by Jacob Barrett
On July 15, 2022, the federal court for the District of Nevada awarded $560,587.50 in fees to attorneys representing a state prisoner who earlier settled his medical neglect claim against the state Department of Corrections (DOC) for $7,500. In addition, DOC agreed to amend its policy effectively denying surgery to any future prisoner left with “one good eye.”
Clifford Miller shot himself in the head in 1999, losing sight in both eyes. One eye recovered before he was incarcerated by DOC in 2001. But repeated requests to see an eye surgeon for the other went ignored for nearly two decades before DOC finally relented, and Miller had the surgery in June 2020. Sadly, it was not successful.
By that time he also had a three-year-old suit in the Court filed in the court pursuant to 42 U.S.C. § 1983, accusing DOC Dr. Romeo Aranas of deliberate indifference to Miller’s serious medical need, in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment.
After Miller filed his suit pro se in 2017, he picked up counsel from Reno attorney Terri Keyser-Cooper. With her help, he amended his complaint to include a claim under the Americans with Disabilities Act, 42 U.S.C. ch. 126, § 12101, et seq.
Miller’s original prison complaint mentioned only the Eighth Amendment claim that he later made in his suit, after DOC denied his grievances. To comply with the requirement that prisoners exhaust administrative remedies laid out in the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, he was thus obliged to file a separate grievance mentioning the ADA claim.
But DOC had a policy preventing prisoners from filing two grievances over the same complaint – a policy backed up with a disciplinary sanction. Miller filed his second grievance anyway, as required by PLRA. In return, DOC sanctioned him. So his amended complaint included not only his ADA claim but also a claim that prison officials retaliated against him for making it. As his attorney argued, “Miller was in an impossible Catch-22 position, damned if he filed an ADA grievance and damned if he didn’t.” On December 7, 2021, just before trial was set to begin, Miller’s request for injunctive relief was amended to include a provision forcing DOC to align its grievance and disciplinary policies with PLRA. See: Miller v. Aranas, 2021 U.S. Dist. LEXIS 235842 (D. Nev.).
On March 4, 2022, the parties notified the Court that they had reached a settlement. Under its terms, DOC agreed to pay Miller $7,500 and strike the disciplinary action from his prison record. DOC also agreed to bring its policies in conformance with an earlier Ninth Circuit ruling in Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014), when the appellate court determined that deliberate indifference could be demonstrated by the “one good eye” policy. Having sight reduced to one eye only “is not a trifling matter,” the Ninth Circuit said then. [See: PLN, June 2015, p.40.]
So DOC vowed not to exclude prisoners from consideration for eye surgery because they have one good eye left. Following the Ninth Circuit’s reasoning in Colwell, though, DOC carved out exceptions: if the surgery “is not medically indicated”; if the “condition is misdiagnosed”; if “surgery would not help”; or in the case of a “genuine difference of opinion” between prisoner and doctor or between doctors.
When the Court later considered attorney’s fees and costs, the PLRA once again became an issue. DOC argued that the law limited Miller to $11,250. Miller argued that Armstrong v. Davis, 318 F3d 965 (9th Cir 2003), held the PLRA did not apply to prisoners with ADA claims, since that case relied on a section of the ADA providing a court in its discretion may order reasonable attorney fees to the prevailing party.
The Court agreed with Miller, calculating a total award of $562.535.62 using the lodestar method set out in Kerr v. Screen Guild Extras, Inc., 526 F2d 67 (9th Cir. 1975). Of that, its July 2022 ruling ordered DOC to pay $449,872.50 in fees and $1,518.22 in costs to Keyser-Cooper; $98,560 in fees for her fellow attorney Diane K. Vaillancourt of Santa Cruz, California; and $12,155 for Miller’s other attorney, Peter C. Weatherall of Henderson. The remaining $429.90 from the award went to Plaintiff to reimburse his litigation costs. See: Miller v. Aranas, USDC (D. Nev.), Case No. 3:17-cv-00068.
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