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Doe v. Commonwealth ex rel. Tilley

United States District Court, E.D. Kentucky, Central Division, Frankfort

March 15, 2018

JOHN DOE, PLAINTIFF,
v.
COMMONWEALTH OF KENTUCKY, ex rel., JOHN TILLEY, et al., DEFENDANTS.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Edward B. Atkins United States Magistrate Judge.

         This matter comes before the Court on Plaintiff's Motion for Attorney's Fees and Costs. [R. 81]. Having considered the matter fully, and being otherwise sufficiently advised, the Court recommends Plaintiff be found to be entitled to attorney's fees in the amount of $40, 440.00 and costs in the amount of $400.00.

         DISCUSSION

         A. WHETHER PLAINTIFF IS A PREVAILING PARTY

         In an action brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, such as the case presently before the Court, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . .” 42 U.S.C § 1988(b). To be entitled to an award of attorney's fees under 42 U.S.C. § 1988, the party must have prevailed in the action. Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 602 (2001) (citing 42 U.S.C. § 1988); see also Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 620 (6th Cir. 2013) (citing 42 U.S.C. § 1988). “‘Prevailing party' is a legal term of art designating ‘one who has been awarded some relief by the court . . . .'” Gordon, 710 F.3d at 620 (quoting Buckhannon Bd. & Care Home, Inc., 532 U.S. at 603). However, “the Supreme Court has stated that in providing for fees under § 1988, ‘Congress intended to permit the . . . award of counsel fees only when a party has prevailed on the merits.'” Gordon, 710 F.3d at 620 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)). “Prevailing on the merits” includes:

“'succeed[ing] on any significant issue . . . which achieves some of the benefit the parties sought in bringing suit, ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), “the settling of some dispute which affects the behavior of the defendant towards the plaintiff, ” Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), and resolution of the dispute in a way that materially alters the legal relationship of the parties. Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).

Gordon, 710 F.3d at 620. “‘A plaintiff crosses the threshold to ‘prevailing party' status by succeeding on a single claim, even if he loses on several others and even if that limited success does not grant him the ‘primary relief' he sought.'” Gordon, 710 F.3d at 620 (quoting McQueary v. Conway, 614 F.3d 591, 603 (6th Cir. 2010)).

         On February 9, 2015, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988, Plaintiff filed the present action seeking “a preliminary injunction, permanent injunction, and declaratory relief prohibiting . . . Defendants from enforcing [KRS §§ 17.546 and 17.510(10), (13)] and declaratory relief that the Plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution [were] violated by these state statutes.” [R. 1, at 1]. In sum, KRS §§ 17.546 and 17.510(10), (13) placed certain restrictions and obligations on registered sex offenders regarding their use of social networking websites and the internet. [R. 1; R. 57].

         On October 20, 2017, the Court granted Plaintiff's Motion for a Permanent Injunction [R. 27] and denied as moot Plaintiff's request for a preliminary injunction. [R. 57]. Also, the Court granted Plaintiff's request for declaratory relief by holding KRS §§ 17.546 and 17.510(10), (13) unconstitutional. Id. In addition to Plaintiff prevailing on the merits, Defendant, Commonwealth of Kentucky, Ex. rel., John Tilley, Secretary, Justice and Public Safety Cabinet, in his official capacity (“Defendant Tilley”), agrees Plaintiff is the prevailing party. [R. 84, at 1]. Furthermore, Defendants, Lou Anna Red Corn, in her official capacity as Commonwealth's Attorney for Fayette County, Kentucky, and Larry Roberts, in his official capacity as County Attorney for Fayette County, Kentucky, do not contest Plaintiff's argument that Plaintiff is the prevailing party in this case. [R. 86]. Therefore, the undersigned recommends Plaintiff be found to be the prevailing party in this case and entitled to reasonable attorney's fees.

         B. WHETHER SPECIAL CIRCUMSTANCES EXIST THAT WOULD DEFEAT A FEE AWARD

         While 42 U.S.C. § 1988(b) “uses permissive language regarding fee awards, ‘the Supreme Court has read [§ 1988] as mandatory where the plaintiff prevails and special circumstances are absent.'” Hescott v. City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014) (quoting Déjà Vu v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 421 F.3d 417, 420 (6th Cir. 2005)).

         The Sixth Circuit Court of Appeals has found that a “case-by-case approach” should be utilized when determining whether a special circumstance exists that would defeat a fee award. Hescott, 757 F.3d at 523 (citing Déjà Vu, 421 F.3d at 421-22). “In this case-by-case inquiry, a non-prevailing defendant bears the burden ‘to make a strong showing that special circumstances warrant a denial of fees.'” Hescott, 757 F.3d at 523 (quoting Déjà Vu, 421 F.3d at 421-22). Additionally, “‘courts have made clear that special circumstances should not be easily found.'” Hescott, 757 F.3d at 523 (citing Cleveland v. Ibrahim, 121 F. App'x. 88, 90 (6th Cir. 2005) (collecting cases)). Furthermore, the Sixth Circuit Court of Appeals has “‘never (to [its] knowledge) found a ‘special circumstance' justifying the denial of fees.'” Hescott, 757 F.3d at 525 (quoting McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010)). “Moreover, ‘[i]t is ‘extremely rare' to deny fees based on special circumstances in other circuits as well.'” Hescott, 757 F.3d at 525 (quoting McQueary, 614 F.3d at 604).

         In the present case, Plaintiff argues, “No such ‘special circumstances' exist here that would inveigh against an award.” [R. 81, at 3]. However, Defendant Tilley contends, “[T]here exists such ‘special circumstances' that would lead the court to use its discretion in an attorney fees award.” [R. 84, at 2]. While Defendant Tilley does not seek a total denial of fees, Defendant Tilley and Defendants Corn and Roberts each argue Plaintiff's attorney's fees should be reduced. [R. 84; R. 86]. Specifically, Defendant Tilley argues KRS §§ 17.546 and 17.510(10), (13) were valid laws for years and only became problematic due to the proliferation of today's social media and internet usage. [R. 84, at 2]. Likewise, Defendants Corn and Roberts request the Court consider “the very recent changes in the landscape of anonymous communication and the breadth to which it affects minors when evaluating the costs and fees requested by Plaintiff and reduce the award accordingly.” [R. 86, at 2]. Additionally, Defendant Tilley argues, in summation, that the outcome of this case had less to do with Plaintiff's counsel's work on the case and more to do with the United States Supreme Court deciding a North Carolina statute that was similar to KRS §§ 17.546 and 17.510(10), (13) in the present case was unconstitutional. [R. 84, at 2-3 (citing Packingham v. North Carolina, 137 S.Ct. 1730 (2017))]. Moreover, Defendant Tilley argues, “[M]uch of the supplemental briefs filed by the Plaintiff were neither necessary, nor relevant to the outcome at hand. Brief writing alone, with one oral argument before the court, was the extent of the activity in the case.” [R. 84, at 2-3]. None of Defendants' arguments amount to a special circumstance that would render an attorney's fee award unjust. However, Defendants' arguments will be considered further below, as they relate to the calculation of Plaintiff's attorney's fees and the Court's consideration of a possible adjustment of those fees.

         C. CALCULATION OF PLAINTIFF'S ...


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