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ROBBINS v. United States of America, Intervenor. (2005)

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United States Court of Appeals,Tenth Circuit.

Ralph ROBBINS, Plaintiff-Appellee, v. Larry CHRONISTER, in his personal and official capacity, Defendant-Appellant. United States of America, Intervenor.

No. 02-3115.

Decided: April 04, 2005

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ, Circuit Judge. Kenneth J. Moore (F. Charles Dunlay, Assistant Counsel, on the briefs), Unified Government of Wyandotte County, Kansas Legal Department, Kansas City, KS, for Defendant-Appellant. Larry J. Leatherman, of Palmer, Leatherman & White, L.L.P., Topeka, KS, for Plaintiff-Appellee. Peter D. Keisler, Assistant Attorney General;  Eric F. Melgren, United States Attorney;  Barbara L. Herwig, Jonathan H. Levy, Attorneys, Appellate Staff, Department of Justice, Washington, D.C.;   filed a brief for the Intervenor United States of America.

Plaintiff-appellee Ralph Robbins prevailed in a § 1983 civil rights suit against Larry Chronister, a police officer who violated his Fourth Amendment rights.   The court awarded Mr. Robbins nominal damages of one dollar.1  Robbins v. Chronister, 156 F.Supp.2d 1211 (D.Kan.2001).   Applying the Supreme Court's absurdity exception to the plain language rule of statutory construction, the court then held that the provision of the Prison Litigation Reform Act (PLRA) limiting attorney's fee awards in prisoner suits to 150% of the money judgment, 42 U.S.C. § 1997e(d), does not apply to civil rights claims arising before the victim of the constitutional violation was incarcerated.   The court awarded Mr. Robbins reasonable attorney's fees under 42 U.S.C. § 1988 without regard to the PLRA's fee cap.   We affirm.


In December 1995, Mr. Robbins was sitting in his car at a gas station in Kansas City, Kansas, waiting for a gas pump to become available.   Larry Chronister, an off-duty police officer, was returning home from work in his personal truck.   Officer Chronister recognized Mr. Robbins from an encounter one week earlier and knew there were five outstanding traffic warrants for Mr. Robbins's arrest.   After pulling into the gas station and parking his truck behind Mr. Robbins's car, Officer Chronister approached the driver's side door of Mr. Robbins's car with his baton in his hand.   Officer Chronister identified himself and ordered Mr. Robbins out of the car. Mr. Robbins engaged the door locks of his car, put the car in reverse, and began to back towards Officer Chronister's truck.   Officer Chronister swung his baton into the driver's side window of Mr. Robbins's car, shattering it, and attempted to pull Mr. Robbins from the car.   Mr. Robbins managed to maneuver the car away from Officer Chronister's truck, and tried unsuccessfully to accelerate on the icy pavement.   He skidded and spun around the parking lot, eventually fish-tailing toward Officer Chronister.   As the car approached him, Officer Chronister shot at its hood and windshield.   Mr. Robbins ultimately left the parking lot and wrecked the car a few blocks away.   He was taken to the University of Kansas Medical Center for treatment of two gunshot wounds to the chest and one to his lower left side.

Mr. Robbins subsequently pled guilty to attempted aggravated assault on a law enforcement officer and was incarcerated at the Federal Correctional Institution in Greenville, Illinois.   While he was incarcerated, he filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that Officer Chronister used excessive force in their encounter in violation of Mr. Robbins's Fourth Amendment rights.   The court appointed counsel for him.   After conducting a three-day bench trial, the court ruled that Officer Chronister's use of deadly force in firing the shots was reasonable under the Fourth Amendment, but that shattering Mr. Robbins's driver's side window with a baton was not.   Because Mr. Robbins was not physically injured as a result of the shattered window, the court awarded him nominal damages of one dollar, a determination he does not appeal.

