FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARK ALLEN KIMBROUGH,
Plaintiff-Appellee,
v.
STATE OF CALIFORNIA,
DEPARTMENT OF CORRECTIONS; W.
WALKER, JR.; DAVID TRISTIAN; T. No. 08-17231
ROUGEUX; J.P. MOSER; D. JESSUP; D.C. No.
D. FALCONER; C.L. PARKS; H. 2:98-cv-00392-
KOSHER; GAIL LEWIS; W.J. JUAREZ; MCE-JFM
R.R. PRIOLO; W. BUEHLER; OPINION
Defendants,
and
ANTHONY C. NEWLAND; EDWARD S.
ALAMEIDA;
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
December 10, 2009—San Francisco, California
Filed June 25, 2010
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and
Robert E. Cowen,* Circuit Judges.
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
9291
9292 KIMBROUGH v. CDCR
Opinion by Judge Rawlinson
KIMBROUGH v. CDCR 9293
COUNSEL
Edmund G. Brown, Jr., Attorney General of the State of Cali-
fornia, David S. Chaney, Chief Assistant Attorney General,
Rochelle C. East, Senior Assistant Attorney General, Vickie
P. Whitney, Supervising Deputy Attorney General, and
Rebecca M. Armstrong-Grau (argued), Deputy Attorney Gen-
eral, Sacramento, California, for the appellants.
Steven H. Frankel and Joseph Angelo DeSantis (argued), Son-
nenschein Nath & Rosenthal, LLP, San Francisco, California,
9294 KIMBROUGH v. CDCR
and Carter White, King Hall Civil Rights Clinic, U.C. Davis
School of Law, Davis, California, for the appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellants Anthony C. Newland and Edward S. Alameida
(State) challenge the district court’s award of attorneys’ fees
to the U.C. Davis School of Law, King Hall Civil Rights
Clinic (King Hall), pursuant to the Prison Litigation Reform
Act (PLRA) and 42 U.S.C. § 1988.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse the award of fees because the services performed by
King Hall on behalf of Clark Allen Kimbrough (Kimbrough)
did not culminate in establishing a violation of Kimbrough’s
legal rights.
I. BACKGROUND
A. First Amendment Claim
Kimbrough, acting pro per, instituted this action by filing
a Complaint alleging, among other things, that the California
Department of Corrections and Rehabilitation’s1 (CDCR)
grooming regulations concerning hair length interfered with
his First Amendment right to free exercise of religion.2 After
1
The CDCR was known as the California Department of Corrections at
the time this action was initiated.
2
On October 16, 1997, the CDCR promulgated regulations, codified at
15 Cal.Code Regs. § 3062(e), which required prisoners to maintain their
hair at no longer than three inches in length. See 15 Cal.Code Regs.
§ 3062(e) (2005). The grooming regulations have since been amended to
permit inmates to maintain their hair at any length. See 15 Cal.Code Regs.
§ 3062(e) (2009).
KIMBROUGH v. CDCR 9295
the district court granted summary judgment in favor of the
State on the First Amendment claim, Kimbrough appealed.
We enjoined enforcement of the grooming requirements
during the pendency of the appeal, and also ordered the State
to rescind any penalties imposed on Kimbrough for failure to
comply with the regulations.
While Kimbrough’s first appeal was pending, Congress
passed the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA). See 42 U.S.C. § 2000cc, et seq. We
subsequently affirmed the district court’s grant of summary
judgment on Kimbrough’s First Amendment claim, but
remanded the action to the district court “to consider the
applicability of [RLUIPA] or to develop the record that would
be necessary if [RLUIPA] is to be applied.” In conjunction
with the remand order, we also ordered the State to “promptly
rescind any penalties resulting from enforcement against
[Kimbrough] of grooming standards concerning hair length
during the pendency of this court’s injunction.”3 We extended
the injunction for sixty days after issuance of the mandate.
On remand, Kimbrough filed a motion seeking to extend
the injunction. On September 18, 2001, the district court
granted the motion enjoining the CDCR from enforcing the
grooming requirements “until further order of the court.”
