1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0288P (6th Cir.)

File Name: 04a0288p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JEFF LYNCH,

Plaintiff,

MIKE POWERS,

Plaintiff-Appellee/

Cross-Appellant,

v.

SIMON L. LEIS, JR., Sheriff of

Hamilton County, Ohio, and

LOUIS F. STRIGARI, Public

Defender of Hamilton

County, Ohio,

Defendants-Appellants/

Cross-Appellees.

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Nos. 03-3269/3279

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

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

Argued: August 11, 2004

Decided and Filed: August 31, 2004 

Before: SILER, MOORE, and COLE, Circuit Judges.

2 Lynch et al. v. Leis et al. Nos. 03-3269/3279

_________________

COUNSEL

ARGUED: Philip L. Zorn, Jr., HAMILTON COUNTY

PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellant.

Stephen R. Felson, Cincinnati, Ohio, for Appellees.

ON BRIEF: Philip L. Zorn, Jr., Christian J. Schaefer,

HAMILTON COUNTY PROSECUTOR’S OFFICE,

Cincinnati, Ohio, for Appellant. Stephen R. Felson, Robert

B. Newman, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN &

MEEKS, Cincinnati, Ohio, for Appellees.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. DefendantsAppellants-Cross-Appellees Simon L. Leis, Jr., Sheriff of

Hamilton County, Ohio, and Louis F. Strigari, Public

Defender of Hamilton County, Ohio, (collectively, “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

Hamilton County Justice Center’s (“HCJC”) policy of

allowing prisoners to make only collect telephone calls,

which in combination with the Hamilton County Public

Defender’s policy of refusing collect calls operated to deny

pretrial detainees at the HCJC their Sixth Amendment right

to counsel. Hamilton County argues that Powers lacked

standing to bring the underlying action, that Powers could not

maintain this suit without exhausting his state remedies under

the Prison Litigation Reform Act (“PLRA”), that Powers is

not a “prevailing party” under 42 U.S.C. § 1988, that Powers

is only entitled to attorney fees as mandated by the PLRA,

and that the district court abused its discretion in awarding

attorney fees in the amount that it did. Powers argues in his

cross-appeal that the district court erred in not awarding fees
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 3

for the full amount of time spent on preparing the petition for

attorney fees, and in determining the reasonable hourly rate of

one of his counsel. Because we determine that Powers never

had standing to bring this action, we REVERSE the decision

of the district court.

I. BACKGROUND

The underlying facts of the case are not in dispute, and the

merits of Powers’s suit is not at issue in this appeal. At the

time that the lawsuit commenced, pretrial detainees at the

HCJC who 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 charged with a misdemeanor, refused to accept

collect calls on its main line, while its staff attorneys, who

had discretion to accept collect calls on their direct lines,

accepted only a tiny fraction of incoming collect calls (6 of

322 between October of 1999 and September of 2000). The

district court determined that this violated the Sixth

Amendment rights of pretrial detainees.

What is hotly contested is whether the district court

properly exercised jurisdiction over this case. This action was

initiated on April 7, 2000, with Jeff Lynch as the initial

plaintiff. The first complaint sought “actual and punitive

damages,” as noted in its introduction, and prayed that the

district court “[d]eclare that Defendants’ telephone policies

violate the Constitution,” as well award damages, fees, and

costs. Joint Appendix (“J.A.”) at 12, 17. Powers was initially

added to the suit on May 25, 2000, in the Second Amended

Complaint. That complaint sought “nominal damages and

equitable relief.” J.A. at 19. Powers had been arrested on

January 19, 2000 for operating a motor vehicle without a

license and improper display of a license plate. He failed to

appear and was eventually arrested, on April 4, 2000. After

failing to make bail, he was confined at the HCJC for twenty

days, when he was affected by the phone policies; after his

4 Lynch et al. v. Leis et al. Nos. 03-3269/3279

release on his own recognizance on April 24, 2000, he

continued to have trouble resolving his case and a capias—a

writ directing his arrest—was issued on June 21, 2000. That

capias was recalled on July 23, 2000, and Powers’s case was

resolved on July 24, 2000, with a nolo contendere plea.

Lynch and Powers moved for a preliminary injunction on

November 1, 2000, and to certify a class on February 2, 2001.

