United States District Court, N.D. Oklahoma
LADONA A. POORE, Plaintiff,
STANLEY GLANZ et al., Defendants.
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
the Court are plaintiff's Motion for Attorney's Fees
(Doc. 239), the Report and Recommendation (R&R) of United
States Magistrate Judge Paul J. Cleary (Doc. 300) regarding
the Motion, and the plaintiff's Objection (Doc. 303) to
the R&R. Following an eight-day jury trial and a $25, 000
verdict in favor of plaintiff, the plaintiff moved, pursuant
to 42 U.S.C. § 1988, for attorney fees and expenses
totaling $659, 159.56. (Doc. 239 at 7). In response, the
defendants argued that the plaintiff's attorney fees must
be capped pursuant to the Prison Litigation Reform Act
(PLRA), because, at the time that plaintiff's lawsuit was
initiated on December 23, 2011, the plaintiff was
incarcerated in the Tulsa County Jail. (See Doc. 259
at 1 [citing 42 U.S.C. § 1997e]).
to the PLRA, when attorney fees are sought following a
judgment in an action brought by a prisoner who is confined
to jail, “[i]f the award of attorney's fees is not
greater than 150 percent of the judgment, the excess shall be
paid by the defendant.” 42 U.S.C. § 1997e(d)(2).
Pursuant to the statute, “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.” Id. Thus, defendants argue that
plaintiff's total attorney's fees must be limited to
150% of the $25, 000 compensatory damages judgment and that
25% of the capped fee award shall be satisfied from
plaintiff's damages award.
plaintiff argues that the PLRA cap on attorney fees does not
apply in this case because (1) this Court previously ruled
that the PLRA did not apply, (2) the defendants did not
assert the PLRA as an affirmative defense, (3) defendants
previously conceded that the PLRA does not apply because they
did not present any evidence of its application during the
pre-trial conference, and (4) application of the PLRA
attorney fee limits would yield an “absurd”
result. (Doc. 303 at 4).
thoroughly considering the parties' arguments and
evidence, Judge Cleary entered his R&R, in which he
recommends that the plaintiff's Motion for Attorney's
Fees be granted in part and denied in part. Specifically,
Judge Cleary recommends that the Court determine that
plaintiff is entitled to recover attorney's fees, but
that the defendants' liability for such fees is capped by
the PLRA, 42 U.S.C. § 1997e(d). As a result, the R&R
recommends that the undersigned determine that
plaintiff's attorney fees are limited to a total of $37,
500. (See Doc. 300 at 19). In her Objection to the
R&R, the plaintiff essentially re-urges the same
arguments that she presented to Judge Cleary.
Standard of Review
to Fed.R.Civ.P. 54(d)(2)(D), the Court “may refer a
motion for attorney's fees to a magistrate judge under
Rule 72(b) as if it were a dispositive pretrial
matter.” Accordingly, the magistrate judge's
proposed disposition of an attorney fee matter is subject to
the de novo review standard applicable to objections filed as
to dispositive motions under Fed.R.Civ.P. 72(b), and this
Court therefore “must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to” and “may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3).
The PLRA Fee Cap
plaintiffs in actions brought under 42 U.S.C. § 1983 may
be awarded a reasonable attorney's fee under 42 U.S.C.
§ 1988. The defendants here do not challenge the
plaintiff's prevailing party status or right to fees
under § 1988. However, the defendants argue that the
PLRA limits the amount of recoverable fees under §
1997e(d)(2), which provides that, when attorney fees are
sought following a judgment in an action brought by a
prisoner who is confined to jail, “[i]f the award of
attorney's fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant.”
42 U.S.C. § 1997e(d)(2). Courts have interpreted the
statute to limit a defendant's liability for attorney
fees to 150% of a money judgment. E.g., Robbins v.
Chronister, 435 F.3d 1238, 1240 (10th Cir. 2006) (en
banc) (“The statutory language [of § 1997e(d)(2)]
may be inartful, but appellate courts have consistently
interpreted the statute to limit a defendant's liability
for attorney fees to 150% of the money judgment.”). The
application of this formula in this case would result in
limiting total attorney's fees to $37, 500.
PLRA fee cap does not apply except in actions “brought
by a prisoner who is confined to any jail, prison, or other
correctional facility.” See 42 U.S.C. §
1997e(d). Thus, the principal issue in determining whether
the cap applies is whether the plaintiff was incarcerated at
the time the suit was filed. See Robbins, 435 F.3d
at 1240; see also Norton v. City of Marietta, 432
F.3d 1145 (10th Cir. 2005).
Incarceration at the Time of Filing
plaintiff argues that the defendants did not meet their
burden to establish that the plaintiff was in jail at the
time this suit was initiated. Judge Cleary found that
“the evidence overwhelmingly establishes that plaintiff
was incarcerated on December 23, 2011, when the Complaint was
filed.” (Doc. 300 at 18). The plaintiff objects to that
recommended finding. The plaintiff principally relies upon
the testimony of Thomas Mortensen, who represented the
plaintiff in criminal proceedings. (Doc. 303 at 12).
Plaintiff faults the R&R because it does not discuss Mr.
Mortensen's testimony. (Id.). In addition, the
plaintiff argues that the evidence provided by the defendant
and cited in the R&R for the proposition that the
plaintiff was in the jail between October 24, 2011 and
January 17, 2012 is unreliable, such that “there is no
reliable evidence that Plaintiff was in custody on December
23, 2011” when the Complaint was filed. (Id.).
With respect to unreliability, the plaintiff points to the
testimony of Tulsa County ...