United States District Court, District of New Jersey, D.
March 1, 2000
RICHARD WATERMAN, ET AL., PLAINTIFFS,
JOHN FARMER, JR., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Pisano, District Judge.[fn1] [fn1] The undersigned was confirmed as a U.S. District Judge on February 16, 2000. However, since the reference of this motion was made prior thereto, this opinion is being entered in my capacity as a United States Magistrate Judge pursuant to 28 U.S.C. § 636. Accordingly, the parties' right to appeal shall be governed by Local Civil Rule 72.1.
Before the court is an application by plaintiffs, Richard
Waterman and Michael Curtis, for attorney's fees and costs
pursuant to 42 U.S.C. § 1988. Defendants filed opposition, and
the Court decides the matter without oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons set forth
below, plaintiffs' application is denied.*fn2
This matter arises from a civil rights action filed pursuant to
42 U.S.C. § 1983 in May 1998 by two prisoners incarcerated at the
Adult Diagnostic and Treatment Center (the "ADTC") in Avenel, New
Jersey. The ADTC is a facility with the sole purpose of housing
and rehabilitating sex offenders, such as pedophiles, rapists and
child molesters, whose behavior has been deemed to be repetitive
and compulsive. Plaintiffs' suit challenged the constitutionality
of a New Jersey statute, N.J.S.A. 2C:47-10, which bans any
"sexually oriented and obscene materials" from the ADTC. The
statute reads as follows:
a. As used in this act, "sexually oriented
material" means any description, narrative account,
display, or depiction
of sexual activity or associated anatomical area
contained in, or consisting of, a picture or other
representation, publication, sound recording, live
performance, or film.
b. An inmate sentenced to a period of confinement
in the Adult Diagnostic Treatment Center shall not
receive, possess, distribute or exhibit within the
center sexually oriented material, as defined in
subsection a. of this section. Upon the discovery of
any such material within the center, the commissioner
shall provide for its removal and destruction,
subject to a departmental appeal procedure for the
withholding or removal of such material from the
c. The commissioner shall request an inmate
sentenced to confinement in the center to acknowledge
in writing the requirements of this act prior to the
enforcement of its provisions. Any inmate who
violates the provisions of subsection b. of this
section shall be subject to on-the-spot sanctions
pursuant to rules and regulations adopted by the
d. A person who sells or offers for sale the
material prohibited in subsection b. either for
purposes of possession or viewing or who receives,
possesses, distributes or exhibits any text,
photograph, film, video or any other reproduction or
reconstruction which depicts a person under 18 years
of age engaging in a prohibited sexual act or in the
simulation of such an act as defined in section 2 of
P.L. 1992, c. 7 (C.2A:30B-2), within the center shall
be considered to have committed an inmate prohibited
act and be subject to sanctions pursuant to rules and
regulations adopted by the commissioner.
In July of 1998, after preliminarily enjoining enforcement of
the statute, see Waterman v. Verniero, 12 F. Supp.2d 364 (D.N.J.
1998), the District Court found N.J.S.A. 2C:47-10 to be
unconstitutional and permanently enjoined its enforcement. See
Waterman v. Verniero, 12 F. Supp.2d 378 (D.N.J. 1998) ("Waterman
II"). The court held in Waterman II that the measure was both
(1) unconstitutionally overbroad and vague; and (2) not
rationally related to a valid penological interest. Id. In
particular, the Court held that the statute
[a]s currently written . . . sweeps far too broadly
because it prohibits plaintiffs from reading the
Bible, fashion magazines, books, legal documents, and
sections of newspapers. In addition, the statute is
vague because it fails to define "associated
anatomical area." That phrase indicates that the
statute bans the inmates from possessing or obtaining
materials describing or depicting sexual activities
from kissing to intercourse.
