1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0288P (6th C ir.) File Name: 04a02 88p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J EFF L YNCH , Plaintiff,

M IKE P OWERS ,

Plaintiff-Appellee/ Cross-App ellant,

v.

S IMON L. L EIS , J R ., Sheriff of Hamilton County, Ohio, and L OUIS F. S TRIGARI , Public Defender of Hamilton County, Ohio, Defenda nts-Appe llants/ Cross-App ellees. X

- - - -
> , - - - - - - - - - - - - - N Nos. 03-3269/3279

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Cincinnati. No. 00-00274—Susan J. Dlott, District Judge.

Argued: August 11, 2004
Decided and Filed: August 31, 2004

Before: SIL

ER, MOORE, and COL

E, Circuit Judges. 2 Lynch et a l. v. Leis e t al. Nos. 03-3269/3279

_________________ COUNSEL

ARGUED: Philip L. Zorn, Jr., HAMILTON C OUNT Y PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellan t. St ep hen R. Felson , Cincinna

ti, Ohio, f

or Appel lees. ON BRIE F: Philip L

. Zorn, Jr., Christian J. Schaefer, HAMIL TON COU NTY PROSECU TOR’ S OFFI CE , Cincinnat i, Ohio, for

Appellan t. St ephen R. Felson, Robert B. Newman, Cincinnat

i, Ohio, Lisa T. Mee

ks, NEWMAN & MEEKS, Cinc innati, Oh

io, for Ap pellees

.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judg e. DefendantsAppe llants-Cross-Appellees Simon L. Leis, Jr., Sheriff of Hamilton County, Ohio, and L ouis F. S tr igari, Public Defender of Hamilton County, Ohio, (c ollect ively, “Hamilton County”) appeal from the district court’s grant of attorney fees to Plaintiff-Appellee-Cross-Appellant Mike Powers (“Powers”) in this 42 U.S.C. § 1983 suit challenging the Ham ilton County Justice Center’s (“HCJC”) policy of allowing prisoners to make only c ol lecttelephone calls, whichin combina ti on with the Hamilton Co

unty Public Defender’s policy of ref

using col l ect calls operated to deny pretrial detainees at the HC JC thei r Sixth Amendment right to counsel. Hamilton Co unty argue s that Po wers la cked standing to bring the underlying action, that Powers could not maintain this suit without exhausting his state remedies under the Prison Litigation Reform Act (“PL RA”), that Pow ers is nota “prevailing party

” under 42 U.S.C. § 1988, that Powers is o nly entitled to attorney fees as mandated by

the P LRA , and that the district court abused its discretion in awar ding attorney fees in the amount tha

t it did. Powers argue s in his cross-appealthat the district court erred in not awarding fe esNos. 03-3269/3279 Lynch et a l. v. Leis e t al. 3

for the full amount of time spent onpreparing the petition for attorney fees, and in determining

the rea sonable h

ourly rateof

one of his counsel. Because we determine that Powers never had standing to bring this action, we REVERSE the decision of the dis trict cou

rt.

I. BACKGROUND

The underly

ing fac ts of the case are not in dispute, and the merits of Powers’s suit isnot at issue in this appeal. At the ti me th at the lawsuit commenced, pretrial detainees at the HCJCwho did not make bond were placed, following

arraignment, in a permanent housing unit where they were only allowed to make collect calls. The Public Defender’ s Office of Hamilton County, routinely assigned to indigent detainees charge d wi th a misdemeanor, refused to accept collect calls on it s m ain lin e, while its staff attorney s, who had discretion to accept collect calls on their dire ct lines, accepted only a tiny

frac tion of incoming collect calls (6 of 322 between October of 1999 and September of 2000). The districtcourt determined that this violated

the Sixth Amendmen

t rights o f pretri al detainees.
Whatis ho tl y c ontested is whether the district court properl y exercise d jurisdiction over this case . This action was ini tiated on April 7, 2000, with Jeff L ync h as the in

iti a l plaintiff. The first complaint sou ght “ actual and punitive damages,”as noted in its introduction, and prayed that the districtcourt “[d]eclare that Defendants’ telep ho ne policies violate the Constitution,” as well award da m ages, fees, and costs. Joint Appendix ( “J.A.”) a t 12, 17. Powers was i

nitially adde d to the suit on May 25, 2000, in the Second Amended Complaint. That comp laint soug ht “nomina

l d amages and equitabl e relief.” J .A. at 19. Powers had been arrested on January 19, 2000 for operat ing a motor ve hicle wit hout a license and

