Prison Legal News v. Ken Stolle

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2197

PRISON LEGAL NEWS, a project of the Human Rights Defense Center,

Plaintiff - Appellant,

KEN STOLLE, Sheriff for Virginia Beach, Virginia sued in his official and
individual capacity; G. HAVENS; V. OGDEN; A. TORNO; V. HARRIS; M.
BRITTINGHAM; MATTHEW WILSON; E. RODRIGUEZ; DARLENE MOORE,

Defendants – Appellees,

and

JOHN DOES 1-10,

Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:13-cv-00424-MSD-TEM)

Argued: December 8, 2016 Decided: March 6, 2017

Before TRAXLER, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Edward Fogel, Charlottesville, Virginia, for Appellant. Jeff W.
Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees. ON
BRIEF: Steven D. Rosenfield, Charlottesville, Virginia, for Appellant. Lisa Ehrich,
PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Prison Legal News (PLN) filed suit against Sheriff Kenneth Stolle and several of

his subordinates (collectively, the “Defendants”) alleging that PLN’s First and Fourteenth

Amendment rights were violated by policies and practices that prohibited PLN’s

publication from entering the jail operated by Sheriff Stolle. PLN’s suit was partially

successful. At the conclusion of litigation, the district court awarded attorneys’ fees to

PLN, but reduced that fee award by 45% based on the limited nature of PLN’s success.

Finding no abuse of discretion in the court’s award, we affirm.

PLN is the publisher of a monthly magazine, Prison Legal News: Dedicated to

Protecting Human Rights (“Prison Legal News”), which reports on criminal justice issues

and is marketed primarily to inmates. Over the past several years, inmates at the Virginia

Beach Correctional Center (VBCC)—operated by Sheriff Stolle and the Virginia Beach

Sheriff’s Office (VBSO)—have not been permitted to receive the monthly Prison Legal

News magazine due to the magazine’s alleged violation of the VBSO’s “sexually

explicit” materials and “ordering forms” policies.

PLN’s suit challenged the Defendants’ exclusion of its magazine from the VBCC.

On December 8, 2014, the district court ruled in favor of the Defendants based on the

VBSO “ordering forms” policy, but reserved judgment on the “sexually explicit”

materials policy. The court also concluded that money damages were not available to

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PLN as to the “sexually explicit” materials policy because the Defendants were shielded

by qualified immunity, but that injunctive relief remained a viable option.

The district court entered an opinion and order on March 31, 2015, which found

that the VBSO had previously maintained an unconstitutionally overbroad “sexually

explicit” materials policy. See Prison Legal News v. Stolle (Stolle I), No. 2:13-cv-424,

2015 WL 1487190, at *10 (E.D. Va. Mar. 31, 2015). Although this policy had been

amended during the course of the litigation, the court entered a permanent injunction

precluding the VBSO from returning to its former policy. Id. Additionally, the court

found that the Defendants had previously engaged in due process violations in their

handling of magazine censorship decisions. Id. at *15. Again, although such procedures

had been modified and corrected during the course of the litigation, the court entered a

permanent injunction precluding the VBSO from returning to its prior practices. Id.

The opinion and order appealed here were entered on September 8, 2015, and

granted attorney’s fees to PLN. Prison Legal News v. Stolle (Stolle II), 129 F. Supp. 3d

390 (E.D. Va. 2015). The district court found that PLN qualified as a “prevailing party”

in this case, and thus was entitled to at least a partial award of fees and litigation

expenses. Id. at 395. The court then applied our three-step framework for calculating a

reasonable attorney’s fee award established in McAfee v. Boczar, 738 F.3d 81, 88 (4th

Cir. 2013).

Applying the first two McAfee steps, the district court analyzed in detail the

number of hours billed, the rates billed, and the type of work conducted, then reduced

hours for duplicative work, and ultimately produced a lodestar summary graph that was

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not disputed by the parties. Stolle II, 129 F. Supp. 3d at 397–405. The primary

contention on appeal revolves around the third McAfee step, the court’s adjustment for

degree of success, which the court analyzed as follows.

The court found that both PLN and the Defendants succeeded in the litigation. Id.

at 405–07. The Defendants demonstrated that they were qualifiedly immune from money

damages resulting from long-term censorship of PLN’s publications through maintenance

and application of both the VBSO “ordering forms” policy and “sexually explicit”

materials policy. Id. at 405. Moreover, the Defendants demonstrated that PLN did not

suffer money damages based on the exclusion of its monthly magazine from VBCC,

because the banned issues were constitutionally excluded pursuant to the VBSO’s

“ordering forms” policy. Id. The court noted that “prior to the entry of the consent

decree, questions remained as to the amount of nominal damages on [PLN]’s due process

claims and whether punitive damages were recoverable on such claims, [however,] these

matters were resolved by consent decree in a manner that avoided any monetary award.

Id. Accordingly, PLN failed to recover any of the nominal, compensatory, or punitive

damages it sought in its amended complaint. The court noted that:

Although [PLN] seeks to downplay its efforts to collect monetary damages,
this Court is required to compare “what [the plaintiff] sought with what was
awarded.” McAfee, 738 F.3d at 93. Here, even as late as April 2015,
[PLN] reiterated its desire to proceed to trial in an effort to recover both
nominal and punitive damages. Accordingly, while a fair reading of the
amended complaint does not suggest that money damages were the
motivator behind this litigation, [PLN] pursued money damages at all
stages of the case. Cf. Mercer v. Duke Univ., 401 F.3d 199, 205–06 (4th
Cir. 2005) (indicating that while a court must consider “the purpose of the
lawsuit” in that it must examine whether the lawsuit seeks injunctive relief
or monetary relief, “the subjective motives of the plaintiff” are not relevant

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to “prevailing party” status nor relevant to determining “the extent of the
relief obtained,” noting that “[i]f the rule were otherwise, then every
plaintiff recovering only nominal damages would claim that the only thing
he was really ever interested in was a liability finding”).

