Parmelee v. O'NEEL

• Decision Date: 25 March 2010
• Docket Number: No. 82128-3.,82128-3.
• Citation: 168 Wash.2d 515,229 P.3d 723
• Court: Washington Supreme Court
• Parties: Allan PARMELEE, Petitioner, v. Robert O'NEEL; Robert Monger; Harold Clarke; Eldon Vail; Lynn Delano; Kathryn Bail; Carroll Riddle; Sandra Carter; John Palmer; John Aldana; Sandra Diimel; Jerry McHaffie; Tina Adams; Nathan Cornish; Michael Erlenmeyer; unknown others, and The community partners of each named Defendant, Respondents.

229 P.3d 723

168 Wash.2d 515

Allan PARMELEE, Petitioner, v. Robert O'NEEL; Robert Monger; Harold Clarke; Eldon Vail; Lynn Delano; Kathryn Bail; Carroll Riddle; Sandra Carter; John Palmer; John Aldana; Sandra Diimel; Jerry McHaffie; Tina Adams; Nathan Cornish; Michael Erlenmeyer; unknown others, and The community partners of each named Defendant, Respondents.

No. 82128-3.

Supreme Court of Washington, En Banc.

Argued November 10, 2009.

Decided March 25, 2010.

Hank L. Balson, Public Interest Law Group, PLLC, Seattle, WA, for Petitioner.

Amanda Marie Migchelbrink, Attorney at Law, Daniel John Judge, Attorney General's Office, Olympia, WA, for Respondents.

Sarah A. Dunne, Nancy Lynn Talner, ACLU, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union of Wash. Foundation.

Daniel Ford, Columbia Legal Services, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union of Wash. Foundation & Columbia Legal Services.

Roger Ashley Leishman, Dustin Eric Buehler, Davis Wright Tremaine L.L.P., Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union of Wash. Foundation, Legal Voice, The Center for Justice & University Legal Assistance.

OWENS, J.

¶ 1 This case allows us to consider whether a litigant who is successful in getting an appellate court to vacate a penal infraction and to declare a Washington statute unconstitutional is a prevailing party under 42 U.S.C. § 1988(b) entitled to attorney fees. Allan Parmelee, a prisoner in the custody of Clallam Bay Corrections Center (CBCC), received an infraction for inflammatory language in a letter that complained about the treatment of prisoners at the facility. The Court of Appeals vacated the infraction after ruling that the Washington criminal libel statute, former RCW 9.58.010 (1935), repealed by Laws of 2009, ch. 88, § 1, was unconstitutional. Because Parmelee succeeded on a significant issue of litigation in his appeal, we hold that he is entitled to attorney fees for the issues that he successfully litigated, namely the vacation of his infraction and the declaration of the statute's unconstitutionality.

FACTS

¶ 2 On July 20, 2005, Parmelee, a prisoner in the custody of CBCC, wrote a letter to Harold Clarke, the secretary of the Department of Corrections (DOC). In that letter, in which he complained about the treatment of prisoners at CBCC, Parmelee wrote, "I have been puzzled by the widespread hostilities growing ever tense sic at CBCC since I've been here. I have finally discovered that the formula has to do with a verified reliable source indicating Superintendant Sandra Carter is anti-male — a lesbian. ... Having a man-hater lesbian as a superintendant is like throwing gas on an already smoldering fire." Clerk's Papers at 717-18. CBCC did not allow the letter to be sent out of the institution, and on October 13, 2005, CBCC infracted Parmelee for committing the misdemeanor of criminal libel against Superintendant Carter. This infraction was based on a prison rule that at the time banned prisoners from "committing any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules." Former WAC 137-28-260(517) (2004), amended by WAC 137-25-030(517) (2006). Specifically, the DOC charged Parmelee with violating former RCW 9.58.010.¹

¶ 3 Parmelee was found guilty of the infraction because the DOC determined that the written letter was libelous and slandered the reputation of Superintendant Carter. He received 10 days of isolation and 10 days of loss of privileges. Parmelee filed suit in Clallam County Superior Court, claiming libel, slander, violations of his right to due process and the freedom of speech, and retaliation. Parmelee then filed a motion for judgment on the pleadings and for declaratory and injunctive relief. Respondents filed a response to the motion for judgment on the pleadings and a cross motion to dismiss. The court commissioner denied Parmelee's motion for judgment on the pleadings and granted the motion to dismiss.

