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California Prisoner Wins Ban on Dungeons and Dragons; Attorney Fees Awarded

Kevin Bruce, a California state prisoner won a lawsuit in federal district
court challenging the constitutionality of Folsom Prison's ban on the
possession of material associated with the game Dungeons and Dragons (D &
D). As a result, the defendants vacated Bruce's disciplinary conviction for
having D & D paraphernalia, returned that paraphernalia to him, and revised
the rule banning D & D. The district court awarded undisclosed attorney
fees to Bruce's lawyer. The jury also awarded Bruce undisclosed damages as
well. The defendants appealed.

On appeal, the U.S. Court of Appeals for the 9th Circuit found that Bruce
had been transferred to another prison before the case was disposed of;
thus the revision of the rule banning D &D didn't benefit him, so his
lawyer couldn't have attorney fees associated therewith. However, the
expunged disciplinary conviction and return of his D & D paraphernalia did
benefit him, and his lawyer could have fees associated with those actions.
The case was remanded to the district court to recalculate the attorney
fees. This opinion is unpublished. See: Bruce v. Mueller, 66 Fed. Appx. 721
(9th Cir. 2003).

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Related legal case

Bruce v. Mueller

KEVIN BRUCE, Plaintiff - Appellee, v. GLENN A. MUELLER, Defendant, and J. CARLSON, et al., Defendants - Appellants.



No. 02-15863



UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT



66 Fed. Appx. 721; 2003 U.S. App.



May 14, 2003, Argued and Submitted, San Francisco, California

May 30, 2003, Filed



NOTICE: [**1] RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.



PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-96-02227-JFM. John F. Moulds, Magistrate Judge, Presiding.



DISPOSITION: Affirmed in part, reversed in part, and remanded.



COUNSEL: For KEVIN BRUCE, Plaintiff - Appellee: Michael J. George, Esq., John E. Carne, Esq., REED SMITH CROSBY HEAFEY LLP, Oakland, CA.



For KEVIN BRUCE, Plaintiff - Appellee: Raymond A. Cardozo, CAAG - CALIFORNIA ATTORNEY GENERAL'S OFFICE, San Francisco, CA.



GLENN A. MUELLER, Defendant: No appearance.



For J. CARLSON, L. MELCHING, C. MICHELSON, D. PEIPER, B. RAINES, Defendants - Appellants: Stephen W. Perkins, DAG, ATTORNEY GENERAL'S OFFICE, Stephen W. Perkins, Esq., ATTORNEY GENERAL'S OFFICE OF THE STATE OF CALIFORNIA, Sacramento, CA.



JUDGES: Before: HAWKINS and W. FLETCHER, Circuit Judges, and KING, ** Senior District Judge.



** Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.



OPINION:

[*722] MEMORANDUM *



* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.



[**2]

Folsom State prison officials appeal the district court's award of attorney's fees and witness costs following Appellee Kevin Bruce's successful First Amendment challenge to a prison ban on possession of Dungeons & Dragons materials, claiming that because the three actions taken by prison officials--returning Bruce's materials, expunging his disciplinary conviction, and revising "Attachment J," which prohibited possession of the materials--were not explicitly "court-ordered," they may not be the basis for an award of attorney's fees under 42 U.S.C. § 1997e(d).

While the court's order granting summary judgment to Bruce on his First Amendment claim did not explicitly order these actions, it is clear that Bruce effectively achieved the relief in question when he proved that a First Amendment violation had occurred. The return of his materials and the clearing of his record was not a "voluntary change in conduct," Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 605, 149 L. Ed. 2d 855, 121 S. Ct. 1835 (2001), but was ultimately required by the district court's finding, even if the actions [*723] were not specifically [**3] ordered. The summary judgment order constituted a declaration of rights, and created a "'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." Buckhannon, 532 U.S. at 604 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989)). Therefore, Bruce is entitled to such attorney's fees as are proportionately related to the actions taken by prison officials which were a vindication of Bruce's rights. See 42 U.S.C. § 1997e(d)(1)(B)(i).

However, the revision of Attachment J of Folsom's prison policies had no effect on Bruce, as he had been transferred to another prison prior to the grant of summary judgment. Thus, it cannot be said that Bruce is a prevailing party as to that relief. Remand is therefore required for the district court to determine an award of attorney's fees that is proportional to the two items of relief Bruce garnered in addition to the monetary relief he was awarded by the jury.

The district court's award of witness costs to Bruce was not an abuse of discretion.

AFFIRMED in Part, [**4] REVERSED in Part, and REMANDED. Each party shall bear its own costs on appeal.