B. RLUIPA Claim
On October 4, 2001, Kimbrough filed a Second Amended
Complaint asserting claims under RLUIPA.4 In his prayer for
3
We required the State to rescind only penalties that were imposed dur-
ing the pendency of the injunction. Prior to issuance of the injunction,
Kimbrough was found guilty of violating the grooming regulations, result-
ing in forfeiture of thirty days of sentence reduction credits (good time
credits). Because this penalty was imposed prior to the injunction, the
State was not required to restore these lost good time credits.
4
The Second Amended Complaint set forth two causes of action. In the
first cause of action, Kimbrough alleged that the grooming regulations
9296 KIMBROUGH v. CDCR
relief, Kimbrough requested, among other things, that a per-
manent injunction be issued preventing the CDCR from
enforcing the grooming regulations against him.
On November 6, 2003, Kimbrough, acting pro per, moved
for a fifth extension of the preliminary injunction issued on
September 18, 2001. One week later, King Hall was
appointed to represent Kimbrough. On November 24, 2003,
Kimbrough, again acting pro per, filed a motion for restora-
tion of the lost good time credits. The district court again
denied this motion without prejudice; however, the prelimi-
nary injunction was extended for a period of ninety days.
On February 17, 2004, an evidentiary hearing was held on
Kimbrough’s request for a permanent injunction. Following
this hearing, Kimbrough, with the assistance of King Hall,
renewed his request for restoration of the lost good time cred-
its. The district court again denied this motion without preju-
dice.5 Subsequently, on June 10, 2004, Kimbrough filed a
notice of change of address to a non-correctional facility, sig-
nifying that he had been released from prison on parole.
Because it appeared that Kimbrough had been released
from prison, the magistrate judge issued an order to show
cause why the case should not be dismissed as moot. After
considering Kimbrough’s response, the magistrate judge
determined that the case was moot, and recommended dis-
“violate[d] [his] right to the free exercise of his religion under the First
and Fourteenth Amendments of the United States Constitution,” and there-
fore violated RLUIPA. In the second cause of action, Kimbrough alleged
that the grooming regulations violated RLUIPA because there was no
“compelling governmental interest in said regulation not having a reli-
gious exemption . . .”
5
The district court found, among other things, that Kimbrough “failed
to establish that the time credits, if restored, would shorten his current sen-
tence.”
KIMBROUGH v. CDCR 9297
missal of the action for lack of jurisdiction.6 The district court
adopted the findings and recommendations of the magistrate
judge over Kimbrough’s objection. Kimbrough appealed the
district court’s decision.
On appeal, the State filed a motion to remand the action to
the district court on the basis that “[Kimbrough’s] claim for
injunctive relief is not moot at this time.” We granted the
unopposed motion, and remanded the action to the district
court “for further consideration of [Kimbrough’s] claim for
injunctive relief.”
On remand, the magistrate judge again determined that the
action was moot, and again recommended dismissal of the
action for lack of jurisdiction. The magistrate judge focused
primarily on Kimbrough’s request for restoration of the lost
good time credits, concluding that this issue was moot
because the State presented evidence establishing that Kim-
brough’s grooming-related disciplinary conviction had been
expunged. Moreover, the State voluntarily restored the thirty
days of lost good time credits, and advanced Kimbrough’s
discharge date. The district court adopted the magistrate
judge’s findings and recommendations, and dismissed the
action for lack of jurisdiction. However, the district court
retained jurisdiction to consider a motion for attorneys’ fees
and costs.
Kimbrough subsequently filed a motion for an award of
attorneys’ fees to King Hall in the amount of $47,497.18. The
magistrate judge recommended an award of $46,428.58 for
attorneys’ fees and $2,428.58 for costs. The district court
6
The magistrate judge determined that the action was moot in part
because Kimbrough was no longer subject to the grooming regulations as
a result of being released from prison. Moreover, the magistrate judge
determined that Kimbrough’s request for restoration of lost good time
credits was moot because “[u]nder California law, good time credits apply
only to a term of imprisonment and not to any parole term.”
9298 KIMBROUGH v. CDCR
adopted the magistrate judge’s findings and recommendations
over the parties’ objections. The district court later amended
its order, increasing the attorneys’ fees award to $47,917.18.
The State filed a timely notice of appeal.
