Hull v. Members of the US Government et al

Filing 36

MEMORANDUM AND ORDER re: motion for attys' fees 32 - It is hereby ORDERED that: 1. Motion 32 GRANTED in part & DENIED in part.; 2. Defts ORDERED to pay $3,307.50 to Angus Love, Esq., cnsl for pltf, for atty fees & costs.; 3. Remaining issues in action referred to a magistrate judge for screening pursuant to Prison Litigation Reform Act... (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 08/14/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT A. HULL,

:
:
Plaintiff,
:
:
v.
:
:
MEMBERS OF THE U.S.
:
GOVERNMENT, MEMBERS OF THE :
U.S. BUREAU OF PRISONS,
:
MEMBERS OF FCI SCHUYLKILL
:
STAFF, MEMBERS OF THE U.S.
:
PROBATION OFFICE,
:
:
Defendants
:

CIVIL ACTION NO. 1:12-CV-0203
(Judge Conner)

MEMORANDUM
Presently before the court is plaintiff, Robert A. Hull’s (“Hull”) motion for
attorneys’ fees and costs. (Doc. 32). Hull asserts that he should recover $4,901.25 in
attorneys’ fees and costs pursuant to various statutes, including 42 U.S.C. §§ 1983
and 1988 and the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Docs. 32,
35). Defendants, Members of the U.S. Government, (“defendants”) contend that
Hull is not entitled to the relief sought because: (1) he filed a Bivens claim and not a
§ 1983 claim; (2) § 1988 does not apply to Bivens claims; and (3), even if § 1988
applies to Bivens claims, the Prison Litigation Reform Act of 1995 (“PLRA”), 42
U.S.C. § 1997e, precludes Hull’s recovery. (Doc. 34). For the reasons that follow, the
court will grant the motion in part and deny it in part.

I.

Statement of Facts & Procedural History
Hull, who was released from custody within the Bureau of Prisons on

March 13, 2012, was previously incarcerated at the Schuylkill Federal Correctional
Institution (“FCI Schuylkill”). On February 2, 2012, during his imprisonment, Hull
filed the above pro se action, alleging that defendants conspired to deprive him of
medical treatment for methicillin-resistant staphylococcus aureus (MRSA), access
to the courts, and “emotional security, due process and necessities of civilian life.”
(Doc. 1). Hull made nine requests for relief including a request for an “order
compelling adequate medical care.” (Doc. 1).
After reviewing Hull’s complaint, this court issued an order on February 10,
2012 construing Hull’s motion as asserting an Eighth Amendment claim and
seeking immediate injunctive relief. (Doc. 10). The court directed the U.S.
Marshals to serve the Warden and the Chief Medical Director at FCI Schuylkill with
the complaint. Id. Angus Love, Esquire (“Attorney Love”) entered his appearance
as attorney for Hull on February 13, 2012,1 and the court conducted a telephone
conference on the request for emergency medical relief on February 17, 2012. (Doc.
11, 15). The court determined that Hull required immediate medical attention and
issued an order to ensure that he received treatment. (Doc. 15, 16). The court
ordered that a certified physician supervise Hull’s evaluation and treatment, and
that defendants provide the court with a status report by February 27, 2012. (Doc.

1

Attorney Love’s appearance for Hull was only for the purpose of the
emergency medical relief portion of Hull’s complaint. (Doc. 11).
2

16). Defendants provided a status report on February 27, 2012 confirming that Dr.
Ellen Mace-Leibson treated Hull, conducted laboratory tests, prescribed
medication, and counseled Hull on proper hygiene practices and other techniques
to reduce the effects of his condition. (Doc. 25).
Attorney Love subsequently filed the instant motion for attorneys’ fees on
March 7, 2012, and a memorandum in support of the motion on March 9, 2012.
(Docs. 32, 33). Defendants responded by filing a brief in opposition to Hull’s motion
on March 26, 2012, and Hull filed a reply on April 9, 2012. (Docs. 33, 34). The
motion has been fully briefed and is ripe for disposition.
II.

