Appendix — Collins v. Montgomery County Board of Prison Inspectors

la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1206

MICHAEL T. COLLINS, Appellant

V.

MONTGOMERY COUNTY BOARD OF PRISON

INSPECTORS; JOSEPH WALSH, individually; JAMES A.

FREY, individually, EDWIN NEGRON, individually;

ALFRED RICCI, individually; MARK GRIFFITH,

individually; FRANK GRIFFITH, individually; DAVID

DOMBROSKI, individually, JULIO M. ALGARIN, IN HIS

OFFICIAL CAPACITY AND INDIVIDUALLY:

DELORES MARTIN, INDIVIDUALLY; LAWRENCE

ROTH, IN HIS OFFICIAL CAPACITY; UNITED STATES

OF AMERICA

(D.C. Civ. No. 95-04220)

Present: BECKER, Chief Judge, SLOVITER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, NYGAARD,

ALITO, ROTH, LEWIS, McKEE,

and RENDELL, Circuit Judges,

2a

ORDER

A majority of the active judges having voted for rehear-

ing en banc in the above appeal, it is ORDERED that the

Clerk of this Court list the above case for rehearing en banc

at the convenience of the Court.

BY THE COURT:

CHIEF JUDGE

DATED: FEB 03 1999

3a

Filed May 13, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1206

MICHAEL T. COLLINS,

Appellant

v.

MONTGOMERY COUNTY BOARD OF PRISON

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 95-04220)

District Judge: Honorable Norma L. Shapiro

Argued November 17, 1998

BEFORE: BECKER, Chief Judge, GREENBERG,

Circuit Judge, and McLAUGHLIN,* District Judge

Reargued en banc April 23, 1999

BEFORE: BECKER, Chief Judge, and SLOVITER.

‘STAPLETON, MANSMANN, GREENBERG, ‘SCIRICA.

‘ NYGAARD, ‘ALITO, ROTH, LEWIS, MCKEE, and RENDELL.

Circuit Judges

: “Honorable Sean J. McLaughlin, Judge of the United States District

: Court for the Western District of Pennsylvania, sitting by designation.

4a

(Filed: May 13, 1999)

David Richman (argued)

Stephen G. Harvey

Michelle Hart Yeary

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth & Arch Streets

Philadelphia, PA 19103

Attorneys for Appellant

Walter S. Jenkins (argued)

Sweeney & Sheehan

1515 Market Street, 19th Floor

Philadelphia, PA 19102

Attorneys for Appellees

Montgomery County Board of

Prison Inspectors, Joseph Walsh,

James A. Frey, Edwin Negron,

Alfred Ricci, Mark Griffith, Frank

United States Attorney

Barbara L. Herwig

Edward R. Cohen (argued)

Attorneys, Appellate Staff

Ctvil Division, Room 9014

U.S. Department of Justice

601 D. Street, N.W.

Washington, D.C. 20530-0001

tree ey Llp: game

1. Walter S. Jenkins argued before the panel but not the court en banc.

David Richman and Edward R. Cohen argued before both the pane] and

the court en banc.

Sa

OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. BACKGROUND

This matter is before this court on an appeal from an

order entered February 17, 1998, in the United States

42 U.S.C. § 1983 alleging that the defendants violated his

constitutional rights while he was incarcerated in the

pursuing several of his claims. The district court made this

appointment on January 31, 1996.

placing a cap both on an attorney’s maximum hourly rate

and on the total amount of attorney's fees recoverable from

a defendant. Moreover, the PLRA requires that a portion of

a monetary judgment recovered by a plaintiff be applied to

satisfy attorney's fees. See 42 U.S.C. § 1997e(d).

Collins’ action was tried in December 1996, after the

effective date of the PLRA, before a jury that returned a

verdict

Collins of $15,000 and punitive

damages of 85,000 cn ny arising out of an attack on

6a

litigant under 42 U.S.C. § 1983, Collins moved for an award

of attorney's fees of $80,122.75 pursuant to 42 U.S.C.

§ 1988.? Collins recognized the possible effect of the PLRA

on his application but raised an equal protection challenge

to the Act. Subsequently, on July 11, 1997, the court

permitted the United States to intervene under 28 U.S.C.

§ 2403 to defend the constitutionality of the PLRA.

The court in an opinion dated January 9, 1998, held that

Collins’ application for attorney's fees for services performed

after the PLRA became effective on April 26, 1996, was

subject to the PLRA’s attorney's fees limitations. The court,

however, in a determination not challenged on this appeal,

held that Collins was entitled to an award of attorney's fees

for pre-PLRA legal services without re for the Act's

limitations. It accordingly directed Co to submit a

revised fee petition conforming with the PLRA for the time

Pepper, Hamilton & Scheetz spent both in and out of court

after April 26, 1996. Moreover, the court upheld the

constitutionality of the attorney's fees provisions of the

PLRA.

that sought an award of $7,789.75 without regard for the

PLRA limitations for services before April 26, 1996, but

which reduced his request for services performed thereafter

from $72,333 to $30,000 in com with the PLRA.

Collins calculated this post-PLRA as $30,025.30 in

fees, based on the applicable hourly rate, reduced by

25.50 in accordance with the PLRA limitations. The

defendants raised no issue with respect to mathematical

calculations in this revised petition with respect to services

either before or after the enactment of the PLRA, and the

district court ted this revised fee petition by order

entered on F 17, 1998. The court at that time

divided the responsibility for the attorney's fees subject to

the PLRA on the basis of 97.5% or $29,250 to the

defendants and 2.5% or $750 to Collins. Collins filed a

timely notice of appeal from this fee award on March 13,

1998.2 The defendants have not cross-appealed and

2. He also moved for costs but the parties raise no issue regarding costs

on this appeal.

3. The defendants (not including the United States) contend that Collins’

appeal is untimely because he filed it more than 30 days after the

a ne

Rie Ate Nakita SRR tir os nt Wal te a

i te het ali Ii Saree Riri NA mie M05,

i Ree

7a

consequently they acquiesce in the district court's

allowance of fees for pre-PLRA services without regard for

the Act's limitations. The district court had jurisdiction

under 28 U.S.C. §§ 1331, 1343(a), and we have jurisdiction

under 28 U.S.C. § 1291. Following argument before the

original panel, the full court voted that the case be

considered en banc, and the parties thereafter reargued the

case before the en banc court. See Third Circuit Internal

Operating Procedure 9.4.

