Opposition Brief — Rhodes v. Stewart

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Supreme Court, i

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No. 88-139 AUG 22 190

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In The “-

Supreme Court of the United States

October Term, 1987

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JAMES A. RHODES, et al.,

Petitioners,

v.

LARRY STEWART,

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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LYMAN BROWNFIELD

Counsel of Record

Jerrrey D. Swick

Dona.p A. NICKERSON, JR.

On The Brief

LyMAN BrRownrigELD Law Orrices

250 East Broad Street

12th Floor

Columbus, Ohio 43215

(614) 221-5834

Attorney for Respondent |

QUESTION PRESENTED

Is the respondent a prevailing party pursuant to 42

U.S.C. §1988, so as to entitle him to attorney’s fees under

that statute?

TABLE OF CONTENTS

Pages

QUESTION PRESENTED ...........scccccccccccees i

TABLE GCP CUNTEIGED. oc ccccccccsccossesesvcpeess ii

TABLE OF AUTHORITIES...............--0+eeee0 iii

GROUNDS UPON WHICH JURISDICTION OF THIS

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STATUTES WHICH THE CASE INVOLVES ........ 1

STATEMENT OF THE CASE..............0eeeeee0s 2

ARGUMENT IN SUPPORT OF DENYING CER-

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A. NO CONFLICT WITH DECISIONS OF THIS

QUIETER oo vccccccesconseceveeeenanennn nna 4

B. NO CONFLICTS WITH OTHER CIRCUITS... 6

C. IMPORTANCE OF THE ISSUE............... 7

D. CUORICLUIIIIIN occ ccccccccscccceces .ooodeueen 7

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TABLE OF AUTHORITIES

Page

Cases

Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40,

SS ED UEED onc c cc ccccccccccscesboess 4, 5, 6

Hewitt v. Helms, 482 U.S. __, 96 L.Ed.2d 654, 107

Tc acacucscccncccvescocceccsess 4, 5, 6

National Coalition Against the Abuse of Pesticides v.

Thomas, 828 F.2d 42 (D.C. Cir. 1987) ...........555- 6

Seals v. Quarterly County Court of Madison County,

562 F.2d 390 (6th Cir. 1977)....... 2... e eee ee eee eens 6

STATUTES

EE ccc cc csweccscncocssscvesessceees 1

Es a vcicwesciccusccecccccccevcsccece 1, 5, 6

Ohio Corrections Department, A.R. 5120-9-19...... x5

Ohio Corrections Department, A.R. 814.............-. 3

GROUNDS UPON WHICH JURISDICTION

OF THIS COURT IS INVOKED

I. OPINIONS BELOW

The case at bar was appealed on two separate occa-

sions to the Sixth Circuit Court of Appeals. The first

opinion was filed on November 9, 1982, (P.App.A-22)!.

The second opinion was filed on April 27, 1988,

(P.App.A-4). Both opinions are unreported. The decisions

of the United States District Court for the Southern Dis-

trict of Ohio, Eastern Division are unreported, (P.App.15,

38). A petition for writ of certiorari was previously

granted by this Court on May 31, 1983, (P.App.21). The

decision of the Supreme Court of the United States was

reported at 461 U.S. 952 (1983), (P.App.21).

II. JURISDICTION

Petitioner invokes the jurisdiction of this Court

under 28 U.S.C. § 1254(1) seeking review of the decision

of the Sixth Circuit filed April 27, 1988.

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STATUTES WHICH THE CASE INVOLVES

42 U.S.C. § 1988

The jurisdiction in civil and criminal matters confer-

red on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons

in the United States in their civil rights, and for their

1 In this brief “P.App.” denotes the appendix to the peti-

tion for certiorari.

vindication, shall be exercised and enforced in con-

formity with the laws of the United States, so far as

such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the

object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses

against law, the common law, as modified and

changed by the constitution and statute of the State

wherein the court having jurisdiction of such civil or

criminal cause is held, so far as the same is not

inconsistent with the Constitution and laws of the

United States, shall be extended to and govern the

said courts in the trial and disposition of the cause,

and, if it is of a criminal nature, in the infliction of

punishment on the party found guilty. In any action

or proceeding to enforce a provision of sections 1981,

1982, 1983, 1985, and 1986 of this title, title IX of

Public Law 92-318, or in any civil action or proceed-

ing, by or on behalf of the United States of America,

to enforce, or charging a violation of, a provision of

the United States Internal Revenue Code, or title VI

of the Civil Rights Act of 1964, the court, in its

discretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs.

