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Poore v. Glanz

United States District Court, N.D. Oklahoma

March 30, 2019

LADONA A. POORE, Plaintiff,
v.
STANLEY GLANZ et al., Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         I. Background

         Before 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]).

         Pursuant 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.

         The 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).

         After 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.

         II. Standard of Review

         Pursuant 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).

         III. Discussion

         A. The PLRA Fee Cap

         Prevailing 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.

         The 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).[1]

         B. Incarceration at the Time of Filing

         The 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 ...


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