382 F.3d 642 | 6th Cir. | 2004
(cid:45) KAREN NELSON MOORE, Circuit Judge. Defendants- (cid:45) Appellants-Cross-Appellees Simon L. Leis, Jr., Sheriff of
S IMON L. L EIS , J R ., Sheriff of (cid:45) Hamilton County, Ohio, and Louis F. Strigari, Public Hamilton County, Ohio, and (cid:45) Defender of Hamilton County, Ohio, (collectively, “Hamilton L OUIS F. S TRIGARI , Public (cid:45) County”) appeal from the district court’s grant of attorney Defender of Hamilton (cid:45) fees to Plaintiff-Appellee-Cross-Appellant Mike Powers (cid:45) County, Ohio, (“Powers”) in this 42 U.S.C. § 1983 suit challenging the (cid:45) Hamilton County Justice Center’s (“HCJC”) policy of Defendants-Appellants/ (cid:45) allowing prisoners to make only collect telephone calls, Cross-Appellees. (cid:45) which in combination with the Hamilton County Public (cid:78) Defender’s policy of refusing collect calls operated to deny
pretrial detainees at the HCJC their Sixth Amendment right Appeal from the United States District Court to counsel. Hamilton County argues that Powers lacked for the Southern District of Ohio at Cincinnati. standing to bring the underlying action, that Powers could not No. 00-00274—Susan J. Dlott, District Judge. maintain this suit without exhausting his state remedies under the Prison Litigation Reform Act (“PLRA”), that Powers is
Argued: August 11, 2004 not a “prevailing party” under 42 U.S.C. § 1988, that Powers is only entitled to attorney fees as mandated by the PLRA,
Decided and Filed: August 31, 2004 and that the district court abused its discretion in awarding attorney fees in the amount that it did. Powers argues in his
Before: SILER, MOORE, and COLE, Circuit Judges. cross-appeal that the district court erred in not awarding fees 1 Nos. 03-3269/3279 Lynch et al. v. Leis et al. 3 4 Lynch et al. v. Leis et al. Nos. 03-3269/3279 for the full amount of time spent on preparing the petition for release on his own recognizance on April 24, 2000, he attorney fees, and in determining the reasonable hourly rate of continued to have trouble resolving his case and a capias—a one of his counsel. Because we determine that Powers never writ directing his arrest—was issued on June 21, 2000. That had standing to bring this action, we REVERSE the decision capias was recalled on July 23, 2000, and Powers’s case was of the district court. resolved on July 24, 2000, with a nolo contendere plea.
I. BACKGROUND Lynch and Powers moved for a preliminary injunction on November 1, 2000, and to certify a class on February 2, 2001. The underlying facts of the case are not in dispute, and the On February 8, they moved to consolidate their pending merits of Powers’s suit is not at issue in this appeal. At the motion for a preliminary injunction with a motion for a time that the lawsuit commenced, pretrial detainees at the permanent injunction. On March 16, 2001, a joint stipulation HCJC who did not make bond were placed, following of facts was filed by the parties, including the stipulation that arraignment, in a permanent housing unit where they were the capias had been issued on June 21, 2000, and Hamilton only allowed to make collect calls. The Public Defender’s County filed a motion to dismiss for lack of subject matter Office of Hamilton County, routinely assigned to indigent jurisdiction. On January 22, 2002 the Third Amended detainees charged with a misdemeanor, refused to accept
Complaint was filed by Lynch and Powers, containing for the collect calls on its main line, while its staff attorneys, who first time an allegation of the issuance of the capias, and on had discretion to accept collect calls on their direct lines, January 25, 2002, the district court ruled on Hamilton accepted only a tiny fraction of incoming collect calls (6 of County’s motion to dismiss, which was filed in response to 322 between October of 1999 and September of 2000). The the Second Amended Complaint. Hamilton County had district court determined that this violated the Sixth moved to dismiss alleging the plaintiffs lacked standing and Amendment rights of pretrial detainees. had failed to exhaust their administrative remedies under the
PLRA. In response, the plaintiffs had argued with respect to What is hotly contested is whether the district court Powers’s standing that he was free on his own recognizance properly exercised jurisdiction over this case. This action was on the date of the filing of the Second Amended initiated on April 7, 2000, with Jeff Lynch as the initial Complaint—when he was added to the litigation—and “thus plaintiff. The first complaint sought “actual and punitive in imminent danger of being reincarcerated if he failed to damages,” as noted in its introduction, and prayed that the perform as required.” J.A. at 112 (Mem. in Opp. to County district court “[d]eclare that Defendants’ telephone policies Defs. Mot. To Dismiss). They also noted, “That danger was violate the Constitution,” as well award damages, fees, and drastically multiplied by the issuance of a capias on June 21, costs. Joint Appendix (“J.A.”) at 12, 17. Powers was initially 2000,” J.A. at 112, and obliquely implied the capias was still added to the suit on