Il. DISCUSSION

On this appeal, we are asked to answer two questions: (1)

whether a court should apply the PLRA's attorney's fee

limitation provisions to prisoner civil rights cases pending

at the time of its enactment and, if so, (2) whether the

PLRA's attorney's fee provisions violate the equal protection

of the law guarantee inherent in the Fifth Amendment of

the United States Constitution.‘ Because these issues

present questions of law, our review is plenary.

district court’s January 9, 1998 order. As we have explained, attorney's

fee awards are not appealable until the court determines their amount.

See Government Guar. Fund of the Republic of Finland v. Hyatt Corp., 95

F.3d 291, 308 (3d Cir. 1996). Accordingly, because Collins filed his

notice of appeal less than 30 days after entry of the district court's

February 17, 1998 order awarding a quantified amount of attorney fees,

his appeal is timely.

4.The defendants (other than the United States) argue that because

Collins cashed his check for attorney's fees, which included an accord

and satisfaction notation, he has waived any right to appeal the district

court's fee award. It is well settled, however, that where a judgment is

appealed on the ground that the damages awarded are inadequate,

acceptance of payment of the amount of the judgment, standing alone.

does not amount to an accord and satisfaction of the entire claim. See

United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 16 (1960).

The defendants knew that Collins was unsatisfied with his fee award:

Collins filed and served his notice of appeal prior to cashing his check.

In addition, the defendants do not contend that they sent the check

pursuant to any settlement negotiations or agreement. In these

circumstances, Collins has not waived his right to appeal by cashing his

check.

8a

A. Retroactivity Questions

The PLRA’s attorney's fee limitation provisions are found

at 42 U.S.C. § 1997e(d), which provides in relevant part:

(d) Attorney's Fees

(1) In any action brought by a prisoner who is

confined to any jail, prison, or other correctional

facility, in which attorney's fees are authorized under

{42 U.S.C. § 1988], such fees shall not be awarded,

except to the extent that—

(A) the fee was directly and reasonably incurred in

proving an actual violation of the plaintiff's rights

protected by a statute pursuant to which a fee may be

awarded under [42 U.S.C. § 1988]; and

(B)(i) the amount of the fee is proportionately

related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in

enforcing the relief ordered for the violation.

oo eS ee ree een ~y' gH

action descri in peregeP 1), a re)

judgment (not to exceed 25 percent) shall be applied to

satisfy the amount of attorney's fees awarded against

the defendant. If the award of attorney's fees is not

greater than 150 percent of the judgment, the excess

shall be paid by the defendant.

(3) No award of attorney’s fees in an action described

in paragraph (1) shall be based on an hourly rate

greater than 150 percent of the hourly rate established

under section 3006A of Title 18[, the Criminal Justice

Act,] for payment of court-appointed counsel... .

These PLRA attorney's fee limitation provisions raise

three retroactivity questions here. With respect to

consideration of compensation based on the time a

plaintiff's attorney has expended on the case, the PLRA

limits attorney's fees to an hourly rate not greater than

150% of the hourly rate for court-appointed counsel

established under the Criminal Justice Act in the

applicable district. In this case, the hourly rates allowed on

the basis of 150% of the Criminal Justice Act rates were

oe ieee

9a

$97.50 for court time and $67.50 for time out of court. As

we have indicated. however, the court applied the

limitations only to services after the effective date of the

Collins contends, however, that the hourly rate provisions

should not be applied at all in this action as he filed it

before the enactment of the PLRA.

Another limitation is predicated on the amount of the

recovery and provides that the fees awarded cannot exceed

150% of the judgment. In this case, as the judgment was

for $20,000, the district court capped the fee at $30,000. In

this regard, we point out that the defendants do not

contend that the fees awarded Collins’ attorneys for pre-

PLRA services should count against the $30,000 cap and

thus the district court applied the cap only against the fees

for post-PLRA services. Inasmuch as the fees for post-PLRA

attorney's fees by the nominal amount of $25.30 to

$30,000. Collins nevertheless contends that the cap should

not be applied in this case in any degree as he filed it

before the enactment of the PLRA.

The third provision is a fee limitation only in the sense

Congress did not clearly define the temporal reach of any

of the three limitation provisions so we must consider

relief and a modest award of damages. Perhaps in such a case an

attorney's fee would not be limited by the cap in 42 U.S.C.

§ 1997(e)d)(2). We, however, leave that question to another day as

Collins recovered only monetary damages.

10a

whether as applied here they have a retroactive effect. See

raf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct.

1483, 1505 (1994). The Court of Appeals for the District of

Columbia Circuit in Inmates of D.C. Jail v. Jackson, 158

F.3d 1357 (D.C. Cir. 1998), recently addressed this issue in

part. The court concluded that it would join the Court of

Appeals for the Eighth Circuit in Williams v. Brimeyer, 122

F.3d 1093, 1094 (8th Cir. 1997), “in holding that

retroactivity concerns are not implicated when the statute

is applied to work performed after April 26, 1996, the date

of passage of the PLRA.” Inmates of D.C. Jail, 158 F.3d at

1360. The court went on to explain:

When it is applied to work “performed after the

effective date of the Act, the PLRA raises’ none of the

retroactivity concerns that require the analysis used by

the district court because the statute creates present

and future effects on present and future conduct, and

has no effect on past conduct. Compare [Jensen v.

Clarke, 94 F.3d 1191, 1203 (8%: Cir. 1996)] (holding

that the PLRA did not apply ts; pre-Act work) with

Williams, 122 F.3d at 1094 that as applied to

work performed after the passage of the Act, there is no

gene The fees at issue were earned after the

noel sous The PLRA does not . eee

aula ts because no right to a fee existed until

‘ar oak eas Ge Decmeee we Gad ae miscnstve

effect, ee at ae Court's

penne Ay analysis of when to permit retroactive

application. See , 511 U.S. 244; [Lindh v.

Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997)]. As the

Supreme Court stated in Landgraf, normally a court is

to apply the law in effect at the time it renders its

decision. 511 U.S. at 264 (quoting Bradley v.

Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40

L.Ed.2d 476 (1974)).

In Landgraf, the Supreme Court noted that it has

a functional definition of retroactivity. See id

at 268-69 & n.23. In Miller v. Florida, it stated that {a]

taw ia retrospective if it changes the legal consequences

of acts completed before its effective date. 482 U.S.

423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) .