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STATEMENT OF THE CASE

On January 17, 1978, the immediate action was

brought by Mr. Stewart and another inmate of the Chil-

licothe Correctional Institute, Albert Reese. This action

was brought pursuant to 42 U.S.C. § 1983, (P.App.52). The

action sought injunctive relief and a judgment declaring

that the poiicies and practices of petitioners violated the

respondent’s constitutional rights, (P.App.54). Respon-

dents contended that the action of the petitioners in

banning “Hustler” magazine was arbitrary, capricious,

without any legal foundation and was based upon no

valid evidence, (P.App.53).

Beginning in May, 1976, Respondents Stewart and

Reese were denied permission to acquire “Hustler” mag-

azine as a matter of policy of the Ohio Department of

Rehabilitation and Corrections, (P.App.53). In December,

1976, the Ohio Department of Rehabilitation and Correc-

tions adopted Administrative Regulation 5120-9-19 to

replace A.R. 814. A.R. 5120-9-19 sets forth the criteria to

follow in banning printed material from Ohio’s prisons as

well as the procedure to appeal such a determination.

At the time of the initiation of this action, A.R.

5120-9-19 had been in effect for approximately one year.

In banning “Hustler”, petitioners had failed to follow

their own administrative regulations which provide pro-

cedural safeguards to protect the rights of inmates,

(P.App.28, 29). Additionally, the petitioners failed to

apply the procedural or substantive standards estab-

lished by the courts for determining what printed mate-

rial may be made available to inmates, (P.App.28). The

district court entered judgment on April 2, 1981,

(P.App.35). Specifically, the district court found that the

petitioners had failed to apply procedural safeguards

established by the courts and their own administrative

regulations before determining what printed material

could be available to inmates, (P.App.28, 29). Thus, any

attempt by the inmates to appeal an arbitrary banning

decision would have been fruitless since the petitioners

did not even provide notice, an opportunity to be heard,

or an ultimate determination on the question by a disin-

terested decision maker.

On April 17, 1981, Respondent Stewart moved for

attorney’s fees, pursuant to 42 U.S.C. § 1988. On June 3,

1981, the motion was granted and petitioners were

ordered to pay $5,325.85, (P.App.27). This judgment was

affirmed by the United States Court of Appeals for the

Sixth Circuit on May 25, 1982, (P.App.23).

This Court granted a petition for writ of certiorari on

May 31, 1983 and the judgment was ultimately vacated

and remanded to the district court for reconsideration in

light of Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40,

103 S.Ct. 1933 (1983), (P.App.21). For a second time, the

district court awarded Respondent Stewart $5,325.85 in

attorney’s fees, (P.App.i5). Again, this decision was

affirmed by the Sixth Circuit on April 27, 1988, (P.App.4).

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ARGUMENT IN SUPPORT OF

DENYING CERTIORARI

A. NO CONFLICT WITH DECISIONS OF THIS

COURT

The opinion and order of the court of appeals and the

district court are not in direct conflict with the decision in

Hensley v. Eckerhart, 461 U.S. 424, 76 L.Ed.2d 40, 103 S.Ct.

1933 (1983) and Hewitt v. Helms, 482 U.S. ___, 96 L.Ed.2d

654, 107 S.Ct. 2672 (1987).

The definition of a prevailing party for the purpose

of awarding attorney’s fees was stated in Hensley, supra,

and further refined by Hewitt, supra. As held by the Sixth

Circuit, the definition of “prevailing party” and the facts

of the case sub judice do not preclude a finding that

Respondent Stewart is a prevailing party and thus enti-

tled to attorney’s fees pursuant to 42 U.S.C. § 1988,

(P.App.8-9).

