Crime & Federalism

Lame Second Circuit Punitive Damages Decision

Usually, when I a read a case that was wrongly decided, my blood pressure goes up.  It probably goes back to my younger days.  I hated - and still hate - bullies.  Judges who disobey the laws they are sworn to uphold are no better than schoolyard thugs. 

Sometimes, though, I read a case that was wrongly decided and just roll my eyes.  Today the Second Circuit issued one such case.  Patterson v. Balsamico (here).

William Balsamico, with two other white officers, maced and pinned down a black prison guard, put shaving cream all over him and said: "Now you are a white man with an Afro."  When the black prison guard sued, a jury unsurprisingly awarded punitive damages.  Balsamico was on the hook for $20,000 in punitive damages.

On appeal, the Second Circuit held that $20,000 was an excessive punitive damage award was excessive and must be reduced to... $10,000!

Putting aside the elephant in the room, namely that the prison has almost certainly agreed to indemnify the prison guard, this is a pretty lame case of appellate court micromanagement.  Really now... $20,000 is excessive (as is an appellate-court-must-remand excessive) but $10,000 is not?  This is just a silly opinion. 

(Hat tip: Decision of the Day)

Ninth Circuit Holds that Section 1988(b) Attorney's Fees Are Non-Assignable

Civil rights cases are generally hard to win, the plaintiffs are often unsavory and controversial, and the damages available are generally lower than most other types of cases.  Given that the cases are hard to win, and the lawyer's ability to obtain a reasonable contingency fee are low, why do civil rights actions still get filed?

In 1976 Congress enacted the Civil Rights Attorney's Fees Awards Act.  The purpose of the law was to encourage lawyers to take civil rights cases.  Thus, Congress made reasonable attorney's fees available to plaintiff's lawyers in prevailing cases.  Under the common law doctrine that has developed since the enactment of this law, lawyers are generally entitled to recoup a reasonable hourly rate for legal issues that prevailed in a civil rights action.  Often, attorney's fees eclipse the damage award the client received.

Which isn't surprising, since cities fight these cases fang and claw.  Suing a government official is a direct attack on the government's power to do with you as they will.  Cities often refuse to settle claims for reasonable amounts in an effort to maintain power over its subjects.

Sometimes cities are reasonable, however, and they offer the plaintiff a "lump sum" settlement.  What does this mean? 

It means that the city will give the plaintiff some money to settle her claims, and then tell the plaintiff to pay the lawyer out of this lump sum.  In other words, under a lump-sum settlement system, the lawyer is not entitled to seek attorney's fees under 42 U.S.C. 1988.

This system creates an ethical problem for the lawyer: A lawyer must not have any legal conflicts with his client.  A lump-sum settlement generally offers the attorney much less in potential legal fees than he'd have received under 42 U.S.C. 1988.  Yet it's uncertain whether the client would win at trial.  Lawyers - at least the good ones - try to settle cases whenever possible, since trials are too risky.  An ethical lawyer thus must struggle with the ability to get paid and earn a living, with the client's ability to receive redress for his rights violation.  So the lump-sum system undeniably creates a problem.

Problematic or not, the Supreme Court affirmed this practice many years ago.

A lawyer in the Ninth Circuit tried getting around the Supreme Court's acceptance of the lump-sum settlement system by having his client assign the client's right to seek legal fees, to the lawyers.  That is, the lawyer likely said something like this to the client: "You have a right to seek legal fees.  If you give me the right to seek these legal fees on my own, I won't deduct any fees from the settlement.  But if I do collect legal fees, I get to keep them all."  The Ninth Circuit properly rejected this effort in Pony v. Mitchell, No. 03-56855.

I say properly because the client, in accepting the lump-sum settlement, no longer had a right to seek legal fees.  If the client has no right to seek legal fees, then by definition, the client had nothing to assign to the lawyer.

The lawyer bringing the case gets, as they say, an A for effort.  But the Ninth properly denied his claim.

UPDATE: Law.com has this story on the case.

