Anthony Jimenez v. David Sum, et al

Filing

FILED OPINION (JEROME FARRIS, RICHARD R. CLIFTON and SANDRA S. IKUTA) VACATED., Judge: RRC Authoring, Judge. FILED AND ENTERED JUDGMENT. [8186208] [10-56199, 10-56292, 10-56294]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY ALBERT JIMENEZ,
Plaintiff-Appellant,
v.
JOHN FRANKLIN; GILBERT DURON;
RYAN BERGNER; GABRIEL FRANK
GONZALEZ,
Defendants-Appellees,
and
DAVID SUM; TRI T. HOANG; DANIEL
ORTEGA; CESAR CASILLAS; ALFREDO
NMI GOMEZ; DANIEL ESTRELLA,
Defendants.

ANTHONY ALBERT JIMENEZ,
Plaintiff-Appellant,
v.
GILBERT DURON; JOHN FRANKLIN;
RYAN BERGNER; GABRIEL FRANK
GONZALEZ,
Defendants-Appellees,
and
DAVID SUM; TRI T. HOANG; DANIEL
ORTEGA; CESAR CASILLAS; ALFREDO
GOMEZ; DANIEL ESTRELLA,
Defendants.

5635

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No. 10-56199
D.C. No.
2:99-cv-03455-PJW

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

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No. 10-56292
D.C. No.
2:99-cv-03455-PJW

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JIMENEZ v. FRANKLIN

ANTHONY ALBERT JIMENEZ,
Plaintiff-Appellant,
v.
GILBERT DURON; JOHN FRANKLIN;
RYAN BERGNER; GABRIEL FRANK
GONZALEZ,
Defendants-Appellees,
and
DAVID SUM; TRI T. HOANG; DANIEL
ORTEGA; CESAR CASILLAS; ALFREDO
GOMEZ; DANIEL ESTRELLA,
Defendants.

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

No. 10-56294
D.C. No.
2:99-cv-03455-PJW
OPINION



Appeal from the United States District Court
for the Central District of California
Patrick J. Walsh, Magistrate Judge, Presiding
Argued and Submitted
March 9, 2012—Pasadena, California
Filed May 22, 2012
Before: Jerome Farris, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton

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JIMENEZ v. FRANKLIN

COUNSEL
Emelio G. Gonzalez and Kristin Knox Esche (argued), Davis
Wright Tremaine LLP, Los Angeles, California, for the
plaintiff-appellant.
Scott Wm. Davenport (argued), Irvine, California, and David
J. Wilson, Los Angeles, California, Manning & Kass, Ellrod,
Ramirez, Trester LLP, for the defendants-appellees.

OPINION
CLIFTON, Circuit Judge:
Anthony Albert Jimenez appeals from the district court’s
orders granting full satisfactions of judgment as to defendants

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John Franklin, Gilbert Duron, and Ryan Bergner. Franklin,
Duron, and Bergner, along with co-defendant Gabriel Frank
Gonzalez, were found to have violated Jimenez’s civil rights
and held liable for damages under 42 U.S.C. § 1983. The district court awarded attorney’s fees and ordered that all four
defendants were jointly and severally liable for the fees.
Defendants Franklin, Duron, and Bergner appealed the judgment, including the fee award, but did not challenge the order
that they were jointly and severally liable for fees. This court
affirmed. Thereafter those three defendants returned to district
court and obtained satisfactions of judgment after paying less
than the full amount of the fee award, based on an argument
that 42 U.S.C. § 1997e(d)(2), enacted pursuant to the Prison
Litigation Reform Act of 1995 (“PLRA”), limited each individual defendant’s attorney’s fee liability to 150 percent of
the compensatory damages awarded against that individual.
We hold that the defendants’ failure in the first appeal to
challenge the district court’s order that the defendants were
each jointly and severally liable for the fee award waived their
ability to challenge that order subsequently. We therefore
vacate the satisfactions of judgment.
I.