improper display of a

license plate. He failed to appear and was e

ventu al ly arre sted, on April 4, 2000. After failing to make bail, he was confined at the HCJC for twenty day s, wh en he was affected by the phone

policies; after h

is 4 Lynch et a l. v. Leis e t al. Nos. 03-3269/3279

releas e on h is ow n recognizance on April 24, 2000, he continue d to have trouble resolving his case and a c apias—a writ directing his arrest—was issued on June 21, 2000. That capias was recalled on July 23, 2000, and Powe rs’s case was resolved on July 24, 2000, with a nolo contendere plea.
Ly nchand Power

s moved for a prel imi na ry injunction on November

1, 2000, and to certify

a class on February

2, 2001. OnFebrua

ry 8, they mo v ed to consolidate their pending motion fo r a pr el im in ar y injunct ion with a motion for a permanent

injunction. On March 16, 2001, a jointstipulation of facts was filed by

the parties, includingthe stipulation that the capias had bee n issued on June 21, 2000, and Hamilton County filed a motion to dismiss for lack of subject matter jurisdiction. On January 22, 2002 the Third Amende d Complaint was filed by L

ynch and Powers, containing for the first time an allegation of the issuance of the ca pias, and on January 25, 2 002, t he district court ruled on Hamilton County’s motion to dismiss, which was file d in response to the Second Amended Com pla int. Hamilton County had moved to dismiss alleging the plaintiffs lacked standing and had failed to exhaust their administrative remedies under the PLRA. In response, the plaintiffs had a rgued with respect to Powers’s standing that

he was f ree on hi s own recognizance

onthe date of the fi li ng of the Second Amended Complaint—whenhe was added to the litigation—and

“thus in immi nent danger of being re incarcerated if he failed t o perform as requi red.” J.A . at 112 (M em. in Opp . to County Defs. Mot. To Dismiss). They also noted, “ That danger was drastica lly multiplied by the issuance of a capias on June 21, 2000,” J.A. at 112, and obliqu ely implied the

capias was still outs tandi ng: “even i f Mr. P owers’ c laim becomes moot by the disposition of his procee dings . . .” J.A. at 1 13 (empha sis added ). Of course, at the time that this Memorandum wa s filed, his case had been resolved.

The district c ourt dismis sed Ly nch from the suit on January 25, 2002, f

or lack o f st anding, but denied Hamilton County’s motion to dismiss Po we rs from the suit, on theNos. 03-3269/3279 Lynch et a l. v. Leis e t al. 5

ground that the capias had been outstanding ag ainst Power s since June 21, 2000, thereby cre ating a substantial threat of injury sufficient to confer standing. This factual con cl usion

was incorrect; while the parties had stipulated to the issuance of the capias, they

had no t stipulated to its continued existence—butneither

had they stipulate d to its withd

rawal. OnJanuary 30, 2002, the defe ndants filed their answer to the Third Amend ed Com plain t, adm itti ng t hat a capia s was issued

onJune 21, 2000. On February 19, 2002, the district court granted the plaintiffs’ motion for a permanent injunction. The districtcour

t ’s opinion again contained the erroneous statement that the capias was “currently outstanding.” Lynch

v. Leis , No. C-1-00-274, slip op. at 6 (S.D. Ohio. Feb. 19, 2002), J.A. at 139.

OnFebruary

20, 2002, the defendants filed a motion under FederalRules of Civil Procedure 52(b), 59(a), an d 60(b) to vacate the district court’s January 25 and Fe bruary 19, 2002 orders, based on the results of an investigation into Powers’s court case, revealing that the ca pias was withd

raw n. They apologized

for th e fail ure to bring the information to the districtcourt’s

attention in a timely

manner. After further papers from both sides, the district court denied Hamilton County’s motion to vacate on May 8, 2002. The district court reasoned that under Rules 59 and 60(b), the onl y evidence that could be a

dmitte d on motion was that no t discove rable throu gh due diligence, and that court recor ds were c e rtainly discover able through

due dil i gence. The district court rejected the defendants’ reliance on the usual rule tha t subject matter jurisdiction can be raised any time, reasoning that the defenda nts had “stip

ulatedfacts giving rise to jurisdiction.” J.A. at 233. The distri ct court also reje cted wha

t it charac te rized as Hamilton County ’s oblique argume nt that t h e casewas moot due to

voluntar y c omplianc e; they

had in fact made the slightly more nu anced, though rather more fla wed argument that their voluntary compliance deprived Powers of initial stand ing. 6 Lynch et a l. v. Leis e t al. Nos. 03-3269/3279

