 in costs against defendant Guard as a prevailing party in this case pursuant to 42 U.S.C. § 1988. (Doc. 53). Plaintiff also moves for leave to file a supplemental petition for hours spent in preparing and arguing the fee application. Id.

Section 1988 provides, inter alia, that "in any action or proceeding to enforce [various specified civil rights provisions], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys' fee as part of the costs." 42 U.S.C. § 1988(b). Defendant Guard does not contest the fact that, pending appeal, plaintiff is a prevailing party for purposes of 42 U.S.C. § 1988. In view of the above, the Court finds that plaintiff is a prevailing party within the meaning of § 1988. Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Northcross v. Bd. of Ed. of Memphis School District, 611 F.2d 624, 633 (6th Cir. 1979), [**4] cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980).

Defendant does not challenge the reasonableness of plaintiff's request in terms of the hours or the hourly rate. Rather, defendant argues that plaintiff failed to achieve a sufficient degree of success to justify an award of fees under Farrar v. Hobby, 506 U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992), and that plaintiff's motion seeks relief barred by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d). If the Court determines that plaintiff's degree of success is de minimis and does not justify an award of attorney's fees, defendant's argument that an award of fees is barred by the PLRA is moot. The Court shall address each argument in turn.


I. An Award of Attorney's Fees is not Barred by Farrar v. Hobby.

As a prevailing party, plaintiff is entitled to recover a "reasonable" attorney's fee. Northcross, 611 F.2d at 636. The reasonableness of the fee bears a direct relationship to the degree of success obtained. Hensley, 461 U.S. at 438. In determining what is a reasonable [**5] fee, "the most critical factor is the degree of success obtained." Farrar v. Hobby, 506 U.S. 103, 114, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992). See also Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir. 1994). Defendant argues that the limited degree of success achieved by plaintiff in this case is not sufficient to justify an award of attorney's fees under Farrar.

In Farrar, the Supreme Court upheld the denial of attorney's fees in a case where the plaintiff sought $ 17 million in compensatory damages, but received only a one dollar nominal judgment. The Supreme Court stated that courts must "give primary consideration to the amount of damages awarded as compared to the amount sought." 506 U.S. at 114, quoting Riverside v. Rivera, 477 U.S. 561, 585, 91 L. Ed. 2d 466, 106 S. Ct. 2686(1986)(Powell, J., concurring). Citing the "technical" nature of the victory, the high court stated, "When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all." 506 U.S. at 115, internal citations [**6] omitted. The Court noted that plaintiff received only nominal damages in a litigation that "accomplished little beyond giving petitioners 'the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated' in some unspecified way." Id. at 114, quoting Hewitt v. Helms, 482 U.S. 755, 762, 96 L. Ed. 2d 654, 107 S. Ct. 2672 (1987). Courts must consider "the relationship between the extent of success and the amount of the fee award." 506 U.S. at 116, quoting Hensley, 461 U.S. at 438. In her concurring opinion in Farrar, Justice O'Connor [*846] set forth three oft-cited factors for determining the degree of success: (1) the extent of relief; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose served. Farrar, 506 U.S. at 122 (O'Connor, J., concurring). Lower courts have followed this three step analysis in considering attorney's fees claims. See, e.g., Phelps v. Hamilton, 120 F.3d 1126, 1132 (10th Cir. 1997); Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir. 1994); Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993). [**7] Both parties agree that these three factors control. (Doc. 55 at 6; Doc. 57 at 4).

A. Difference Between Recovery and Relief Sought

Defendant cites the disparity between the amount of damages sought in plaintiff's pro se complaint, $ 400,000, and the amount he was actually awarded in this case, $ 201.00. At first blush, the $ 1.00 in nominal and $ 200.00 in punitive damages appears disproportionate to the damages initially sought by plaintiff for the violation of his rights. (Doc. 2, Complaint). However, once counsel was appointed to represent plaintiff, it became clear that his primary objective in the underlying § 1983 action was not to obtain monetary damages, but rather to vindicate his Eighth Amendment right to be free from cruel and unusual punishment and to deter misconduct of prison guards in the future. Excerpts from counsel's closing argument bear this out:


What in the world would compensate somebody for getting the heck beat out of them? I don't know. And I'm really not even going to suggest a number to you, because that's something that I think is within your province. But I will tell you this: Mr. McLindon doesn't care if you give him one dollar or a hundred [**8] dollars. He wants you, with your verdict, to send a message to the guards at the Lebanon Correctional Facility and, in a broader sense, to all of the prison guards who work in the Ohio system. He wants you to tell these people by your verdict: The Constitution of the United States means something in Ohio and we're going to make sure that those provisions of the Constitution are upheld. . . . So, whether you award Mr. McLindon one dollar or a hundred dollars, doesn't matter. What matters is that you tell people like Officer Guard and Officer Gainey and every other C.O. that they cannot beat up, use excessive force against inmates, that those inmates have certain minimal rights when they're in that institution, and that we're not going to allow those minimal rights to be violated.


(Doc. 56 at 2-3). Clearly, the jury did just that when they found defendant Guard used excessive force against plaintiff in violation of his Eighth Amendment rights and awarded plaintiff $ 200.00 in punitive damages. Viewed in this light, the difference between the amount recovered, $ 201.00, and damages sought was not dramatic. See, e.g., Jones, (recovery of $ 2 in damages of $ 860,000 sought paled [**9] in comparison to discrepancy of $ 1 recovered of $ 17,000,000 sought in Farrar). Moreover, the plaintiff in Farrar achieved only nominal damages, evidencing merely a "technical" victory. Here, plaintiff received not only nominal, but punitive damages as well. The clear import of the punitive damages award was to send a message to corrections officers and deter future misconduct, and distinguishes this case from Farrar. In terms of the extent of relief obtained, the verdict in plaintiff's favor vindicated plaintiff's constitutional rights and was not de minimus.