What's the Value of a Constitutional Right?

How much would you sell your constitutional rights for?  Would you give up your right to be free from police beatings?  Would you sell your rights for one dollar?

Most of us could not sell our rights except for a lot of money.  Under this thinking, then, constitutional rights have inherent value.  When these rights are deprived, whether or not we suffer any injuries at all, the person who deprived us of our rights should be required to pay.

Unfortunately, this is not the view of federal courts, as Jose Corpus learned.  Corpus v. Bennett, No. 04-2603 (8th Cir. Dec. 7, 2005).

Corpus was arrested.  While being booked, a jailer beat him up. Fortunately for Corpus' well-being, he was a sturdy fellow.  He wasn't badly injured by the beating.

He then sued the jailer under 42 U.S.C. 1983, which provides a cause of action in federal court for constitutional rights violations.  At trial, the jury determined Mr. Corpus did not suffer any injuries.  (Or did they?  Keep reading.)  They thus awarded him "nominal" damages.  One problem: They awarded nominal damages of $75,000.  (The judge reduced the award to $1 - the issue on appeal.)  The jury, perhaps like you and me, must have thought that a person's rights have intrinsic value. 

Or perhaps not.  The plaintiffs presented evidence that Mr. Corpus suffered some long-lasting injuries.  So what was the jury thinking when it awarded "nominal" damages of $75,000?

Judge Gruender, writing on behalf of a 2-1 panel of the Eighth Circuit affirmed.  Relying on some special jury forms, the majority concludes that the jury intended to award only nominal damages; and thus the district court was correct to reduce the damage award from $75,000 to $1, because as a matter of law, "nominal" means a buck or so.

The problem with the majority's conclusion is that the special jury verdict form told the jury as follows: "If you find that plaintiff is entitled to a verdict in accordance with these instructions, but do not find that the plaintiff has sustained substantial damages, then you may return a verdict for plaintiff in some nominal sum such as one dollar."

Now, $75,000 does not, by any definition, qualify as "some nominal sum such as one dollar."  So what was the jury thinking?  Moreover, as Judge Bright notes in his dissenting opinion: 

It is obvious that the jury did not follow the district court’s instructions and had the trial judge who charged the jury been available to receive the verdict these conflicts may have been clarified. But, in fact, a different judge accepted the verdict, commenting: “Obviously I don’t know much about it[,] but I’m guessing you paid careful attention . . . . I have to go back to my courtroom and back to trial.” The jury was then discharged without clarifying the uncertainty surrounding its verdict answers, and it appears counsel did not receive an opportunity to inspect the verdict and object to the inconsistency.

Amazing.  In other words, the judge who instructed the jury did not receive the verdict; and the judge who received the verdict didn't care about the obvious inconsistency between the jury's awarding nominal damages, and awarding $75,000 in damages.  Judge Bright thinks that Mr. Corpus deserves a new trial. 

The majority's opinion was right enough only because it assumed that there wasn't any juror confusion.  But, by definition, when a jury awards "nominal" damages of $75,000, there was some confusion.  The judge who received the verdict didn't care to investigate.  He should have.  It was an abuse of judicial discretion to not investigation. 

Judge Bright gets the best of this argument, wrapping it up with this nice bow: "All that can be said with any confidence from this record is that the jury did not follow the district court's instructions."

Supreme Court Grants Cert. in Woodford v. Ngo

Today the Supreme Court granted cert. in Woodford v. Ngo, No. 05-416 an important but technical case about the Prison Litigation Reform Act.  Earlier coverage of Woodford is here; a discussion of a case raising identical issues is here.

(Via SCOTUSblog.)

Why the Supreme Court Should Grant Cert. in Johnson v. Meadows

At its Nov. 23rd conference, the Supreme Court will decide whether to grant certiorari in Johnson v. Meadows, No. 05-6336.  [UPDATE: On November 14th, the Supreme Court granted cert. in a similar case - Woodford v. Ngo, No. 05-416; my collected Woodford-related posts are available here.]   At issue in Meadows is whether the Prison Litigation Reform Act, which requires prisoners to exhaust administrative remedies before bringing a Section 1983 action against prison officials, also contains a procedural default component.  There are three good reasons for the Court to review the case.

