Petition for Writ of Certiorari — Dowd v. Butler

92-1 346° Tite

No. | FEB 9

SEFREE OF TH

IN THE

rt, US,

1993

CLERK |

Supreme Court of the United States .

OcroBerR TERM, 1992

Denis Down,

Petitioner,

VS.

IVRON BUTLER, FRANK A. LEDFERD,

Davip CorpDer, HERSHEL MARSH,

DoyYLe KIRKMAN, JAY M. FRENCH,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Erww O. Swirzer, III

(Counsel of Record)

Special Assistant Attomney General

JEREMIAH W. NIXON

Attorney General

State of Missouri

211 North Broadway

Suite 3600

St. Louis, Missouri 63102

(314) 259-2000

Attorneys for Petitioner

St. Louis Law Printing,Inc. 13307ManchesterRd. St Louis, MO 63131 314-231-4477

7

QUESTIONS PRESENTED

When plaintiffs seek actual and punitive damages and

injunctive and declaratory relief against eleven defendants

in six counts under 42 U.S.C. §1983, and the verdict is only

for nominal damages against one defendant on one count,

is the award of $95,000 in attorneys’ fees to plaintiffs’

counsel “reasonable” in light of Farrar v. Hobby, 506 U.S.

—___, 113 S.Ct. 566 (1992)?

May attorneys’ fees on appeal be awarded when plaintiffs’

primary success on appeal was preserving a $95,000 dis-

trict court attorneys’ fees award based on a nominal dam-

ages verdict?

STATEMENT PURSUANT TO RULE 14.1(b)

The names of all parties to the proceeding in the United

States Court of Appeals for the Eighth Circuit are found in the

caption of this Petition for Writ of Certiorari. The caption

includes two persons who originally were plaintiffs in the district

court but whose cases were voluntarily dismissed on the first day

of trial: Ivron Butler and Doyle Kirkman. Also on the first day

of trial all defendants but one were voluntarily dismissed with

prejudice. The former defendants are:

Dick Moore

George Lombardi

Myrna Trickey

Daniel Henry

Phil Banks

Bruce Scott

Tim Sellars

Allan Luebbers

Rick Jones

Tom Gibson

— 1li—

TABLE OF CONTENTS

ants ste cna anceheniincnpsanaiondannsaneeiins

Statement Pursuant to Rule 14.1(b).............. ce eeeeeee

I a. sss sasceinmantenbanbie

III sins ssidcandesisniednssentnssasceceecsnesasesenacesssccnnssce

ss scnmslntninennenenenene

Statutes and Constitutional Provisions Involved............

EEL ELT ATT

Reasons Why the Writ Should Be Granted ...................

‘

THE DECISION OF THE COURT OF AP-

PEALS UPHOLDING A LARGE ATTOR-

NEYS’ FEES AWARD BASED ON ANOMI-

NALDAMAGES VERDICTIS CONTRARY

TO THIS COURT’S RECENT DECISION

IN FARRAR v. HOBBY. ...........s..0s0ssesseeeesseess

THE AWARD OF ATTORNEYS’ FEES ON

APPEAL IS ALSOCONTRARY TOFARRAR

_< —____ge IE A ee

THIS COURT SHOULD SUMMARILY

REVERSE THE JUDGMENT OF THE

COURT OF APPEALS OR, ALTERNA-

TIVELY, VACATE THE JUDGMENT AND

REMAND TO THE COURT OF APPEALS

FOR FURTHER CONSIDERATION IN

LIGHT OF FARRAR v. HOBBY. ..............+++:

i ceusanannneneouaenes

nO ~~ WH WN

Appendix

Appendix A

Judgment of the United States Court of Appeals for

the Eighth Circuit, dated November 11, 1992, as

Appendix B

Order of Consolidation of appeals by the United

States Court of Appeals for the Eighth Circuit,

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Appendix C

Order Granting Petition for Rehearing by the United

States Court of Appeals for the Eighth Circuit,

EE ee Bg. ee tc pinctenitditiiniiniatintniniicctaen

Appendix D

Order of the United States District Court for the

Eastern District of Missouri awarding attorneys’

fees to plaintiffs, dated September 17, 1990.........