B. Significance of Legal Issue

The vindication of plaintiff's "right to be free from cruel and unusual punishment is a significant legal issue in contrast to the injury to a business interest alleged in Farrar." Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir. 1994). As explained above, despite plaintiff's limited monetary recovery, his victory was not merely technical or de minimis. Farrar, 506 U.S. at 120. [*847] Rather, the jury's verdict reflects a clear finding that defendant Guard violated plaintiff's constitutional right to be free from the use of excessive force. Plaintiff [**10] prevailed on a significant substantive issue--the Eighth Amendment right to be free from cruel and unusual punishment. See, e.g., O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997)(vindication of pretrial detainee's right to be free from punishment without due process of law significant); Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir. 1994) (attorney's fees appropriate despite only nominal damages for successful Eighth Amendment claim where plaintiff recovered punitive damages and vindicated a significant right); Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.)(upholding award of attorney's fees against one of multiple defendants, despite $ 1 damage award and minimal equitable relief against defendant, where victory sent significant message to landlords who engage in racial steering), cert. denied, 513 U.S. 876, 130 L. Ed. 2d 135, 115 S. Ct. 205 (1994). C.f., Farrar, 506 U.S. at 574, 579 (plaintiff prevailed "in some unspecified way" on procedural due process claim against the "least culpable defendant"). Thus, plaintiff's success on his Eighth Amendment excessive force claim is a victory on a significant [**11] legal issue.

C. Public Goal

The award of punitive damages is sufficient to indicate a degree of success necessary to support an award of attorney's fees. The public purpose factor relates to whether the victory vindicates important rights and deters future violations. Farrar, 506 U.S. at 122 (O'Connor, J., concurring). "An award of punitive damages . . . is strong evidence that the victory served a public purpose." Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993). Punitive damages serve two important public interests: deterring future misconduct by defendants and others like them, and punishing the defendants for their misconduct. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19-20, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991). See also Farrar, 506 U.S. at 121-22 (O'Connor, J., concurring). In addition, a plaintiff bringing a civil rights action "does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." Jones, 29 F.3d at 424 (8th Cir. 1994), quoting Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993), [**12] cert. denied, 513 U.S. 932, 130 L. Ed. 2d 285, 115 S. Ct. 325 (1994). See also Koopman v. Water Dist. No 1 of Johnson County, Kansas, 41 F.3d 1417 (10th Cir. 1994)(despite being awarded only $ 1 in damages on successful due process claim, attorney's fees were warranted as plaintiff's victory had a significant impact on public employees, sent an important message and was not the result of protracted litigation), cert. denied, 516 U.S. 965, 133 L. Ed. 2d 337, 116 S. Ct. 420 (1995).

Thus, in this case, the punitive damage award distinguishes plaintiff's victory from those which are classified as merely technical or de minimis, including those cited by defendant. (Doc. 55 at 10). See Pino v. Locascio, 101 F.3d 235, 238-39 (2d Cir. 1996)($ 21 million sought in compensatory and punitive damages, $ 1 nominal damages awarded, no punitive damages); Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995)(affirming denial of fees to plaintiffs who received only $ 2 in nominal damages and no punitive damages when asking for $ 2 million); Maul v. Constan, 23 F.3d 143 (7th Cir. 1994)(no punitive damages [**13] awarded); Briggs v. Marshall, 881 F. Supp. 414, 418 (S.D. Ind. 1995), aff'd, 93 F.3d 355 (7th Cir. 1996)(same); Haywood v. Koehler, 885 F. Supp. 624, 629 (S.D.N.Y. 1995)(same), aff'd, 78 F.3d 101 (2d Cir. 1996); Hamilton v. Lokuta, 871 F. Supp. 314 (E.D. Mich. 1994)(recognizing that award of punitive damages is "strong evidence of a public purpose," but finding plaintiff received no punitive damages). The jury effectively chose to send a message to prison employees when it awarded punitive damages. Plaintiff's victory serves the [*848] public interest by providing a reminder to defendant Guard and to other corrections officers that they must maintain control over their tempers and refrain from the use of excessive force against inmates. Plaintiff's success in this case will serve to deter future violations of the civil rights of other inmates and serves the public interest.

The three factors outlined in Farrar weigh in favor of an award of attorney's fees in this case. Thus, the Court declines to invoke the Farrar "no fee at all" exception in this case.


II. PLRA Issues

Defendant argues [**14] that plaintiff's motion for attorney's fees requests relief that is "barred" by Sections 803(d) of the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-66, 42 U.S.C. § 1997e(d)(2), (3). (Doc. 55 at 2). In reality, the PLRA provisions cited by defendant would limit, but not altogether prohibit, the fees sought by plaintiff in this case. The PLRA's attorney's fees provisions are found at 42 U.S.C. § 1997e(d), which provides in relevant part:


(d) Attorney's 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 [ 42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that--

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under [ 42 U.S.C. § 1988]; and

(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief [**15] ordered for the violation.

(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.

(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, [the Criminal Justice Act,] for payment of court-appointed counsel. . . .

On June 1, 1999, the Court stayed its decision on attorney's fees in this matter pending the Supreme Court's review of Hadix v. Johnson, 143 F.3d 246 (6th Cir. 1998), cert. granted, 119 S. Ct. 508 (1998). (Doc. 59). The Sixth Circuit in Hadix held that the attorney's fees provision of the PLRA, 42 U.S.C. § 1997e(d), does not apply to cases pending on the effective date of the PLRA regardless of whether the work underlying the fee request was performed before or after the date of [**16] enactment of the PLRA. Id. at 256. On June 21, 1999, the Supreme Court held in Martin v. Hadix, 527 U.S. 343, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999), that the PLRA fee provisions set forth in section 1997e(d) apply to work performed after the date of enactment of the statute, even though a case may have been filed before April 26, 1996, the effective date of the PLRA. Although this case was filed on August 9, 1995 (Doc. 2), counsel for plaintiff was appointed on October 7, 1997. (Doc. 18). Therefore, any work performed by counsel in this matter occurred after the effective date of the PLRA. Thus, the PLRA attorney's fees provisions apply to counsel's request in this case.

