United States District Court, D. Arizona
G. Campbell, United States District Judge.
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.
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).
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
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.
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
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.
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
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.”).
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.