Discussion2
Hull argues that he is entitled to attorneys’ fees pursuant to 42 U.S.C. § 1988,

or in the alternative, pursuant to the EAJA. (Docs. 33, 35). Section 1988 is the
channel by which the prevailing party in a § 1983 suit may recover attorney’s fees
from a state government or state officials. 42 U.S.C. §§ 1983, 1988. Similarly, the
Equal Access to Justice Act (EAJA) is the channel by which the prevailing party
may be awarded attorneys’ fees and expenses in a suit against the “United States or
an agency or an official of the United States acting in his or her official capacity.”
28 U.S.C. § 2412(b).

2

The court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”). Chamberlin Mfg. Co. v.
Local Lodge No. 847, 474 F. Supp. 2d 682, 686 (M.D. Pa. 2007).
3

There are four issues before the court which will be addressed in turn:
(1) whether Hull presented a § 1983 claim or a Bivens claim; (2) whether he meets
the statutory requirements to recover attorneys’ fees for his claim; (3) whether the
PLRA precludes Hull’s ability to recover fees; and (4), if he is entitled to fees, the
amount he is entitled to recover. The court concludes that Hull has presented a
Bivens claim, thereby rendering the attorneys fee provision of 42 U.S.C. § 1988
inapplicable to the instant action, but that fees are recoverable under the EAJA.
A.

Hull Presents a Bivens Claim

It is well established that a party seeking redress for constitutional violations
against a party acting under color of state law is entitled to do so under § 1983. 42
U.S.C. § 1983. It is also unquestioned that a party seeking redress for violations of
his rights against a party acting under color of federal law must do so by presenting
what has become known as a Bivens claim or Bivens action. Brown v. Phillip
Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001) (citing Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971)).
Hull, who brings his claims against members of the United States
government, has clearly presented a Bivens claim, not a § 1983 claim. Brown, 250
F.3d at 800 (3d Cir. 2001); Zolicoffer v. F.B.I., 884 F.Supp. 173, 175 (M.D. Pa. 1995)
(Doc. 1).

4

B.

Hull is Not Entitled to Recover Attorneys’ Fees Pursuant to 42
U.S.C. § 1988 but May Recover Attorneys’ Fees Through the EAJA

First, the attorneys fee provision of 42 U.S.C. § 1988 is inapplicable in the
instant matter. Section 1988 authorizes the recovery of attorneys fees only for
actions arising under the specifically enumerated statutes in § 1988. See 42 U.S.C.
§ 1988(b); Maxwell v. Dodd, No. 08-11326, 2010 WL 1626403, at *10 (E.D. Mich.
Apr. 21, 2010); see also Hall v. United States, 773 F.2d 707, 707 (6th Cir. 1985) (“The
federal government must violate one of the sections enumerated in section 1988 to
be liable for attorney fees under that section.”); Unus v. Kane, 565 F.3d 103, 127 (4th
Cir. 2009) (stating that § 1988 does not authorize a fee award for Bivens claims). As
noted above, Hull brings this Bivens actions against members of the federal
government. A Bivens action is not an enumerated cause of action under § 1988,
therefore Hull may not recover attorneys’ fees pursuant to that statute.
Given the unique circumstances present in the instant matter, Hull may,
however, recover attorneys fees pursuant to the EAJA. The EAJA provides in
pertinent part:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses3 . . .
incurred by that party in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action, brought by or
against the United States4 in any court having jurisdiction of that action,

3

“‘[F]ees and other expenses’ includes . . . reasonable attorney fees...” 28
U.S.C. § 2412(d)(2)(A)
4

“‘United States’ includes any agency and any official of the United States
acting in his or her official capacity.” 28 U.S.C. § 2412(d)(2)(C).
5

unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
A plaintiff will win the day on his claim for attorneys’ fees under the EAJA if
he proves that he is the prevailing party in the action.5 28 U.S.C. § 2412(d)(1)(A).
Generally, the “‘prevailing party’ is [the] one who fairly can be found by the district
court to have essentially succeeded on his claims for relief” on the merits.6 French
v. Bowen, 708 F. Supp. 644, 647 (M.D. Pa. 1989) (internal citations omitted). To
succeed, one must prove that there is a “causal-connection” between the cause of
action and the relief obtained. Id. at 647. To prevail, the party need only succeed
on any one significant issue. People Against Police Violence v. City of Pittsburgh,
520 F.3d 226, 232 (3d Cir. 2008) (internal citations omitted); accord French, 708 F.
Supp at 647 (holding that to succeed a plaintiff need not obtain the exact “form or
extent of relief” as originally requested). Finally, the party need not carry the
litigation through to a final judgment in order to obtain attorneys’ fees. People
Against Police Violence, 520 F. 3d at 232.