Mr. Robbins filed a motion for attorney's fees pursuant to 42 U.S.C. § 1988(b), which allows the court to award a reasonable attorney's fee to the prevailing party in a § 1983 action.   Officer Chronister opposed the motion, arguing the plain language of § 1997e(d) of the PLRA caps Mr. Robbins's attorney's fees at 150% of his damages, or $1.50, because he was a prisoner when he filed suit.   After receiving several rounds of briefing and conducting a hearing, the court declined to apply the PLRA cap.   It held that applying the PLRA in these circumstances would produce an absurd result because Congress could not have intended the statute to apply to meritorious civil rights claims that arose prior to a prisoner's confinement.   Finding it unnecessary to address its “grave concerns regarding the constitutionality of the fee limitations provision as applied to plaintiff,” Aplt.App. at 68, the court awarded Mr. Robbins $9,680 in fees and $915.16 in expenses.   On appeal, Officer Chronister contends the court should have applied the PLRA and capped Mr. Robbins's attorney's fees at $1.50.


 We review issues of statutory construction de novo, United States v. Oberle, 136 F.3d 1414, 1423 (10th Cir.1998), and begin by examining the plain language of the statute.  Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).  “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”  Id. at 341, 117 S.Ct. 843.

The PLRA provides in 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;․

(2) 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.C. § 1997e(d) (footnotes omitted).   Courts have interpreted the statute to limit a defendant's liability for attorney's fees to 150% of the money judgment.   See, e.g., Royal v. Kautzky, 375 F.3d 720, 725 (8th Cir.2004);  Walker v. Bain, 257 F.3d 660, 667 (6th Cir.2001) (citing cases).   The statute's plain language indicates the 150% fee cap applies if (1) the plaintiff was “a prisoner” at the time he brought the action and (2) he was awarded attorney's fees pursuant to § 1988.   It is undisputed that Mr. Robbins was a prisoner when he filed his § 1983 action and that the court entered judgment in his favor by awarding him one dollar in nominal damages and reasonable attorney's fees pursuant to § 1988(b). Under the plain language rule of statutory construction, therefore, the fee cap contained in § 1997e(d) would apply to Mr. Robbins's attorney's fees, limiting the award to $1.50.

 If the language of a statute is clear in its application, the general rule is that we are bound by it.  Hubbard v. United States, 514 U.S. 695, 703, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) (“In the ordinary case, absent any indication that doing so would ․ yield patent absurdity, our obligation is to apply the statute as Congress wrote it.” (quotation and citation omitted)).   Nevertheless, where applying the plain language “would produce an absurd and unjust result which Congress could not have intended,” we need not apply the language in such a fashion.  Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982).   This is because “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”  Id. at 575, 102 S.Ct. 3245;  see also Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827 (1966) (noting that when the conventional interpretation of a statutory text produces “absurd or futile results,” a court may look “beyond those words to the purpose of the act” (quoting United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940))).   This absurdity exception to the plain language rule is consistent with the doctrine that “the function of the courts ․ [i]s to construe ․ [statutory] language so as to give effect to the intent of Congress.”  Am. Trucking Ass'ns, 310 U.S. at 542, 60 S.Ct. 1059;  see also Resolution Trust Corp. v. Westgate Partners, Ltd., 937 F.2d 526, 529 (10th Cir.1991) (“The ‘absurdity’ exception to the plain language rule is a tool to be used to carry out Congress' intent․”).

Although the absurdity doctrine is “exceptional” in character, we have applied it where construing the plain language of a statute would produce an illogical result.   See United States v. Singleton, 165 F.3d 1297, 1300 (10th Cir.1999) (en banc ) (holding it would be absurd to apply witness bribery statute to prosecutor's offer of leniency in exchange for codefendant's testimony);  Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1090-91 (10th Cir.1997) (invoking absurdity doctrine to expand Americans with Disabilities Act's affirmative defense against conditions posing “direct threats” to safety).   Other federal courts of appeal have applied the doctrine regularly throughout the last decade.   See, e.g., Smith v. Zachary, 255 F.3d 446, 450 (7th Cir.2001) (finding it absurd to conclude PLRA's exhaustion requirement for challenges to “prison conditions” was inapplicable to action challenging a single, isolated use of excessive force by prison guard);  Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 297-98 (2d Cir.1998) (using absurdity doctrine to narrow Fair Housing Act's “take one, take all” requirement for landlords with subsidized tenants);  Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226-28 (7th Cir.1997) (holding it would be absurd to apply Racketeer Influenced and Corrupt Organizations Act to auto manufacturer and its independent distributors allegedly engaged in a pattern of mail and wire fraud with respect to warranties);  Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1529-30 (11th Cir.1996) (holding it would be absurd to apply Clean Water Act's requirement of “zero discharge” to de minimis pollution discharges that posed no threat to public health);  Ohio v. EPA, 997 F.2d 1520, 1534-35 (D.C.Cir.1993) (holding it would be absurd not to sustain a de minimis exception to a statute requiring periodic review of certain Superfund sites).

