The United States Court of Appeals for the Second Circuit once again reminded civil rights attorneys why they should be especially cautious when filing certain lawsuits on behalf of prisoners. Congress enacted 42 U.S.C. § 1988, which provides for an award of “a reasonable attorneys’ fee as part of the costs” in federal civil rights litigation as a means of enforcing constitutionally protected rights. In enacting the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997 et seq (“PLRA”), Congress, however, drastically reduced the ability of prisoners to enforce their constitutionally protected rights.
The PLRA provides that in any action in which attorneys’ fees are awarded pursuant to 42 U.S.C. § 1988 the award of attorneys’ fees must be calculated pursuant to a specific statutory mechanism, which provides the following:
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that–
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney’s fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney’s fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to section 1988 of this title.
42 U.S.C. § 1997e(d).
The courts have construed this language as imposing two restrictions on an award of attorneys’ fees. First, the district court must impose some portion of the monetary judgment, not to exceed 25 percent, to pay a portion of the fee award. The remaining portion of the fee award is to be paid by the defendant but only if the award is not greater than 150 percent of the judgment. “In sum, the plain language of § 1997e(d)(2) signals that no attorney’s fee award greater than 150% of the monetary judgment may be entered against a defendant.” Shepherd v. Goord, – – F.3d – – (2d Cir. 2011), 2011 WL 5528587, at *3.
Indeed, every Federal Circuit Court to weigh in on the issue has found that the PLRA imposes a fee cap of 150% of the monetary judgment awarded to a prisoner-plaintiff. See, e.g., Boivin v. Black, 225 F.3d 36, 40 (1st Cir. 2000); Torres v. Walker, 356 F.3d 238, 242 (2d Cir. 2004); Parker v. Conway, 581 F.3d 198, 201 (3d Cir. 2009); Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir. 2001); Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001); Johnson v. Daley, 339 F.3d 582, 583 (7th Cir. 2003) (en banc); Keup v. Hopkins, 596 F.3d 899, 905 (8th Cir. 2010); Dannenberg v. Valdez, 338 F.3d 1070, 1074-75 (9th Cir. 2003); Robbins v. Chronister, 435 F.3d 1238, 1241-44 (10th Cir. 2006) (en banc).
The Second Circuit recently reaffirmed its position on this list in Shepherd v. Goord, – -F.3d – – (2d Cir. 2011), 2011 WL 5528587. In Shepherd, the prisoner-plaintiff was the prevailing party in an action brought pursuant to 42 U.S.C. § 1983 to recover for violations of his First Amendment right to free exercise of religion and his Eighth Amendment right to be free from cruel and unusual punishment. The plaintiff-prisoner prevailed on his First Amendment claim, but the jury returned a verdict of only $1.00. Plaintiff’s counsel submitted an initial fee application of $99,485.25. The Second Circuit affirmed the district court’s award of attorney’s fees of $1.50, of which ten cents was ordered to be satisfied from the monetary judgment itself.
As the court recognized, “[t]o be sure, capping attorney’s fees for a $1.00 monetary award at $1.50 is the practical equivalent of no fee award at all. But that is not a sufficient reason to deny the statutory language its plain meaning, which permits no exception for minimal or nominal monetary judgments.” Id. at *4.
Given the complexities of litigating constitutional torts, it is necessary to find an experienced civil rights attorney who is capable of avoiding these pitfalls.
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