5

Defendants failed to argue that Hull was not a “prevailing party” and
conceded that he received some of the relief he originally requested. Defendants
only argued that Hull did not prove “an actual violation of a protected right,” a
requirement of the PLRA (which is inapplicable to the case sub judice) but not the
EAJA. (Doc. 34); see infra Part II.C.
6

When defining “prevailing party,” the court may interpret the term by
considering “similarly worded fee-shifting laws” such as § 1988. French v. Bowen,
708 F. Supp. 644, 647 fn. 2 (M.D. Pa. 1989) (citing Brown v. Sec. of Health and
Human Services, 747 F.2d 878, 882 (3d Cir. 1984).
6

Hull, who was the “prevailing party” in his Bivens claim in which he sought
and obtained injunctive relief is entitled to attorneys’ fees pursuant to the EAJA.
See Lucas v. White, 63 F. Supp. 2d 1046, 1052-53 (N.D. Cal. 1999) (awarding
attorneys’ fees under the EAJA in Bivens action where “plaintiffs’ action was
clearly ‘aimed primarily at’ obtaining equitable relief against government officials
to end practices in the federal prison system that violated the plaintiffs’
constitutional rights under the Fourth, Fifth, and Eighth Amendments” (citing
Ramon by Ramon v. Soto, 916 F.2d 1377 (9th Cir. 1990))).7 In Hull’s complaint, he
requested an “order compelling adequate medical care.” (Doc. 1). The court
granted this request on February 17, 2012 when it ordered that a certified physician
complete a full medical evaluation of Hull, that Hull receive all “reasonable and
appropriate medical treatment,” and that defendants “provide the court with a
status report” on or before February 27, 2012. (Doc. 16). To this limited extent, Hull
meets the definition of a “prevailing party” because his cause of action led this
court to issue the above order which in turn provided Hull with the relief he sought;

7

But see Couden v. Duffey, 826 F. Supp. 2d 711, 717 & n.23 (D. Del. 2011);
Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994) (holding that the EAJA
“does not authorize the courts to award attorney’s fees against the United States in
Bivens actions. Federal agents are sued in their individual capacities rather than
their official capacities in Bivens actions; thus, a Bivens action is not a ‘civil action
. . . against the United States’ under § 2412(d)”); Maxwell, 2010 WL 1626403, at *10
(finding that attorneys’ fees are not recoverable under the EAJA in a Bivens action);
GasPlus, L.L.C. v. U.S. Dep’t of Interior, 593 F. Supp. 2d 80, 88-89 (D.D.C. 2009)
(“Bivens actions involve claims against federal officials in their individual
capacities. Accordingly, Subsection 2412(d)(1)(A) ‘does not authorize the courts to
award attorney’s fees against the United States in Bivens actions.’” (quoting
Kreines, 33 F.3d at 1109)).
7

it is irrelevant that he succeeded in only one of his nine requests for relief. Further,
the claim for attorneys’ fees relates solely to the injunctive relief sought and
subsequently obtained. (Docs. 11, 32, 32-1, 33). Moreover, the defendants did not
produce evidence, and this court found no evidence in the record, that their
position was “substantially justified or that special circumstances [exist which
would] make an award unjust.” 28 U.S.C.A. § 2412(d)(1)(A); (Doc. 33).
C.

The PLRA Does Not Preclude Hull from Recovering Attorney Fees

The Prison Litigation Reform Act does affect Hull’s claim for attorney’s fees
under the EAJA. The attorney’s fee provision of the PLRA only applies to fees
authorized under § 1988. 42 U.S.C.A. § 1997e(d)(1); 42 U.S.C.A. § 1988(b) (listing the
laws to which § 1988 applies).; Beckford v. Irvin, 60 F. Supp. 2d 85, 88 (W.D.N.Y.
1999) (holding that the PLRA fee limitations do not apply to plaintiffs who are
entitled to attorneys’ fees under a statute separate from § 1988); Lynn S. Branham,
Toothless in Truth? The Ethereal Rational Basis Test and the Prison Litigation
Reform Act’s Disparate Restrictions on Attorney’s Fees, 89 CAL. L. REV . 999, 1009
(2001) (arguing that the PLRA’s fee restrictions only apply to “one fee-award
statute: 42 U.S.C. § 1988). The section of the PLRA at issue here, states:
(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.

