MURPHY'S LAW: FOR ATTORNEY'S FEES SHIFTING UNDER THE PLRA, EVERYTHING THAT COULD GO WRONG HAS GONE WRONG.

• Author: Firmin, Mark J.
• Position: AEDPA and the PLRA After 25 Years

INTRODUCTION I. THE AMERICAN RULE AND THE CIVIL RIGHTS ATTORNEY'S FEES ACT II. LEGISLATIVE FAILURE A. The Attorney's Fees Provisions of the PLRA and the Private Attorney General Theory B. The Relevant Legislative History of the PLRA III. JUDICIAL FAILURE A. Murphy v. Smith Misses the Mark B. The Rest of [section] 1997e(d)(2): The Illusory Fee Cap IV. AN ACCURATE READING OF [section] 1997E(D). A. Reading the Text and Context of [section] 1997e(d) as a Whole B. The Murphy Interpretation Does Not Help Reduce Frivolous Prisoner Suits C. Disparate Results CONCLUSION INTRODUCTION

On July 25, 2011, Charles Murphy went to sit down for lunch and found a mess of food and water on his seat. (1) As a prisoner at Vandalia Correctional Center, Mr. Murphy ate at an assigned seat at a designated time. (2) He reported the mess on his seat to Correctional Officer Smith, who ended up escorting Mr. Murphy from the dining area in handcuffs. (3) Officer Smith brought Mr. Murphy to segregation, where another Officer asked him some questions. (4) When Mr. Murphy was not forthcoming, Officer Smith started putting "his finger in and out of Murphy's ear, while asking Murphy if he was deaf." (5) Officer Smith's juvenile behavior quickly escalated to violence after Mr. Murphy, remaining relatively calm, talked back. (6) Smith hit Murphy in the face and put him in a chokehold until he passed out. (7) Then, Smith and another officer dragged the unconscious Mr. Murphy into a cell and pushed him onto the ground. (8) Mr. Murphy's head hit the cell's metal toilet on the way down. (9) Smith and the other officer stripped Mr. Murphy and left him lying on the ground, where he stayed for more than half an hour before anyone checked his condition. (10) The assault left Murphy with a "crushed" eye socket that required surgery. (11)

Mr. Murphy sued the officers for excessive force and recovered $307,733.82 in damages, along with $108,446.54 in attorney's fees. (12) But, under the Prison Litigation Reform Act ("PLRA"), suits brought by prisoners are subject to special rules that do not apply in other civil suits. (13) One of the provisions of the PLRA works to limit available attorney's fees by requiring that up to 25% of a prisoner plaintiff's judgment be applied toward the award of attorney fees. (14) After the Supreme Court ruled in Mr. Murphy's case, the defendants were responsible only for $31,513.09 in attorney's fees. (15) Basically, being a prisoner cost Mr. Murphy about $77,000. (16)

Charles Murphy fared relatively well under the PLRA. Presumably, after paying his attorneys, he was left with over $200,000 in damages. This may be significantly less than what the jury determined would make him whole, but it is more than most prisoners can hope for. Jeffery Royal, for example, had his wheelchair confiscated by prison officers, forcing him to crawl on the ground. (17) When he filed grievances against them, they retaliated by putting him in administrative segregation for two months. (18) He sued for retaliation violative of his First Amendment rights and won, but since he didn't suffer a physical injury as a result of the segregation, he was awarded only $1 in nominal damages. (19) Royal persisted through lengthy and expensive litigation, and since he ultimately proved in court that the prison officials had wrongfully violated his constitutional rights, the Civil Rights Attorney's Fees Act of 1976 entitled him to an award of "reasonable attorney's fee[s]". (20) The PLRA limited his award of attorney's fees to $1.50. (21)