There is a circuit split.  The Supreme Court has becoming increasingly interested in resolving circuit splits.  There is a clear circuit split on this issue. Johnson v. Meadows, which held that the PLRA does contain a procedural default component, differs from the Sixth's and Ninth Circuit's approaches.  (It's worth noting that Judge Alex Kozinski joined the Ninth Circuit panel's decision in Ngo v. Woodford (here), which held the PLRA does not contain a procedural default component.)

The issue is of national importance.  Section 1983 actions arising out of prison conditions number in the tens of thousands.  According to this 1994 report from the Department of Justice's Office of Legal Policy: "[T]here is approximately one lawsuit for every thirty state prison inmates ...."  The importance of procedural issues touching Section 1983 litigation cannot be overstated.

The case will be well-argued.  Many Section 1983 cases reach the Court by accident, and they are argued by people lacking subject-matter fluency.  Steve Dillard is representing the petitioner in this case.  The prisoner will be ably represented, and all arguments supporting the prisoner will be presented.

Moreover (and this goes to the merits as much as to the cert.-worthiness), by reading into the PLRA a procedural default component, the circuits are creating different standards for every prison, and also frustrating Congress' goal that civil rights claims, though they must be exhausted, should also be heard.  In the Johnson case, e.g., the prisoner only had 5 days to give prison officials notice that his rights had been violated.  This has two unfortunate effects. 

First, it imposes a de facto 5-day statute of limitations on prisoner civil rights claims, even though under 42 U.S.C. Section 1988, the statute of limitations for civil rights actions is supposed to mirror the state's general personal injury statute of limitations.  In Georgia, the relevant statute of limitations should have been two years.  Under the Eleventh Circuit's reading of the PLRA, the statute of limitations for prison civil rights suit is 5 days. This disparate treatment of regular civil rights suits vs. prisoner civil rights suit is intolerable, and it is not required or even suggested by the PLRA's text, history, or structure.

Second, the Eleventh Circuit's reading of the PLRA allows potentially different limitations periods in every prison.  Federal law, to the extent possible, should be uniform.  By allowing each prison to set a different exhaustion deadline, there could potentially be as much disconformity as there are prisons.

Johnson v. Meadows is of important practice significance.  The Supreme Court should grant cert. to resolve the circuit split, and then it should reverse the judgment of the Eleventh Circuit.

Good Luck, Feddie!

I guess we should be a bit more formal.  Stephen Louis A. Dillard today filed this cert. petition, asking the U.S. Supreme Court to consider whether the PLRA's textual exhaustion requirement also has a non-texual procedural default component.

Prisoners Can Sue Under 1983 to get DNA

Yowzers:

William Osborne, an Alaska prisoner, appeals the district court’s dismissal of his action, brought under 42 U.S.C. § 1983, to compel the State to release certain biological evidence that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, hopes to subject the evidence, at his expense, to more sophisticated DNA analysis than was available at the time of his trial. He alleges that by refusing him post-conviction access to the evidence, the State has violated his constitutional rights under the First, Sixth, Eighth, and Fourteenth Amendments.

Without reaching the question of whether there exists a constitutional right of post-conviction access to DNA evidence, the district court dismissed Osborne’s action for failure to state a claim. It ruled that because Osborne seeks to “set the stage” for an attack on his underlying conviction, his § 1983 action is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and thus a petition for habeas corpus is his sole remedy. On appeal, Osborne argues that the district court applied a more restrictive standard than that enunciated in Heck, and submits that success on the merits of his § 1983 claim would not “necessarily imply” the invalidity of his state court conviction. We agree, and accordingly reverse the judgment of the district court and remand for further proceedings.