May 25, 2000, in the Second Amended outstanding: “even if Mr. Powers’ claim becomes moot by Complaint. That complaint sought “nominal damages and the disposition of his proceedings . . .” J.A. at 113 (emphasis equitable relief.” J.A. at 19. Powers had been arrested on added). Of course, at the time that this Memorandum was January 19, 2000 for operating a motor vehicle without a filed, his case had been resolved. license and improper display of a license plate. He failed to appear and was eventually arrested, on April 4, 2000. After The district court dismissed Lynch from the suit on failing to make bail, he was confined at the HCJC for twenty January 25, 2002, for lack of standing, but denied Hamilton days, when he was affected by the phone policies; after his County’s motion to dismiss Powers from the suit, on the Nos. 03-3269/3279 Lynch et al. v. Leis et al. 5 6 Lynch et al. v. Leis et al. Nos. 03-3269/3279 ground that the capias had been outstanding against Powers At that point, the defendants appealed to this court from the since June 21, 2000, thereby creating a substantial threat of district court’s decisions of January 25, 2002 (motion to injury sufficient to confer standing. This factual conclusion dismiss), February 19, 2002 (entry of permanent injunction), was incorrect; while the parties had stipulated to the issuance and May 8, 2002 (denial of motion to vacate). While the of the capias, they had not stipulated to its continued appeal was pending, the parties continued to litigate the issue existence—but neither had they stipulated to its withdrawal. of attorney fees. On June 4, 2002, Powers moved to dismiss On January 30, 2002, the defendants filed their answer to the the appeal as moot under prior case law, because Hamilton Third Amended Complaint, admitting that a capias was issued County was complying with the injunction rather than seeking on June 21, 2000. On February 19, 2002, the district court a stay, and arguing that there was no exception to the rule that granted the plaintiffs’ motion for a permanent injunction. The voluntary compliance moots an appeal for challenges to the district court’s opinion again contained the erroneous district court’s subject matter jurisdiction, as the appeals court statement that the capias was “currently outstanding.” Lynch had no jurisdiction in the first instance. A panel of this court v. Leis , No. C-1-00-274, slip op. at 6 (S.D. Ohio. Feb. 19, granted Powers’s motion to dismiss the appeal as moot. 2002), J.A. at 139. Lynch v. Leis , No. 02-3610 (6th Cir. Aug. 13, 2002) (order
granting motion to dismiss), J.A. at 461-62. On August 26, On February 20, 2002, the defendants filed a motion under 2002, the defendants moved again in the district court to Federal Rules of Civil Procedure 52(b), 59(a), and 60(b) to dismiss the case and Powers’s request for attorney fees due to vacate the district court’s January 25 and February 19, 2002 lack of jurisdiction. On January 24, 2003, the district court orders, based on the results of an investigation into Powers’s denied that motion and granted Powers’s motion for attorney court case, revealing that the capias was withdrawn. They fees, awarding $71,782.50 in fees and $2,201.08 in costs, apologized for the failure to bring the information to the
based on a lodestar of $57,426 and a multiplier of 1.25. In district court’s attention in a timely manner. After further doing so, the district court incorporated its previous rulings on papers from both sides, the district court denied Hamilton standing, the PLRA, and mootness, and threatened the County’s motion to vacate on May 8, 2002. The district court defendants with sanctions for repeatedly arguing the points. reasoned that under Rules 59 and 60(b), the only evidence It is from that ruling that all parties appeal. that could be admitted on motion was that not discoverable through due diligence, and that court records were certainly II. ANALYSIS discoverable through due diligence. The district court A. Standard of Review rejected the defendants’ reliance on the usual rule that subject matter jurisdiction can be raised any time, reasoning that the
The issue of standing is reviewed de novo. Cleveland defendants had “stipulated facts giving rise to jurisdiction.” Branch, NAACP v. City of Parma , 263 F.3d 513, 523 (6th Cir. J.A. at 233. The district court also rejected what it 2001). characterized as Hamilton County’s oblique argument that the case was moot due to voluntary compliance; they had in fact
B. Standing made the slightly more nuanced, though rather more flawed argument that their voluntary compliance deprived Powers of
As a preliminary matter, Powers asserts that this appeal, to initial standing. the extent it raises issues on the merits declared moot in Hamilton County’s previous appeal, is moot, both as a matter