Scere ate

lla

To determine if a statute has retroactive effect, the

court must decide whether it would impair rights a

party possessed when he acted, increase a party's

liability for past conduct, or impose new duties with

respect to transactions already completed. Landgraf,

511 U.S. at 280, 114 S.Ct. 1483. In determining .

whether the statute has retroactive effect, the court

should consider fair notice, reasonable :cliance, and

settled expectations. Id. at 270, 114 S.Ct. 1483. In this

case, the work at issue was not done until after the

passage of the Act. The attorneys did not possess a

right to payment until they performed the work for

which the fees were awarded, and thus had no settled

expectations. Simply put, as applied in this case, the

PLRA does not impair rights or upset expectations that

did not exist prior to its passage, and could not exist

after its passage. Because we hold only that the fee

limitations apply to work performed after the passage

of the Act, there is no need to continue the retroactivity

analysis.

quotation marks omitted). Thus, the court in Inmates of

D.C. Jail held “that applying the fee-capping provisions of

[42 U.S.C. § 1997e(d) | to work performed after April 26,

1996, does not implicate retroactivity concerns.” Id. at

1361.

We agree with the foregoing analysis, and thus we follow

it.* While Inmates of D.C. Jail was not concerned with the

limitation provision based on the size of the judgment, that

on an hourly basis without regard for any of the PLRA’s

limitations. Thus, we hold that the attorney's fees limitation

provisions of the PLRA predicated on ‘1ourly rates and the

6. We are aware of but do not follow Hadix v. Johnson, 143 F.3d 246 (6th

Cir), cert granted, 119 S.Ct. 508 (1998), which reached a contrary

result. We have no reason to express an opinion on whether the PLRA

limitations could be applied to cap fees for services performed before its

eflective date as the defendants do not contend that it should be so

applied.

12a

amount of the judgment simply do not have retroactive

effect, at least when, as here, a court applies them solely to

limit fees awarded for services performed after the effective

date of the Act based on a judgment entered after that date.

See also Madrid v. Gomez, 150 F.3d 1030, 1039 (9th Cir.

1998).

must decide, inter alia, whether “it would impair rights a

party when he acted.” Landgraf, 511 U.S. at 280,

114 S.Ct. at 1505.

Here the application of a portion of the judgment to the

attorney’s fees does have a retroactive effect because under

7. Our result is not inconsistent with our opinion in Gibbs v. Ryan, 160

F.3d 160 (3d Ctr. 1998), in which we held that the three strikes

provision of the PLRA, 28 U.S.C. §1915ig. did not permit the district

court te revoke an order granting in forma pauperis status entered prior

13a

fee application continue to be applicable after its

enactment. Thus, we see no escape from the conclusion

that the PLRA has a retroactive effect in this case to the

extent that it requires that a portion of a judgment be

applied to pay attorney's fees.

The PLRA does not indicate whether 42 U.S.C. § 1997e(d)

should be applied retroactively, and we find no clear

congressional intent from any other source to apply the

statute retroactively. In these circumstances, we will apply

the judicial default rule recognized in Landgraf that when

Congress does not state its intent with respect to

retroactivity a statute with a retroactive effect will be

applied prospectively. See Landgraf, 511 U.S. at 280, S.Ct.

at 1505; see also Lindh v. Murphy, 117 S.Ct. 2059, 2062

(1997); Mathews, 161 F.3d at 159-60. Consequently, we

will modify the order of February 17, 1998, to the extent

that it applied a portion of the judgment to satisfy

attorney's fees by eliminating that provision.

B. Constitutional Questions

Collins argues that the PLRA’s attorney's fee limitation

provisions violate equal protection of the law

withdrawing from prisoners but not other plaintiffs the

right —s 42 U.S.C. § 1988 to an award of reasonable

attorney's fees upon prevailing in a ctvil rights action.

Collins contends that by “virtually eliminating the potential

for a prisoner's recovery of reasonable fees, the Act severely

impairs the ability of prisoners to obtain counsel without

similarly affecting the ability of non-prisoners.”

In this case we are concerned only with the

constitutionality of the attorney's fee limitation provisions

limiting the attorney's fees to 150% of the judgment and

limiting the hourly rates to 150% of the hourly rates for

court- oo counsel under the Criminal Justice Act in

the app le district. Obviously, we do not face any

constitutional question with respect to application of a

portion of the ry to satisfaction of the attorney's fees

as we have ted that application in this case on a

nonconstitutional basis.

We have divided equally on the question of whether the

limitation of the fees to 150% of the judgment is

14a

constitutional and consequently we will affirm the order of

the district court to the extent that it upheld that provision.

This disposition renders the constitutional challenge to the

hourly rate limitation provision moot as the hourly rate

limitation standing alone would allow Collins $30,025.30 in

fees, a sum exceeding the $30,000 cap predicated on 150%

of the judgment. Consequently, an invalidation of the

hourly rate limitation could not enhance the fees allowed

for no matter what the hourly rate allowed for Collins’

attorneys’ services the fee cannot exceed $30,000 for post-

PLRA services. Therefore, we will not decide whether the

hourly rate limitation violates a prisoner's rights to equal

protection of the law.

Ill. CONCLUSION

For the foregoing reasons we will modify the order of

February 17, 1998, to the extent that it allocated $750 of

the attorney’s fee to Collins and will remand the case to the

district court to enter an amended order reflecting our

determination. Thus, the defendants against whom the

monetary damages judgment was entered will be

responsible for the entire $30,000 fee. We otherwise will

affirm the order of February 17, 1998. The parties will bear

their own costs on this appeal.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

ee ey

pets ea

1Sa

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL T. COLLINS : CIVIL ACTION

v.

JULIO M. ALGARIN, JAMES A. FREY, : FILED JAN - 9 1998

EDWIN NEGRON, ALFRED RICCI,

MARK GRIFFITH, FRANK GRIFFITH,

DAVID DOMBROSKI, JOSEPH WALSH & :

DELORES MARTIN : NO. 95-4220

MEMORANDUM AND ORDER

Norma L. Shapiro, J. January 9, 1998

Plaintiff Michael T. Collins (“Collins”) filed a civil rights

action against various prison officials. A jury found in favor of

Collins and against two of the defendants. Collins filed a peti-

tion for attorney’s fees under 42 U.S.C. § 1988. Defendants

argued the Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e(d), attorney’s fees provisions effective after

Collins filed suit, control the amount of fees Collins can

recover for work performed after the date of its enactment.