Background

Jimenez sued ten Los Angeles County deputy sheriffs
under 42 U.S.C. § 1983 for alleged violations of his constitutional rights while he was held in pretrial detention in a Los
Angeles County jail in 1998. The allegations concerned four
separate incidents that took place over three separate days.
The County provided a defense for all of the defendants.
The jury returned a verdict in favor of Jimenez as to four
of the ten defendants. The court awarded damages to Jimenez
payable by those four defendants in the following amounts:
Franklin, $1; Duron, $5,000 in compensatory damages and
$10,000 in punitive damages; Bergner, $50,000 in compensatory damages and $50,000 in punitive damages; and Gonza-

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lez, $100,000 in compensatory damages and $150,000 in
punitive damages. These individual awards totaled $365,001.
The court then awarded $505,671.40 in attorney’s fees and
$24,595.94 in costs. The district court ordered plaintiff Jimenez to pay $5,000 of the fee award himself, leaving the balance of $500,671.40 owing from defendants. The district
court’s order specifically provided that “[t]he Court will order
that the payment of the fees be joint and several to insure that
Plaintiff’s counsel is paid, as Defendants’ counsel has intimated that the County may decide not to indemnify Defendant Gonzalez — against whom the jury awarded the largest
amount of damages — because, in the County’s view, he is
in prison and is judgment proof.”
The four defendants appealed the judgment but did not
challenge the order that they were jointly and severally liable
for the total amount of the fee award. This court affirmed the
judgment, observing with regard to fees only that “[t]he district court did not abuse its discretion in awarding attorneys’
fees under 42 U.S.C. § 1988(b).” Jimenez v. Franklin, 333 F.
App’x 299, 300 (9th Cir. 2009) (unpublished). Additional fees
of $41,830.10 were awarded for the appeal. This brought the
total fee award to $547,501.50, which is equal to 150 percent
of the total damages awarded to Jimenez.
The County paid the amounts awarded for compensatory
damages for each of the four defendants but paid the awards
for punitive damages for only three of the four defendants and
only part of the fee award. The County did not pay the
$150,000 punitive damages award against Gonzalez, nor did
it pay $225,000 of the award for attorney’s fees, the portion
it deemed attributable to that punitive damages award against
Gonzalez.
After the County paid $2.50 on his behalf, Franklin
returned to district court seeking an order that he had fully
satisfied the judgment against him. He argued that the PLRA

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capped attorney’s fees at 150 percent of the judgment and
contended that the judgment against him was only for $1.00
in nominal damages and that, therefore, he could be required
to pay no more than $1.50 in attorney’s fees, notwithstanding
the fact that the court had ordered that liability for the fee
award was joint and several. The relevant provision of the
PLRA, 42 U.S.C. § 1997e(d)(2), reads: “Whenever a monetary judgment is awarded in an action described in paragraph
(1) . . . [i]f the award of attorney’s fees is not greater than 150
percent of the judgment, the excess shall be paid by the defendant.”
The district court agreed with Franklin: “As strained as that
argument initially appears, it seems to be supported by what
little law there is on the subject.” Acknowledging that Franklin’s efforts may be “thinly-veiled attempts to circumvent
Federal Rules of Civil Procedure 59 and 60 and re-litigate,
through a back channel, what has already been decided,” the
district court did not find that to be a sufficient justification
to deny the motion. The court granted Franklin’s motion for
entry of an order that he had fully satisfied the judgment
against him. The parties stipulated to the entry of full satisfaction as to Duron and Bergner, after the County made payment
of the fee award sufficient to cover their shares based on the
damage awards entered against them individually.
Jimenez appealed all three orders. The appeals have been
consolidated.
II.