II. STANDARDS OF REVIEW
We review “the district court’s interpretation of the
PLRA’s provisions governing attorneys’ fees de novo.” Dan-
nenberg v. Valadez, 338 F.3d 1070, 1073 (9th Cir. 2003)
(citations omitted). We also review de novo “the legal analy-
sis underlying the district court’s finding that [Kimbrough]
was a prevailing party.” Citizens For Better Forestry v. U.S.
Dep’t of Agric., 567 F.3d 1128, 1131 (9th Cir. 2009) (citation
omitted).
III. DISCUSSION
[1] Because Kimbrough was incarcerated at the time this
action was instituted, “[h]is recovery of fees is [ ] restricted by
the PLRA.” Siripongs v. Davis, 282 F.3d 755, 757 (9th Cir.
2002), as amended. We have previously noted that “[t]he
PLRA limits the amount of attorney’s fees that can be
awarded for services performed in actions brought on behalf
of prisoners.” Webb v. Ada County, 285 F.3d 829, 834 (9th
Cir. 2002). Congress enacted the PLRA for the purpose of
“curtail[ing] frivolous prisoners’ suits and to minimize the
costs-which are borne by taxpayers-associated with those
suits.” Id. at 837 (citation omitted). The PLRA provision rele-
vant to this appeal provides:
(1) In any action brought by a prisoner who is con-
fined to any jail, prison, or other correctional facility,
in which attorney’s fees are authorized under section
1988 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
KIMBROUGH v. CDCR 9299
the plaintiff’s rights protected by a statute
pursuant to which a fee may be awarded
under section 1988 of this title; and
(B)(i) the amount of the fee is proportion-
ately 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.
42 U.S.C. § 1997e(d)(1). Pursuant to § 1988(b), courts have
discretion to award a prevailing party reasonable attorneys’
fees for any action or proceeding brought to enforce a provi-
sion of § 1983 or RLUIPA. See § 1988(b). However, “the
PLRA limit on fees applies to attorney’s fees awarded under
§ 1988.” Armstrong v. Davis, 318 F.3d 965, 974 (9th Cir.
2003).
[2] An inmate does not qualify for attorneys’ fees under
the PLRA merely by obtaining prevailing party status within
the meaning of § 1988. See Siripongs, 282 F.3d at 757-58
(affirming a district court’s finding that a prisoner did not
qualify for attorneys’ fees under the PLRA even though the
prisoner was found to be a prevailing party). Attorneys’ fees
will be awarded under the PLRA only to those inmates who
have proven an actual violation of a protected right. See id.
The State contends that the PLRA precludes an award of
attorneys’ fees because no actual violation of Kimbrough’s
rights was established. Kimbrough counters that he “achieved
more than a mere judicial acknowledgment of his assertion of
a violation of rights” by “secur[ing] the restoration of his lost
good time credits and a reduction in his term of custody.”
However, because the district court did not actually adjudicate
Kimbrough’s claims, our decision in Siripongs forecloses an
award of attorneys’ fees in this case.
9300 KIMBROUGH v. CDCR
In Siripongs, an inmate scheduled to be executed filed a
clemency petition with then-California Governor Pete Wilson.
See Siripongs, 282 F.3d at 756. After the clemency petition
was denied, the inmate filed a Complaint under 42 U.S.C.
§ 1983, alleging that he was denied due process and subjected
to cruel and unusual punishment during the clemency pro-
ceedings. See id. at 756-57. The district court issued a tempo-
rary restraining order (TRO) staying the inmate’s execution
pending a hearing on his request for a preliminary injunction.
See id. at 757. However, the district court later denied the pre-
liminary injunction, reasoning that the inmate had sufficient
time to re-apply for clemency. See id.
The inmate proceeded to re-apply for clemency, but his
petition was denied. See id. After the inmate was executed,
the district court dismissed the inmate’s Complaint. See id.
However, the district court retained jurisdiction to decide on
attorneys’ fees. See id. The district court ultimately denied the
inmate’s motion for attorneys’ fees, ruling that the inmate was
a prevailing party within the meaning of § 1988, but neverthe-
less did not qualify for attorneys’ fees under the PLRA. See
id.
