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.
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
(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 ...