Roberson v. Brassell

• Decision Date: 03 December 1998
• Docket Number: No. Civ.A. H-96-1780.,Civ.A. H-96-1780.
• Citation: 29 F.Supp.2d 346
• Parties: Reginald C. ROBERSON, Plaintiff, v. Mark BRASSELL, Defendant.
• Court: U.S. District Court — Southern District of Texas

29 F.Supp.2d 346

Reginald C. ROBERSON, Plaintiff, v. Mark BRASSELL, Defendant.

No. Civ.A. H-96-1780.

United States District Court, S.D. Texas, Galveston Division.

December 3, 1998.

COPYRIGHT MATERIAL OMITTED

Jeffrey James Putnam, Royston Rayzor Vickery & Williams, Houston, TX, for Reginald C. Roberson, plaintiff.

Robert Bruni Maddox, Office of Attorney General, Austin, TX, for Mark Brassell, Officer, defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Pending before the court is Plaintiff Reginald C. Roberson's ("Roberson") Motion for Attorneys' Fees and Costs (# 81). Roberson seeks recovery of attorneys' fees and costs as the prevailing party in his action against Defendant Mark Brassell ("Brassell").

Having reviewed the pending motion, the submissions of the parties, the pleadings, the joint pretrial order, and the applicable law the court is of the opinion that Roberson's motion for attorneys' fees and costs should be granted in part and denied in part.

II. Background

On February 6, 1996, Roberson instituted this civil rights action as a pro se plaintiff against Brassell, a prison correctional officer, asserting an Eighth Amendment claim for the use of excessive force under 42 U.S.C. § 1983. On February 26, 1998, the court appointed Jeffrey J. Putnam ("Putnam") to represent Roberson. Putnam secured the assistance of Douglas C. Elliott ("Elliott"), a fellow associate at the law firm of Royston, Rayzor, Vickery & Williams, L.L.P., as well as that of a paralegal, to litigate the case. Roberson's claims were tried to a jury for three days, ending August 12, 1998. At trial, Roberson asserted that, while confined in the Ferguson Unit of the Texas Department of Criminal Justice, he was injured on December 31, 1995, as the result of the use of excessive force by Brassell. The jury returned a verdict in favor of Roberson, awarding him $30,000.00 in actual damages and $35,000.00 in punitive damages.

In his motion for attorneys' fees and costs, Roberson seeks an award of $33,818.00 in attorneys' fees for 237.6 hours of time expended on this litigation, calculated as follows:

Putnam: 186.3 hours at $150.00 per hour=$27,945.00

Elliott: 43 hours at $125.00 per hour=$5,375.00

Paralegal: 8.3 hours at $60.00 per hour = $498.00

Roberson also seeks costs totaling $1,155.07.

Brassell contends that the amount of fees sought and the hours billed are not justified. In addition, Brassell maintains that the Prison Litigation Reform Act ("PLRA") applies to this case, thereby placing substantial limits on Roberson's recovery. Roberson disagrees, asserting that because the PLRA ("the Act") was enacted on April 26, 1996, it has no application to the case, which was filed before the passage of the Act.

III. Analysis

A. Application of the PLRA

Roberson's motion for attorneys' fees and costs raises an unsettled issue of whether the PLRA applies to attorneys' fees in a case that was pending when the PLRA was enacted, yet the attorney was not appointed and did not begin or complete his work until after the PLRA's effective date. The federal courts of appeal are split as to the PLRA's applicability to attorneys' fees in this situation, and the Fifth Circuit has never addressed the issue.

Section 803 of the PLRA amends 42 U.S.C. § 1997e, which applies to suits brought by prisoners challenging their conditions of confinement. Subsection (d) provides for attorneys' fees in such cases, stating:

(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.

