United States District Court, E.D. Kentucky, Central Division, Frankfort
MAGISTRATE JUDGE'S REPORT AND
B. Atkins United States Magistrate Judge.
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.
WHETHER PLAINTIFF IS A PREVAILING PARTY
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
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)).
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].
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.
WHETHER SPECIAL CIRCUMSTANCES EXIST THAT WOULD DEFEAT A FEE
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)).
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).
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.
CALCULATION OF PLAINTIFF'S ...