12 F. Supp.2d 378, 380.
Defendants appealed the ruling of the District Court, and on
June 30, 1999, the Court of Appeals for the Third Circuit
reversed, finding that the plaintiffs' constitutional claim
lacked merit. See Waterman v. Farmer, 183 F.3d 208 (3d Cir.
1999) ("Waterman III").
Subsequent to oral argument on appeal but approximately two
months before the final decision was rendered by the Third
Circuit, the state of New Jersey published proposed rules
clarifying the scope of the challenged statute. See 31 N.J.
Reg. 918(a). On June 21, 1999, these rules became effective as
regulations. See 31 N.J. Reg. 1615(a); N.J.A.C. 10A:18-9.1
et seq. Among other things, these regulations contain
definitions of "sexually oriented material," "associated
anatomical area," and "sexual activity." N.J.A.C. 10A:18-9.1
The regulations further narrow the scope of the statute by
(b) Materials containing a depiction or description
of sexual activity or an associated anatomical area
shall not be considered "sexually oriented" unless
material is predominantly oriented to such depictions
(c) A newspaper, magazine or other similar
publication shall not be considered predominantly
oriented to the depiction or description of sexual
activity or associated anatomical area unless the
publication features or contains such descriptions
or displays on a routine or regular basis or
promotes itself based upon such depictions in the
case of individual one-time issues.
Shortly after their initial success on the merits of their
claims at trial, plaintiffs made an application to the Court for
an award of attorney's fees pursuant to 42 U.S.C. § 1988. The
decision on that application was held pending the outcome of
defendants' appeal. After the reversal in Waterman III by the
Third Circuit, plaintiffs renewed their attorney's fees
application. Plaintiffs argue that although they ultimately
failed to obtain a judgment on the merits in their favor, their
lawsuit was the "catalyst" that prompted New Jersey officials to
promulgate regulations clarifying the statute's scope. Under the
judiciallycreated catalyst doctrine, attorney's fees are
recoverable under § 1988 when a lawsuit "act[s] as a catalyst"
prompting a defendant "to take action" that brings the plaintiff
"some of the benefit sought" in bringing the action. NAACP v.
Wilmington Med. Ctr., Inc., 689 F.2d 1161, 1167 (3d Cir. 1982).
Defendants, on the other hand, argue that plaintiffs are not
entitled to an award of fees because (1) the Prison Litigation
Reform Act of 1995 ("PLRA"), 42 specifically U.S.C. § 1997e(d),
abrogates the catalyst doctrine in the context of prisoner
litigation; (2) the Court of Appeals never held that N.J.S.A.
2C:47-10 would be unconstitutional absent the regulations; and
(3) the state had contemplated and moved toward the enactment of
such regulations prior to plaintiffs filing their complaint.
A. Attorney's Fees Under 42 U.S.C. § 1988
"The predicate to an award of attorney's fees under
42 U.S.C. § 1988 is that a party must have been `prevailing.'" Baumgartner
v. Harrisburg Housing Auth., 21 F.3d 541, 544 (3d Cir. 1994).
Section 1988 provides in the pertinent part that "[i]n any action
or proceeding to enforce a provision of section . . . 1983 . .
. of this title . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." 42 U.S.C. § 1988.
The determination as to whether a party is prevailing under §
1988 involves a two-step inquiry. See Wheeler v. Towanda Area
School Dist., 950 F.2d 128, 131 (3d Cir. 1991); J.C. v. Mendham
Twp. Bd. of Educ., 29 F. Supp.2d 214, 219 (D.N.J. 1998). The
first step is a determination of whether a plaintiff achieved
relief on any of his or her claims. Wheeler, 950 F.2d at 131.
This has been described a "commonsense comparison between the
relief sought and obtained." Id. It is not a requirement that a
plaintiff secure a favorable judgment on the merits in order to
be deemed a prevailing party; it is sufficient that he or she
"succeed on any significant issue in the litigation which
achieves some benefit . . . sought in bringing the suit."
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983).