Id. at 405 n.6.

Additionally, the district court pointed to the Defendants’ success in defending its

“ordering forms” policy. Id. at 406. Based on the court’s summary judgment ruling,

“such policy provided a valid justification for Defendants’ decision to exclude all

monthly issues of PLN’s magazine from the VBCC.” Id.

The district court found that despite the Defendants’ success, PLN was the

prevailing party because it secured permanent injunctive relief for two VBSO policies

and ultimately succeeded in ending future exclusion of its publication via consent decree.

Id. at 406. The court made three observations regarding PLN’s success: (1) PLN

“succeeded in establishing that the VBSO maintained an unconstitutionally broad

sexually explicit materials policy” applied against PLN’s magazine; (2) PLN “succeeded

on its due process claims associated with the VBSO’s publication review policy,”

because required notices were not sent to publishers informing that their publications

were refused; and (3) PLN “appeared entitled to nominal damages and had at least the

potential to recover punitive damages,” but leveraged that advantage into a consent

decree whereby future issues of its magazine would be delivered to the VBSO. Id.

Finally, taking into account each party’s success and failure, the district court

concluded that a 45% reduction in attorney’s fees was appropriate, and reduced the fee

award from $154,889 to $85,189. Id. at 407. PLN timely appealed.

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II.

We review a district court’s award of attorney’s fees for an abuse of discretion.

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). “Our review of

the district court’s award is sharply circumscribed” in light of the district court’s “close

and intimate knowledge of the efforts expended and the value of the services rendered.”

Id. (internal quotation marks omitted). Accordingly, “we will only reverse such an award

if the district court is ‘clearly wrong’ or has committed an ‘error of law.’” McAfee, 738

F.3d at 88 (quoting Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).

Although the district court has discretion in its award of attorney’s fees, it remains

important for the court to “provide a concise but clear explanation of its reasons for the

fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Moreover, “[w]hen an

adjustment is requested on the basis of either the exceptional or limited nature of the

relief obtained by the plaintiff, the district court should make clear that it has considered

the relationship between the amount of the fee awarded and the results obtained.” Id.

Calculating a reasonable attorney’s fee award requires a three-step process.

McAfee, 738 F.3d at 88. A court must (1) “determine the lodestar figure by multiplying

the number of reasonable hours expended times a reasonable rate;” (2) “subtract fees for

hours spent on unsuccessful claims unrelated to successful ones;” and (3) “award some

percentage of the remaining amount, depending on the degree of success enjoyed by the

plaintiff.” Id. (internal quotation marks omitted).

In analyzing the third McAfee step, a court should reduce an award if the relief is

limited in comparison to the scope of the litigation as a whole, with a court asking

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whether the plaintiff achieved a level of success that makes the hours reasonably

expended a satisfactory basis for making a fee award. Hensley, 461 U.S. at 434, 438–40;

McAfee, 738 F.3d at 92. Accordingly, when a plaintiff has achieved only partial or

limited success, the product of hours reasonably expended on the litigation as a whole,

times a reasonable hourly rate, may be an excessive amount “even where the plaintiff’s

claims were interrelated, nonfrivolous, and raised in good faith.” Hensley, 461 U.S. at

436. An attorney’s fee award under § 1988 is therefore not driven by whether it was

reasonable to file suit or whether plaintiff’s counsel litigated the case with devotion and

skill. Rather, “the extent of a plaintiff’s success is ‘the most critical factor.’” McAfee,

738 F.3d at 92 (quoting Hensley, 461 U.S. at 436).

III.

PLN argues on appeal that the district court abused its discretion in reducing the

fee award by 45%, noting that it “achieved excellent results in the litigation.”

Appellant’s Br. at 6. PLN puts forward two arguments in support of its conclusion. First,

PLN contends that it did not primarily seek money damages, and therefore the court

unfairly accounted for its lack of damages in reducing the fee award. Second, PLN

argues that the 45% reduction was arbitrary.

We disagree with PLN’s arguments that the district court’s calculation was unfair

or arbitrary. As noted above, the court explained in detail the damages sought, the relief

obtained in the case, and its reasoning for reducing the fee award. The court

specifically—and correctly—pointed out that PLN unsuccessfully “pursued money

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damages at all stages of the case.” Stolle II, 129 F. Supp. 3d at 405 n.6. In its final

analysis, the court clearly weighed “[PLN]’s tangible and substantial victories on some of

its § 1983 claims, while also taking into account Defendants’ success in avoiding any

monetary damages as well as defending the constitutionality of their prior exclusion of all

of [PLN]’s publications from the VBCC based on the lawful VBSO ‘ordering forms’

policy.” Id. at 407. In other words, the court adequately “provide[d] a concise but clear

explanation of its reasons,” and “ma[de] clear that it has considered the relationship

between the amount of the fee awarded and the results obtained.” Hensley, 461 U.S. at

437.

PLN fails to show—and nothing in the record indicates—that the 45% reduction

was “clearly wrong” or that the district court has committed an “error of law.” Nor does

PLN meet the demanding burden of establishing an abuse of discretion on appeal. Given

the civil rights issues involved in this case, another judge may have reasonably ordered a

higher fee award. However, the reduction applied by the district court was not

unreasonable and was well within the bounds of the court’s broad discretion.

IV.

Accordingly, the district court’s attorney’s fee award is

AFFIRMED.