Appendix E

Memorandum of the United States District Court

for the Eastern District of Missouri in connection

with the award of attorneys’ fees to plaintiffs, dated

Appendix F

Order by the United States Court of Appeals for the

Eighth Circuit awarding plaintiffs attorneys’ fees

on appeal, dated February 3, 1993 .0............sccs0e0

A-49

A-50

A-51

A-52

ila

— Vv

TABLE OF AUTHORITIES

Page(s)

Cases:

Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992) .............. 1

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1966)... 8

Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566 (1992) ... passim

Hewitt v. Helms, 482 U.S. 755 (1987) ...........csccccsseeeees 7

James B. Beam Distilling Co. v. Georgia, U.S.

ee Lt. | ene 8

Kolodzieczak v. Friend, 61 LW 3498, No. 92-292 (U.S.

Jan. 19, 1993), vacating and remanding 965 F.2d

ae eh I eared snirchidebsininiinnnceantaitanabicisianinivnn 10

Nichols v. Romberg, 61 LW 3498, No. 92-402 (U.S. Jan.

19, 1993),vacating and remanding 953 F.2d 1152

a IE daetestbsciinsnscnsinciiaelndbcnitiiatnndlibinhacsintilintia 10

Riverside v. Rivera, 477 U.S. 561 (1986) .................00.. 8

Other Authorities:

OOOO ET

Be TT icenioisiocinnsenntesinnebnsietbtiniiisibianiunibdicamaienanian

NA TE sccnitncciicsuhitsnicceshia eenbienintinentuieiauaiviadataaialian

Fe a ceieniascasisunleciisannsteidinailsntininsindianeiiaabiils

Fe ee EE Wiolinsitiecvinnisiniinctaindbainiinainbaietechicininiatieticias

42 U.S.C. $1988(b)

No.

IN THE

Supreme Court of the United States

OcrTosBER TERM, 1992

Denis Down,

Petitioner,

vs.

IVRON BUTLER, FRANK A. LEDFERD,

DAVID CoRDER, HERSHEL MARSH,

Doy._e KIRKMAN, JAY M. FRENCH,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Denis Dowd, defendant in the action below, respectfully prays

that a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Eighth Circuit, filed November

11, 1992, and the Order of the United States Court of Appeals for

the Eighth Circuit awarding attorneys’ fees on appeal, filed

February 3, 1993.

OPINIONS BELOW

The judgment that is the subject of this petition is the attor-

neys’ fees portion of the en banc opinion of the United States

Court of Appeals for the Eighth Circuit entered on November 11,

1992. Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992). Amend-

ments to the dissenting opinion in ways not material to this

petition were made on November 17, 1992 and January 7, 1993.

A copy of the en banc opinion, as amended, is reproduced in

Appendix A. The opinion covers three appeals which were

consolidated by order of the United States Court of Appeals for

the Eighth Circuit dated December 10, 1990. The consolidation

order is reproduced in Appendix B. This petition is directed only

to one of those consolidated appeals—No. 90-2782EM—-which

dealt with the award of attorneys’ fees to plaintiffs/respondents

by the district court.

A petition for rehearing en banc was granted by Order of the

United States Court of Appeals for the Eighth Circuit on April 1,

1992, which is reproduced in Appendix C. This order vacated a

panel opinion that had been entered February 6, 1992. The

vacated order is not published, but can be found in WESTLAW,

1992 WL 18260. The appeal to the Eighth Circuit on attorneys’

fees was from an Order of the United States District Court for the

Eastern District of Missouri entered September 17, 1990 (Cause

No. 89-0276-C(6)), which is reproduced in Appendix D. The

district court issued a Memorandum in connection with that or-

der on September 19, 1990, which is reproduced in Appendix E.