The applicability of the PLRA to this case raises three issues: (1) Should the 25% fee shifting provision of 1997e(d)(2) apply and, if so, how much should be paid from the damage award in this case? (2) Does the PLRA cap attorney's fees at 150% of the judgment? (3) Do the PLRA [*849] fee caps set forth in 42 U.S.C. § § 1997e(d)(2) and (3) violate plaintiff's right to equal protection?


1. Should the 25% fee shifting provision of 1997e(d)(2) apply and, if [**17] so, how much should be paid from the damage award in this case?

Defendant contends that any award of attorney's fees to plaintiff is subject to the fee shifting provision of section 1997e(d)(2):


(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. . . .


42 U.S.C. § 1997e(d)(2). A plain reading of this provision indicates that the Court must deduct from the plaintiff's judgment some portion of attorney's fees awarded plaintiff's counsel. At issue is the amount of such deduction to be applied.

Defendant requests the Court to use the full 25 percent of the judgment to offset the award of attorney's fees. Plaintiff requests the Court to exercise its discretion and disallow any offset in this case.

Neither the plain language of the statute, nor the legislative history of the attorney's fees provisions of the PLRA provides guidance in determining the appropriate percentage of the damage award to be used to offset an attorney's fee award. One court has assumed the court has [**18] discretion to determine the appropriate portion, see Collins v. Algarin, 1998 U.S. Dist. LEXIS 83, 1998 W.L. 10234 at *10 (E.D. Pa. Jan. 9, 1998), while others have automatically applied the plaintiff's fee award against his damages provided that such award does not exceed 25 percent of the damages. See Searles v. Van Bebber, 64 F. Supp. 2d 1033, 1042 (D. Kan. 1999); Roberson v. Brassell, 29 F. Supp. 2d 346, 355 (S.D. Tex. 1998).

In this Court's opinion, it is reasonable to believe that Congress intended for prisoners to bear part of the responsibility for their legal representation. The language of the statute most closely resembles a contingency fee arrangement whereby an attorney is compensated out of the monetary award recovered by the client. See Collins, 1998 W.L. 10234 at *10. An apportionment of 25 percent of a damages award is a reasonable amount to require a prisoner to contribute for his legal representation. Thus, the Court will offset the amount of attorney's fees to be paid by defendant by 25 percent of the damage award to plaintiff. Twenty-five percent of the judgment of $ 201.00 is $ 50.25.


2. Does the PLRA cap attorney's [**19] fees at 150% of the judgment?

Defendant argues that the PLRA limits the total amount of fees that must be paid by defendant. Section 1997e(d)(2) states:


(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.


Defendant construes the second sentence in section 1997e(d)(2) to limit his attorney's fee liability to 150% of the judgment. Plaintiff argues that this provision is silent on the status of fee awards that exceed 150% of the judgment and that pre-PLRA section 1988 law applies in such instances.

In resolving this question of statutory construction, the Court must first look to the language of the statute itself and, if the statutory language is unclear or ambiguous, to legislative history. Toibb v. Radloff, 501 U.S. 157, 161, 115 L. Ed. 2d 145, 111 S. Ct. 2197 (1991); Blum v. Stenson, 465 U.S. 886, 896, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). [**20] See also Walton v. Hammons, 192 F.3d 590, 593-94 (6th Cir. 1999), citing West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991); Group Life & Health Ins. Co. v. Royal Drug Co., Inc., 440 U.S. 205, 210, 99 S. Ct. 1067, 59 L. Ed. 2d [*850] 261 (1979); Parker-Hannifin Corp. v. Commissioner of Internal Revenue, 139 F.3d 1090, 1095 (6th Cir. 1998). The intent of Congress is presumed from an expression of the ordinary meaning of the words used. Morales v. Trans World Airlines, 504 U.S. 374, 383, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992); Securities Industry Ass'n v. Board of Governors, 468 U.S. 137, 149, 82 L. Ed. 2d 107, 104 S. Ct. 2979 (1984). The plain meaning of a statute is determined by reviewing "the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. V. Cartier, Inc., 486 U.S. 281, 291, 100 L. Ed. 2d 313, 108 S. Ct. 1811 (1988). The Court must consider the PLRA's "full text, language as well as punctuation, structure and subject matter." United States Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455, 124 L. Ed. 2d 402, 113 S. Ct. 2173 (1993) [**21] (internal quotations omitted). "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). See also Dunn v. CFTC, 519 U.S. 465, 470, 137 L. Ed. 2d 93, 117 S. Ct. 913 (1997) ("Absent any 'indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.'").

"The meaning of a statute's words can also be 'enlightened by their context and the contemporaneous legislative history,' as well as the 'historical context of the statute.'" Walton, 192 F.3d at 594, quoting Edwards v. Aguillard, 482 U.S. 578, 594-95, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987). Where the statute is unambiguous and the plain language clear, the inquiry ends and the Court does not review underlying legislative history and intent to determine the appropriate construction. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992); [**22] Rubin v. United States, 449 U.S. 424, 430, 66 L. Ed. 2d 633, 101 S. Ct. 698 (1981). See also United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) ("Where ... the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms.'").

Where particular language is used in one section of a statute, but omitted from another, it is presumed that Congress did so intentionally, and not inadvertently. BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 128 L. Ed. 2d 556, 114 S. Ct. 1757 (1994); Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983); see also Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1197 (6th Cir. 1983)("It is a fundamental rule of statutory construction that inclusion in one part of a congressional scheme of that which is excluded in another part reflects a congressional intent that the exclusion was not inadvertent."). Every word in the statute is presumed to have meaning, and the Court must give effect to all the words to avoid an interpretation which would render words [**23] superfluous or redundant. Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (1st Cir. 1999); Ruiz v. Estelle, 161 F.3d 814, 820 (5th Cir. 1998)(interpreting a provision of PLRA concerning amendment of PLRA to grant intervention as of right to individual legislators), cert. denied, 119 S. Ct. 2046 (1999). However, the Court cannot rely on literal language of the statute where such reliance would lead to absurd results or an interpretation which is inconsistent with the intent of Congress. Appleton v. First Nat'l Bank of Ohio, 62 F.3d 791, 801 (6th Cir. 1995).