42 U.S.C.A. § 1997e.

"The question of whether to apply the PLRA to a case pending on its enactment is governed by the Supreme Court's ... opinion in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)." Strickland v. Rankin County Correctional Facility, 105 F.3d 972, 973 (5th Cir.1997). "Landgraf prescribes a two-stage analysis to answer this question." Id. In Landgraf, the Supreme Court explained:

When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2062, 138 L.Ed.2d 481 (1997); United States v. Rocha, 109 F.3d 225, 228 (5th Cir.1997); Strickland, 105 F.3d at 973.

Although the Fifth Circuit has not addressed the PLRA's attorneys' fee provisions, it has ruled on the PLRA's "in forma pauperis" and "three strikes" provisions. See Strickland, 105 F.3d at 974 (holding that "prisoners whose appeals were pending on the effective date of the PLRA must refile to this court in conformity with the amended statute before we consider their appeals on the merits"); see also Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir.1996) (holding that the PLRA's "three strikes" provision applies to appeals that were pending on its effective date). In determining the PLRA's applicability, the Fifth Circuit has applied the approach endorsed in Landgraf. See id.

Utilizing the Landgraf analysis, the Fifth Circuit, along with other circuits, has noted that the PLRA contains no effective date provision. See Strickland, 105 F.3d at 973-74 (citing Adepegba, 103 F.3d at 385-86; Green v. Nottingham, 90 F.3d 415, 419 (10th Cir.1996)); see also Cooper v. Casey, 97 F.3d 914, 921 (7th Cir.1996); Jensen v. Clarke, 94 F.3d 1191, 1203 (8th Cir.1996); but see Alexander S. v. Boyd, 113 F.3d 1373, 1385-86 (4th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 880, 139 L.Ed.2d 869 (1998). Upon finding no effective date provision, the Fifth Circuit has ascertained that Congress did not expressly prescribe the PLRA's proper reach.

Turning to step two, the issue is whether application of the PLRA attorneys' fees provision would "impair rights, increase liability for past conduct, or attach new duties to completed transactions." See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; see also Strickland, 105 F.3d at 974. If the attorneys' fees relate to work started or completed before the PLRA's enactment, most courts answer step two in the affirmative and do not apply the PLRA. See Blissett v. Casey, 147 F.3d 218, 220-21 (2d Cir.1998), petition for cert. filed, 67 U.S.L.W. 3259 (U.S. Sept. 23, 1998) (No. 98-527) (finding the PLRA did not apply to work completed before enactment); Hadix v. Johnson, 144 F.3d 925, 947 (6th Cir.), cert. granted, ___ U.S. ___, 119 S.Ct. 508, ___ L.Ed.2d ___ (1998) (holding that the "award of attorney fees for legal work performed prior to the enactment of the PLRA is governed by 42 U.S.C. § 1988, and not § 803(d) of the PLRA"); Glover v. Johnson, 138 F.3d 229, 250 (6th Cir.1998) ("allowing the PLRA's limitations on attorney fees to alter the standards and rate for awarding fees for legal work completed prior to passage of the PLRA results in an impermissible retroactive effect by attaching significant new legal burdens to the completed work, and by impairing rights acquired under preexisting law"); Cooper, 97 F.3d at 921 (holding that application of the PLRA to preenactment work "would attach (without clear indication of congressional intent to do so) new legal consequences to completed conduct, namely the Services rendered by the plaintiffs' counsel in advance of the passage of the new Act"); Jensen, 94 F.3d at 1201-03 (concluding that application of the attorney's fees provisions in § 803(d) to Plaintiffs and their attorneys who had worked for "literally years" on the assumption that their fees would be based on 42 U.S.C.A. § 1988 would be "manifestly unjust"); but see Alexander S., 113 F.3d at 1388 (holding that the PLRA applies to post-enactment fee awards, regardless of whether the work was performed before the statute was enacted). If, however, the attorneys' fees relate to post-enactment work, most courts apply the PLRA, finding that this will not "impair rights, increase liability for past conduct, or attach new duties" to those completed transactions. See Inmates of D.C. Jail v. Jackson, 158 F.3d 1357, 1358 (D.C.Cir.1998) (finding that "the attorney's fees limitations in the PLRA apply to all work performed after the effective date of the Act"); ...