Petitioner also seeks review of the Order entered by the United

States Court of Appeals for the Eighth Circuit on February 3,

1993, awarding plaintiffs $12,000 in attorneys’ fees for work on

appeal, together with costs in thé amount of $47.25. This order

is reproduced in Appendix F. :

JURISDICTION

The judgment of the United States Court of Appeals for the

Eighth Circuit affirming the award of attorneys’ fees in the

district court was entered on November 11, 1992. The Order of

the United States Court of Appeals for the Eighth Circuit

awarding attorneys’ fees on appeal was entered February 3,

1993. This petition was filed and served in accordance with the

a,

rules of this Court within 90 days of November 11, 1992 and

February 3, 1993. Jurisdiction of this Court is founded upon 28

U.S.C. §1254.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

42 U.S.C. §1988(b):

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, 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 reason-

able attorney’s fee as part of the costs.

STATEMENT OF THE CASE

Plaintiffs/respondents are four of six prisoners who sued

various corrections officials and employees, alleging that defen-

dants failed to adequately protect them from being sexually

assaulted by other inmates. Plaintiffs brought their claims under

42 U.S.C. $1983, and asserted jurisdiction in the district court

pursuant to 28 U.S.C. §§1331 and 1343. During the course of the

jury trial the case was narrowed to four plaintiffs against one

defendant (the prison Superintendent) on one count. The evi-

dence was undisputed that protective or administrative housing

was made available to plaintiffs upon request, and they admitted

they were never raped in such housing.

Plaintiffs sought wide-ranging relief, including actual and

punitive damages and extensive injunctive relief which would

have altered many prison policies or created new policies and

programs. The jury refused to awarded actual or punitive

damages. Pursuant to a jury instruction requested by plaintiffs,

only nominal damages of $1 per plaintiff were awarded. The

verdict was general one, so there were no express findings as to

the nature of the alleged sexual assault found (physical or

ve ee

verbal), and there were no findings that plaintiffs were seriously

injured, that the Superintendent was responsible for many of the

injuries plaintiffs alleged they sustained, or that the policies of

the institution were improper.

After the verdict, plaintiffs filed motions seeking injunctive

and declaratory relief, and requested a new trial limited to

damages. The post-trial motions were denied.

Having avoided a defense verdict by the skin of their teeth and

having lost on efforts to obtain equitable relief, plaintiffs then

claimed that under 42 U.S.C. §1988 they were entitled to

attorneys’ fees for their “success.” The district court calculated

a lodestar of $94,680. The district court made no downward

adjustment in the lodestar in light of the lack of success (Appen-

dix D, at A-51 and Appendix E, at A-55).

Plaintiffs appealed the denial of their post-trial motions to the

Eighth Circuit pursuant to 28 U.S.C. §1291. Petitioner/defen-

dant appealed from the judgment and the attorneys’ fees award,

with the major significance of the appeal from the nominal

damages judgment being the fact that it formed the basis for the

large attorneys’ fees award.

The case was first heard by a panel of the United States Court

of Appeals for the Eighth Circuit. In a two-to-one decision, the

panel held that plaintiffs were entitled to a new trial limited

solely to the issue of damages and were entitled to a further

hearing on injunctive relief. The panel remanded the attorneys’

fees issue to the district court to make cither an upward or

downward adjustment after further proceedings on damages and

injunctive relief.

Petitioner’s suggestion for rehearing en banc was granted,

which vacated the panel opinion (Appendix C, at A-50). After

argument, the court en banc affirmed the judgment of the district

court in all respects, including attorneys’ fees (Appendix A).

ee

=

One month later this Court issued its decision on attorneys’ fees

in cases in which only nominal damages are awarded in Farrar

v. Hobby, 506 U.S. , 113 S.Ct. 566 (1992).

Petitioner consistently opposed the attorneys’ fees award.