¶ 4 Parmelee appealed the ruling to the Court of Appeals, arguing that the criminal libel statute, former RCW 9.58.010, was unconstitutional both on its face and as applied to him, that he had stated a cognizable claim for retaliation, and that he was entitled to attorney fees on appeal under 42 U.S.C. § 1988. Parmelee sought both damages and injunctive and declaratory relief. The Court of Appeals ruled that the criminal libel statute was "facially unconstitutional for overbreadth and vagueness" and vacated Parmelee's infraction. Parmelee v. O'Neel, 145 Wash.App. 223, 228, 186 P.3d 1094 (2008). The Court of Appeals further held that the trial court erred when it dismissed Parmelee's retaliation claim and remanded the case to the superior court for Parmelee to "assert his claims for damages against DOC for violating his substantive due process rights, for violating his First Amendment rights, and for retaliating against him for exercising his rights." Id. at 228-29, 186 P.3d 1094. Finally, the Court of Appeals held that Parmelee was not entitled to attorney fees unless he successfully litigated his retaliation claim in the superior court. Id. at 249, 186 P.3d 1094. Parmelee petitioned for this court's review, which we granted. Parmelee v. O'Neel, 165 Wash.2d 1023, 203 P.3d 380 (2009).

ISSUES

¶ 5 1. Is a plaintiff who successfully obtains the vacation of an infraction and the invalidation of a statute, but not monetary damages, entitled to attorney fees as a prevailing party under 42 U.S.C. § 1988?

¶ 6 2. Does the Prison Litigation Reform Act of 1995 (PLRA), under 42 U.S.C. § 1997e, bar an award of attorney fees?

¶ 7 3. Did the Court of Appeals err by conditioning an attorney fees award on the success of only one claim on remand?

STANDARD OF REVIEW

¶ 8 "An attorney fees award under 42 U.S.C. § 1988 is reviewed under an abuse of discretion standard; discretion is abused when its exercise is manifestly unreasonable or based on untenable grounds or reasons." Ermine v. City of Spokane, 143 Wash.2d 636, 641, 23 P.3d 492 (2001).

ANALYSIS

I. Parmelee is a Prevailing Party Entitled to Attorney Fees under 42 U.S.C. § 1988

¶ 9 42 U.S.C. § 1988 is a statute designed "to encourage the vindication of civil rights through the mechanism of private lawsuits." Duranceau v. City of Tacoma, 37 Wash.App. 846, 849, 684 P.2d 1311 (1984). One means by which the statute encourages private lawsuits is by establishing that courts grant attorney fees to "prevailing parties" in cases of civil rights violations. 42 U.S.C. § 1988(b).² The key question in this case is whether Parmelee is a "prevailing party" entitled to attorney fees. The meaning of the term "prevailing party" has been subject to some debate, but the United States Supreme Court has helped to clarify the term's meaning. In Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Supreme Court ruled that a plaintiff becomes "a prevailing party ... if the plaintiff has succeeded on `any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit,'" and that the plaintiff then "crosses the threshold to a fees award of some kind." Id. at 791-92, 109 S.Ct. 1486 (second alteration in original) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); see Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)). The Supreme Court stated that "the touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Texas State Teachers Ass'n, 489 U.S. at 792-93, 109 S.Ct. 1486. The Supreme Court has also ruled that "whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement." Farrar, 506 U.S. at 111, 113 S.Ct. 566. "In short, a plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id. at 111-12, 113 S.Ct. 566.

¶ 10 The Supreme Court has also held that victory in a preliminary injunction is not sufficient to make a plaintiff a prevailing party where that plaintiff eventually loses on the merits, as the victory is "ephemeral" and the plaintiff has merely won the battle but lost the war. Sole v. Wyner, 551 U.S. 74, 86, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007). In Sole, the Supreme Court did not consider the question of whether victory in a claim for permanent injunctive relief would make a plaintiff a prevailing party, id. at 86, 127 S.Ct. 2188, as the clear implication was that any party who gains a permanent "`material alteration of the legal relationship of the parties'" becomes a prevailing party, even without winning monetary damages. Id. at 82-83, 127 S.Ct. 2188 (quoting Texas State Teachers Ass'n, 489 U.S. at 792-93, 109 S.Ct. 1486).

¶ 11 We hold that Parmelee is a "prevailing party" as that term has been interpreted by the Supreme Court. As part of his broader suit, Parmelee brought a claim for vacation of his infraction, arguing that the criminal libel statute was unconstitutional on its face. In response, the Court of Appeals found that the Washington criminal libel statute was "unconstitutional for overbreadth and vagueness" and vacated his infraction. Parmelee, 145 Wash.App. at 228, 186 P.3d 1094. We find that his infraction is certainly a "`significant issue in litigation'" and that having it vacated "`achieved some of the benefit Parmelee sought in bringing suit,'" even if it did not result in monetary damages. Farrar, 506 U.S. at 109, 113 S.Ct. 566 (internal quotation marks omitted) (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933). Parmelee's actions...