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 No. 10-56199

GONZALEZ,

Defendants-Appellees,  D.C. No.

2:99-cv-03455-PJW

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 No. 10-56292

GONZALEZ,

Defendants-Appellees,  D.C. No.

2:99-cv-03455-PJW

and

DAVID SUM; TRI T. HOANG; DANIEL

ORTEGA; CESAR CASILLAS; ALFREDO

GOMEZ; DANIEL ESTRELLA,

Defendants. 

5635
ANTHONY ALBERT JIMENEZ, 

Plaintiff-Appellant,

v.

GILBERT DURON; JOHN FRANKLIN;

No. 10-56294 RYAN BERGNER; GABRIEL FRANK

GONZALEZ, D.C. No.  Defendants-Appellees, 2:99-cv-03455-PJW

and OPINION

DAVID SUM; TRI T. HOANG; DANIEL

ORTEGA; CESAR CASILLAS; ALFREDO

GOMEZ; DANIEL ESTRELLA,

Defendants. 

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

5636 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

5638 JIMENEZ v. FRANKLIN
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 GonzaJIMENEZ v. FRANKLIN 5639
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

5640 JIMENEZ v. FRANKLIN
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)

JIMENEZ v. FRANKLIN 5641
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

5642 JIMENEZ v. FRANKLIN
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

1We express no view on the substantive question raised by defendants’

challenge, whether we should construe the judgment awarding Jimenez

JIMENEZ v. FRANKLIN 5643
[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.

5644 JIMENEZ v. FRANKLIN