The second part of the inquiry requires that there be a causal
link between the lawsuit and the relief ultimately obtained by
the plaintiff. Wheeler, 950 F.2d at 132; Mendham Twp. Bd. of
Educ., 29 F. Supp.2d at 219. In other words, in a case such as
the present one in which plaintiffs did not ultimately succeed on
the merits of their claim, "the pressure of the lawsuit" must
have been "a material contributing factor" in bringing about the
events that resulted in obtaining extrajudicial relief. Id.
This is generally referred
to as the "catalyst" theory.*fn3 See Baumgartner, 21 F.3d at
544; See also Clark v. Township of Falls, 890 F.2d 625, 627 (3d
Cir. 1989) ("[I]f plaintiffs could establish that their suit was
the catalyst for the changes, they were entitled to prevailing
party status despite the fact that the district court had ruled
With the above considerations in mind, the issue before this
Court in determining whether an award of attorney's fees is
appropriate in the present case is twofold; (1) whether
plaintiffs are prevailing parties under the catalyst test; and,
if so, (2) whether the PLRA nonetheless bars such an award by
abrogating the catalyst theory in the prison-litigation context.
Plaintiffs claim that they "achieved essentially all of the
relief sought in their lawsuit" because it was not until well
after they prevailed in the District Court that the state enacted
regulations "narrowing the ambiguous terms of N.J.S.A. 2C:4710."
(Pl. Brief at 7). Indeed, despite an assertion by defendants that
the State contemplated the adoption of such regulations more than
two months prior to plaintiffs filing their complaint, it is
apparent that this lawsuit was a material factor in prompting the
state to issue regulations at the time it did so. Plaintiffs
argued from the outset of this litigation that the State should
have enacted regulations narrowing the scope of N.J.S.A.
2C:47-10. See, e.g., Dist. Ct. Tr. at 37 ("[T]his would be a
different case if Your Honor had before you not only this statute
but some sort of implementation regulations that define these
terms carefully.") Defendants' position, at least initially, was
that regulations were unnecessary because the statute would not
be enforced in an "unrealistic" manner. (Dist. Ct. Tr. at 15) On
appeal, defendants also argued that because the District Court
acted hastily in striking down the statute, the State did not
have the opportunity to establish regulations governing the
implementation of the statute.*fn4 (Appellant Br. at 47)
Despite the assertion by defendants in Waterman III that the
district court's "haste to strike down" the measure prevented the
state from enacting clarifying regulations, defendants have not
even alleged that the State was actively engaged in the
promulgation of such regulations at the time plaintiffs filed
their action. Defendants indicate that the State "began
considering adopting regulations" and Commissioner Jack Terhune
approved the drafting of regulations prior to this lawsuit, see
Def. Opp. at 11; however, there is no indication that a
continuing effort was taken toward promulgating any regulations
until the lawsuit prompted such action. Indeed, the defendants'
position at oral argument before the Court of Appeals in January
of 1999 seems to indicate the same:
THE COURT: I still don't understand why you don't
have that opportunity [to establish regulations]? Why
can you not issue regulations or an informal
administrative interpretation that would go into
effect if the injunction against enforcement of the
statute were lifted?
[DEFENDANTS]: Well, when we go back to Trenton
today we will give some thought to doing that.
Third Cir. Tr. at 19.
Accordingly, the Court concludes that plaintiffs' lawsuit was a
factor in prompting the State to adopt regulations narrowing the
scope of N.J.S.A. 2C:47-10. However, this is only of significance
to plaintiffs' fee application if the situation were such that
without these regulations, N.J.S.A. 2C:47-10 would be
unconstitutional. Said another way, plaintiffs' lawsuit cannot be
said to be the catalyst "motivating defendants to provide the
primary relief sought" unless the statute was unconstitutional
absent the regulations implementing it. If the statute was valid
without the regulations, plaintiffs cannot be considered to be
the prevailing party under the catalyst test.