The Supreme Court has invoked the absurdity doctrine at least five times in recent years to depart from a plain reading of statutory text.   See, e.g., Clinton v. City of New York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (invoking doctrine to expand meaning of “individuals” who could seek expedited review under Line Item Veto Act to include corporations);  United States v. X-Citement Video, Inc., 513 U.S. 64, 69, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (holding it would be absurd to apply term “knowingly” only to relevant verbs in criminal statute and not to elements of the crime concerning minor age of participant and sexually explicit nature of material);  Burns v. United States, 501 U.S. 129, 135-37, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (invoking absurdity doctrine to hold that district courts may not depart upward from sentencing range established by Sentencing Guidelines without first notifying parties of intent to depart);  Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454-55, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (relying, in part, on absurdity doctrine to narrow Federal Advisory Committee Act which had broadly defined “federal advisory committee”);  Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509-11, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989) (holding it would be absurd not to apply Fed.R.Evid. 609(a)(1), which authorizes impeachment of witness's credibility using specified categories of criminal convictions, to civil as well as criminal defendants).

 Turning to application of the PLRA in this case, and as we discuss below, it is clear that Congress intended to curb frivolous lawsuits brought by prisoners relating to the conditions and circumstances of their incarceration.   Conversely, Congress gave no indication of any intent to impose a fee limitation on pre-incarceration civil rights claims brought by plaintiffs who subsequently become prisoners and file their action while in prison.   The PLRA's legislative history is silent as to civil rights claims arising prior to incarceration, and Congress could have addressed this issue expressly had it so intended.

The PLRA was attached as a rider to an omnibus appropriations act 2 and apparently was not subjected to committee markup or extensive hearings.   Cases have noted the paucity of information available in the PLRA's legislative history for divining Congress's intent, but the unmistakable purpose of the legislation was to limit the rapidly increasing number of frivolous prisoner claims arising from alleged prison-related civil rights violations.   See, e.g., Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997) (“Congress adopted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner lawsuits and appeals.”);  McGann v. Comm'r, Social Sec. Admin., 96 F.3d 28, 31 (2d Cir.1996) (Miner, J., dissenting) (“There is no question that the statute was enacted to discourage the filing of frivolous suits and appeals by prisoners. Congress apparently thought that such meritless litigation was causing a serious drain on federal court resources.”).   As one court has explained:

Although the legislative history regarding the PLRA is sparse, Congress's general purpose in passing the act is relatively clear.   According to Senator Hatch, the PLRA “will help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits․ Our legislation will also help restore balance to prison conditions litigation and will ensure that Federal court orders are limited to remedying actual violations of prisoners' rights․” 141 Cong. Rec. S14408-01, *S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch).   See also 141 Cong. Rec. S7498-01, *S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) (PLRA “will deter frivolous inmate lawsuits.   Statistics compiled by the Administrative Office of the U.S. Courts show that inmate suits are clogging the courts and draining precious judicial resources”);  id., at *S7524 (statement of Sen. Dole) (“Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and legal resources, and affect the quality of justice enjoyed by the law-abiding population.”).

Zehner v. Trigg, 952 F.Supp. 1318, 1324-25 (S.D.Ind.1997) (emphasis added).   The Supreme Court has cautioned against construing a statute literally where the clause in question was added on the Senate floor and the legislative history gave no indication that Congress intended the broad reading the plain language would indicate.   See Am. Trucking Ass'ns, 310 U.S. at 546-48, 60 S.Ct. 1059.