In the instant case, the language at issue states: "If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." 42 U.S.C. § 1997e(d)(2). The literal language of section 1997e(d)(2) addresses only the situation where the award of attorney's fees is not greater than 150 [*851] percent of the judgment. The provision does not address the circumstance where an attorney fee award exceeds 150 percent of the judgment.

Some courts have assumed, without discussion and in dicta, that the 150% cap [**24] applies to both situations. See Blissett v. Casey, 147 F.3d 218, 220 (2d Cir. 1998), cert. denied, 527 U.S. 1034, 119 S. Ct. 2392, 144 L. Ed. 2d 793 (1999)(PLRA "appears (in unclear language) to provide that the balance is not to be borne by the defendant to the extent it exceeds 150 percent of the judgment."); Collins v. Montgomery County Board of Prison Inspectors, 176 F.3d 679, 683 (3d Cir. 1999)(en banc)(same, but also recognizing that there might be some cases where a prisoner obtained extensive and important equitable relief and a modest award of damages and would not be limited by fee cap). Cf. Boivin v. Merrill, 66 F. Supp. 2d 50 (D. Me. 1999)(holding that a nominal damage award does not constitute a "monetary judgment" within the meaning of section 1997e(d)(2) and thus is not subject to the 150% cap).

One court which has specifically addressed this issue has held that attorney's fees are limited to a total award of 150% of the judgment. Walker v. Bain, 65 F. Supp. 2d 591 (E.D. Mich. 1999). The Walker court reasoned that nothing in the statute prohibits a court from awarding an attorney's [**25] fee in excess of 150% of the judgment. The court stated, however, that such an award would be meaningless since only two sources of funds exist to collect the award: the judgment and the defendants. The court went on to find that the amount that can be taken from the defendants is limited to 150% of the judgment and therefore any award in excess of 150% would "render the 150% cap meaningless." 65 F. Supp. 2d at 598.

This Court respectfully disagrees with the reasoning of the Walker court in this regard. Applying the rules of statutory construction outlined above, the Court finds that the second sentence of section 1997e(d)(2) simply does not apply in this case where an award of attorney's fees would exceed 150% of the monetary judgment. n1 The literal and plain meaning of the words utilized by Congress address only the situation where attorney's fees are less than 150% of the judgment: "If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." 42 U.S.C. § 1997e(d)(2)(emphasis added). The word "If" is a conditional word meaning "in the event that." Webster's Third New [**26] International Dictionary (1986), p. 1124. Construing this provision to apply in the instant case would render meaningless the word "if" because the condition which follows, to wit, an "award of attorney's fees . . . not greater than 150 percent of the judgment" simply does not exist in this case. Moreover, use of the word "If" implies the existence of a second alternative, an award of attorney's fees greater than 150% of the judgment.



n1 150 percent of the $ 201 judgment in this case would be $ 301.50. Although the Court has not yet set a dollar amount on any award of fees, plaintiff's request of $ 14,616.00 clearly exceeds this amount.


This interpretation is further bolstered by the provision which immediately follows. Where Congress meant to set specific limits on the amount of attorney's fees, it said so explicitly by using the language "no award shall." The provision immediately following section 1997e(d)(2) states "No award of attorney's fees in an action described in paragraph (1) shall be based [**27] on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, [the Criminal Justice Act,] for payment of court-appointed counsel. . . ." 42 U.S.C. § 1997e(d)(3) (emphasis added). Because the provision immediately following section 1997e(d)(2) utilizes the particular language "no award . . .shall" explicitly limiting the hourly rate of attorney's fees, it is presumed that the omission of such prohibitory language in section 1997e(d)(2) [*852] was purposeful and intentional on the part of Congress. Russello, 464 U.S. at 23. If Congress meant to limit attorney's fees to 150% of monetary judgment, it would have done so explicitly by the use of similar language "no award of attorney's fees shall exceed 150%." See, e.g., U.S. v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999).

Such a plain meaning construction does not render "absurd" results, nor an interpretation which is inconsistent with clearly expressed legislative intent. Dunn, 519 U.S. at 470; Appleton, 62 F.3d at 801. Where an award of attorney fees exceeds 150% of the judgment and section 1997e(d)(2) [**28] second sentence does not apply, defendant remains liable for a reasonable attorney's fee under section 1988 after application of the provision offsetting a portion (up to 25%) of the judgment. Under such circumstances, the Court would apply § 1997e(d)(1)(A) and (B) in conjunction with the normal rules of law governing an award of attorney's fees under section 1988 in determining the award. This methodology is in keeping with the rule that courts must read the statute as an integrated whole where Congress amends one part. Markham v. Cabell, 326 U.S. 404, 411, 90 L. Ed. 165, 66 S. Ct. 193 (1945). Congress is presumed to know the former law it is amending and the consequences of such amendments on such law. United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999). "The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning." Union Bank v. Wolas, 502 U.S. 151, 158, 116 L. Ed. 2d 514, 112 S. Ct. 527 (1991), citing Toibb v. Radloff, 501 U.S. 157, 164, 115 L. Ed. 2d 145, 111 S. Ct. 2197 (1991). Thus, the fact [**29] that Congress omitted from section 1997e(d)(2) the circumstance presented in the instant case where an award of attorney's fees would exceed 150% of the judgment is not sufficient grounds for refusing to give effect to the plain meaning of the statute. Union Bank, 502 U.S. at 158. Where, as here, the statutory language is plain, it is the Court's job to construe the statute and not to enlarge or supplement it with language that Congress omitted or "forgot." West Virginia Univ. Hosp. Inc. v. Casey, 499 U.S. 83, 100, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991), citing Iselin v. United States, 270 U.S. 245, 250-251, 70 L. Ed. 566, 46 S. Ct. 248 (1926).