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 7 8 Lynch et al. v. Leis et al. Nos. 03-3269/3279 of law of the case and because Hamilton County has complied party. That the previous appeal was moot because the fully with the lower court’s injunction. This argument is judgment below—the injunction—no longer presented a unavailing, and can be dealt with briefly. The first appeal was matter of dispute between the parties is totally irrelevant to dismissed as moot because no live case or controversy the question of whether the judgment below on this existed; no further dispute existed between the parties because appeal—the fee award—presents such a dispute. Powers also Hamilton County had voluntarily complied with the requests sanctions against Hamilton County for bringing a injunction. [1] This appeal concerns the propriety of the fee
frivolous appeal; that request fails, as explained below. award, which presents a live case or controversy between the Hamilton County asserts in this appeal—as it did in the parties: a monetary judgment against the defendants below previous appeal and before the district court numerous indubitably presents a live appeal. If Powers is not a proper times—that Powers never had standing to seek injunctive prevailing party, the fee award was in error. If Powers never had standing to bring the case, [2] he is not a proper prevailing relief, as there was not a “threat of injury . . . both real and
immediate, not conjectural or hypothetical.” City of L.A. v. Lyons , 461 U.S. 95, 102 (1983) (internal quotation marks omitted). The county complains that the district court [1] This holding may very well have been precipitous, as “[a]
incorrectly inferred that the capias was outstanding from June defendant’s voluntary cessation of allegedly unlawful conduc t ordinarily 21, 2000 forward, and relied upon that incorrect inference in does not suffice to moot a case.” Friend s of the Earth, Inc. v. Laidlaw holding that Powers had standing to bring the action. In Envtl. Servs., Inc. , 528 U.S. 167, 174 (2000). Nonetheless, in another response, Powers asserts first that the district court’s rationale exam ple of the confusion surrounding basic federal courts issues in this case, Hamilton County had “concede[d] that they are now in full for refusing Hamilton County’s attempt to introduce new compliance with the inju nction and that the alleged wrongful conduct
evidence which it could have discovered earlier through due cannot reasonably be expected to recur,” thus vo luntarily mooting their diligence [3] was correct; then that Hamilton County had own appeal. Lynch v. L eis , No. 02-3610, 1 (6th Cir. Aug. 13, 2002) stipulated to facts which created standing, see Eng’g (ord er granting motion to dism iss), J.A. at 461 . Contractors Ass’n of S. Fla. Inc. v. Metro. Dade County , 122 [2] F.3d 895, 905 (11th Cir. 1997); and finally that at the time of W e note briefly that Powers had asserted below a claim for nominal the filing of the Third Amended Complaint, “the stipulated dama ges, which is normally sufficient to establish standing, defeat moo tness, and grant prevailing party status for the purpose of attorney fact was that an outstanding capias existed for Plaintiff fees under 42 U.S.C. § 1988. See Buckhannon B d. & Care Home, Inc. v.
Powers.” Appellee’s/Cross-Appellant’s Br. at 20. W. Va. Dep ’t of Health & Hum an R es. , 532 U.S. 598, 604 (2001) (“[E]ven an award of nominal damages suffices under [the prevailing
Standing “is to be determined as of the time the complaint party] test.”); Carey v. Piphus , 435 U.S. 247, 266 (1978) (“[T]he is filed.” Cleveland Branch, NAACP , 263 F.3d at 524. The dep rivation of such [absolute] rights [is] actionable for nominal damages”); Utah Animal Rights Coalition v. Salt Lake City Corp. , 371 F.3d 1248, 1268 (10th Cir. 2004) (“The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal d amages is sufficien t to render a case justiciable.”) (M cCo nnell, J., co ncurring); Murray v. Bd. of
which went unappealed by Powers. Therefore, because Powers lacked Trs. , 659 F.2d 7 7, 79 (6th Cir. 1981) (district court erred in dismissing standing on the one claim on which he prevailed, the fee award cannot entire complaint as moot, rather than simply dismissing claim for stand. injunctive relief, where plaintiff sought nominal damages and fees). However, at oral a rgument, counsel for Po wers ind icated that the claim [3] for nominal damages was no longer live, as the district court had issued In fact, Hamilton County’s court records are available to the public its final decision on the merits without awarding damages, a decision online at http://www.courtclerk.org. Nos. 03-3269/3279 Lynch et al. v. Leis et al. 9 10 Lynch et al. v. Leis et al. Nos. 03-3269/3279 parties dispute whether the operative complaint is the first RD/5236; State v. Powers , No. 00/TRD/23718, A, B complaint, initiating the action, the Second Amended (Hamilton County Municipal Traffic Division Complaint, adding Powers, or the Third Amended Complaint, J a n u a r y 1 9 , 2 0 0 0 ) ( d o c k e t s h e e t ) , the final complaint filed. This confusion seems to be http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?/00/TR