Petitioner argued for a at least a 90% reduction in the fee awarded

by the district court to “no more than” $10,000. Brief of

Appellee-Cross-Appellant, at 30. Petitioner’s brief did not

suggest that there was a floor on the amount of attorneys’ fees

which plaintiffs could be awarded.

Plaintiffs also sought attorneys’ fees in the amount of $32,000

for their work on appeal. The Eighth Circuit awarded plaintiffs

$12,000 in attorneys’ fees, stating that Farrar “is not directly

applicable to this case, nor to the application for fees on appeal.”

The Eighth Circuit went on to note that “had the Farrar decision

been issued prior to the filing of the en banc opinion in this case,

it may well have altered our view as to the allowability of fees at

the trial” (Appendix F, at A-56).

pant ae

REASONS WHY THE WRIT SHOULD BE GRANTED

I. THEDECISION OF THE COURT OF APPEALS

UPHOLDING A LARGE ATTORNEYS’ FEES

AWARD BASED ON A NOMINAL DAMAGES

VERDICT IS CONTRARY TO THIS COURT’S

RECENT DECISION IN FARRAR vy. HOBBY.

This Court should vacate the judgment below, as it has done

with other attorneys’ fees cases involving nominal damages

since Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566 (1992).

Pursuant to Farrar, plaintiffs/respondents are entitled to no

attorneys’ fees for their unsuccessful effort in the district court.

This Court stated in Farrar: “When a plaintiff recovers only

nominal damages because of a failure to prove an essential

element of his claim for monetary relief, the only reasonable fee

is usually no fee at ail.” 113 S.Ct. at 575 (citations omitted). As

Justice O’Connor stated: “When the plaintiff s success is purely

technical or de minimis, no fees can be awarded.” Id. at 576

(O’Connor, J., concurring). This case falls squarely within the

directives and facts of Farrar, so the only reasonable fee for

these plaintiffs is $0.

In Farrar the Court held that even though a nominal damages

award may be sufficient to make a plaintiff a “prevailing party,”

that does not mean that the plaintiff is entitled to attorneys’ fees.

In Farrar this Court found that the plaintiff's lack of success was

so obvious that the lower courts did not have the discretion to

award anything other than $0 in fees, and this Court did not

remand the case.' The statement made by this Court in Farrar

is fully applicable here: “This litigation accomplished little

' The Fifth Circuit denied fees on the basis that nominal damages did not

make the plaintiff a prevailing party. This Court disagreed, but affirmed the

result because the lower court had no discretion to award fees to a party who

“prevailed” to such a limited extent.

re Em

=

beyond giving petitioners “the moral satisfaction of knowing that

a federal court concluded that [their] rights had been violated’ in

some unspecified way.” 113 S.Ct. at 574, citing Hewitt v. Helms,

482 U.S. 755, 762 (1987).

In Farrar the plaintiff alleged that state officials deprived him

of property and liberty without due process in closing a school

for disturbed teens. The jury found that there had been an

unconstitutional conspiracy, but concluded that the plaintiff was

not damaged as a result. The plaintiff received only nominal

damages. This Court denied attorneys’ fees.

Here the facts are even more egregious. Respondents were

part of a group of six original plaintiffs who sued eleven

defendants on six counts alleging that defendants were respon-

sible for plaintiffs being sexually assaulted by other inmates.

They sought $300,000 in actual damages, $5,000,000 in punitive

damages, declaratory relief, and injunctive relief.” The jury here,

as in the Farrar case, found that plaintiffs were not damaged, and

thus plaintiffs had “recover[ed] only nominal damages because

of a failure to prove an essential element of [their] claim for

monetary relief,” meaning no fees should be awarded under

Farrar. 113 S.Ct. at 575. Plaintiffs technically “prevailed” on

four of the 396 potential verdicts.

Plaintiffs’ lawyer admits that the verdict was indeed purely

technical and de minimis. He characterized it as a “take-nothing

verdict,” the same type of verdict rendered in Farrar. 113 S.Ct.

at 570; see Plaintiffs’ Memorandum in Support of Motion for

* The injunctive relief sought included a new classification system to

segregate those persons meeting a supposed predator profile (who plaintiffs

described as large, African-American repeat offenders) from persons like the

plaintiffs (white, first-time offenders). They asked to be transferred to a

different prison and sought a new training program for employees, they

wanted to star in a video to be shown to new inmates, they demanded that more

protective custody cells “be available,” and they sought many other new

specific procedures.

—

New Trial on Damages, filed in district court 4/12/90. It was

plaintiffs who appealed first, and, except for the fees award, they

certainly considered the case a “loss.” Plaintiffs’ lawyer argues

that the verdict implies that an important constitutional right was

denied, but the Farrar Court stated that such a general implica-

tion was not enough to warrant an attorneys’ fees award. 113

S.Ct. at 574. The general verdict here implied only that plain-

tiffs’ rights had been violated in some unspecified way. As the

concurring opinion in the Eighth Circuit points out, one cannot

even tell if the jury concluded that plaintiffs were raped (Appen-

dix A-31 to 32). The verdict does not indicate whether the jury

believed there was a defective policy, a failure to follow policy,

a failure to supervise, or some other situation that led to a

plaintiffs’ verdict. Nor is there any evidence that changes in

policy occurring before, during, or after the litigation were in any

way prompted by the litigation. In fact, plaintiffs resisted efforts

at policy changes by filing a grievance when a change that could

decrease the risk of assault was made. See en banc opinion,

Appendix A at A-24. In other words, this verdict does not have

policy implications beyond this case.

Attorneys’ fees should not be the centerpiece of $1983

litigation. Fees awards are not intended to produce “windfalls to

attorneys.” Farrar, 113 S.Ct. at 575, citing Riverside v. Rivera,

477 U.S. 561, 580 (1986). This Court should not allow plaintiffs

any attorneys’ fees for this case.’

* If plaintiffs/respondents argue that there has been a waiver of the Farrar

argument, they would be wrong. This Court has held that there must be full

and immediate application of Supreme Court rulings to all pending cases.

James B. Beam Distilling Co. v. Georgia, US. , 111 S.Ct. 2439

(1991). Furthermore, the failure to raise an argument prior to the announce-

ment of a decision to support it is nota waiver. Curtis Pub. Co. v. Butts, 388

U.S. 130, 143 (1966). Also, the Farrar opinion did not find a waiver of the

“prevailing party but no fees” argument.

(Footnote 3 continued on next page)

—

II. THE AWARD OF ATTORNEYS’ FEES ON AP-

PEAL IS ALSO CONTRARY TO FARRAR vy.

HOBBY

If there was error in sustaining the attorneys’ fees award, then

plaintiffs should not be considered prevailing parties for pur-

poses of the appeal. If district court fees are denied (or even

substantially reduced), plaintiffs will have lost on every issue on

appeal except the sustaining of the verdict of $1 per plaintiff. As

explained above, “success” on that issue is de minimis under

Farrar. This is especially true here, where the significance of the

nominal damages award came from the fact that it was used as

a hook for nearly $100,000 in fees.

Furthermore, contrary to the statement in the Order of the

Eighth Circuit, there is no reason why Farrar would not or

should not apply to appellate fees awards.

Il. THIS COURT SHOULD SUMMARILY RE-

VERSE THE JUDGMENT OF THE COURT OF

APPEALS OR, ALTERNATIVELY, VACATE

THE JUDGMENT AND REMAND TO THE

COURT OF APPEALS FOR FURTHER CON-

SIDERATION IN LIGHT OF FARRAR v. HOBBY.

A summary reversal or a remand with specific instructions to

apply Farrar to the district court and appellate fees awards is

(Footnote 3 continued)

Furthermore, even though “waiver” is not an issue under the above

authorities, petitioner/defendant in fact always argued for a drastic reduction

in the fees awarded by the district court, an argument buttressed by Farrar.

For instance, petitioner asserted that the district court attorneys’ fees award

should be reduced to “no more than $10,000.” Brief of Appellee-Cross-

Appellant, at 30. See also Reply Brief of Appellee-Cross-Appellant, at 17

(requesting substantial reduction in fees award). Petitioner did not assert that

plaintiffs were entitled to some fees. The only thing that petitioner did not do

was explicitly state that the requested reduction could be down to $0.

Petitioner conceded that plaintiffs were prevailing parties, a fact alluded to in

footnote 23 of the en banc opinion (Appendix A-28). Farrar confirmed that

petitioner’s concession on this point was correct.

— ee

necessary in this case. The Eighth Circuit stated in its Order of

February 3, 1993 that it did not consider Farrar to be “directly

applicable to this case, nor to the application for fees on appeal”

(Appendix F, at A-56). It is important that this Court make clear

that Farrar does apply to a case like this one, and that it does

apply to appellate fees awards. The facts of this case are so

overwhelming and so clearly within the scope of Farrar that

summary reversals on both the district court and appellate fees

issues are appropriate. It is noteworthy that the only suggestion

in Farrar as to the type of case where nominal damages may

support an attomeys’ fees award is a procedural due process

case. This is not a procedural due process case.

This Court has already vacated judgments awarding substan-

tial attorneys’ fees based on nominal damages awards since the

Farrar decision was rendered. Nichols v. Romberg, 61 LW

3498, No. 92-402 (U.S. Jan. 19, 1993), vacating and remanding

953 F.2d 1152 (9th Cir. 1992)(nominal damages; lower court

reduced lodestar by 50%); Kolodzieczak v. Friend, 61 LW 3498,

No. 92-292 (U.S. Jan. 19, 1993), vacating and remanding 965

F.2d 682 (9th Cir. 1992).

At a minimum, Farrar stands for the proposition that there

should be a dramatic reduction in the attorneys’ fees award, and

an award of the district court lodestar figure (reasonable rate

times hours) cannot be sustained. Similarly, the adjustment in

the district court judgment necessarily requires an adjustment in

the appellate court fees, and that adjustment should take Farrar

into account.‘

* Any reversal or vacation of the November 11, 1992 judgment should be

limited to that part of the judgment of the Eighth Circuit which affirmed the

attorneys’ fees order of the district court dated September 17, 1990 (Eighth

Circuit Appeal No. 2782EM). The underlying judgment is not the subject of

the attorneys’ fees appeal, and were merely consolidated by the appellate

court.

|

CONCLUSION

For the reasons stated, the Petition for Writ of Certiorari

should be granted. The judgment of the United States Court of

Appeals for the Eighth Circuit as it relates to plaintiffs’ claim for

attorneys’ fees (Eighth Circuit Appeal No. 90-2782EM) should

be reversed and remanded with directions to enter judgment for

petitioner on respondents’ claim for attorneys’ fees in the district

court. The February 3, 1993 Order of the Eighth Circuit

awarding attorneys’ fees on appeal should also be reversed and

remanded with directions to deny all fees to respondents for

work on appeal. Alternatively, (1) the attorneys’ fees portion of

the November 11, 1992 judgment and (2) the Order of February

3, 1993 awarding attorneys’ fees on appeal should be vacated

and remanded to the United States Court of Appeals for the

Eighth Circuit, all for further consideration in light of Farrar v.

Hobby, 506 U.S. __, 113 S.Ct. 566 (1992).

Respectfully submitted,

Erwin O. Switzer, II

(Counsel of Record)

Special Assistant Attorney General

Jeremiah W. Nixon,

Attorney General

State of Missouri

211 North Broadway

Suite 3600

St. Louis, Missouri 63102

(314) 259-2000

Attorneys for Petitioner

February 1993