Nor is such an interpretation inconsistent with any "clearly expressed legislative intention to the contrary." Consumer Product Safety Commission, 447 U.S. at 108. The legislative history concerning the PLRA is sparse. However, the clear overriding intent of Congress in passing the PLRA is apparent: to deter frivolous and abusive lawsuits by prisoners, H.R. Conf. Rep. No. 378, 104th Cong., 1st Sess. 166 (1995), and to "dramatically reduce the number of meritless prisoner [**30] lawsuits," 141 Cong. Rec. S14413 (daily ed. Sept. 27, 1995)(statement of Sen. Dole). n2 See also Hadix v. Johnson, 143 F.3d 246, 250, 254 (6th Cir. 1998), rev'd in part on other grounds, Martin v. Hadix, 527 U.S. 343, 119 S. Ct. 1998, 144 L. Ed. 2d 347 (1999). There is absolutely no legislative history showing that Congress intended discourage attorneys from representing prisoners in civil rights cases, see Boivin, 66 F. Supp. 2d at 51, or that a fee cap of 150% of a monetary judgment would further the objective of discouraging frivolous lawsuits. By definition, a claim that proceeds to trial and is successful enough to [*853] garner an award of monetary damages is not "frivolous." See Neitzke v. Williams, 490 U.S. 319, 328-29, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992); Lawler v. Marshall, 898 F.2d 1196, 1198-99 (6th Cir. 1990). Moreover, the fact that attorney's fee provisions exist to award prevailing prisoners attorney's fees indicates a continued Congressional intent to "ensure effective access to [**31] the judicial process for persons with civil rights claims, and to encourage litigation to enforce the provisions of the civil rights acts and constitutional civil rights provisions." Hernandez v. Kalinowski, 146 F.3d 196, 199 (3d Cir. 1998). See also Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992); S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976). Thus, the legislative history does not evince a contrary intent to limit attorney fees to 150% of the monetary judgment.



n2 Senator Dole, in his introductory remarks, referred to lawsuits brought over relatively minor matters such as "insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and . . . being served chunky peanut butter instead of the creamy variety." 141 Cong. Rec. S14413 (daily ed. Sept. 27, 1995)(statement of Sen. Dole). The PLRA was also intended to "help restore balance to prison conditions litigation," id., and to stop federal courts from "micromanaging our Nation's prisons." 141 Cong. Rec. S14418 (daily ed. Sept. 27, 1995)(statement of Sen. Hatch).


[**32]

For these reasons, the Court finds that the plain language of section 1997e(d)(2) does not apply in this case to limit attorney's fees to 150 percent of the monetary judgment.


3. Do the PLRA fee caps set forth in 42 U.S.C. § § 1997e(d)(2) and (3) violate plaintiff's right to equal protection?

Assuming, arguendo, that 42 U.S.C. § 1997e(d)(2) was construed to limit attorney's fees to 150 percent of the judgment, the Court finds that such provision, as well as the provision limiting the hourly rate of attorney's fees, 42 U.S.C. § 1997e(d)(3), violates the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution.

"It is well settled that the Fifth Amendment's Due Process Clause encompasses equal protection principles [of the Fourteenth Amendment]." Mathews v. De Castro, 429 U.S. 181, 182 n.1, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976). See also Weinberger v. Salfi, 422 U.S. 749, 768-770, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). The essence of equal protection is that similarly situated persons be treated alike. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). [**33] Classifications implicating a suspect class, such as race, or burdening a fundamental right are subject to a strict scrutiny analysis. Id. at 440. See also Clark v. Jeter, 486 U.S. 456, 461, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988). Classifications which burden neither a fundamental right nor target a suspect class will be upheld so long as they bear a rational relationship to a legitimate objective. Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996); Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993).

The classification drawn by the attorney's fees provisions at issue here is between successful prisoner civil rights litigants and successful non-prisoner civil rights litigants. Sections 1997e(d)(2) and (3) limit the recovery of attorney's fees to those representing prisoners in civil rights actions, while fees to attorneys representing non-prisoners are not so limited. Plaintiff argues that the Court should apply strict scrutiny to the PLRA attorney's fees provisions because these provisions burden a prisoner's fundamental right of access to the courts by hampering [**34] his ability to seek and secure counsel for the presentation of nonfrivolous claims.

Courts have universally rejected strict scrutiny review in PLRA challenges. See Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998), cert. denied, 525 U.S. 1139, 119 S. Ct. 1028, 143 L. Ed. 2d 38 (1999); Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997). See also Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999); Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997); Dougan v. Singletary, 129 F.3d 1424, 1427 (11th Cir. 1997), cert. denied, 524 U.S. 956, 118 S. Ct. 2375, 141 L. Ed. 2d 743 (1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), cert. denied, 524 U.S. 955, 118 S. Ct. 2374, 141 L. Ed. 2d 741 (1998). Neither prisoners [*854] nor indigents are a suspect class. Wilson, 148 F.3d at 604, citing Harris v. McRae, 448 U.S. 297, 323, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980); Hampton, 106 F.3d at 1286. Nor do prisoners have a constitutional right to appointed counsel in civil cases. Abdur-Rahman v. Mich. Dept. of Corrections, 65 F.3d 489, 492 (6th Cir. 1995). [**35]

Contrary to plaintiff's contention, a strict scrutiny analysis does not apply in this case because sections 1997e(d)(2) and (3) do not burden a prisoner's fundamental right of access to the courts. Although access to the courts is a fundamental right, Wilson, 148 F.3d at 605, the limitation on attorney's fees does not deny inmates "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Lewis v. Casey, 518 U.S. 343, 351, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996), quoting Bounds v. Smith, 430 U.S. 817, 825, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). The attorney's fees limitations do not preclude prisoners from filing and prosecuting their cases, the essence of this right. 518 U.S. at 351-53. The right espoused in Lewis is described as one enabling prisoners to present their grievances to the courts. Id. at 360. It does not, however, encompass the ability "to litigate effectively once in court." 518 U.S. at 354. While the PLRA provisions at issue may make it more difficult to obtain representation by private counsel, they do not [**36] deny prisoners the fundamental right of access to the courts.