Osborne v. District Attorneys Office for the Third Judicial District, No. 04-35126 (9th Cir. Sept. 8, 2005).  In other words, although the panel did not hold that "there exists a constitutional right of post-conviction access to DNA evidence," they did open the courthouse doors to such claims.

PLRA Exhaustion

Whether this Court should resolve the conflict between the Sixth and Ninth Circuits, and the Third, Seventh, Tenth, and Eleventh Circuits as to whether the Prison Litigation Reform Act contains a procedural default component?  With a wide circuit split, Feddie's case might be it.  Good luck, Steve!

Sec. 1988/Attorneys' Fee Case

Today the Second Circuit issued an attorneys' fees opinion with a significant amount of favorable language for both plaintiffs and defendants.  Kassim v. City of Schenectady, No. 03-9283 (2d Cir. July 19, 2005).

First, may a District Court, in determining an attorneys' fee award, demand a proportionality between compensatory damages and Sec. 1988 fees?  Second, to what extend may the District Court reduce lodestar-calculated fees in light of Farrar and Hensley?

Attorneys' fees under Sec. 1988 may be substantially disproportionate to plaintiff's recovery.

If the attorney is compelled to defend against frivolous motions and to make motions to compel compliance with routine discovery demands, or to respond to unreasonable demands of the court for briefing or for wasteful, time-consuming court appearances, the hours required to litigate even a simple matter can expand enormously. It is therefore difficult to generalize about the appropriate size of the fee in relation to the amount in controversy.

***
Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, we have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation.

***
If the district court reduced the fee in the belief that the claimed hours were simply disproportionate in a case involving a $2500 injury, without regard to the reasonableness of the attorney’s expenditure of time in responding to the particular circumstances, this was error.

Slip op. at 9-10.  Now comes the bad news (or good news, depending on whom you represent).

Even though attorneys' fees will usually be computed using the lodestar method, a Farrar reduction is proper.

Our circuit has thus clearly adopted the view, notwithstanding any potential question as to the scope of Hensley and Farrar, that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff’s “partial or limited success” is not restricted either to cases of multiple discrete theories or to cases in which the plaintiff won only a nominal or technical victory.

Id. at 16.

(Hat tip: AL&P)

Section 1988(b) Fee Applications and Timeliness

Unless you do Sec. 1983 work, skip this post, as it will bore the dickens out of you.

[There is a] need to address the issue of the timeliness of the plaintiff’s post-judgment request for attorneys’ fees. Federal Rule of Civil Procedure 54(d)(2)(B) states: “Unless otherwise provided by statute or order of the court, the motion [for attorneys’ fees] must be filed no later than 14 days after entry of judgment.” The plaintiff filed his motion for attorneys’ fees more than 14 days after the judgment on the special verdict, but within 14 days after the district court’s order denying the defendants’ motion for partial judgment pursuant to Rule 50(b) and for a new trial pursuant to Rule 59. The issue is whether the Rule 54(d)(2)(B) time limit is tolled pending the outcome of post-trial motions under Rule 50 or Rule 59....

The other circuits to reach this question have held that the requirement that the motion for attorneys’ fees “must be filed no later than 14 days after entry of judgment” is tolled pending the outcome of post-trial motions under Rule 50 or Rule 59. See Members First Fed. Credit Union v. Members First Credit Union of Fla., 244 F.3d 806, 807 (11th Cir. 2001) (per curiam); Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999). This is because those motions operate to suspend the finality of the district court’s judgment. A “judgment” for purposes of the Federal Rules of Civil Procedure includes a decree or order “from which an appeal lies.” Fed. R. Civ. P. 54(a); see also Weyant, 198 F.3d at 314. The judgment was not appealable during the pendency of the post trial motions in this case. See Weyant, 198 F.3d at 314. Therefore, the Rule 54(d)(2)(B) motion for fees is timely if filed no later than 14 days after the resolution of a Rule 50(b), Rule 52(b), or Rule 59 motion. This petition for fees was timely. The district court did not err in granting the timely motion for fees.

Bailey v. County of Riverside, No. 03-56545 (9th Cir. July 8, 2005).