Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Defendants Must Challenge Joint and Several Liability for Attorney Fees on Initial Appeal or Issue is Waived

On May 22, 2012, the Ninth Circuit Court of Appeals held that defendants found liable for civil rights violations had failed to challenge in their initial appeal an order that they were jointly and severally liable for attorney’s fees, and thus had “waived their ability to challenge that order subsequently.”

Anthony Albert Jimenez sued ten Los Angeles County deputy sheriffs under 42 U.S.C. § 1983 for violating his constitutional rights while he was held as a pretrial detainee at a Los Angeles County jail in 1998. The allegations involved four separate incidents of excessive force that took place over three days.

The jury returned a verdict in favor of Jimenez as to four of the defendants. The district court awarded damages against those defendants as follows: John Franklin, $1; Gilbert Duron, $5,000 in compensatory damages and $10,000 in punitive damages; Ryan Bergner, $50,000 in compensatory damages and $50,000 in punitive damages; and Gabriel Frank Gonzalez, $100,000 in compensatory damages and $150,000 in punitive damages, totaling $365,001.

The district court then awarded $505,671.40 in attorney’s fees and $24,595.94 in costs. Jimenez was ordered to pay $5,000 of the attorney fee award, leaving the balance of $500, 671.40 owed by the defendants. The district court ordered “the payment of the fees to be joint and several to insure that Plaintiff’s counsel is paid.”

Los Angeles County, which represented the defendants, “intimated that [it] may decide to not indemnify Defendant Gonzalez ... because, in the County’s view, he is in prison and is judgment proof.”

Duron, Franklin, Bergner and Gonzalez appealed the judgment but did not appeal the district court’s order holding them jointly and severally liable for Jimenez’s attorney fees.
The Ninth Circuit upheld the judgment in October 2009. See: Jimenez v. Franklin, 333 Fed.Appx. 299 (9th Cir. 2009). On remand, the district court awarded an additional $41,830.10 in attorney’s fees, bringing the total fee award to $547.501.50, which was 150% of the damages awarded to Jimenez. This kept the fee award to the limit set by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d)(2).

The county eventually paid the compensatory awards for all four defendants as well as the punitive damages, except for the $150,000 award against Gonzalez. The county also paid all but $225,000 of the attorney fee award, which was the amount it deemed attributable to Gonzalez.

After the county paid $2.50 on Franklin’s behalf ($1.00 in damages plus $1.50 in attorney fees), he moved for an order stating he had fully satisfied the judgment against him, arguing that § 1997 capped his portion of the attorney fees at 150% of the damages award. The district court granted his motion and entered a satisfaction of judgment, and the parties stipulated such an order would similarly apply to Duron and Bergner. Jimenez appealed.

The Ninth Circuit held that § 1997 “limits the award, not simply the collection of the award.” Any argument that the attorney fee award against each defendant exceeded 150% of the damages award was deemed waived, as it had not been raised by the defendants in their initial appeal.

“Defendants became liable for the entire fee award as soon as the district court entered that award and ordered that the liability be joint and several,” the Court of Appeals wrote. “Each defendant’s liability exceeded 150 percent of his individual damages from that point forward,” because each defendant was jointly and severally liable for the entire attorney fee award.

If the defendants “wanted to challenge the joint and several liability, they should have done so” during their initial appeal. As they had failed to make that argument, the issue was waived. Accordingly, the Ninth Circuit vacated the district court’s satisfaction of judgments. See: Jimenez v. Franklin, 680 F.3d 1096 (9th Cir. 2012).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Jimenez v. Franklin