At that point, the defe

ndants ap pealed t o this court from the d is trict court’s decision s of Januar

y 25 , 2002 (mot

ion to dismiss), February

19, 2002 (entry of

permanent injunction), and Ma y 8, 2002 (denial of motion to vacate). While the appeal was pending, the parties continued to litigate the issue of attorne y f ees. On June 4, 2002, Powe rs moved t

o dismiss the appeal as moot under prior case law, bec ause H amilt on Coun ty was complying with the injunction rathe r than seeking

a stay, and ar

guing that there was no exception to the rule that voluntary compliance moots an ap p eal for challenges to the districtcourt’s

subject ma

tter juri sdiction, as the appeals court had no jurisdiction in the first instance. A panel of this court grant e d Powers’ s motion to di smiss the a ppeal as moot. Lynch v. Leis , No. 02-3610 (6t h Ci r. Aug. 13, 2002) (order granting moti on to di smis s), J. A . at 461-62. On August 26, 2002, the defe

ndants mov ed aga

in in the distric t co urt to dismiss the case and

Powers’s request for attorney fees due to lack of ju ri sd ic ti on . O n J an ua ry 24, 2 003, the district court denied that motion and granted Powers’s motion for attorney fe es, awarding $71,782.50 in fees and $2,201.08 in c osts , basedon a lodestar of $57,426 and a multiplier of 1.25. I n doing so , the district court incorporated its previous rulings on stand ing, the PLRA, and mootnes s, and threatened the defend ants with sanctions for r epeate dly arguin g the po ints. It is f rom that r uling tha t all part ies appe al.

II. ANALY SIS

A. Standard of Review

The issue of standing is reviewed de novo. Cleveland Branch, NAACP v. City of Parma , 263 F.3d

513, 523 (6th Cir. 2001). B. Standing

As a preliminary ma

tter, Powers asserts t

hat this ap

peal, to the extent it ra

ises is sues on the merit s declar ed moot in Hamilton County’s previous appea l, is moot, both as a matterNos. 03-3269/3279 Lynch et a l. v. Leis e t al. 7

1 Th is holding m ay v ery wel l have been precipi tous, as “[ a] defen dan t’s voluntary cess ati on of allege dly unla wful co nduc t ordin arily does not suf

fice to moot a cas e.” Friend s o f t he Eart h, Inc. v. Laidlaw En vtl. Servs. , Inc. , 528 U.S. 167, 174 (2000). Nonethel ess, in anot her

exam ple of the confusi on surrounding basic federal courts issues i n t hi s case, Hamil ton Cou nty had “ con ced e[d] that they ar e now in full

com plianc e with the inju nction and th at the alleg ed w rong ful c onduc t cannot reaso nab ly be ex pec ted to recur ,” thus vo luntarily m ootin g their

own appea l. Lyn ch v. L eis , No. 02- 3610, 1 ( 6th Ci r. Au g. 13, 2002) (ord er gra nting m otion to dism iss), J.A. a t 461

.
2 We note bri efly

that Powers had ass erted bel ow a clai m for nomina l dama ges, which i s normally suf fici ent t o establ ish s tandin g, def eat

moo tness, and grant prevaili ng party stat us for t h e purpose of a ttor ney fees under

42 U.S.C. § 1988. See Buckhannon B d. & Care Home, Inc. v. W. Va . Dep ’t of Health & Hum an R es. , 532 U.S. 598, 604 ( 2001) (“[E]ven an award of nominal d amage s suffices unde r [the prevail ing party] test.”); Carey v. Piphus , 435 U.S. 247, 266 ( 197 8) (“[T]he dep rivatio n of

such [a

bsolut e] ri ghts [is] acti onable f or nominal damages”); Utah Animal Rights Coali ti on v. Salt Lake Cit y Corp. , 371 F.3d 1248, 1268 ( 10thCir . 200 4) ( “The Six th and Ni nt h Ci rc uits, like

our s, squa rely hold that a claim for no minal d ama ges is sufficien t to render a case just icia

ble.”) (M cCo nnell, J., co ncurr ing); Murray v. Bd. of Trs. , 659 F.2d 7 7, 79 (6th Cir. 1981) (district court erre d in di smissing enti re compl ain t a s moot , r ath er t han si mply

dis mis si ng c lai m fo r inju nctive reli ef, where plainti ff sought nominal damage s and fe es )