Collins argued the PLRA violates the Equal Protection

Clause and its application would have an impermissible retro-

active effect. The United States, permitted to intervene under

28 U.S.C. § 2403, submitted a legal memorandum supporting

the constitutionality of the PLRA. For the reasons stated

below, the court finds the PLRA constitutional and applicable

to all legal work performed after the date of enactment.

ENTERED: 1/12/98

CLERK OF COURT

16a

FACTS

Collins, a state prisoner confined at the State Correctional

Institute at Camp Hill, Pennsylvania (“Camp Hill”), was trans-

ferred to the Montgomery County Correctional Facility

(“MCCF”) in Eagleville, Pennsylvania, for a Montgomery

County court appearance. On July 27, 1995, Collins, alleging

violations of his rights under the First, Eighth and Fourteenth

Amendments, filed a pro se complaint based on 42 U.S.C.

§ 1983' against twenty-three Montgomery County prison offi-

cials.

The court appointed counsel for Collins; counsel filed sec-

ond and third amended complaints against the Montgomery

County Board of Prison Inspectors (the “Prison Board”) and

nine prison officials (collectively the “defendants”). The com-

plaints alleged the following: 1) on March 3, 1995, prison

guards at MCCF beat Collins;? 2) on June 28, 1995, MCCF

prison guards used excessive force against Collins and repeat-

edly “sicced” a police dog on Collins; and 3) the Prison Board

and the warden of MCCF approved and implemented an

unconstitutional policy allowing the use of a K-9 unit inside

MCCF.

The trial on the claims involving the K-9 unit began

December 9, 1996. The jury returned a verdict in favor of

Collins and against defendants Alfred Ricci (“Ricci”) and

Edwin Negron (“Negron”) on December 16, 1996. The jury

awarded Collins $15,000 in compensatory damages against

Negron and Ricci, $2,000 in punitive damages against Negron

and $3,000 in punitive damages against Ricci. Collins did not

1. 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress... .

2. The court severed the March 3, 1995 claim. The parties subse-

quently stipulated to a dismissal with prejudice of any claims arising out of

this incident.

ee eee een

Oe Oe eS See ae ae

17a

prevail on his claim that the Prison Board and the MCCF

warden implemented an official policy to use the K-9 unit in

an illegal manner. Collins prevailed on one of his three claims

against two of the ten defendants in his amended complaints.

Collins filed a petition for attorney’s fees under 42 U.S.C.

§ 1988. Defendants and intervenor the United States argued

the PLRA limits the amount of attorney’s fees Collins can

recover for work performed after its effective date on April

26, 1996.

DISCUSSION

I. Attorney's Fees in Prisoner Litigation

A successful civil rights plaintiff is entitled to recover rea-

sonable attorney’s fees under 42 U.S.C. § 1988.3 See Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). Collins was successful

against two defendants. Although his success was limited, Col-

lins was a “prevailing party”; Collins “succeeded on [a] signifi-

cant issue in litigation which achieved some of the benefit [he]

sought in bringing suit.” Texas State Teachers Ass’n v. Garland

Indep Sch Dist., 489 U.S. 782, 7981-92 (1989); see also City of

Riverside v. Rivera, 477 U.S. 561, 570 (1986) (plurality).

The PLRA was enacted on April 26, 1996 (the “enact-

ment date”), after Collins filed suit and before his attorneys

performed most of their legal work. The PLRA attorney’s fees

provisions pertain to “any action brought by a prisoner who is

confined to any jail, prison, or other correctional facility, in

3. 42 U.S.C. § 1988(b) provides:

In any action or proceeding to enforce a provision of sections 1981,

1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law

92-318, the Religious Freedom Restoration Act of 1993, title VI of the

Civil Rights Act of 1964, or section 13981 of this title,, [sic] 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, except that in any

action brought against a judicial officer for an act or omission taken in

such officer's judicial capacity such officer shall not be held liable for

any costs, including attorney's fees, unless such action was clearly in

excess of such officer's jurisdiction.

18a

which attorney’s fees are authorized under section 1988 of this

title.” 42 U.S.C. § 1997e(d)(1). Three provisions of the PLRA

are relevant here.

First, “[w]henever a monetary judgment is awarded in an

action described in paragraph (1), 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.” 42

U.S.C. § 1997e(d)(2). This provision requires the court to

deduct from the plaintiff's judgment a portion of attorney’s

fees awarded plaintiff's counsel.

Second, “[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.” /d. This limits the total amount of attorney's

fees paid by the defendants to 150 percent of the plaintiff's

judgment.

Third, “[nJo award of attorney’s fees in an action

described in paragraph (1) shall be based on an hourly rate

greater than 150 percent of the hourly rate established under

section 3006A of Title 18, for payment of court-appointed

counsel.” 42 U.S.C. § 1997e(d)(3). This provision places an

upper limit on the attorney’s hourly billing rate upon which

the court bases an award of fees. The issue is what effect these

provisions have on actions pending on the date of enactment,

April 26, 1996.4

Il. Application of the PLRA to Actions Pending on the Date

of Enactment

Application of the PLRA attorney’s fees provisions to

actions pending on the date of enactment raises the issue of

retroactivity The Due Process Clause “protects the interest in

fair notice and repose that may be compromised by retroac-

tive legislation.” Landgraf v. USI Film Products, 511 U.S. 244,

266 (1994). Retroactive legislation deserves judicial attention

because it may involve the legislature’s “sweep[ing] away

settled expectations suddenly and without individualized con-

4. The only attorney's fees at issue in this case are those billed after

April 26, 1996. The defendants have paid the costs and fees billed on or

before that date.

19a

sideration” or responding “to political pressures [to act]

against unpopular groups or individuals.” Jd.

Landgraf established a two-part test for analyzing legisla-

tion having a potential retroactive effect: 1) examine “whether

Congress has expressly prescribed the statute’s proper reach”;

and 2) when “the statute contains no such express command,

the court must determine whether the new Statute would have

retroactive effect.” Jd. at 280.