We, of course, do not quibble with Congress's legislative judgment that too many frivolous lawsuits and appeals are filed by prisoners;  indeed, our own docket is heavy with prison litigation.3  Nevertheless, no matter how many frivolous cases are filed and no matter how successful the PLRA is in discouraging lawyers from taking on such cases, the number of frivolous cases relating to prison confinement is irrelevant to our inquiry.   Although Mr. Robbins was awarded only one dollar in nominal damages, he was a prevailing party on a claim that arose prior to his confinement.   See Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“We therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988.”).

Our society has long recognized the importance of preventing and deterring civil rights violations.

[A] civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.   And, Congress has determined that the public as a whole has an interest in the vindication of the rights conferred by the statutes enumerated in § 1988, over and above the value of a civil rights remedy to a particular plaintiff.   Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards․ In addition, the damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future.   This deterrent effect is particularly evident in the area of individual police misconduct, where injunctive relief generally is unavailable.

Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also as a private attorney general, vindicating a policy that Congress considered of the highest importance.

City of Riverside v. Rivera, 477 U.S. 561, 574-75, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (internal citations and quotations omitted).   Moreover, because “the law recognizes the importance to organized society that those rights be scrupulously observed,” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), and every individual's civil rights are equally valuable regardless of ability to hire an attorney to pursue their vindication, Congress intended for attorney's fees to be awarded in civil rights cases regardless of the amount of damages.

Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief.   Rather, Congress made clear that it intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation ․ and not be reduced because the rights involved may be nonpecuniary in nature.  [C]ounsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, for all time reasonably expended on a matter.

City of Riverside, 477 U.S. at 575, 106 S.Ct. 2686 (internal citations and quotations omitted).

There are, of course, a panoply of cases brought to enforce civil rights which are guaranteed by the Constitution, applied to the states through the Fourteenth Amendment, actionable under § 1983, and thereby giving rise to attorney's fees under § 1988.   See, e.g., Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (Fourth Amendment seizure of property);  Bauer v. Sampson, 261 F.3d 775 (9th Cir.2001) (First Amendment freedom of speech);  Lauro v. Charles, 219 F.3d 202 (2d Cir.2000) (Fourth Amendment seizure of individual);  Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.1995) (First Amendment Establishment Clause).   Mr. Robbins's Fourth Amendment excessive force claim falls in this category of cases.   See Graham v. Connor, 490 U.S. 386, 395-96 & n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (excessive force claims are analyzed under the Fourth Amendment's reasonableness standard);  Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir.2002) (excessive use of force by a police officer against arrestee is actionable under § 1983).   Had the plaintiffs in these cases been incarcerated for mail fraud or any other reason subsequent to the violation of their constitutional rights but before they filed their § 1983 claims, they would have been forced to file their § 1983 claims from prison.   Without applying the absurdity exception, the PLRA fee cap would operate to limit their recovery of attorney's fees for pursuing their pre-incarceration § 1983 claims because each claim would fall within the PLRA's definition of “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․” 42 U.S.C. § 1997e(d)(1).

Constitutional claims arising before the events causing the plaintiff's incarceration are unrelated to prison confinement.   Nor does a pre-existing constitutional claim fall into the category of “frivolous prisoner litigation” that Congress was trying to discourage by its passage of the PLRA. As evidenced by the statute's limited legislative history, it was frivolous confinement cases Congress was attempting to deter:

In one frivolous case in Utah, an inmate sued demanding that he be issued Reebok or L.A. Gear brand shoes instead of the Converse brand being issued.   In another case, an inmate deliberately flooded his cell, and then sued the officers who cleaned up the mess because they got his Pinochle cards wet․ Prisoners file free lawsuits in response to almost any perceived slight or inconvenience-being served chunky instead of creamy peanut butter, for instance, or being denied the use of a Gameboy video game․

141 Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statements of Sens. Hatch and Kyl).