In Waterman III, the Third Circuit Court of Appeals examined
the constitutionality of the challenged statute. The District
Court in Waterman II concluded that statute was vague and
overbroad, and as a result, it was unconstitutional regardless of
whether it was rationally related to a legitimate penological
interest under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254,
96 L.Ed.2d 64 (1987) ("[W]hen a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests."). See
Waterman II, 12 F. Supp. at 381. The Court of Appeals, however,
disagreed with the District Court's conclusion that it could
declare the statute unconstitutional without first considering
whether it was rationally related to a legitimate penological
interest under Safley. See Waterman III, 183 F.3d at 212.
Accordingly, the Third Circuit applied the fourpart test
enunciated in Safley to make the determination as the statute's
Ultimately, the Court of Appeals held that the statute passed
constitutional muster on its own. See id. at 220. The court in
Waterman III never expressly declared that the regulations were
necessary for the statute to withstand the constitutional
challenge, although it is arguable that the regulations played a
role in shaping the court's decision, see, e.g., Waterman III,
183 F.3d at 209 ("Subsequent to the District Court's decision,
the state adopted regulations clarifying the statute's scope."
Informed by these regulations, we hold that the plaintiff's
constitutional challenge lacks merit. . . .) (emphasis added).
The existence of such regulations presented the Third Circuit
with somewhat of a different case than the District Court had
decided, and further, nullified potentially meritorious arguments
plaintiffs put forth on appeal. For example, under the first
prong in the Safley analysis, the Third Circuit considered
whether the statute "bears a `valid, rational, connection' to a
legitimate governmental objective." Id. at 214 (quoting
Safley, 482 U.S. at 89-90, 107 S.Ct. 2254). In its discussion
of the last requirement of Safley's first prong, namely,
whether there is a logical connection between the statute and its
asserted goal, the Third Circuit followed the analysis set forth
by the D.C. Circuit in a factually similar case, Amatel v.
Reno, 156 F.3d 192 (D.C.Cir. 1998), and concluded New Jersey
legislature acted rationally in enacting the N.J.S.A. 2C:47-10.
Plaintiffs attempted to distinguish Amatel by pointing out that
the statute which was upheld in Amatel is not enforced
directly, but instead is enforced pursuant to "regulations
defining the terms of the proscription and significantly
narrowing its scope." Waterman, 183 F.3d at 217. The court
found that "[p]laintiff's attempt to distinguish Amatel fails,"
because "[w]hatever force this argument carried prior to the
issuance of the new implementing regulations, we see no basis for
this argument now. . . . New Jersey has now promulgated
regulations `defining the terms and proscription and
significantly narrowing [the statute's] scope.'" Waterman, 183
F.3d at 218 (quoting Amatel, 156 F.3d at 194) (alteration in
The effect of the regulations was also noted in the Third
Circuit's analysis of Safley's second factor, namely, whether
an alternative means of exercising the right at stake is
available. The Circuit Court, citing Thornburgh v. Abbott,
490 U.S. 401,
417, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (holding that the
relevant right must be viewed sensibly and expansively) disagreed
with the District Court's conclusion that the statute was broad
enough to forbid prisoners from reading the Bible and other
non-pornographic books. The Third Circuit then noted that
[e]ven if we were inclined to reach the opposite
conclusion, the recently promulgated regulations
implementing the statute would foreclose any need for
us to do so. As noted, the regulations significantly
narrow the statute's broad scope by defining many of
its operative terms. . . . Thus the regulations
eliminate any concern that Plaintiffs will be left
without alternative means of exercising their
Waterman, 183 F.3d at 219.
Unfortunately for plaintiffs, even though the Court of Appeals
recognized the effect the regulations had on narrowing the scope
and effect of the statute, a careful reading of the decision in
Waterman III shows that the court found N.J.S.A. 2C:4710 was
constitutional on its own. This being so, despite the fact that
plaintiffs' lawsuit was a material factor in the implementation
of the regulations, it cannot be said that the plaintiffs
achieved any of the relief they sought. Accordingly, plaintiffs
cannot be considered "prevailing parties" for the purposes of an
award of attorney's fees under § 1988.