. However, at oral a rgum ent, co unsel fo r Po wers ind icated that the cla im fornomin al da mages was n o lo nger l ive, as th e dist rict court ha d issu ed its fin al deci sion on t

he merit s wit

hout aw ar ding damages , a de cis ion of law of the caseand because Hamilton County has complied fully with the lower court’s injunction. This ar gument i s unava ilin g, and can be dealt with briefly . The first appeal was dismissedas moot because no live ca se or controve

rsy existed; no furthe

r dispute existed between th e parties bec ause Hamilto n Co unty had voluntarily complied with the injunction. 1 This appeal concerns the propriety of the fee award, which pr

esents a live cas e or contr

oversy between the par ties: a moneta

ry judgmen t again st the def

endants belo w indubitab ly

present s a live appeal. If Powers is not a pr oper prevailingparty, the fe e award was in error. I f Powers never had standing to bring the case, 2 he is nota proper prevailing 8 Lynch et a l. v. Leis e t al. Nos. 03-3269/3279

which went un appealed by Powers. Therefore, because Powers l acked stand in g on the one cl aim on whi ch he pr evai led, the fee award cannot stand.

3 In fact, Hamilton County’s court recor ds are av ailable to the p ublic online at ht

tp:// www.courtclerk.org. pa rt y. That

the pr evious appeal was moot because the judgment below—th e injunct

io n —no longer presented a matter of dispute be

tween the parties i s totally

irrelevant to the question of whet

her the judg

ment below on this appeal—the fee award—presents such a dispute. Powers a lso request s sanct ions agains t Hami lton Coun ty for bri nging a frivolous appeal; that request fails, as explained below.

Hamilton County asserts in this appeal—as it did in the previous appeal and before the district court numerous times—thatPower s never had standing to seek injunctive relief, as there was not a “threat of injury . . . both real and immediate, not conjectural or hy pothetical.” City of L.A. v. Lyons , 461 U.S. 95, 102 (1983) (internal quotation mar ks omitted). The county complains tha t the district court incorre ctly

inferred that the capias was outstanding fr om June 21, 2000 forward, and relied upon that incorre ct infer

ence in holding th at Powers had st and in g to bri ng t he a cti on. In response, Powers a sserts fi rst that the distri ct court ’s rationale for refusing Hamilton County’ s attempt to int r oduce new evidence which it

could have discovered earlier through due di li gence 3 was correct; then that Hamilton County had st ipulated to facts which created standing, see En g’ g Contractor

s Ass’n of S. Fla. In c. v. Me tro. Dade County , 122 F.3d 895, 905 (11th Cir. 1997); and finally that at the time of the filing of

the Third Amended Complaint, “the stipulated fact wa s that an outstanding capias existed for Plaintiff Powers.” Appellee’s/Cross-Appellant’s Br. at 20. Standing “is to be determined as of the time the complaint is filed.” Clevelan d Branch, NAACP , 263 F.3d at 524. TheNos. 03-3269/3279 Lynch et a l. v. Leis e t al. 9

4 The operati ve complain t here could not be the fi rst complaint consonant with County of River side , and it cou ld not be the Third Amended Com plaint conson ant with the general rule that while “a plaintiff may co rrect the complai nt t o show that juri sdict ion does i n fact exist
. . ., [federa l jurisdic tion] m ay not b e crea ted b y ame ndm ent.” J AMES W M

. M OORE , 3 M OORE ’ S F EDERAL P RACTICE § 15.14[3] , at 15-34 (3d ed. 2000 ). parties dispute w h ether th e opera tive comp laint is the

first complain t, initiat ing t he action, the Second Amended C omplaint, adding

Powers, or the Thir

d Amende d Comp laint
, the fina l co mplaint filed. This confusion seems to be generated by County of R iverside

v. McLau ghlin , 500 U.S. 44, 51 (1991), which

in the course of conferring standing to seek injunctive relief on warrantless arrestee s who at the time their complaint was file d were s

ufferin g consti tu tion al in

ju ry, referred to the f inal complaint filed in the case, the second amended complaint, as “the operative pleading.” Id. at 48. A careful reading of County of Riverside demonstrates that the second amended complaint was important not because it was the operati

ve plead ing, but b ecause

it was that complaint which named “threeadditional plaintiffs” who were “still in

cu st od y” at the time th e complaint was filed, and who were the plain tiffs fou nd to have

standing by t he Court. Id . at

49, 51; see also Rosen v. Tenn. Comm’r of Fin. & Admin. , 288 F.3d 918, 929 (6th Cir. 2002) (describing focus of County of Riverside Co urt on “se cond ame nded comp laint making the claim in que stion ” (emphasis added)). Therefore , the operative complaint is the one adding Powers to the action, and the operative date is May 25, 2000, rendering

the capias entir ely irrel evant to th e ques tion of sta ndin g. 4
Instead, Powers’ s standing to seek in

juncti ve relie f must rise or fall

on his status on May 25, 2000, at which pointhe was ou

t on bond, w

ithtwo separate cases proceeding

against him. See State v. Powers , No. C/00/TRD/5236/ A, B (Hami lt on County Municipa

l Traf fic Div ision May 6, 2000) (docke t sheet), http://www.courtcl erk.org /aps/t tl/lns/smcp

b026.asp ?C/00/T 10 Lynch et a l. v. Leis e t al. Nos. 03-3269/3279

5 As noted abo ve, these cour t reco rds ar e ava ilable o nline to members of the public; as they are co urt records, thi s court may tak e judici al not ice of them