Because the PLRA fee provisions neither target a suspect class nor implicate a fundamental right, the Court must uphold the attorney's fees provisions if the distinction drawn between successful prisoner civil rights litigants and successful non-prisoner civil rights litigants is rationally related to a legitimate government interest. See Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997), citing United States v. Kras, 409 U.S. 434, 446, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973); City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976). The provisions are entitled to a presumption of constitutionality, see Heller, 509 U.S. at 319; City of Cleburne, 473 U.S. at 440, and will be upheld "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Heller, 509 U.S. at 320, quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993). See also Sullivan v. Stroop, 496 U.S. 478, 485, 110 L. Ed. 2d 438, 110 S. Ct. 2499 (1990). [**37] Nevertheless, a distinction "whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational" will be found violative of the equal protection clause. City of Cleburne, 473 U.S. at 446, citing Zobel v. Williams, 457 U.S. 55, 61-63, 72 L. Ed. 2d 672, 102 S. Ct. 2309 (1982); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 535, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973).

As discussed previously, there is no legislative history identifying Congress's purpose in implementing the attorney's fees provisions in question. Nevertheless, it is clear that Congress's overall purpose in enacting the PLRA was to reduce the filing of frivolous lawsuits by prisoners. See p. 13 and n. 2, supra. While this goal in itself is clearly a legitimate one, see Wilson, 148 F.3d at 604, it is difficult to see how this goal is rationally advanced by limiting attorney's fees to successful prisoner plaintiffs.

A complaint is "frivolous" when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989); [**38] see also Denton v. Hernandez, 504 U.S. 25, 32, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992); Lawler v. Marshall, 898 F.2d 1196, 1198-99 (6th Cir. 1990). Frivolous prisoner civil rights cases are dismissed at the pre-service screening stage and on summary judgment. Pursuant to the PLRA, the [*855] Court must sua sponte review all prisoner complaints to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § § 1915A(a), (b). See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). This occurs "before docketing" or "as soon as practicable after docketing" and throughout the litigation process. Id. By the time a prisoner's case proceeds to a trial on the merits, several judicial determinations have been made that the case is not frivolous. Thus, where a prisoner proceeds to trial, is successful, and is awarded [**39] attorney fees, his case by definition is not "frivolous."

There is no rational connection between limiting attorney's fees in such cases and the goal of deterring the filing of frivolous cases which never make it past the screening stage in any event. The only conceivable purpose served by the attorney's fees cap is to limit the number of attorneys willing to represent prisoners because of reduced financial incentives. But this purpose smacks of a desire to harm prisoners, a politically unpopular group, which is clearly not a legitimate governmental interest. Cleburne, 473 U.S. at 447; Weinberger v. Salfi, 422 U.S. 749, 772, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). The limitation on attorney's fees set forth in sections 1997e(d)(2) and (3) is simply unrelated in any rational way to limiting the filing of frivolous prisoner lawsuits. "Any relationship between an award of attorney fees to successful prisoner plaintiffs and the initial filing of frivolous civil rights suits is, at best, so attenuated as to be irrational." Walker v. Bain, 65 F. Supp. 2d 591, 602 (E.D. Mich. 1999)(holding that fee cap in § 1997e(d)(2) is not rationally [**40] related to goal of deterring frivolous lawsuits).

The Court is aware that the Ninth Circuit in Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999) held to the contrary, finding that the attorney's fees limitations set forth in the PLRA are rationally related to curtailing frivolous prisoners' suits. The Madrid court stated that "it is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole." 190 F.3d at 996. While this statement is undoubtedly true, it is irrelevant. As explained above, frivolous lawsuits are dismissed by the Court early in the litigation process and never make it to trial, let alone to the point where attorney's fees are requested and awarded. The Madrid court fails to explain the connection between the attorney's fees caps and deterring frivolous prisoner filings.

Like the Madrid court, the district court in Collins v. Algarin, 1998 U.S. Dist. LEXIS 83, No. 95-4220, 1998 W.L. 10234, at *9 (E.D. Pa. Jan. 9, 1998)(unpublished) upheld the attorney's fees provision of section 1997(d) against [**41] an equal protection challenge. The Third Circuit, sitting en banc, affirmed this decision by an equally divided court. See Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 686 (3d Cir. 1999)(en banc). n3 The district court in Collins, like Madrid, looked to Congress's objective in the PLRA of deterring frivolous lawsuits. For the reasons discussed above, however, this Court declines to follow the decisions in Madrid or Collins. Rather, the Court is in agreement with the rationale set forth in Walker v. Bain, 65 F. Supp. 2d at 602-603 as it relates to this issue.



n3 Under the law of the Third Circuit, decisions of a divided en banc court are entitled to no weight. See Tunis Bros. Co., Inc. v. Ford Motor Co., 763 F.2d 1482, 1501 (3d Cir. 1985), vacated on other grounds, 475 U.S. 1105 (1986).