D/23718. [5] generated by County of Riverside v. McLaughlin , 500 U.S. 44, In at least one of those cases, No. 51 (1991), which in the course of conferring standing to seek C/00/TRD/5236/A, B (“No. 5236”), that relied upon below, injunctive relief on warrantless arrestees who at the time their his case hadn’t moved forward beyond his release from complaint was filed were suffering constitutional injury, custody. The question then becomes whether the mere referred to the final complaint filed in the case, the second pendency of proceedings against Powers could create a amended complaint, as “the operative pleading.” Id. at 48. A sufficient risk that he would again be subject to the careful reading of County of Riverside demonstrates that the deprivation of his Sixth Amendment right by being placed in second amended complaint was important not because it was detention at the HCJC to confer standing upon Powers to seek the operative pleading, but because it was that complaint injunctive relief to prevent that deprivation. In Lyons , the which named “three additional plaintiffs” who were “still in Supreme Court explained that “a real and immediate” threat custody” at the time the complaint was filed, and who were did not exist to confer standing where such a threat was the plaintiffs found to have standing by the Court. Id . at 49, attenuated by both the unlikeliness that Lyons would have 51; see also Rosen v. Tenn. Comm’r of Fin. & Admin. , 288 another encounter with the police and the unlikelihood that F.3d 918, 929 (6th Cir. 2002) (describing focus of County of the police would employ a chokehold during that encounter. Riverside Court on “second amended complaint making the 461 U.S. at 101-09. In the instant case, while there was claim in question ” (emphasis added)). Therefore, the certainty that if placed in detention again Powers would have operative complaint is the one adding Powers to the action, been subject to the unconstitutional policy, there was no and the operative date is May 25, 2000, rendering the capias certainty that he would have been placed in detention again. entirely irrelevant to the question of standing. [4]
“[F]or purposes of assessing the likelihood that state authorities will reinflict a given injury, [the Supreme Court]
Instead, Powers’s standing to seek injunctive relief must generally ha[s] been unwilling to assume that the party rise or fall on his status on May 25, 2000, at which seeking relief will repeat the type of misconduct that would point he was out on bond, with two separate cases once again place him or her at risk of that injury.” Honig v. proceeding against him. See State v. Powers , No. Doe , 484 U.S. 305, 320 (1988); see also Lyons , 461 U.S. at C/00/TRD/5236/ A, B (Hamilton County Municipal 101-09; Grendell v. Ohio Supreme Ct ., 252 F.3d 828, 833 Traffic Division May 6, 2000) (docket sheet),
(6th Cir. 2001) (likelihood that plaintiff would again bring a http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?C/00/T lawsuit so frivolous as to place him at risk of sanctions too remote to support standing). Powers would have had to fail to appear for a scheduled court date on his pending matters,
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 11 way, or commit some other conduct leading to his arrest. This chance, based on Powers’s likelihood of violating unchallenged laws, [6] is insufficient to confer Article III standing.
It is unfortunate that the confusion between the parties below over this most fundamental of jurisdictional issues has led to this outcome, where a prevailing party whose attorneys won an important victory for all pretrial detainees at the Hamilton County Justice Center is denied a fee award after a completed successful action, but “[u]nless the statute under which a party seeks attorney’s fees contains an independent grant of jurisdiction, an appellate court must vacate an award of attorney’s fees if the district court did not have subject matter jurisdiction over the litigation.” Greater Detroit Res. Recovery Auth. & Combustion Eng’g v. United States EPA , 916 F.2d 317, 320 (6th Cir. 1990); see also Friends of the Boundary Waters Wilderness v. Thomas , 53 F.3d 881, 886- 887 (8th Cir. 1995). The award of attorney fees and costs to Powers is therefore REVERSED .
NOTES
[4] violate the conditions of his pretrial release in some other The operative complaint here could not be the first complaint consonant with County of Riverside , and it could not be the Third Amended Com plaint consonant with the general rule that while “a plaintiff may correct the complaint to show that jurisdiction does in fact
[5] exist . . ., [federal jurisdiction] may not b e crea ted by amendm ent.” As noted above, these court records are available o nline to members J AMES W M . M OORE , 3 M OORE ’ S F EDERAL P RACTICE § 15.14[3], at 15-34 of the public; as they are court records, this court may take judicial notice (3d ed. 2000 ). of them . See Lyons v. Stovall , 188 F.3d 327 , 332 n.3 (6th Cir. 1999 ).
[6] Powers does not argue that the substantive law forbidding his conduct (in this case, the Ohio vehicle code) is invalid, but instead that some consequence of his citation is unlawful. Where the law forbidding the illegal act is itself challenged, an allegation that the plaintiff wishes to engage in the unlawful activity is sometimes sufficient to confer standing to challenge the law. See, e.g., Kolender v. Lawson , 461 U.S. 352, 355 n.3 (1983).