. See Lyo ns v. S tova ll , 188 F.3d 327 , 332 n.3 (6 th Cir. 1 999 ). RD/5236 ; Statev. Powers , No. 00/TRD/23718, A, B (Hamilto nCounty

Municipa

l Traff ic Divisi o n Janu ary 19, 2000) (docket sheet)
, http://www .courtc lerk.or

g/aps/t t l/lns/smcpb02 6.asp?/00/TR D /23718. 5 In at least one of those ca ses, No

. C/00/TRD/5236/A, B (“No. 5236”), that reli ed upon below, his case hadn’t moved forward bey ond his release from

cu st od y. The question the n becomes whether the mere pendency of proceedings aga

inst Powers could create a sufficient risk that

h e would again be subject to the deprivation

of his Sixth Amendment right by b eing pla ced in detentionat the HCJC to confer standing upon Powers to seek injunctive relief to prevent that deprivation. I n Lyons , the Supreme Court explainedthat “a real and immediate” threat did not exist to confer standing where such a threa t was attenuated

by b oth the unl ikeliness that L yon s wo uld have another encounter with the police and the unlikelihood t ha t the polic e would

employ a chokehold during that encounter. 461 U.S. at 101-09 . In the instant case, while there was certain ty that if place d in

detention again Powers would have been subject to the unconstitutional po licy, there was no certain ty that he would have been placed in detention ag ain. “[F]or purposes of assessing the likelihood tha t state authorities will reinf

lict a g iven injur

y, [the Supreme

Court] gener ally h a[s] be en unwilli

ng to ass

ume that the party seekingrelief w

ill repea t the ty pe of misc onduct tha

t would

once again pl ace him or her at risk of that injury.” Honig v. Do e , 484 U.S. 30 5, 320 (19 88); see also Lyons , 461 U .S. a t 101-09; Grendel

l v. Ohio S

upre m e Ct ., 252 F.3d 828, 833 (6th Cir. 2001) (likelihood that plaintiff

would again b ring a lawsuit so frivolo

us as to pla

ce him at r

isk of sancti ons too remote to support

standing ). Powers wo uld have had to fai l to appear for a scheduled c ourt date on his pend

ing matte rs, violate the conditions of his pretrial release in some ot herNos. 03-3269/3279 Lynch et a l. v. Leis e t al. 11

6 Powers does not ar gue that th e subst anti ve law f orb iddin g his conduct (in t

his ca se, t

he Ohio vehi cle code) i s inv alid, but i nsteadtha t some consequence of his citati on is unlawful . Where the law forbidding the ill egal act

is it sel f ch all enged, an al lega ti on that the p laintiff wishes to engage in the unlawful

activit y is s ometimes suffi cient to confer s tanding to challen ge the la w. Se e, e. g., Kolender v. Laws on , 461 U.S. 352, 355 n.3 (1983). wa y, or commit some other conduct leading to hi s arres t. This chance, based on Powers ’s likelihood of violating

u nchallenged

laws, 6 is insuffi cient to c onfer A rtic le II I stand ing.

It is unfortunate that the conf us ion between the parties belowover this most fundamental of jurisdictional issues has led to this outcome, where a

pr ev ai li ng pa rt y wh os e a tt or ne ys wonan important victory for all pretrial detainees at the Hamilton County

Justice Center is denied

a fee award after a completed

successful action, but “[u]nless the statute und er whicha party

se eks att orney’s f

ees contains an independent grant of jurisdi ction, an

appella te court must vacate an award of attorney’s f

ees if the district court did not have subject matter jurisdiction over

the litigation.” Greater D etroit Re s. Recove ry Auth. & Combustio n Eng’g v. United States EPA
, 916 F.2d 317, 320 (6th Cir . 1990); see a lso Friends of the Boundary W aters Wilderness v. Thomas , 53 F.3d 881, 886- 887 (8th Cir. 1995). The award of attorney fees and costs

to Powers is therefore REVERSED

.