We apply the Supreme Court's absurdity exception to the PLRA's plain language because there is no indication Congress intended to limit an award of attorney's fees to a civil rights plaintiff simply because he crossed the threshold of a prison before filing his lawsuit.   Failing to distinguish between pre-incarceration cases and post-incarceration cases would lead to absurd results we are not persuaded Congress intended when it passed the PLRA. This narrow absurdity exception will not undercut Congress's purpose of curbing frivolous prison litigation.   The PLRA fee cap will still fully apply to cases “brought by a prisoner who is confined to any jail, prison, or other correctional facility,” § 1997e(d)(1), where the claims are based on violations that arise during a prisoner's incarceration.4  By distinguishing temporally between these cases and those concerning constitutional violations that occurred prior to an individual's period of imprisonment, we give effect to Congress's intent without being overinclusive.

In sum, we hold that it would be absurd to limit Mr. Robbins's attorney's fees merely because he happened to file his pre-existing constitutional claim while he was in prison.5  We therefore AFFIRM.

I respectfully dissent.   My quarrel is not with the majority opinion's expression of the absurdity doctrine, although there are compelling reasons to limit its scope.   See John F. Manning, The Absurdity Doctrine, 116 Harv. L.Rev. 2387 (2003).   Nor do I dispute that there are differences between prisoner suits alleging unlawful conditions of confinement and prisoner suits alleging preconfinement misconduct, and that Congress could properly have decided that 42 U.S.C. § 1997e(d) should address only the former.   What I cannot agree with, however, is the majority's view that it would be absurd to think Congress wished to apply § 1997e(d) to suits alleging preconfinement misconduct.

We have said that an interpretation of a statute is absurd if it leads to “results ‘so gross as to shock the general moral or common sense,’ ” United States v. Newsome, 898 F.2d 119, 121 n. 3 (10th Cir.1990) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930)).   Applying § 1997e(d) here does not come close to meeting that standard.

It is worth remembering that 42 U.S.C. § 1988, which provides for attorney-fee awards in civil-rights litigation, is a departure from the American Rule, under which the losing party is not required to reimburse the prevailing party's attorney fees.   See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).   Concerned that the prospect of attorney-fee awards was encouraging the high volume of frivolous prisoner litigation burdening the courts and defendants, Congress reduced the incentive, restricting recovery of attorney fees to no more than 150% of the damages awarded, thereby encouraging only suits likely to recover substantial damages.   According to the majority opinion it would be absurd to reduce the incentives for prisoners to file suits alleging preconfinement civil-rights violations.   But it seems to me eminently reasonable.

The likely reason why prisoners file so many groundless suits is that they have so much time, time to file suits alleging preconfinement misconduct as well as suits concerning prison conditions.   This explains why § 1997e(d) looks to the status of the plaintiff when suit is filed (is the plaintiff a prisoner?) not the nature of the civil-rights claim.   Not only is the provision inapplicable to suits filed before incarceration that allege preconfinement misconduct, but it also is inapplicable to suits filed after release that allege unlawful prison conditions.   If it makes sense to try to reduce the volume of frivolous prisoner litigation regarding prison conditions by restricting attorney-fee awards, it also makes sense to use the same means to try to reduce the volume of frivolous prisoner litigation alleging preconfinement misconduct.

The majority opinion's reliance on congressional floor debate is unpersuasive.   The perils of relying on that source for interpreting statutory language are well-known.   See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 457 n. 15, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002).   But even when relied upon, floor debate has been used only to indicate what Congress meant by certain language.   I do not see how floor debate could show that a particular interpretation of statutory language would be absurd;  it would, at most, show that the interpretation was not the intended one.   The absurdity doctrine, however, requires more than a showing that the statutory language does not mean what Congress intended;  it requires a showing that it would have been absurd for Congress to have intended what the statute says.

Finally, I should note the irrelevance of the merits of Mr. Robbins's claim in this case.   The district court found a constitutional violation, so this case does not involve “frivolous prisoner litigation.”   Op. at 1054.   But to say that application of § 1997e(d) to a meritorious claim would be absurd is to prove too much. The limitation on fees in § 1997e(d) never applies to a frivolous claim;  it applies only when the prisoner is a prevailing party.   If it is absurd to apply § 1997e(d) to a claim on which the prisoner prevails, then the section must be struck as absurd in its entirety.