A. Congressional Intent

Congress did not expressly state if the PLRA attorney's

fees provisions apply to actions pending on the enactment

date. The PLRA is comprised of ten sections; the attorney's

fees provisions, codified at 42 U.S.C. § 1997e(d), are contained

in § 803. Only § 802, dealing with injunctions, consent decrees

and other prospective relief in prison litigation, codified at 18

U.S.C. § 3626, expressly applies to pending actions.5 Collins

argues that Congress did not intend the attorney's fees provi-

sions of § 803 to apply to pending actions; he relies on Lindh

v. Murphy, 117 S. Ct. 2059 (1997). In Lindh, the Court consid-

ered whether the Antiterrorism and Effective Death Penalty

Act’s (“AEDPA”) amendments to chapter 153 of Title 28

applied to actions pending on the date of enactment. Congress

was silent on the issue, but had explicitly provided the AED-

PA's amendments to chapter 154 of Title 28 “shall apply to

cases pending on or after the date of enactment of this Act.”

AEDPA, Pub. L. No. 104-132, § 107(c), 110 Stat. 1214, 1226

(1996).

The Court focused on the effects of the two provisions.

The amendments to chapter 153 established new standards for

review of habeas corpus petitions filed by state prisoners; the

amendments to chapter 154 provided for review of habeas

corpus petitions filed by state prisoners under capital sen-

tences. See Lindh 117 S. Ct. at 2063-64. The Court found it

ee a i

5. Section 802 provided: “Section 3626 of title 18, United States Code,

as amended by this section, shall apply with respect to all Prospective relief

whether such relief was originally granted or approved before, on, or after

the date of enactment of this title.” PLRA, Pub. L. No. 104-134, § 802(b)(1),

110 Stat. 1321, 1321-70 (1996),

20a

“significant” that both provisions “govern[ed] standards

affecting entitlement to relief,” and “everything we have just

observed about [the effects of] chapter 154 is true of changes

made to chapter 153.” /d. at 2064. Because the two provisions

of the AEDPA were so similar in their effects, the Court

determined Congress must have intentionally omitted lan-

guage prescribing application of the chapter 153 amendments

to pending actions. See id. at 2064-65.

Both AEDPA chapters considered in Lindh established

the standard of review for habeas corpus petitions filed by

state prisoners. No such similarity exists between §§ 802 and

803 of the PLRA. When enacting § 802, dealing with prospec-

tive relief, Congress had on record numerous injunctions and

consent decrees retaining continuing jurisdiction over state

and local prisons. Congress specifically addressed the applica-

tion of § 802 to pending actions to make clear it intended the

prospective relief provisions of the PLRA to apply to all pro-

spective relief, whether such relief was granted or approved

before or after the date of enactment. See Salahuddin v. Mead,

No. 95-8581, 1997 WL 357980 (S.D.N.Y. Jun. 26, 1997) (Con-

gress included this language in § 802 “in order to emphasize

the unusually far-reaching consequences of this retroactivity

provision.”).

Section 803 provides limitations on attorney's fees and is

not so similar to § 802 to permit an inference of intent from

Congressional silence in § 803 compared to § 802. The failure

of Congress to include language in § 803 specifically dealing

with pending cases is not a case where “Congress’ silence in

this regard can be likened to the dog that did not bark.”

Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991); see also

Harrison v. PPG Industries, Inc., 446 U.S. 578, 602 (1980)

(Rehnquist, J., dissenting). Congress did not expressly

provide that the PLRA attorney’s fees provisions apply to

pending actions.

B. Retroactivity

The court must decide whether application of the provi-

sions to Collins would have an impermissible retroactive

effect. See Landgraf, 511 U.S. at 280.

2la

“Retroactivity is not favored in the law... .” Bowen Vv,

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). However,

courts generally are to apply the law in effect at the time they

render their decision, “even though that law was enacted after

the events that gave rise to the suit.” Landgraf, 511 US. at

273. “[E]ven where the intervening law does not expressly

recite that it is to be applied to pending cases, it is to be given

recognition and effect.” Bradley v. School Bd. of Richmond,

416 U.S. 696, 715 (1974) (citing Thorpe v. Housing Auth. of

City of Durham, 393 U.S. 268, 282 (1969); United States v.

Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)).

Applying a statute to pending actions will have an imper-

missible retroactive effect only if it “attaches new legal conse-

quences to events completed before its enactment.” Landgraf,

511 U.S. at 270. To be impermissible, application of the stat-

ute must do more than “upset[] expectations based in prior

law.” Jd. at 269. The “potential unfairness of retroactive civil

legislation is not a sufficient reason for a court” to refrain

from applying it to pending cases. Jd. at 267.

There is an impermissible retroactive effect if application

of the statute to a pending action amounts to an “injustice.”

Bradley, 416 U.S. at 717; see Lindh, 117 S. Ct. at 2063 (inter-

vening statute changed “standards of proof and persuasion in

a way favorable to [the] state”). If the new statute causes a

“change in the substantive obligation of the parties,” applica-

tion of the statute may be impermissible. Bradley, 416 U.S. at

721. New statutes cannot be applied to pending actions if they

would “infringe upon or deprive a person of a right that had

matured or become unconditional.” /d. at 720.

“No person has a vested interest in any rule of law, enti-

tling him to insist that it shall remain unchanged for his ben-

efit.” New York Central R.R. Co. v. White, 243 U.S. 188, 198

(1917). “ ‘If every time a man relied on existing law in arrang-

ing his affairs, he were made secure against any change in

legal rules, the whole body of our law would be ossified for-

ever.’” Landgraf, 511 U.S. at 270 n.24 (citation omitted).

Attorney's fees determinations “ ‘are collateral to the

main cause of action’ and ‘uniquely separable from the cause

of action to be proved at trial.’ ” Landgraf, 511 U.S. at 277

22a

(quoting White v. New Hampshire Dept. of Employment Secu-

rity, 455 U.S. 445, 451-52 (1982)). Application of new statutory

provisions regarding attorney's fees provisions to pending civil

actions does not “ ‘impose an additional or unforeseeable obli-

gation’” upon the parties. /d. at 278 (quoting Bradley, 416

U.S. at 721)); see Morgan Guaranty Trust Co. v. Republic of

Palau, 971 F.2d 917, 922-23 (2d Cir. 1992); Simmons v. Lock-

hart, 931 F.2d 1226, 1229-31 (8th Cir. 1991).

No Third Circuit decision addresses application of the

PLRA attorney's fees provisions to actions pending on April

26, 1996, but two other courts of appeals have determined the

provisions apply to legal fees earned in actions pending on the

date of enactment. See Williams v. Brimeyer, 122 F.3d 1093,

1094 (8th Cir. 1997); Alexander S. v. Boyd, 113 F.3d 1373, 1388

(4th Cir. 1997). In Williams, the court simply stated § 1997e(d)

“applies to all hours worked in this case after the date of the

passage of the Act. This is not a ‘retroactive’ application of the

new law.” Williams, 122 F.3d at 1094.