B. Prison Litigation Reform Act
Even if the Court were inclined to read Waterman III in the
light most favorable to plaintiffs and find that the regulations
were a determining factor in preserving the statute's
constitutionality, plaintiffs' application still must fail. The
present fee application relies upon the judicially-created
catalyst doctrine to assert that plaintiffs have prevailed within
the meaning of § 1988. Defendants, on the other hand, argue that
the PLRA governs the plaintiffs' fee application rather than the
catalyst doctrine, and that under the PLRA, plaintiffs are not
eligible for an award of attorney's fees.
"Congress enacted [the] PLRA with the principal purpose of
deterring frivolous prisoner litigation by instituting economic
costs for prisoners wishing to file civil claims." Hernandez v.
Kalinowski, 146 F.3d 196, 200 (3d Cir. 1998). To that end, it
created a system of "monetary and procedural disincentives to the
filing of meritless cases." Christiansen v. Clarke,
147 F.3d 655, 658 (8th Cir. 1998). Among other things, the PLRA modifies
the application of § 1988 to prisoner civil rights suits and
provides more stringent limitations on both the availability and
the amount of fee awards. See 42 U.S.C. § 1997e(d). With
respect to the present application for attorney's fees, the PLRA
states in the relevant part:
(1) In any action brought by a prisoner who is
confined 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 the plaintiff's
rights protected by a statute pursuant to which a
fee may be awarded under section 1988 of this title.
42 U.S.C. § 1997e (d)(a) (emphasis added).
Few courts have examined the framework for analyzing fee
applications in prisoner civil rights cases, and the parties have
not cited, nor has the Court found, any cases which address the
specific issue sub judice, namely, whether the
judiciallycreated catalyst doctrine continues to apply in
prisoner civil rights cases in light of § 803(d) of the PLRA.
This Court concludes that it does not.
Plaintiffs argue that the proper analysis in determining a fee
award in prisoner civil rights cases is set forth in Walker v.
Bain, 65 F. Supp.2d 591, 597 (E.D.Mich. 1999) as follows:
First, the court should determine whether plaintiff
is eligible for an award of attorney fees by
determining whether he is a prevailing party under §
Second, the court should calculate the lodestar
method in the ordinary fashion. In making this
calculation, however, the court must: (a) limit the
hourly rate sought to the lesser of the prevailing
market rate (normally applied under § 1988) or the
maximum provided in § 1997e(d)(3); and (b) limit
the hours sought to only those hours which were
"directly and reasonably incurred in proving an
actual violation of the plaintiff's rights" as
required by § 1997e(1)(A).
Third, the court should determine whether the
amount of the fee determined from the first two
steps is proportionate to the relief obtained under
Plaintiffs' Reply at 2-3 (citing Bain and omitting fourth step
not relevant to this case). Under this analytical framework,
plaintiffs take the position that the PLRA has no bearing on the
initial inquiry under the first prong, namely, whether a prisoner
is entitled to fees at all. Rather, plaintiffs argue that "the
PLRA simply limits the amount of fees a prevailing party can
recover. . . ." Id. at 3.
The Court does not take issue with the Bain analysis;
however, plaintiffs err in their application of the first prong.
In making the determination as to whether a plaintiff is
"prevailing", § 1988 must be read in conjunction with the PLRA.
In doing so, it is clear that the PLRA conditions an award of
attorney's fees in prisoner civil rights suits on a determination
that a plaintiff's rights have actually been violated, thereby
abrogating the judiciallycreated catalyst doctrine.
The Court notes that under the normal rules of statutory
construction, if Congress intends for legislation to change the
interpretation of a judicially-created concept, it makes that
intent specific. See Astoria Fed. Sav. and Loan Ass'n v.
Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96
(1991) ("Congress is understood to legislate against a background
of common-law adjudicatory principles. . . . Thus, where a
common-law principle is well established . . . the courts may
take it as given that Congress has legislated with an expectation
that the principle will apply except when a statutory purpose to
the contrary is evident.") Indeed, both the plain language of the
PLRA and its legislative history demonstrate Congress' intent to
eliminate the catalyst theory in prisoner civil rights cases. In
the Judiciary Committee's report on an earlier House version of
the PLRA, the Committee noted that
This subsection [on attorney's fees*fn5] permits
prisoners challenging prison conditions under
42 U.S.C. § 1983 to receive attorney fees but reasonably
limits the circumstances under which fees may be
granted as well as the amount of the fees.
This subsection [on attorney's fees] limits awards of
attorney fees in two ways. First, it narrows the
judicially-created view of a "prevailing party" so
that a prisoner's attorney will be reimbursed only
for those fees reasonably and directly incurred in
proving an actual violation of a federal right.
Narrowing the definition of "prevailing party" will
eliminate both attorney fees that penalize voluntary
improvements in prison conditions and attorney fees
incurred in litigating unsuccessful claims,
regardless of whether they are related to meritorious
claims. While this provision eliminates the financial
incentive for prisoners to
include numerous non-meritorious claims in sweeping
institutional litigation, it retains the financial
incentive to bring lawsuits properly focused on
prison conditions that actually violate federal law.
Second, this provision has the effect of reducing
attorney fee awards by eliminating fees for
litigation other than that necessary to prove a
violation of a federal right.
H.R.Rep. No. 21, 104th Cong., 1st Sess. 1995, 1995 WL 56410
Further evidence of Congress' intent to remove the catalyst
theory can be found in the Congressional Record. After
introducing S. 1275, an earlier version of the PLRA which also
allowed the recovery of attorney's fees only if "the fee was
directly and reasonably incurred in proving an actual violation
of the plaintiff's rights . . .," the bill's chief sponsor
commented as follows:
[P]risoners no longer will be reimbursed for
attorney's fees unless they prove an actual statutory
violation. No longer will courts award attorney's
fees simply because the prison has changed
pre-existing conditions. Only if the conditions
violated a prisoner's rights will fees be awarded.
Prisoners who succeed in proving a statutory
violation will be reimbursed only for fees directly
and reasonably incurred in proving that violation.
141 Cong. Rec. S14317 (September 26, 1995) (statement of Senator
It is clear from the plain language of the PLRA and from its
legislative history that the catalyst theory is no longer
applicable for fee awards in prisoner civil rights claims. Under
the statute, the Court cannot award fees in prisoner civil rights
cases unless "the fee was directly and reasonably incurred in
proving an actual violation of the plaintiff's rights. . . ."
42 U.S.C. § 1997e(d)(1). In the present case there was no such
determination. Accordingly, plaintiffs are not entitled to an
award of fees.
C. Equal Protection
Plaintiffs argue that the Court's construction of the PLRA
demonstrates that the statute unconstitutionally discriminates
against prisoner civil rights litigants. Specifically, plaintiffs
allege the statute violates the Equal Protection Clause of the
Fifth Amendment of the United States Constitution because it
irrationally discriminates between similarly situated prisoner
and non-prisoner civil rights litigants. The Court disagrees.
Plaintiffs concede that their equal protection challenge to the
PLRA is governed by rational basis review. See Romer v. Evans,
517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ("If a law
neither burdens a fundamental right nor targets a suspect class,
we will uphold the legislative classification so long as it bears
a rational relationship to some legitimate end.") See also
Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999) (applying
rational basis review to equal protection challenge to PLRA);
Bain, 65 F. Supp.2d at 600 (same). Under rational basis review,
"legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest." City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
In an equal protection analysis, rational basis review "is not a
license for courts to judge the wisdom, fairness, or logic of
legislative choices." Heller v. Doe, 509 U.S. 312, 319, 113
S.Ct. 2637, 125 L.Ed.2d 257 (1993). Rather, a court must uphold a
measure "if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification."