8

42 U.S.C. § 1997e(d) (emphasis added).
By its plain language, this portion of the statute applies to attorneys’ fees
awards “under section 1988 of [Title 42],” which does not include Bivens actions.
Id. Indeed, as discussed supra, § 1988 does not apply to Bivens actions. Unus v.
Kane, 565 F.3d 103, 127 (4th Cir. 2009) (stating that § 1988 does not authorize a fee
award for Bivens claims). Defendants have failed to provide any evidence that this
portion of the PLRA applies to requests for attorneys’ fees under the EAJA in
Bivens actions, and this court has been unable to find precedent to that effect.
(Doc. 34). The PLRA simply does not impact the award of attorney’s fees under the
EAJA in the instant matter.
D.

Award of Attorneys’ Fees and Costs

Having found that Hull is entitled to attorney’s fees pursuant to the EAJA,
the only remaining issue is the amount of fees to which he is entitled. Defendants
did not dispute the number of hours submitted by Hull’s attorneys nor the amount
of money requested by Hull. (Doc. 34).8 (Docs. 32, 33, 34, 35). However, the hourly
rate cited by Hull’s attorney—the rate set forth in the PLRA—is inapplicable as this
is not a § 1988 attorney’s fees claim. See 42 U.S.C. § 1997e(d)(3). The EAJA sets the
hourly rate and reads in pertinent part:

8

Defendants did, however, clarify an error between Hull’s motion and
original brief in which the brief requested an erroneously low amount. Hull, in his
first brief, omitted two hours of research by Attorney Love totaling $375.00. The
amount was included in both his original motion and his reply to defendants’ brief
in opposition of the motion.
9

‘fees and other expenses’ include[] . . .reasonable attorney fees (The amount
of fees awarded under this subsection shall be based upon prevailing market
rates for the kind and quality of the services furnished, except that . . . (ii)
attorney fees shall not be awarded in excess of $125 per hour unless the court
determines that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.).
28 U.S.C. § 2412(d)(2)(A).
Pursuant to the EAJA section quoted above, Hull’s attorneys’ fees and costs
are calculated as follows:
Attorney
Angus Love
Su Ming Yeh
Other Litigation Fees9
Total Recovery
IV.

Hours
20.5
5.0

Rate
$125.00
$125.00

Total
$2,562.50
$625.00
$120.00
$3,307.50

Conclusion
For the foregoing reasons, Hull’s motion for attorneys’ fees and costs will be

granted in part and denied in part. (Doc.32). The court will grant the motion for
attorney’s fees and award $3,307.50 in attorney’s fees and costs. An appropriate
order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Date:

August 14, 2012

9

Litigation fees are also recoverable pursuant to the EAJA. 28 U.S.C.
§ 2412(a)(1).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT A. HULL,

:
:
Plaintiff,
:
:
v.
:
:
MEMBERS OF THE U.S.
:
GOVERNMENT, MEMBERS OF THE :
U.S. BUREAU OF PRISONS,
:
MEMBERS OF FCI SCHUYLKILL
:
STAFF, MEMBERS OF THE U.S.
:
PROBATION OFFICE,
:
:
Defendants
:

CIVIL ACTION NO. 1:12-CV-0203
(Judge Conner)

ORDER
AND NOW, this 14th day of August, 2012, upon consideration of the motion
(Doc. 32) for attorneys’ fees filed by Robert A. Hull, and for the reasons set for in the
accompanying memorandum, it is hereby ORDERED that:
1.

The motion (Docs. 32) is GRANTED in part and DENIED in part.

2.

Defendants are ORDERED to pay $3,307.50 to Angus Love, Esquire,
counsel for plaintiff, for attorney fees and costs.

3.

The remaining issues in the above-captioned action are referred to a
magistrate judge for screening pursuant to the Prison Litigation
Reform Act. See 28 U.S.C. § 1915.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge