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Nordstrom v. Ryan

United States District Court, D. Arizona

April 2, 2018

Scott Douglas Nordstrom, Plaintiff,
v.
Charles Ryan, et al., Defendants.

          ORDER

          David G. Campbell, United States District Judge.

         Plaintiff Scott Nordstrom filed a complaint against Defendants Charles Ryan, James O'Neil, and Staci Fay, alleging deprivations of his Eighth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. Doc. 1. After more than a year of litigation, the parties reached a settlement that called for changes in Defendants' procedures concerning death-row inmates. Docs. 39, 45. Plaintiff has now filed a motion for attorneys' fees and non-taxable expenses. Doc. 46. The motion is fully briefed and oral argument will not aid in the Court's decision. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). The Court will grant the motion in part.

         I. Legal Standards.

         A party requesting an award of attorneys' fees and non-taxable expenses must show that it is (a) eligible for an award, (b) entitled to an award, and (c) requesting a reasonable amount. See LRCiv 54.2(c). Under the general fee-shifting provision for federal civil rights cases, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). “[A] court's discretion to deny fees under § 1988 is very narrow and . . . fee awards should be the rule rather than the exception.” Herrington v. Cty. of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (internal quotation marks omitted).

         To determine the reasonableness of requested attorneys' fees, federal courts generally use the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); United States v. $186, 416.00 in U.S. Currency, 642 F.3d 753, 755 (9th Cir. 2011). The Court must first determine the initial lodestar figure by taking a reasonable hourly rate and multiplying it by the number of hours reasonably expended on the litigation. Blanchard, 489 U.S. at 94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court next “determines whether to modify the lodestar figure, upward or downward, based on factors not subsumed in the lodestar figure.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016). “These factors are known as the Kerr factors.” Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). Such an adjustment is appropriate “only in rare or exceptional circumstances.” Cunningham v. City of L.A., 879 F.2d 481, 488 (9th Cir. 1988).

         II. Discussion.

         A. Attorneys' Fees.

         Section 1988(b) permits a prevailing party to recover reasonable attorneys' fees in a § 1983 action. Defendants contend that Plaintiff is not entitled to recover fees. Doc. 53.

         1. Prevailing Party.

         Plaintiff argues that he is the prevailing party because he secured a judicially enforceable settlement agreement that materially changed the legal relationship of the parties. Doc. 46 at 2-4. The Court's order of dismissal incorporated the terms of that settlement agreement and “retain[ed] jurisdiction to enforce” it. Doc. 45 ¶¶ 1-2. The settlement agreement required Defendants to take several actions within 120 days of March 3, 2017: (1) amend policies that mandate maximum custody confinement for death-row inmates, (2) permit death-row inmates to seek reclassification to close custody status, (3) ensure that the conditions of close custody for death-row inmates are “equivalent” to that of non-death row inmates, (4) “provide adequate space for confidential communication with legal counsel” in the close custody facilities for death-row inmates, and (5) reclassify and transfer Plaintiff to close custody confinement. Doc. 39 ¶¶ 1-6.

         Because this case concluded without a judgment on the merits, Defendants argue that Plaintiff must satisfy the requirements of the “catalyst theory.” Doc. 53 at 2 (citing Sablan v. Dep't of Fin. of Com. of N. Mariana Islands, 856 F.2d 1317, 1324-25 (9th Cir. 1988)). Under that test, Defendants argue, Plaintiff has “the burden to establish that the lawsuit accomplished at least in part, what it sought to accomplish and that there was a ‘clear, causal relationship between the litigation brought and the practical outcome realized.'” Id. (quoting Sablan, 856 F.2d at 1324 (emphasis in original)). Defendants contend that Plaintiff cannot meet this standard. Doc. 53 at 2-7.

         Plaintiff need not meet this standard to qualify as a prevailing party. The Supreme Court abrogated the catalyst theory approximately seventeen years ago. Labotest, Inc. v. Bonta, 297 F.3d 892, 895 (9th Cir. 2002) (citing Buckhannon Bd. & Care Home v. W.Va. Dep't of Health and Human Res., 532 U.S. 598 (2001)). The Ninth Circuit explained:

the Buckhannon Court announced that recovery of attorney's fees requires a court-ordered change in the legal relationship between the parties, in which the legal change that the plaintiff claims to have caused is judicially sanctioned. Buckhannon made clear that a defendant's voluntary change in conduct, sufficient for fees recovery under a catalyst theory, lacks the necessary judicial imprimatur to qualify a plaintiff as prevailing party.

Labotest, 297 F.3d at 895 (internal quotation marks and citations omitted). Following Buckhannon, the Ninth Circuit held that the catalyst theory no longer applied to fee awards under 42 U.S.C. § 1988(b). Bennett v. Yoshina, 259 F.3d 1097, 1101 (9th Cir. 2001) (“The catalyst theory no longer applies to [§ 1988], and any of our precedents to the contrary are overturned.”).

         Defendants do not cite this authority which clearly forecloses their argument. See Doc. 53. Nor do they withdraw the argument in their motion to strike portions of Plaintiff's reply brief that respond to catalyst theory. Doc. 55. Defendants instead represent to the Court that the catalyst theory remains viable for purposes of § 1988(b) because 65 decisions have cited it for “various principles.” Doc. 55 at 2 n.2; Doc. 57 at 4 n.2. But the only two cases Defendants specifically cite concern fee awards for the Endangered Species Act, not § 1988(b). Doc. 55 at 2 n.2 (citing Idaho Watersheds Project v. Jones, ...


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