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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 '03,
p.20, $90,169 Plus Injunction In California Retaliation Suit), 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 '04,
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

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

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 abused 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

(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

Dannenberg v. Valadez