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$90,169 Plus Injunction in California Retaliation Suit

by John E. Dannenberg

In a jailhouse lawyer retaliation suit where both expungement of prison records and $9,000 in damages were awarded, the US District Court (E.D. Calif.) awarded $2,000 for expenses, $8,447 in costs and $70,812 in attorney fees because the Prison Litigation Reform Act (PLRA) 150%-of-damages fee cap provision (42 USC § 1997e(d)(2)) did not apply. Additionally, the statutory reverse fee award was minimized to 1 % because the jury awarded punitive damages.

John Dannenberg, a life prisoner at the California Medical Facility (CMF) in Vacaville, CA and a PLN contributing writer, sued Associate Wardens Bobby Houston and Carolyn Graham, Investigations Lt. Thomas Hartman and Counselor Karen Mendonza when he was placed in segregation and later transferred to San Quentin State Prison in retaliation for his successful jailhouse lawyering. The 42 U.S.C. § 1983 complaint alleged violation of First Amendment [retaliation for jailhouse lawyering], Eighth Amendment [reduced medical care], Fourteenth Amendment due process [taking legal materials] and equal protection [disparate treatment among workers] rights.

Dannenberg's requested temporary restraining order (TRO) for ongoing medical treatment was granted. His legal papers were returned. The remaining claims (retaliation and equal protection) survived summary judgment and proceeded to trial.

Dannenberg had assisted prisoner Dexter Homan by winning a writ of mandate ordering the Director of Corrections to cease using an illegal State Budget Act rider to deny overnight visiting for prisoners convicted of specified sex crimes. See: Homan v. Gomez, 37 Cal.App.4th 597 (1995) .

Thereafter, Dannenberg was placed in segregation pending "investigation" - with no rules violation. Rather, an "informational chrono" accused Dannenberg [an electrical engineer] of "ingratiating" himself to staff so as to use his electronics expertise as a ruse to gain knowledge of the prison electronic alarms. But Dannenberg, one of dozens of prisoners employed to work on CMF's alarms for more than a decade, was the only one singled out for this inferred security concern. The essence of the ensuing lawsuit was that the alarm issue was simply a pretext to cover up the real agenda of retaliation for Homan.

Jury instructions permitted a general verdict, wherein each juror could find either that a defendant had acted in retaliation or had treated Dannenberg disparately from other alarm workers.

Upon the jury's general verdict that his constitutional rights had been violated, the court granted his motion for injunctive relief (expungement of records that might prejudice him at parole hearings), citing 18 U.S.C. §3626(a)(1) [prospective relief] "to remedy the constitutional violation." The list of 29 records ordered expunged included those with any mention of alarm/security concerns or segregation placement: the original 128-B chrono, CDC-114-D lock-up orders, CDC-154 movement sheets, classification chronos and call sheets, computer files, CDC-602 appeals/responses, litigation material, memoranda, and parole board documentation.

Defendants next objected to Dannenberg's request for all attorney fees and costs, arguing that such award be capped per the PLRA for work related to either dismissed claims or to damages. But the Court noted that the essential relief sought was always expungement, i.e., injunctive relief.

Although there is no Ninth Circuit case law discussing the PLRA fee cap in hybrid cases where, as here, both injunctive relief and damages were awarded, the court relied on Boivin v. Black, 225 F.3d 36, 40, nt.4 (1st Cir. 2000); Faulk v. Charrier, 262 F.3d 687, 703, nt.17 (8th Cir. 2001); and Walker v. Bain, 257 F.3d 660, 667, nt.2 (6th Cir. 2001) for the proposition that the 150% fee cap for damages does not apply in hybrid awards. Finding the requested costs, expenses and billed hours reasonable, the court awarded 100% recovery, using the PLRA fee rate of $112.50 /hr., except for pre-PLRA hours billed at $175/hr.

As to the PLRA's reverse damages award provision, wherein a successful prisoner litigant must then return "up to 25%" of his winnings to offset the guilty defendant's attorney fees, the court followed Morrison v. Davis, 88 F.Supp.2d 799 (S.D. Ohio 2000) [where "the jury has sent a signal that one defendant should pay punitive damages, a minimal assessment is within the court's discretion"], ordering that 1 % of the damage award, or $90, revert back to the defendants. See: Dannenberg v. Valadez, CIV-S-96-0027 JFM P (E.D. Calif. 2002 (unpub.)).

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Related legal case

Dannenberg v. Valadez