UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 97-51032

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TIMOTHY J. VOLK,

Plaintiff - Appellee,

v.

JOSE G. GONZALES, Warden; ET AL.,

Defendants,

G. MEGLARENO, Officers under their Individual

and Official capacity; DONALDA FISCHER,

Defendants - Appellants.

 ________________________

No. 98-50199

 ________________________

TIMOTHY J. VOLK,

 Plaintiff - Appellant,

v.

JOSE G. GONZALES, Warden; ET AL,

.

 Defendants,

JOSE G. GONZALES, Warden; ET AL.,

 Defendants - Appellees.

________________________

No. 98-50386

 ________________________

TIMOTHY J. VOLK,

 Plaintiff - Appellee - Cross - Appellant,
 

*

 District Judge of the Western District of Texas, sitting by designation.

 

*

Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

v.

JOSE G. GONZALEZ, Warden; ET AL.,

 Defendants,

G. MEGLARENO, Officers under their Individual 

and Official Capacity; DONALDA FISCHER,

 Defendants - Appellants - Cross - Appellees.

____________________________________________________

Appeals from the United States District Court

for the Western District of Texas

(SA-95-CV-63)

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January 4, 2000

Before JONES and DENNIS, Circuit Judges, and PRADO*, District Judge.

PER CURIAM*

After careful consideration of this appeal in light of the briefs, oral arguments of counsel,

and pertinent portions of the record, the court will affirm in part, vacate the award of injunctive

and declaratory relief, and reverse and remand for calculation of attorney’s fees in light of the

Prison Litigation Reform Act of 1995.

We have determined that there was no abuse of discretion in either denying the

Defendants’ requested instruction on qualified immunity or in denying Volk’s motion for a new

trial on the issue of damages. Even without the proposed instruction on qualified immunity, the

instructions provided proper guidance to the jury, and the verdict was not inconsistent.

Defendants Megliorino and Fischer argue that there was not sufficient evidence to support

the verdict. Because they failed to move for a directed verdict, we are limited to examining

whether there was any evidence to support the verdict or whether there was plain error that

resulted in a “manifest miscarriage of justice.” Coughlin v. Capitol Cement Co., 571 F.2d 290,
297 (5th Cir. 1978). We conclude that there was evidence supporting the verdict and no plain

error was committed.

On the other hand, we conclude that the district court’s grant of declaratory and injunctive

relief was not proper. Neither defendant in this action had the power to effect the court’s

directives to expunge disciplinary cases, restore custodial classification, and restore lost goodtime credits, and the district court therefore lacked power to order such relief. As a result, we

vacate the district court’s grant of injunctive and declaratory relief with the understanding that the

Texas Department of Criminal Justice – Institutional Division will recognize the implications of

this court’s judgment for Volk’s custodial status. 

Finally, we conclude that the trial court erred in not applying the provisions of the Prison

Litigation Reform Act of 1995 (“PLRA”) to the award of attorney’s fees. This case was filed,

and counsel was appointed, before the April 26, 1996 effective date of the PLRA. The amount of

fees for work done by Volk’s attorney before the effective date of the PLRA is not restricted by

the PLRA. See Martin v. Hadix, 119 S.Ct. 1998 (1999). In Martin the Supreme Court

determined that the PLRA applied to monitoring done after its effective date, but did not apply

retroactively. Id. The fees for work done after its effective date, the Court held, must be

examined in light of the PLRA. Id. Accordingly, we will send this case back for the magistrate

judge to determine the award of attorney’s fees for the work done after the PLRA’s effective date

in light of restrictions contained in the PLRA.

For these reasons, the judgment of the district court is affirmed, in part, regarding the jury

instructions given, the sufficiency of the evidence supporting the verdict, and the denial of the

motion for a new trial. The award of injunctive and declaratory relief is vacated, and the

judgment is reversed and remanded in part for determination of the award of attorney’s fees.