Wolff v. Moore

• Decision Date: 07 July 2000
• Docket Number: No. C-1-96-708.,C-1-96-708.
• Citation: 104 F.Supp.2d 892
• Parties: Richard K. WOLFF, Plaintiff, v. Thomas E. MOORE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 892

104 F.Supp.2d 892

Richard K. WOLFF, Plaintiff, v. Thomas E. MOORE, et al., Defendants.

No. C-1-96-708.

United States District Court, S.D. Ohio, Western Division.

July 7, 2000.

Robert Franklin Laufman, Paul Montague Laufman, Laufman & Gerhardstein, Cincinnati, OH, for Richard K Wolff, plaintiff.

Thomas Russell Smith, Bunke Henkel Haverkamp Smith & Riehl 1, Cincinnati, OH, for Thomas E Moore, defendant.

Carol Anne Hamilton O'Brien, Brian M Zets, Ohio Attorney General 2, Columbus, OH, for Sanford Whitlow, Raymond Fugate, defendants.

William R Kirschner, U.S. Department of Justice, Civil Division/Federal Programs Branch, Washington, DC, Sharon Janine Zealey, United States Attorney's Office, Cincinnati, OH, for USA, movant.

ORDER

HOGAN, United States Magistrate Judge.

This matter is before the Court on plaintiff's motion for award of attorneys' fees and costs. (Doc. 96).

Plaintiff is a former inmate at the Lebanon Correctional Institution (LeCI). On July 22, 1996, plaintiff, through counsel, filed this action pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights under the United States Constitution. The original complaint named Thomas E. Moore, a former corrections officer at LeCI, as the defendant. (Doc. 1). Plaintiff alleged that on October 15, 1995, defendant Moore used excessive force against him, resulting in a broken nose, swelling of both eyes, and other facial injuries. On April 28, 1997, plaintiff amended the complaint to add corrections officers Sanford Whitlow and Raymond Fugate as defendants in this matter. (Doc. 11). Plaintiff alleged that defendants Whitlow and Fugate conspired with Officer Moore to use excessive force against plaintiff. Plaintiff also alleged that defendant Whitlow was deliberately indifferent to plaintiff's safety during the commission of the use of excessive force by defendant Moore.

On July 2, 1998, defendants moved to dismiss this action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), contending that plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, 110 Stat. 1321, and that such failure divested this Court of jurisdiction over this matter. (Docs.29, 30). Plaintiff also moved for partial summary judgment on the issue of exhaustion of administrative remedies. (Doc. 35). Prior to a ruling on these motions, defendant Fugate was dismissed as a defendant.

On July 31, 1998, the Court denied plaintiff's and defendants' motions. (Doc. 47). The Court held that claims of excessive use of force are not "prison conditions" within the meaning of 42 U.S.C. § 1997e(a) and therefore not subject to the administrative exhaustion requirement. (Doc. 47 at 9).

On August 7, 1998, after a five day jury trial, a verdict was returned for plaintiff against defendant Moore on the Eighth Amendment excessive force claim in the amount of $8,250 in compensatory damages and $45,000 in punitive damages. A verdict was returned for plaintiff against defendant Whitlow on the Eighth Amendment deliberate indifference claim in the amount of $30,000 in punitive damages. (Doc. 59). The Court subsequently granted motions to alter or amend the judgment to reflect that the jury award of $8,250 in compensatory damages is joint and several against both defendants Moore and Whitlow. (Doc. 72).

Plaintiff then moved for an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988 against defendants Moore and Whitlow. (Doc. 71). The Court found that plaintiff is a prevailing party within the meaning of § 1988, Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Northcross v. Bd. Of Ed. Of Memphis City Schools, 611 F.2d 624, 633 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 3000, 64 L.Ed.2d 862 (1980), and granted plaintiff's motion for attorneys' fees. (Doc. 81). However, pursuant to 42 U.S.C. § 1997e(d)(2), the Court offset the amount of attorneys' fees to be paid by defendants by 25 percent of the damage award to plaintiff. Plaintiff was awarded $48,406.50 for attorneys' fees and $2,956.90 in costs for a total award of $51,363.40. The Court ordered that $20,812.50 of the damages award to plaintiff be applied toward satisfying the $51,363.40 attorneys' fees awarded against defendants. Defendants were ordered to pay counsel for plaintiff $30,550.90 in attorneys' fees and expenses, to be awarded jointly and severally against both defendants. (Doc. 81 at 3).