The Alexander S. court focused on the “secondary”

nature of attorney's fees and held the PLRA's attorney's fees

provisions did not disrupt any matured rights of the parties.

See Alexander S., 113 F.3d at 1387-88. The court determined

“a statute has a retroactive effect under Landgraf only when

it negatively impacts a party's expectations or rights.” /d. at

1387 n.12. The PLRA fee provisions only “upset the expecta-

tions of Plaintiff's counsel,” but that was not enough to create

an impermissible retroactive effect. Jd. The court determined

the PLRA fee provision did not “attach new legal conse-

quences to completed events,” id. at 1388; nor were the provi-

sions “so fundamentally unfair as to result in manifest injus-

tice.” Id .°

District courts addressing the application of the PLRA

fee provisions to pending cases are divided. Some courts have

held the provisions apply to all work performed after the

enactment date, see Hadix v. Johnson, 947 F. Supp. 1113, 1115

6. The court also held the PLRA provisions had to be applied to all

legal work in pending cases performed prior to the date of enactment. See

Alexander S., 113 F.3d at 1377. That is not at issue in the present case.

23a

(E.D. Mich. 1996) [“Hadix, I ”], but others have held applica-

tion of the PLRA fee Provisions to pending cases, even for

work performed after the enactment date, would be impermis-

sible. See Campbell vy. McGruder, Nos. 71-1462, 75-1668, slip

129 (N.D.N.Y. 1997); Hadix v. Johnson, 965 F. Supp. 996, 1001

(W.D. Mich. 1997) (citing cases) [“Hadix IT”).

Collins relies heavily on Cooper vy. Casey, 97 F.3d 914 (7th

Cir. 1996), Jensen v. Clarke, 94 F3A 1191 (8th Cir. 1996), and

Weaver v. Clarke, 933 F. Supp. 831 (D. Neb. 1996), aff’d 120

F.3d 852 (8th Cir. 1997), cert, filed, 66 U.S.L.W. 3298 (Oct. 8,

1997), but these cases are distinguishable. In Jensen, the court

determined the PLRA fee Provisions could not be applied to

a pending action because the PLRA “was not in effect when

the plaintiffs’ attorneys accepted this appointment, when

liability and fee determinations were made, or even when we

remanded this case to the District Court.” Jensen, 94 F.3d at

1202. Here, the PLRA was enacted well before the liability

and attorneys’ fee determinations. In Williams, the court of

appeals specifically limited the Jensen holding to situations

where the work was performed prior to the enactment date.

See Williams, 122 F.3d at 1094, Collins has recovered attor-

ney’s fees for work performed prior to the enactment date.’

The Cooper court refused to apply the PLRA fee provi-

sions to a pending action because it would interfere with

“completed conduct, namely the services rendered by the

plaintiffs’ counsel in advance of the passage of the [PLRA].”

Cooper, 97 F.3d at 921. In Weaver, “all of the action that trig-

gered entitlement to an attorney's fee award took place prior

to the date of enactment of the PLRA.” Weaver, 933 F. Supp.

at 835. Here, the PLRA was enacted well before the liability

and attorney's fee determinations. Collins is attempting to

obtain attorney's fees for work performed after the enactment

date, so these cases are inapposite.

After April 26, 1996, Collins’ attorneys had notice of the

PLRA and its potential effect on any attorney’s fees award to

which they might be entitled. Plaintiff's counsel may have had

7. See Order dated November 4, 1997.

i

24a

an expectation of receiving fees if plaintiff ultimately was suc-

cessful, but there was never an entitlement in any particular

fee amount. “Even after a victory on the merits or a declara-

tion of entitlement to fees an attorney has no right to a spe-

cific fee under § 1988 until the actual fees are awarded.” Alex-

ander S., 113 F.3d at 1392 (Motz J., concurring). Applying the

PLRA fee provisions to Collins will not “impair rights [he]

possessed when he acted, increase [his] liability for past con-

duct, or impose new duties with respect to transactions

already completed.” Landgraf, 511 U.S. at 280. Limiting pris-

oners’ attorneys’ fees to 150 percent of the amount allowed

for court-appointed counsel is not “so fundamentally unfair as

to result in manifest injustice.” Hadix I, 947 F. Supp. at 1115.

Therefore, the court finds application of the PLRA fee provi-

sions will not create an impermissible retroactive effect.

Ill. Equal Protection

Collins also argues that, even if the PLRA fee provisions

do not have an improper retroactive effect, they violate the

principal of equal protection under the law.’ Collins argues the

fee provisions place “prisoners in a different class than all

other civil rights litigants for purposes of attorneys’ fees under

42 U.S.C. § 1988.” Pitff.’s Supp. Mem. Supp. of Att. Fees at 9

[“Pitff.'s Supp. Mem.”] Collins argues: 1) these provisions bur-

den a fundamental right and fail under strict scrutiny analysis;

and 2) even if rational basis review applies, the provisions are

irrational.

A. Strict Scrutiny

When legislation classifies by certain suspect categories or

“impinge[s] upon personal rights protected by the Constitu-

tion,” a heightened level of scrunity applies. Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The govern-

ment must “demonstrate that its classification has been pre-

cisely tailored to serve a compelling governmental interest.”

Plyler v. Doe, 457 US.

8. The Fifth Amendment provides: “No person shall . . . be deprived

of life, liberty, or property, without due process of law.” U.S. Const. art. V.

This clause encompasses equal protection of law. See Mathews v. Castro, 429

U.S. 181, 181 n. 1 (1976).

25a

202, 217 (1982); see Cleburne, 473 U.S. at 440 (“suitably tai-

lored to serve a compelling state interest”). Collins concedes

prisoners do not form a Suspect class requiring strict scrutiny

of the legislation; he bases his argument on the alleged inter-

ference with his fundamental right of access to the courts.

Federal courts “must take cognizance of the valid consti-

tutional claims of prison inmates.” Turner v. Safley, 482 U.S.

78, 84 (1987). “Because a prisoner ordinarily is divested of the

privilege to vote, the right to file a court action might be said

to be his remaining most ‘fundamental political right, because

preservative of all rights.’ ” McCarthy v. Madigan, 503 U.S.