A second conceivable reason set forth for the imposition of the attorney's fees cap in prisoner civil rights cases is the [**42] protection of the public purse, from which attorney's fees under § 1988 are generally [*856] awarded. n4 Although protection of the public fisc is a legitimate goal, such goal cannot be achieved "by arbitrarily singling out a particular class of persons to bear the entire burden. . . ." Walker, 65 F. Supp. 2d at 604 (citation omitted). The Walker court, after reviewing decisions of the Supreme Court and lower courts which prohibited, on equal protection grounds, the conservation of public funds through the disparate treatment of similarly situated persons, concluded:


There is no defensible interest served by focusing on the distinction between prisoners and nonprisoners, since it bears no relationship whatever to the purpose of either the attorney fee provision of § 1988 or the cap on such fees provided by § 1997e(d)(2). The only manner in which the distinction between prisoners and nonprisoners relates to the goal of protecting the public fisc is by making prisoners (or the pro bono attorney) bear the entire extent of that burden for no other reason than the fact that they are prisoners (or attorneys who have undertaken to represent prisoners). Such an arbitrary [**43] discrimination, as the cases discussed above demonstrate, is not a permissible means of guarding the state's purse. Accordingly, I conclude that there is no rational relationship between the distinction made by § 1997e(d)(2) and the purported goal of protecting the public fisc.


65 F. Supp. 2d at 604-605 (internal quotations omitted), citing Plyler v. Doe, 457 U.S. 202, 227, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982); Shapiro v. Thompson, 394 U.S. 618, 633, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Rinaldi v. Yeager, 384 U.S. 305, 309-310, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966); Silbowitz v. Secretary of Health, Educ. & Welfare, 397 F. Supp. 862, 867 (S.D. Fla. 1975), summarily aff'd. sub nom. Califano v. Silbowitz, 430 U.S. 924, 51 L. Ed. 2d 768, 97 S. Ct. 1539 (1977); Westberry v. Fisher, 297 F. Supp. 1109, 1115 (D. Me. 1969).



n4 Because § 1983 only permits suits against individuals acting under color of state law, attorney's fees are generally awarded against public officials and, by extension, the public treasury of the states. See Walker, 65 F. Supp. 2d at 604 and n.6.


[**44]

This Court agrees. Sections 1997e(d)(2) and (3) are not rationally related to the goal of protecting the public purse because that purpose is accomplished by arbitrarily singling out a particular class of persons, prisoners, to bear the entire burden of achieving the goal. Such arbitrary discrimination is an impermissible means of protecting the public fisc. "When Congress arbitrarily saddles one group with the burden of protecting the public fisc, it acts irrationally." Id.

Congress chose to award attorney fees to successful civil rights litigants by enacting § 1988. Congress cannot now deny fees to some successful civil rights plaintiffs simply because they also hold the status of prisoner. The Court cannot conceive of any other rational basis or reason for awarding attorney's fees for successful prisoner civil rights litigant on an unequal basis with other successful civil rights plaintiffs.

Accordingly, the Court finds that the fee caps set forth in sections 1997e(d)(2) and (3) are not rationally related to any legitimate governmental interests and violate the equal protection component of the Fifth Amendment. Thus, plaintiff is entitled to an award of attorney's fees without [**45] regards to the limits set forth in those provisions.


III. Attorney's Fees Award

Plaintiff requests an award of attorney fees of $ 14,616.00. Pursuant to 42 U.S.C. § 1988:


In any action or proceeding to enforce a provision of section [ ] . . . 1983 . . . of this title, ... the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.

[*857]


42 U.S.C. § 1988(b). In addition, plaintiff's request for attorney's fees is governed by section 803(d) of the PLRA which requires that the fee request be directly and reasonably incurred in proving a violation of plaintiff's rights and that the fee be proportional to plaintiff's relief. 42 U.S.C. § 1997e(d)(1); see Walker v. Bain, 65 F. Supp. 2d at 597; Clark v. Phillips, 965 F. Supp. 331 (N.D.N.Y. 1997).

Section 1997e(d)(1)(A) requires that the fee be "directly and reasonably incurred in proving an actual violation of the plaintiff's rights." 42 U.S.C. § 1997e(d)(1)(A). In the instant case, plaintiff proved by a preponderance of the evidence [**46] that his Eighth Amendment rights under the Constitution were violated. A review of the attorney's fees application submitted by counsel for plaintiff shows that the time spent by counsel was incurred in proving and seeking redress for that violation. Therefore, the Court finds that the attorney's fees sought were directly and reasonably incurred in proving plaintiff's constitutional rights were violated. See Clark, 965 F. Supp. at 334, citing Weaver v. Clarke, 933 F. Supp. 831, 836 (D. Neb. 1996).

Section 1997e(d)(1)(B) further requires that the amount of the fee be "proportionately related to the court ordered relief for the violation" or that "the fee was directly and reasonably incurred in enforcing the relief ordered for the violation." 42 U.S.C. § 1997e(d)(1)(B)(i) & (ii). The Court has found only a few reported decisions construing this provision. One court has found that this "proportionality" requirement merely codifies pre-existing law regarding attorney's fees under 42 U.S.C. § 1988. See Boivin v. Merrill, 66 F. Supp. 2d 50, 52 (D. Me. 1999). In Boivin, the Court found [**47] that an award of attorney fees of $ 3,892.50 was reasonable and appropriate even though nominal damages of only $ 1.00 was awarded. The court, relying on the rationale set forth in the First Circuit in O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997) and Farrar v. Hobby, 506 U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992), found the fees requested to be "eminently reasonable" in view of "the deterrent impact of the litigation on those who otherwise would violate a prisoner's constitutional rights and the need to provide attorneys with an incentive to represent litigants seeking to vindicate such rights." 66 F. Supp. 2d at 52.

In Clark v. Phillips, 965 F. Supp. 331, 334 (N.D.N.Y. 1997), the court held that an award of $ 7921.96 in attorney's fees was "proportionately related" to the jury award of $ 10,000.00 in damages. The court found that the plaintiff's fee award was 79% of the judgment awarded and did not appear disproportional to the judgment.

In Searles v. Van Bebber, 64 F. Supp. 2d 1033, 1042 (D. Kan. 1999), the court, without explanation or analysis, found that a fee award $ 30,621.83 was sufficiently [**48] proportional to jury award of actual damages of $ 3,650 and punitive damages of $ 42,500.