I would reverse the judgment below and remand with instructions to award an attorney fee of $1.50.   I can certainly sympathize with an attorney appointed by the court who is not compensated for the services rendered.   But this could occur even under the majority's rule, as when the prisoner loses entirely or the appointment is for a prison-conditions lawsuit.   The remedy, however, would be to have the attorney paid with court funds, not to impose an obligation on the defendant contrary to an unambiguous, nonabsurd statute.


1.   The case was tried by consent before a magistrate judge.

2.   Omnibus Consolidated Rescissions and Appropriations Act of 1996, Prison Reform Litigation Act of 1995, Pub.L. No. 104-234, tit. VII, 110 Stat. 1321 (consolidated in scattered sections of 18, 28 & 42 U.S.C.).

3.   By Congress's estimates, as many as 96.9% of inmate lawsuits lack sufficient merit even to reach trial.   See 141 Cong. Rec. S14611-01, S14626 (daily ed. Sept. 29, 1994) (statement of Sen. Hatch);  see also 141 Cong. Rec. S14312, S14316 (daily ed.   Sept. 26, 1995) (statement of Sen. Abraham) (over 99% of inmate litigation in the Ninth Circuit is non-meritorious);  141 Cong. Rec. S7498-01, S7526 (statement of Sen. Kyl) (over 92% of prisoner pro se civil rights claims are dismissed prior to trial or such dismissals are affirmed on appeal).

4.   Courts have ruled that the PLRA's fee cap is not absurd when applied to civil rights actions brought by prisoners in custody regarding events arising during the prisoner's period of incarceration.   For example, in Boivin v. Black, 225 F.3d 36 (1st Cir.2000), a nominal damages award of $1.00 gave rise to an attorney's fee of $1.50 under the PLRA. The First Circuit held that Congress's legislative choice to apply the fee cap to nominal damage awards was not “absurd or chimerical.”  Id. at 41.   The case before us is distinguishable from Boivin because Mr. Boivin's due process claim was for unconstitutional prison conditions.   As a detainee, he lost consciousness after being locked in a restraint chair with his mouth covered by a towel.  Id. at 38.   Because Mr. Boivin's civil rights claim arose from events occurring while he was in custody, his claim was the type to which Congress intended the fee cap to apply.   Similarly, the Eleventh Circuit has interpreted the PLRA fee cap broadly, concluding that the statute's “phrase ‘any action brought by a prisoner’ means all lawsuits that are filed by a prisoner and is not restricted to lawsuits challenging ‘prison conditions' that are filed by a prisoner.”  Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790, 796 (11th Cir.2003).   Although the Jackson court construed the language of the statute in such a general fashion to encompass every suit filed by an incarcerated person, the underlying complaint in Jackson was a 42 U.S.C. § 1983 action challenging the length of an inmate's confinement after the state parole board changed its parole policy and applied the new policy retroactively.   Id. at 793.   As such, neither Boivin or Jackson offer guidance on the applicability of the PLRA cap on non-custodial, pre-incarceration civil rights violations.   Nor are we aware of any cases in which courts have specifically addressed the applicability of the absurdity exception to 42 U.S.C. § 1997e(d)(2) (the fee cap subsection) in a case arising from a non-custodial, pre-incarceration civil rights claim.

5.   Having resolved Mr. Robbins's claim on statutory grounds, we need not address the constitutionality of the PLRA attorney's fees cap as applied to prisoner law suits arising before their incarceration.   See Clinton v. Jones, 520 U.S. 681, 690, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (“[W]e have often stressed the importance of avoiding the premature adjudication of constitutional questions.   That doctrine of avoidance ․ is applicable to the entire Federal Judiciary, not just to this Court.” (footnote omitted));  Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ․ unless such adjudication is unavoidable.”).

SEYMOUR, Circuit Judge.

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