140, 153 (1992) (quoting Yick Wo v, Hopkins, 118 U.S. 356,

370 (1886)).

Collins argues the “PLRA attorneys’ fees provisions com-

bine to increase substantially the risk of nonpayment of fees

and to decrease the amount of payment, making prison litiga-

tion much less feasible and attractive to private counsel.”

Pitff.'s Supp. Mem. at 14. Because private counsel will be less

willing to assume pro bono representation of indigent prison

inmates, the PLRA fee provisions place a burden on the pris-

oner’s ability to conduct litigation.

The PLRA fee provisions do not hamper an inmate's abil-

ity to file or prosecute a lawsuit: they merely make it more

difficult to obtain pro bono representation by private firms.

The Supreme Court has not recognized that burdens of this

limited nature violate the fundamental right of court access. In

McCarthy, the Court found filing deadlines imposed by the

Federal Bureau of Prisons “a likely trap for the inexperienced

and unwary inmate.” McCarthy, 503 U.S. at 153. This “trap”

effectively cut off prisoners’ access to the courts because their

claims would be dismissed for technical, procedural infirmities

which many prisoners would fail to understand.

Not every regulation remotely affecting a prisoner's abil-

ity to conduct litigation constitutes an infringement of the fun-

damental right of court access. “To the contrary, reasonable

regulations that do not significantly interfere with (the funda-

mental right] may legitimately be imposed.” Zablocki y.

Redhail, 434 U.S. 374, 386 (1978). The right of court access

26a

includes the ability to prepare and file legal documents and to

avoid filing fees in certain situations. See Lewis v. Casey, 116

S. Ct. 2174, 2179 (1996) (citing Johnson v. Avery, 393 U.S. 483,

484, 489-90 (1969); Burns v. Ohio, 360 U.S. 252, 258 (1959); Ex

parte Hull, 312 U.S. 546, 547-49 (1941)).

The right of access does not include the right to counsel

in civil cases, even those involving constitutional issues. See

Lassiter v. Department of Social Servs., 452 U.S. 18, 25-27

(1981). Since a prisoner has no right to counsel in civil actions,

the right to court access has not been violated because the

PLRA fee provisions make it more difficult to obtain counsel.

The PLRA fee provisions do not restrict the ability of an

inmate to initiate and conduct litigation. A prisoner may ben-

efit from having counsel in civii actions, but has no right to

demand representation. The Constitution “does not guarantee

inmates the wherewithal to transform themselves into litigat-

ing engines capable of filing everything from shareholder

derivative actions to slip-and-fall claims.” Lewis, 116 S. Ct. at

2182. The PLRA fee provisions do not impermissibly burden

the right of court access; strict scrutiny is not appropriate.

B. Rational Basis Review

If “a law neither burdens a fundamental right nor targets

a suspect class, we will uphold the legislative classification so

long as it bears a rational relationship to some legitimate end.”

Romer v. Evans, 116 S. Ct. 1620, 1627 (1996). The “legislation

is presumed to be valid and will be sustained if the classifica-

tion drawn by the statute is rationally related to a legitimate

state interest.” Cleburne, 473 U.S. at 440. “[RJ]ational-basis

review in equal protection analysis ‘is not a license for courts

to judge the wisdom, fairness, or logic of legislative choices.’ ”

Heller v. Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach

Communications, Inc., 508 U.S. 307, 313 (1993)).

The PLRA legislative history does not reveal the Coii-

gressiona! purpose in enacting the attorney’s fees provisions,

but a general purpose of the PLRA was “to discourage the fil-

ing of frivolous suits and appeals by prisoners.” McGann v.

Commissioner of Social Sec. Admin., 96 F.3d 28, 31 2d Cir.

27a

1996).° Collins argues the PLRA fee provisions are irrational

because they do not further that goal.

The PLRA fee provisions require that successful prison-

ers pay a portion of their attorney’s fees. See 42 U.S.C.

§ 1997e(d)(2). Requiring prisoners to contribute to their attor-

ney’s fees may create a disincentive to filing lawsuits in general

and frivolous lawsuits in particular. The provision limiting

attorney's fees hourly rates to 150 percent of the amount

allowed for court-appointed counsel, see 42 U.S.C.

§ 1997e(d)(3), may have been an attempt to bring the fees

earned by prisoners’ lawyers in civil actions more in line with

those earned by court-appointed attorneys in criminal actions.

There is no question most criminal counsel are effective

despite the lower fees.

Collins argues the fee provisions are both too narrow,

because they do not reach frivolous lawsuits filed by prisoners

proceeding pro se, and too broad, because they do reach non-

frivolous lawsuits filed by successful prisoners. But the court

must uphold the legislation “ ‘if there is any reasonably con-

ceivable state of facts that could provide a rational basis for

the classification.’” Heller, 509 U.S. at 320 (quoting Beach

Communications, 508 U.S. at 313). A court cannot overturn

legislation merely because “there is an imperfect fit between

means and ends.” Heller, 509 U.S. at 321. “The problems of

government are practical ones and may justify, if they do not

require, rough accommodations — illogical, it may be, and

unscientific.” Metropolis Theater Co. v. Chicago, 228 U.S. 61,

69-70 (1913).

The burden is on Collins “to negate every conceivable

basis which might support” the legislation. Lehnhausen v.

Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). As long

as the PLRA fee provisions “find some footing in the realities

of the subject addressed by the legislation,” see Heller, 509

9. The fact that Congress did not enunciate its Purposes is irrelevant,

because “a legislature that creates these categories need not ‘actually articu-

late at any time the purpose or rationale supporting its classification.’ ”

Heller, 509 U.S. at 320 (quoting Nordlinger v. Hahn, 505 U.S. 1, 15 (1992)).

The statute “may be based on rational speculation unsupported by evidence

or empirical data.” Beach Communications, 508 U.S. at 315.

28a

U.S. at 321, the court must uphold them, even if they seem

“unwise” or work “to the disadvantage of a particular group,

or if the rationale . . . seems tenuous.” Romer, 116 S. Ct. at

1627. Collins has not met that burden; the PLRA attorney’s

fees provisions are constitutionally applied to cases pending

on its enactment date.