This Court in Hensley, at 461 U.S. 433, stated that

“Plaintiffs may be considered ‘prevailing parties’ for

attorney’s fees purposes if they succeed on any signifi-

cant issue in litigation which achieves some of the benefit

the parties sought in bringing the suit.”

This Court in Hewitt, further refined the definition of

prevailing party for purposes of 42 U.S.C. § 1988. The

Court in Hewitt held that a pronouncement by a court

that the plaintiff had suffered a denial of due process did

not constitute a sufficient relief to make the plaintiff a

prevailing party. Id. at 661. This Court did go on to state

in Hewitt, “[b]ecause of the defendant’s official immunity

he received no damages award.” Id. “No injunction or

declaratory judgment was entered in his favor.” Id.

The district court has previously entered judgment

holding that the petitioners did not provide procedural

due process in deciding to ban “Hustler” (P.App.28), and

that the petitioners also failed to follow their own admin-

istrative regulations in deciding whether “Hustler” was

acceptable, (P.App.28, 29).

Pursuant to respondent’s lawsuit and the district

court’s orders, the petitioners must now follow the

administrative procedures outlined in A.R. 5190-9-19 (F)

and (G) in providing procedural due process prior to

classifying or banning “Hustler” magazine. Accordingly,

Respondent Stewart has succeeded on a significant issue

in this case which has achieved the benefit he sought in

bringing the suit. See Hensley, supra. Thus, he is entitled to

an award of attorney’s fees under 42 U.S.C. § 1988.

Accordingly, the decisions of the district court in the

case sub judice are not in conflict with other decisions of

this Court.

B. NO CONFLICT WITH OTHER CIRCUITS

Likewise, the decisions rendered in the immediate

case are not in conflict with other federal courts of

appeal. Petitioners assert the contrary and rely on the

case of National Coalition Against Abuse of Pesticides v.

Thomas, 828 F.2d 42 (D.C. Cir., 1987). The Thomas court

held that merely obtaining a favorable declaration of the

law does not suffice to qualify a claimant as a prevailing

party. Id. at 44. The decisions in the immediate case do

not conflict with the principle announced in Thomas and

Hewitt, supra. Here, Respondent Stewart received more

than a mere interlocutory order or declaration from the

court. The judgment received by Respondent Stewart

achieved a significant benefit sought in bringing the law-

suit. More importantly, the judgment received by Respon-

dent Stewart compelled the prison officials to comply

with constitutional due process as well as their own

administrative regulations. Accordingly, petitioners claim

that the decisions in the immediate case are in conflict

with other courts of appeal is likewise without merit. The

Sixth Circuit Court of Appeals has previously established

that 42 U.S.C. § 1988 “should be liberally construed to

achieve the public purposes involved in the congressional

enactments.” Seals v. Quarterly County Court of Madison

County, 562 F.2d 396, 393 (6th Cir. 1977).

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C. IMPORTANCE OF THE ISSUE

The district court has carefully reviewed the facts in

the light of instructions from this Court and reached a

conclusion the petitioners do not like. The Sixth Circuit

Court of Appeals again reviewed the facts and concluded

that they justified an award of attorney’s fees consistent

with this Court’s instructions. The evaluation by the dis-

trict court scarcely justified an appeal to the circuit court,

let alone a review by this Court.

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D. CONCLUSION

This case simply presents the spectacle of a sore loser

trying to make litigation unaffordable by those who dis-

agree with it. Twice the issue at bar has been before the

District Court for the Southern District of Ohio, and twice

respondent has prevailed. Twice the issue at bar has been

before the Sixth Circuit, and twice respondent has pre-

vailed. The courts below have properly applied the deci-

sions of this Court, in opinions consistent with the other

courts of appeal. Certiorari should be denied.

Respectfully submitted,

LYMAN BROWNFIELD

250 East Broad Street

Suite 1200

Columbus, Ohio 43215

(614) 221-5834

Attorney for Respondent