Discussion

[1] Section 1997e(d)(1) limits the award of attorney’s fees
in actions brought “by a prisoner who is confined to any jail,
prison, or other correctional facility.” In an action brought
under 42 U.S.C. § 1983, the court has the discretion to award
attorney’s fees to any prevailing party other than the United
States. 42 U.S.C. § 1988. Under § 1997e(d)(1), however, the
court may award fees to prisoners only to the extent that (1)

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the fees were “directly incurred in proving an actual violation
of the plaintiff’s rights,” § 1997e(d)(1)(A); and (2) the fees
are either “proportionately related to the court ordered relief
for the violation” or “directly and reasonably incurred in
enforcing the relief ordered for the violation,”
§ 1997e(d)(1)(B).
[2] Section 1997e(d)(2), the statutory provision at issue in
this case, further limits fee awards to prisoners. This section
provides, in full:
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.
§ 1997e(d)(2). Defendants’ sole contention on appeal is that
§ 1997e(d)(2) clearly provides that a court may not require
defendants to pay more than 150 percent of the award against
them, that there were separate judgments against each of the
defendants, and that it was therefore appropriate for the district court to enter full satisfaction of judgment.
This argument is waived. The proper time to challenge the
joint and several nature of the attorney’s fee award as violating the PLRA was on appeal of the order which included the
fee award and provided that defendants were jointly and severally liable for it. Defendants failed to do so and cannot relitigate the issue here. See Munoz v. Cnty. of Imperial, 667
F.2d 811, 817 (9th Cir. 1982) (“We need not and do not consider a new contention that could have been but was not
raised on the prior appeal.”).
[3] Defendants became liable for the entire fee award as
soon as the district court entered that award and ordered that

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the liability be joint and several. Each defendant’s liability
exceeded 150 percent of his individual damages from that
point forward. The County’s ultimate decision regarding the
indemnification of defendant Gonzalez may have affected the
amounts Franklin, Duron, and Bergner would be called upon
to pay, but it did not alter their liability, which had already
been established. Franklin, for example, had been held liable
for only $1 in damages but was jointly and severally liable at
that point in time for $500,671.40 in fees, based on the district
court’s order. Defendants waived the challenge that Franklin
could be liable for no more than $1.50 for attorney’s fees by
failing to present that argument within its previous appeal,
when it was ripe for review. See Riley v. Kurtz, 361 F.3d 906,
912 (6th Cir. 2004) (holding that the defendant’s failure to file
a timely appeal of a fee award exceeding 150 percent of the
judgment waived any opportunity to contest the amount under
the PLRA cap).
[4] Defendants’ argument that 42 U.S.C. § 1997e(d)(2)
affects only the payment and not the award of those fees is
unpersuasive. Though the statute is not a shining exemplar of
good draftsmanship, other courts have read 42 U.S.C.
§ 1997e(d)(2) to limit the actual awards, not just their recoupment from defendants:
[T]he plain language of § 1997e(d)(2) signals that no
attorney’s fee award greater than 150 percent of the
monetary judgment may be entered against a defendant. To be sure, Congress might have expressed
itself more clearly, but we are nevertheless satisfied
that this is the most natural reading of the statute.
Shepherd v. Goord, 662 F.3d 603, 607 (2d Cir. 2011); see
Keup v. Hopkins, 596 F.3d 899, 905 (8th Cir. 2010); Parker
v. Conway, 581 F.3d 198, 203 (3d Cir. 2009). We agree that
the statute limits the award, not simply collection of the award.1
1

We express no view on the substantive question raised by defendants’
challenge, whether we should construe the judgment awarding Jimenez

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[5] By waiting to raise the argument after the first appeal,
defendants required the district court and plaintiff to deal with
the case again and have forced our court to deal with a second
appeal. We do not condone and cannot encourage that inefficient and uneconomical approach. Defendants knew everything they needed to know about their joint and several
liability for the attorney fee award at the time of the prior
appeal. If they wanted to challenge the joint and several liability, they should have done so at that time. They did not, so the
challenge has been waived. The satisfactions of judgment
must be vacated.
SATISFACTIONS OF JUDGMENT VACATED.

compensatory damages against each of the four different defendants as
four separate judgments, one against each defendant, such that the PLRA’s
statutory cap on awards of attorney’s fees limits the liability of each individual defendant for fees to no more than 150 percent of the damages
awarded against that defendant individually, or alternatively, whether an
individual defendant may be held jointly and severally liable for fees up
to 150 percent of the total amount of damages awarded in the judgment.