Heller, 509 U.S. at 320, 113 S.Ct. 2637. The person challenging
the legislation bears the burden "to negative every conceivable
basis which might support it, . . . whether or not the basis has
a foundation in the record." Id. at 320-21, 113 S.Ct. 2637.
Plaintiffs have not met this burden.
Courts have recognized that the general purpose of the PLRA is
to curtail frivolous lawsuits by prisoners and minimize the
costs, borne by taxpayers, associated with such suits. See
Madrid, 190 F.3d at 996. The limitation on the availability of
fee awards is consistent with the goals of curtailing such suits
and protecting the public fisc. Plaintiffs do not dispute the
legitimacy of these governmental interests, rather they contend
that these interests are not rationally related to the
distinction drawn between prisoners and all other litigants with
respect the abrogation of the catalyst doctrine. The Court,
however, finds a rational relationship between the two.
It has been generally noted that prisoners file a
disproportionate number of frivolous lawsuits because of
"potential gains and low opportunity costs." See, e.g.,
Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999). It is
conceivable that Congress was concerned that a broad definition
of "prevailing party" financially encouraged prisoners to bring
sweeping actions which included claims with little likelihood of
success. By requiring plaintiffs to prove an actual violation of
their rights as a predicate to an award of attorney's fees, it is
conceivable that lawmakers presumed that the PLRA would force
litigants to more carefully consider potential legal action and
deter prisoners from making frivolous claims.
Plaintiffs argue the relationship between the award of
attorney's fees to the initial filing of frivolous civil rights
suits is "so attenuated as to be irrational" because most
prisoner lawsuits are filed pro se. Reply at 5. However, a
court cannot overturn legislation merely because "there is an
imperfect fit between means and ends." Heller, 509 U.S. at 321,
113 S.Ct. 2637. "The problems of government are practical ones
and may justify, if they do not require, rough accommodations —
illogical, it may be, and unscientific." Metropolis Theater Co.
v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730,
(1913). Plaintiffs' burden is to negate every conceivable basis
which might support the legislation. Heller, 509 U.S. at
320-21, 113 S.Ct. 2637. This they have not done. As long as the
statute "find[s] some footing in the realities of the subject
addressed by the legislation," see id. 321, 113 S.Ct. 2637, the
court must uphold [it], even if [it] seem[s] "unwise" or work "to
the disadvantage of a particular group, or if the rationale . . .
seems tenuous." Romer, 517 U.S. at 630, 116 S.Ct. 1620.
With respect to minimizing the public costs associated with
prisoner civil rights litigation, plaintiffs also assert that
although protecting the public purse is a legitimate interest,
that interest may not be pursued by arbitrarily singling out a
particular class of persons to bear the entire burden of
achieving that end. Reply at 5-6 ("The only manner in which the
distinction between prisoners and nonprisoners relates to the
goal of protecting the public fisc is by making prisoners . . .
bear the entire extent of that burden for no other reason than
the fact they are prisoners. . . .") (quoting Bain 65 F. Supp.2d
at 605). Plaintiffs' argument, however, ignores the reality that,
because it is conceivable that prisoners file a disproportionate
number of frivolous suits compared to the population as a whole,
it is reasonable for Congress to conclude that prisoners are
causing a greater burden on the public purse in civil rights
litigation than the public as a whole. Accordingly, the PLRA is
neither arbitrary or irrational in its goal of minimizing costs
As defendants also point out, abrogation of the catalyst theory
in prisoner litigation is rationally related to the legitimate
governmental interest in avoiding the possibility of penalizing
prisons for making voluntary improvements in prison conditions.