In determining proportionality in the instant case, the Court finds that a dollar for dollar comparison of attorney's fees to the monetary judgment awarded is not appropriate in a case such as this where despite an award of nominal damages, plaintiff nevertheless obtained a significant vindication of his constitutional rights. Rather, a comparison of the fees requested to the Farrar factors, to wit: the extent of relief, the significance of the legal issue on which plaintiff prevailed, and the public purpose served, 506 U.S. at 122, is an appropriate measure of proportionality. See Boivin, 66 F. Supp. 2d at 52. When viewed in this light, plaintiff's attorney's fees request is proportionally related to plaintiff's relief. As explained above, at pp. 3-6, supra, plaintiff vindicated an important constitutional right to be free from cruel and unusual punishment. Plaintiff also obtained an award of punitive damages which sent a significant message to prison guards and officials that the use of excessive force against inmates is prohibited. The award of punitive damages [**49] will also undoubtedly serve to deter future [*858] similar misconduct. Thus, the Court finds that the relief obtained by plaintiff, to wit, an award of monetary damages, the vindication of an important constitutional right, and the deterrence effect of the punitive damages award, is proportionally related to the attorney's fees requested.

Finding that plaintiff has satisfied the requirements of section 1997e(d)(1)(A) and (B), the Court must now determine the amount of the fee to be awarded. n5 The recognized method for calculating an award of attorney's fees is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The Court must consider the degree of success obtained by plaintiff in determining an appropriate award of attorney's fees. Id. at 436. See also Farrar, 506 U.S. at 114; Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1169 (6th Cir. 1996); Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir. 1994). There is no decisive formula or rule for determining the degree of success [**50] achieved. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Hensley, 461 U.S. at 436-37. Where the Court decides to eliminate or reduce the hours of service documented by counsel's affidavit, it must identify the hours eliminated and articulate its reasons for any such reduction. Northcross v. Bd. of Educ. of Memphis City Schools, 611 F.2d 624, 636-37 (6th Cir. 1976), cert. denied, 447 U.S. 911, 64 L. Ed. 2d 862, 100 S. Ct. 2999, 100 S. Ct. 3000 (1980). Hourly rates should not exceed the market rate necessary to encourage competent lawyers to undertake representation. Reed v. Rhodes, 179 F.3d 453, 472-73 (6th Cir. 1999); Coulter v. Tennessee, 805 F.2d 146, 150 (6th Cir. 1986). See also Blum v. Stenson, 465 U.S. 886, 897, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984)(a reasonable attorney fee is one that is adequate to attract competent counsel, yet does not produce a windfall to attorneys).



n5 As noted above, defendant concedes that plaintiff is a prevailing party under 42 U.S.C. § 1988. See p. 2, supra.


[**51]

Plaintiff filed this action pro se. On October 7, 1997, counsel Pundzak was appointed to represent plaintiff in anticipation of this matter being tried to a jury on a claim of use of excessive force claim against defendant Guard and a claim of failure to protect against defendant Gainey. In preparation for trial, counsel conducted at least seven discovery depositions, defended plaintiff's deposition, served and answered discovery requests, and successfully opposed defendants' motion for summary judgment. After a three day jury trial, a verdict was returned for defendant Gainey on plaintiff's Eighth Amendment deliberate indifference claim, but for plaintiff against defendant Guard on plaintiff's Eighth Amendment excessive force claim.

Counsel performed these tasks ably and professionally. She submits an affidavit documenting an expenditure of 91.35 hours in the representation of plaintiff, excluding the time spent on the fee application. Attorney Pundzak requests an hourly rate of $ 160.00. Defendant does not dispute that plaintiff is a prevailing party in this matter. With the exception of the issues raised in Sections I and II above, defendant does not take issue with the hours [**52] expended or rate requested by Attorney Pundzak. Nor does defendant object to reimbursement of the costs expended.

After a careful review of the affidavit submitted by counsel in support of her request for attorney's fees, the Court finds that $ 14,616.00 is a reasonable attorney's fee award in this case. The Court accepts the hourly rate of $ 160.00 for Ms. Pundzak as this rate was previously approved by the Court in United States ex rel. Pedicone v. Mazak Corp., 807 F. Supp. 1350 [*859] (S.D. Ohio 1992)(Beckwith, J.). The Court also finds the time spent by Ms. Pundzak to be reasonable. The Court calculates Ms. Pundzak's her legal time to be 91.35 hours (at $ 160.00 per hour) resulting in an award of $ 14,616.00. The Court declines to reduce the lodestar amount despite plaintiff's lack of success on the claim against defendant Gainey. There can be little doubt that plaintiff's excessive force and deliberate indifference claims involved "a common core of facts" and were based on "related legal theories" and that much of counsel's time "was devoted generally to the litigation as a whole." Hensley, 461 U.S. at 435. See also Thurman, 90 F.3d at 1169 ("When [**53] claims are based on a common core of facts or are based on related legal theories, for the purpose of calculating attorney fees they should not be treated as distinct claims, and the cost of litigating the related claims should not be reduced."). In addition, the Court awards plaintiff an award of costs of $ 870.28. See Northcross, 611 F.2d at 639. Accordingly, the Court determines that plaintiff's request for attorney fees is GRANTED in the amount of $ 14,616.00 and costs of $ 870.28. The attorney's fee awarded is offset by $ 50.25 (25% of the judgment), § 1997e(d)(2), p.9 supra, resulting in a total award of $ 14,565.75.

Finally, plaintiff requests that he be permitted to submit an application for additional time and expenses through the close of the case. Plaintiff's request is hereby GRANTED. See Northcross, 611 F.2d at 637; Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979), cert. denied, 444 U.S. 880, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979). See also Hernandez v. Kalinowski, 146 F.3d 196 (3d Cir. 1998)(fees for preparing and litigating motion requesting fees and costs are [**54] recoverable under the PLRA).

IT IS SO ORDERED.


Date: 12/13/99

Jack Sherman, Jr.

United States Magistrate Judge