On appeal, the government argued for affirmance on the
basis that “because the district court below issued only a TRO
and never finally adjudicated the question of whether [the
inmate’s] rights were violated, he cannot be said to have
incurred his fees in ‘proving an actual violation of his rights,’
as required by the PLRA.” See id. at 758 (citation and alter-
ation omitted) (emphasis in the original). Addressing the gov-
ernment’s argument, we interpreted the “actual violation”
language of § 1997e(d)(1), and concluded that “[t]he plain
meaning of an ‘actual violation’ of [the inmate’s] rights
excludes a violation that has not been proven in fact, but
merely has been asserted.” Id. Therefore, even though the dis-
trict court issued a TRO finding that the inmate was “reason-
ably likely to succeed on the merits of his constitutional
claim[,]” we held that the inmate never established an actual
KIMBROUGH v. CDCR 9301
violation because no final adjudication of his claims was ever
made. Id. Specifically, we noted that “[t]he [district] court
never found, nor did the government ever concede, that [the
inmate’s] rights were violated.” Id. Because the PLRA
requirements had not been satisfied, we affirmed the district
court’s denial of attorneys’ fees. See id.
[3] The instant case is directly analogous to Siripongs. As
in Siripongs, the district court never adjudicated the claims
asserted in Kimbrough’s Second Amended Complaint. The
only court-ordered relief Kimbrough attained through these
proceedings was a preliminary injunction preventing the State
from enforcing the grooming regulations against him. The
district court held a permanent injunction hearing, but no per-
manent injunction was ever issued. Rather, the entire action
was dismissed as moot before a final adjudication was ever
rendered on Kimbrough’s asserted claims.
[4] Similar to the situation in Siripongs, the temporary
relief Kimbrough received in the form of a preliminary
injunction did not affirmatively establish that the State actu-
ally violated his protected rights. Also, contrary to Kim-
brough’s assertion, no actual violation was established when
the State voluntarily restored his lost good time credits and
reduced his sentence because, in obtaining this relief, “[t]he
[district] court never found, nor did the [State] concede, that
[Kimbrough’s] rights were violated.” Id. Therefore, like the
inmate in Siripongs, Kimbrough cannot be said to have
incurred attorneys’ fees in proving an actual violation of his
rights, as required by the PLRA. See id.
Moreover, we have consistently awarded attorneys’ fees
under the PLRA only to those inmates who have affirmatively
established violations of protected rights.7 See, e.g., Madrid v.
7
One case has been decided by a court within this circuit holding that
an inmate need not affirmatively establish an actual violation in order to
recover attorneys’ fees under the PLRA. See generally Ilick v. Miller, 68
9302 KIMBROUGH v. CDCR
Gomez, 190 F.3d 990, 993-95 (9th Cir. 1999) (remanding for
an award of attorneys’ fees incurred following the enactment
of the PLRA when the district court, after a three month trial,
“verified many of the prisoners’ complaints,” and found “nu-
merous constitutional infirmities”); Webb, 285 F.3d at 833
(affirming, in part, an award of attorneys’ fees after the dis-
trict court granted partial summary judgment finding that a
jail’s overcrowding was unconstitutional); Dannenberg, 338
F.3d at 1072, 1075-76 (remanding an award of attorneys’ fees
for a reasonableness determination after a jury found that the
inmate’s constitutional rights had been violated).
[5] Accordingly, we conclude that the district court erred
by granting Kimbrough’s motion for attorneys’ fees. Our pre-
cedent establishes that Kimbrough cannot be said to have
incurred attorneys’ fees under the PLRA because he never
established an actual violation of a right pursuant to which a
fee may be awarded under § 1988. See Siripongs, 282 F.3d at
758.
REVERSED.
F. Supp. 2d 1169 (D. Nev. 1999). In Ilick, decided prior to Siripongs, the
parties agreed to a voluntary dismissal of the claims contained in the
inmate’s Complaint after certain changes were made by the prison. See id.
at 1172. After noting that the parties were “never really in a posture, such
as after summary judgment or trial on the merits, in which a ruling could
be made directly [ ] finding the existence of unconstitutional behavior[,]”
the district court found the inmate was entitled to attorneys’ fees under the
PLRA because he brought about an alteration in the prison’s behavior. Id.
This holding directly conflicts with our decision in Siripongs.