This encourages more effective prison management by enabling
prison officials to institute changes without the risk that such
actions would be deemed to be prompted by a lawsuit challenging
prison conditions. With the catalyst theory in
place, once a lawsuit had been initiated, prison officials were
put in the untenable position of instituting preferable prison
management policies at the risk of paying a prisoners attorney's
fees not only for the underlying litigation, but also for the
litigation on the question of whether the lawsuit was actually
the "catalyst" for the change. By abrogating the catalyst theory,
it is conceivable that Congress intended to enable prison
officials to better manage the penal system.
Finally, it should be noted that plaintiffs rely heavily on
Bain in making their equal protection challenge. Bain
addressed the constitutionality of the attorney's fee cap
contained in § 1997e(d)(2).*fn6 The Bain court found that §
1997e(d)(2) had no rational basis for limiting the amount of
attorney's fees awarded to prisoners who have succeeded on their
civil rights claims when no such limitation existed for
successful non-prisoner litigants. Said another way, the court
could find no justification for distinguishing between prisoner
and non-prisoner litigants once either has "prevailed" in their
lawsuit under the appropriate standard.
The section of the PLRA at issue in the present case differs in
that it actually sets the standard for a prisoner to be
considered prevailing and thus, to be eligible for a fee award.
As discussed previously, creating differing standards for
prisoner and non-prisoner litigants is rationally related to the
legitimate governmental interests set forth above, and therefore,
§ 803(d) is constitutional under the Equal Protection Clause of
the Fifth Amendment of the United States Constitution.
Accordingly, plaintiffs fee application must be denied.
For the reason's stated above, plaintiff's application for
attorney's fees pursuant to 42 U.S.C. § 1988 is denied. An
appropriate order follows.
Before the court is an application by plaintiffs, Richard
Waterman and Michael Curtis, for attorney's fees and costs
pursuant to 42 U.S.C. § 1988. Defendants filed opposition, and
the Court decides the matter without oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons set forth in
the attached opinion,
IT IS on this 1st day of March, 2000,
ORDERED that plaintiffs' application is DENIED.
*fn2 The denial of this motion for fees presents some degree of
irony, in that this Court assigned counsel to plaintiffs based,
in part, on the arguable merit of their constitutional claims.
See Waterman v. Verniero, No. 98-1938 (D.N.J. May 21, 1998).
The ruling on this fee application should in no way detract from
counsel's commendable effort in this action.
*fn3 Although the Circuits are divided as to the continuing
validity of the catalyst theory in light of the Supreme Court's
decision in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121
L.Ed.2d 494 (1992) (finding that a party prevails in litigation
"when actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the
defendant's behavior in a way that directly benefits the
plaintiff"), see Friends of the Earth, Inc. v. Laidlaw
Environmental Svcs., 120 U.S. 693, ___, 120 S.Ct. 693, 699, 145
L.Ed.2d 610 (2000), it is still a viable basis for obtaining
attorney's fees in the Third Circuit. See Baumgartner v.
Harrisburg Housing Auth., 21 F.3d 541, 550 (3d Cir. 1994)
*fn4 N.J.S.A. 2C:47-10 was signed into law on January 19, 1998.
The District Court temporarily enjoined the State from enforcing
the statute on June 1, 1998.
(f) Attorney's Fees.-No attorney's fee under
section 722 of the Revised Statutes of the United
States (42 U.S.C. § 1988) may be granted to a plaintiff
in a civil action with respect to prison conditions
except to the extent such fee is —
(1) directly and reasonably incurred in proving an
actual violation of the plaintiff's Federal rights. .
H.R.Rep. No. 21, 104th Cong., 1st Sess. 1995, 1995 WL
56410 (H.R. 667, Section 301)
*fn6 "Whenever a monetary judgment is awarded in an action
described in paragraph (1), a portion of the judgment (not to
exceed 25 percent) shall be applied to satisfy the amount of
attorney's fees awarded against the defendant. If the award of
attorney's fees is not greater than 150 percent of the judgment,
the excess shall be paid by the defendant." 42 U.S. 1997e(d)(2).
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