The PLRA was intended to reduce only frivolous prisoner litigation, (22) but its attorney's fees provisions severely reduce the compensation awarded to prisoner plaintiffs who have proven in court that their claims have merit. (23) The reduction in attorney's fees directly works against prisoners who have vindicated their rights, and it deters attorneys from representing clients with meritorious claims. (24) An excessive-force claim against a prison guard will elicit a smaller attorney's fee award than the exact same claim against a police officer, even if everything else--the injury, the damages award, the strength of evidence offered, the culpability of the wrongdoer, the amount of time and energy spent proving the claim, the reasonable attorney's fee calculated by the court, etc.--were the same. (25) The exact same right vindicated in the exact same circumstances being compensated to a lesser degree solely because of the plaintiff's status as a prisoner means that rights of prisoners are simply afforded less value. This Note will explore how the PLRA provisions governing attorney's fees have been misinterpreted to the detriment of prisoner plaintiffs. Part I will provide some background about the scheme of attorney's fee awards in the United States, particularly the policy rationale behind when such fees are awarded. Part II will describe the PLRA's fee provisions and revisit the legislative history in the appropriate context provided by Part I. Part III will discuss how courts have failed to properly interpret the attorney's fees provisions of the PLRA, with a special focus on the shallow analysis employed in Murphy v. Smith. (26) Part IV will provide an alternate interpretation that better conforms to both the text of the statute and the purpose of the PLRA; one that does not unjustly reduce the value of prisoners' rights.

1. THE AMERICAN RULE AND THE CIVIL RIGHTS ATTORNEY'S FEES ACT

   In the United States, the general rule governing the allocation of attorney's fees is the American Rule. In affirming that the American Rule is the default doctrine and the starting point for any judicial decision to award fees, the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society (27) stated the rule clearly and succinctly: "In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." (28) Each party is responsible for her own costs, regardless of the outcome. This explicit rejection of the English Rule--which can force the loser to pay the costs incurred by the winning party--has been a feature of American jurisprudence for the vast majority of our country's history. (29)

   This shift in fee allocation represents a reflection of American values of "democracy and individualism." (30) One supposed effect of the English Rule is that plaintiffs hesitate to press even meritorious claims in order to avoid having to pay their opponents' fees, disproportionately chilling suits by poor plaintiffs. (31) The American Rule recalibrates this balance of power and incentives. When parties generally have to pay only their own attorney's fees, potential plaintiffs' concerns that they might be slammed with the costs of their opponents' defense and defendants' fear of having to finance attacks against them are both mitigated. While the original rationale for this default rule may be difficult to discern from a historical perspective, (32) in 1967 the Supreme Court described a justification that has been embraced in modern times as a major part of the policy underpinning the practice: poor plaintiffs are discouraged from bringing suits to "vindicate their rights" when failure means taking on their opponents' fees. (33)

   The same justification has been extended to support the myriad of fee-shifting statutes that amend the American Rule in certain circumstances, reflecting the idea's significance to the fee-allocation regime in the United States. Congress has passed hundreds of fee-shifting statutes (34) authorizing courts to assess a prevailing plaintiff's attorney's fees against the defendant in many situations. (35) A frequent justification for this sort of fee-shifting is the "private attorney general" theory (36) that encouraging individual citizens who have suffered harm to sue wrongdoers is good for everyone because there is a collective or state interest in the vindication of important individual rights or other "polic[ies] that Congress consider[s] of the highest priority." (37)

   This interest is strongest in situations where a large corporation or government actor infringes on the fundamental rights of a potential plaintiff who both belongs to a vulnerable population and would typically not be able to afford litigation against a resource-rich defendant. (38) Awarding attorney's fees to prevailing parties in these cases works both ends of the problem by removing a financial barrier to pursuing claims that are in the public interest and increasing the financial incentive to avoid harming others.

   If widening access to the justice system for poor plaintiffs is a core feature of the American Rule, then one-way fee shifting (39) when defendants are particularly powerful or the rights being vindicated are particularly important is a natural exception to the Rule. (40) In fact, one-way fee-shifting statutes and other exceptions to the basic American Rule have become so prevalent that any understanding of the "true" American Rule is not complete without recognition that there is a conditional one-way fee shift when there is a public interest involved. (41)

   Indeed, once the Supreme Court recognized the private-attorney-general theory as the justification for fee-shifting statutes, (42) lower courts began using the theory to award attorney's fees to prevailing plaintiffs even where no statute authorized the award. (43) It didn't take long for the Supreme Court to clarify that only Congress can define the conditions under which the private-attorney-general theory supports a policy of fee shifting. (44) Alyeska reestablished the American Rule as the guiding principle for courts, eliminating judges' discretion to shift fees under the private-attorney-general theory without specific statutory authorization. (45) Relying on a statute from 1853, the Alyeska Court erased judicial discretion to award attorney's fees "when the interests of justice so require." (46)

   Congress...