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March 1, 2000


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 inmate's possession.
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 commissioner.
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.

N.J.S.A. 2C:47-10.

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 providing that:

(b) Materials containing a depiction or description of sexual activity or an associated anatomical area shall not be considered "sexually oriented" unless the material is predominantly oriented to such depictions or descriptions.
(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.

N.J.A.C. 10A:18-9.2

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 against them.")

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 ...

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