IV. Attorney’s Fees Calculation

The PLRA requires that attorney’s fees are awarded at an

hourly rate no more than 150 percent of the hourly rate estab-

lished under 18 U.S.C. § 3006A for payment of court-

appointed counsel. See 42 U.S.C. § 1997e(d)(3). Section

3006A'° currently provides that court-appointed attorneys are

paid $60 per hour for time spent in court and $40 per hour for

time spent out of court unless the Judicial Conference deter-

mines a higher rate is justified in a district. In this district, the

hourly rates are $65 for time spent in court and $45 for time

spent out of court. Under the PLRA, the maximum hourly

rates are $97.50 for time spent in court and $67.50 per hour for

time spent out of court.

Collins’ attorney, Stephen G. Harvey (“Harvey”), skill-

fully represented Collins and is entitled to the full amount

authorized by statute ($97.50 per hour). The court will award

fees for time spent by associate counsel Michelle H. Yeary

(“Yeary”). Yeary is billed by the firm at $95 per hour, so that

is her maximum hourly rate for time spent in court. Likewise,

the limited time spent by plaintiff’s counsels’ supervising part-

ner, Philip J. Katauskas (‘““Katauskas”), was reasonable and

10. 18 U.S.C. § 3006A(d)(1) states:

Any attorney appointed pursuant to this section or a bar association or

legal aid agency or community defender organization which has pro-

vided the appointed attorney shall, at the conclusion of the representa-

tion or any segment thereof, be compensated at a rate not exceeding

$60 per hour for time expended in court or before a United States

magistrate and $40 per hour for time reasonably expended out of court,

unless the Judicial Conference determines that a higher rate of not in

excess of $75 per hour is justified for a circuit or for particular districts

within a circuit, for time expended in court or before a United States

magistrate and for time expended out of court... .

29a

meant to ensure the quality of representation. The court will

also award fees for the reasonable time he spent out of court.

The court will award each of them the full amount permitted

under the statute ($67.50 per hour) for their time spent out of

court. The total amount of fees since the effective date will be

no more than 150 percent of the judgment. See 42 U.S.C.

§ 1991e(d)(2).

Under the PLRA, the court must deduct from the full

attorney's fee award a portion (up to 25 percent) to be paid by

the plaintiff. See id. The PLRA does not impose any minimum

percentage that must be applied toward the fees. Plaintiffs

engaging an attorney on a contingent-fee basis commonly pay

one-third or even two-fifths of their recovery to their attor-

neys; there is nothing abhorrent in requiring a successful

prisoner-plaintiff to pay a portion of the attorney's fees. A

plaintiff filing an action prior to the enactment of the PLRA

may have had an expectation (although not a “matured right”)

of keeping 100 percent of his judgment under § 1988 at the

time he filed suit, an expectation that may have influenced his

request for counsel, the court may take this into account in

determining the percentage (up to 25 percent) to be deducted

from his judgment toward attorney's fees award. This is not

unfair to defendants who understood when the action was

filed that they would pay attorney's fees in their entirety if

they did not settle the case or prevail at trial.

It is not possible to calculate the appropriate fee from the

materials presented. Plaintiff's attorneys shall resubmit their

fee petition allocating the time between that in court and not

in court. Court time shall be calculated at $97.50 for Harvey

and $95.00 for Yeary, and out-of-court time shall be calculated

at $67.50 for both of them as well as for Katauskas.

The total amount will be substantially less than that

claimed by plaintiff's attorneys, but it may not be substantially

less than the amount awarded by the court prior to enactment

of the restrictions imposed by the PLRA. The quality of rep-

resentation was exceptional. However, plaintiff brought suit

against twenty-three, later ten, defendants for three incidents

allegedly violating his constitutional rights; he ultimately pre-

vailed against two defendants on one of his three claims. The

30a

fees claimed were approximately four times the jury’s award of

damages and might well have been reduced pre-PLRA under

Hensley.

An appropriate Order follows.

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL T. COLLINS CIVIL ACTION

v.

JULIO M. ALGARIN,

JAMES A. FREY,

EDWIN NEGRON,

ALFRED RICCI,

MARK GRIFFITH,

FRANK GRIFFITH,

DAVID DOMBROSKI,

JOSEPH WALSH &

DELORES MARTIN NO. 95-4220

ORDER

AND NOW, this 9th day of January, 1998, upon consider-

ation of plaintiff Michael T. Collins’ (“Collins”) petition for

attorney's fees, the responses by defendants and intervenor

the United States, after a hearing in which counsel for all par-

ties were heard, and in accordance with the attached Memo-

randum, it is hereby ORDERED that:

1. Collins’ attorneys shall be awarded reasonable attor-

ney’s fees in accordance with the Prison Litigation Reform

Act, 42 U.S.C. § 1997e(d), for time expended after April 26,

1996.

2. Collins’ attorneys shall submit a revised fee petition

within ten (10) days allocating their time between in court and

out of court time after April 26, 1996.

Wee £ Aan)

Norma L. Shapiro, J.

32a

42 USCA s 1997e

42 U.S.C.A. § 1997e

UNITED STATES CODE ANNOTATED

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 21—CIVIL RIGHTS

SUBCHAPTER I-A—INSTITUTIONALIZED PERSONS

Copr. © West 1999. No. Claim to Orig. U.S. Govt. Works

Current through P.L. 106-20, approved 4-9-99

§ 1997e. Suits by prisoners

(d) Attorney’s fees

(1) In any action brought by a prisoner who is confined to any

jail, prison, or other correctional facility, in which attorney’s

fees are authorized under section 1988 [FN1] of this title, such

fees shall not be awarded, except to the extent that—

(A) the fee was directly and reasonably incurred in proving an

actual violation of the plaintiff’s rights protected by a statute

pursuant to which a fee may be awarded under section 1988

[FN1] of this title; and

(B)(i) the amount of the fee is proportionately related to the

court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing

the relief ordered for the violation.

(2) Whenever a monetary judgment is awarded in an action

described in paragraph (1), 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. If the award of

attorney’s fees is not greater than 150 percent of the judgment,

the excess shall be paid by the defendant.

(3) No award of attorney’s fees in an action described in para-

graph (1) shall be based on an hourly rate greater than 150

percent of the hourly rate established under section 3006A of

Title 18, for payment of court-appointed counsel.

33a

42 USCA s 1997e

(4) Nothing in this subsection shall prohibit a prisoner from

entering into an agreement to pay an attorney's fee in an

amount greater than the amount authorized under this subsec-

tion, if the fee is paid by the individual rather than by the

defendant pursuant to section 1988 [FN1] of this title.