Thereafter, defendant Whitlow moved for relief from judgment, arguing that the Court incorrectly determined that claims of excessive use of force are not "prison conditions" under 42 U.S.C. § 1997e(a) and therefore not subject to the PLRA exhaustion requirement. Whitlow also argued that plaintiff failed to exhaust his administrative remedies with respect to his deliberate indifference claim against Whitlow justifying relief from judgment. This motion was denied by Order of December 17, 1998. (Doc. 82).

Defendants appealed the Court's decisions on exhaustion of administrative remedies and ruling on an evidentiary issue concerning polygraph testimony at the trial. The Sixth Circuit Court of Appeals found that claims of excessive force are "prison conditions" subject to the PLRA exhaustion requirement found in 42 U.S.C. § 1997e(a). See Freeman v. Francis, 196 F.3d 641 (6th Cir.1999). However, the Court of Appeals affirmed the District Court's finding that plaintiff nevertheless exhausted his administrative remedies in this case. In addition, the Sixth Circuit found that the District Court erred in permitting testimony concerning a witness's willingness to take a polygraph examination. However, the Court of Appeals found such error to be harmless and affirmed the judgment of the District Court. (Doc. 94).

On January 18, 2000, plaintiff moved for an award of attorneys' fees and costs for post trial and appellate work on this action. (Doc. 96). In the memorandum in support of the motion, plaintiff argued that the limitation on the hourly rate for attorney's fees imposed by the PLRA is unconstitutional. Pursuant to 28 U.S.C. § 2403(a) and Fed.R.Civ.P. 24(c), the Court certified to the United States Attorney General that the constitutionality of the attorney's fees provision of the PLRA set forth in 42 U.S.C. § 1997e(d)(3) has been drawn into question in this case and invited the United States to intervene. (Doc. 100). The Court subsequently granted the motion of the United States to intervene in this matter. (Doc. 107).

On June 8, 2000, the Court heard oral argument from the parties and intervenor on the motion for attorneys' fees.

This matter is before the Court on the motion for attorneys' fees and costs (Doc. 96), the memorandum in support of the motion (Doc. 97), defendants' memorandum in opposition to the motion for attorneys' fees (Doc. 98), the United States' memorandum of law concerning the challenged provisions of the PLRA (Doc. 103), defendants' supplemental memoranda in opposition to the motion for attorneys' fees (Docs.104, 105), and plaintiff's reply memorandum. (Doc. 106).

I. The Prison Litigation Reform Act's Limitation on Attorney's Fees Violates Plaintiff's Right to Equal Protection.

Sections 803(d) of the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-66, amended the provisions for awarding attorney's fees to successful prisoner civil rights plaintiffs. See 42 U.S.C. § 1997e(d). Section 1997e(d) provides:

(d) Attorney's Fees

(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 [42 U.S.C. § 1988], 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 [42 U.S.C. § 1988]; 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, [the Criminal Justice Act,] for payment of court-appointed counsel....

At issue in this case is section 1997e(d)(3) which limits the hourly rate for attorney's fees in successful prisoner civil rights cases to 150% of the hourly rate set forth in 18 U.S.C. § 3006A(d)(1), or $112.50 per hour.¹ Plaintiff contends that the fee cap set forth in § 1997e(d)(3) violates the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution.² Defendants and the United States argue that the fee cap is rationally related to legitimate governmental interest and withstands equal protection scrutiny.

Because an enactment of the federal government is at issue, the equal protection principles of the Fifth Amendment's Due Process Clause apply in this case. Federal legislation must meet the same equal protection standards applicable to the states set forth in the Fourteenth Amendment. Mathews v. de Castro, 429 U.S. 181, 182 n. 1, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976). See also Weinberger v. Salfi, 422 U.S. 749, 768-770, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). At the heart of equal protection is the principle that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473...