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PLRA Attorney Fee-Award Criteria "Directly Incurred" and "Degree Of Success" Explained

PLRA Attorney Fee-Award Criteria "Directly Incurred" and "Degree Of Success" Explained

by John E. Dannenberg

After a successful jailhouse lawyer retaliation suit (see: PLN, March 2003, p.20, $90,169 Plus Injunction In California Retaliation Suit), California prison official defendants appealed the award of post-Prison Litigation Reform Act (PLRA) attorney fees. The Ninth Circuit U.S. Court of Appeals rejected defendants' fee cap argument, holding that there is no overall PLRA fee cap when injunctive relief is obtained but remanded for recalculation of plaintiff's fees consistent with the degree of success achieved. (Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003); see PLN, July 2004, p.20.) On September 24, 2004, the U.S. District Court (E.D. Cal.) issued an Order on fees, which offers useful guidance on how this task should be approached.

Defendants had requested an across-the-board fee reduction in proportion to the degree of success" of just the damages award, that is, based upon the ratio of the actual monetary award to the amount suggested to the jury. The court disagreed. The proper test was to pro-rate the damages-related fee allowance to just those hours billed for efforts directed at proving damages. But since no hours were billed here for this effort and thus no fees charged for it, no reduction was due (Dannenberg, 338 F.3d, supra, at 1075).

Next, defendants argued that because there were five claims, but plaintiff only prevailed on two, all fees should be reduced by 3/5, or 60%. This, too, was rejected. The court instead disallowed the actual hours billed in pursuit of the unsuccessful claims (which were very minor), allowing recovery of fees expended on the two major and successful claims.
But the court did parse the remaining fees to disallow those involved in deposing witnesses whose testimony was not introduced at trial. PLN readers should note that arguably, such disallowance might obtain even where a plaintiff succeeded on all claims, because if one didn't use the deposition at trial but won, then plainly those fees/depositions were not related to the degree of success achieved. The court also disallowed fees associated with deposing the four of the eight defendants who were exonerated by the jury of any violation of plaintiff's constitutional rights.

Finally, the court reduced fees incurred during the trial phase by 20% to reflect plaintiff's degree of success in winning both claims, albeit against only four of eight defendants. Dannenberg had argued that he was entitled to all fees because they were ultimately proportionately related to the court-ordered relief' (42 U.S.C. § 1997e(d)(1)(B)(i)) of expungement of his prison records, and that because he needed to prove only that one defendant violated his rights to so prevail, the fraction of liable to non-liable defendants was irrelevant. The court disagreed, and, overall, reduced the attorney fee award from $70,722 to $55,900. (Pre-PLRA fees, damages, punitive damages, costs and expenses were not appealed and thus remained unchanged.)

From the history of the case, several valuable strategies to avoid pitfalls of the PLRA emerge for attorneys representing prisoner § 1983 litigants to consider.

(1) Do not shrink from vigorously pursuing injunctive relief just because concurrent damages available might be dwarfed by the attorney fees incurred to gain the injunctive relief.

(2) Where multiple constitutional violations are alleged (e.g., retaliation and equal protection), ask that the jury verdict forms permit a general" (i.e., either-or) verdict. This means that each juror may determine whether any one of the violations was proven, as to each named defendant thereby increasing your odds of winning.

(3) If multiple defendants are named, but some have only minor roles, delete them from the suit to maximize your percentage of fee recovery.
(4) If you depose witnesses, put their statements into evidence to prevent disallowance of fee recovery for the depositions.

(5) Devote the maximum percentage of effort to the most promising claims, when multiple claims are presented. Additionally, delete weaker claims to prevent dilution of the fee recovery. See: Dannenberg v. Valadez, U.S.D.C. (E.D. Cal.) No. CIV S-96-0027 JFM P. (Order, September 24, 2004).

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Related legal case

Dannenburg v. Valadez