On February 8, they moved to consolidate their pending

motion for a preliminary injunction with a motion for a

permanent injunction. On March 16, 2001, a joint stipulation

of facts was filed by the parties, including the stipulation that

the capias had been 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 Amended

Complaint was filed by Lynch and Powers, containing for the

first time an allegation of the issuance of the capias, and on

January 25, 2002, the district court ruled on Hamilton

County’s motion to dismiss, which was filed in response to

the Second Amended Complaint. 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 argued with respect to

Powers’s standing that he was free on his own recognizance

on the date of the filing of the Second Amended

Complaint—when he was added to the litigation—and “thus

in imminent danger of being reincarcerated if he failed to

perform as required.” J.A. at 112 (Mem. in Opp. to County

Defs. Mot. To Dismiss). They also noted, “That danger was

drastically multiplied by the issuance of a capias on June 21,

2000,” J.A. at 112, and obliquely implied the capias was still

outstanding: “even if Mr. Powers’ claim becomes moot by

the disposition of his proceedings . . .” J.A. at 113 (emphasis

added). Of course, at the time that this Memorandum was

filed, his case had been resolved.

The district court dismissed Lynch from the suit on

January 25, 2002, for lack of standing, but denied Hamilton

County’s motion to dismiss Powers from the suit, on the
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 5

ground that the capias had been outstanding against Powers

since June 21, 2000, thereby creating a substantial threat of

injury sufficient to confer standing. This factual conclusion

was incorrect; while the parties had stipulated to the issuance

of the capias, they had not stipulated to its continued

existence—but neither had they stipulated to its withdrawal.

On January 30, 2002, the defendants filed their answer to the

Third Amended Complaint, admitting that a capias was issued

on June 21, 2000. On February 19, 2002, the district court

granted the plaintiffs’ motion for a permanent injunction. The

district court’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.

On February 20, 2002, the defendants filed a motion under

Federal Rules of Civil Procedure 52(b), 59(a), and 60(b) to

vacate the district court’s January 25 and February 19, 2002

orders, based on the results of an investigation into Powers’s

court case, revealing that the capias was withdrawn. They

apologized for the failure to bring the information to the

district court’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 only evidence

that could be admitted on motion was that not discoverable

through due diligence, and that court records were certainly

discoverable through due diligence. The district court

rejected the defendants’ reliance on the usual rule that subject

matter jurisdiction can be raised any time, reasoning that the

defendants had “stipulated facts giving rise to jurisdiction.”

J.A. at 233. The district court also rejected what it

characterized as Hamilton County’s oblique argument that the

case was moot due to voluntary compliance; they had in fact

made the slightly more nuanced, though rather more flawed

argument that their voluntary compliance deprived Powers of

initial standing.

6 Lynch et al. v. Leis et al. Nos. 03-3269/3279

At that point, the defendants appealed to this court from the

district court’s decisions of January 25, 2002 (motion to

dismiss), February 19, 2002 (entry of permanent injunction),

and May 8, 2002 (denial of motion to vacate). While the

appeal was pending, the parties continued to litigate the issue

of attorney fees. On June 4, 2002, Powers moved to dismiss

the appeal as moot under prior case law, because Hamilton

Countywas complying with the injunction rather than seeking

a stay, and arguing that there was no exception to the rule that

voluntary compliance moots an appeal for challenges to the

district court’s subject matter jurisdiction, as the appeals court

had no jurisdiction in the first instance. A panel of this court

granted Powers’s motion to dismiss the appeal as moot.

Lynch v. Leis, No. 02-3610 (6th Cir. Aug. 13, 2002) (order

granting motion to dismiss), J.A. at 461-62. On August 26,

2002, the defendants moved again in the district court to

dismiss the case and Powers’s request for attorney fees due to

lack of jurisdiction. On January 24, 2003, the district court

denied that motion and granted Powers’s motion for attorney

fees, awarding $71,782.50 in fees and $2,201.08 in costs,

based on a lodestar of $57,426 and a multiplier of 1.25. In

doing so, the district court incorporated its previous rulings on

standing, the PLRA, and mootness, and threatened the

defendants with sanctions for repeatedly arguing the points.

It is from that ruling that all parties appeal.

II. ANALYSIS

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 matter, Powers asserts that this appeal, to

the extent it raises issues on the merits declared moot in

Hamilton County’s previous appeal, is moot, both as a matter
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 7

1

This holding may very well have been precipitous, as “[a]

defendant’s voluntary cessation of allegedly unlawful conduct ordinarily

does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). Nonetheless, in another

example of the confusion surrounding basic federal courts issues in this

case, Hamilton County had “concede[d] that they are now in full

compliance with the injunction and that the alleged wrongful conduct

cannot reasonably be expected to recur,” thus voluntarily mooting their

own appeal. Lynch v. Leis, No. 02-3610, 1 (6th Cir. Aug. 13, 2002)

(order granting motion to dismiss), J.A. at 461. 

2We note briefly that Powers had asserted below a claim for nominal

damages, which is normally sufficient to establish standing, defeat

mootness, and grant prevailing party status for the purpose of attorney

fees under 42 U.S.C. § 1988. See Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)

(“[E]ven an award of nominal damages suffices under [the prevailing

party] test.”); Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[T]he

deprivation of such [absolute] rights [is] actionable for nominal

damages”); Utah Animal Rights Coalition v. Salt Lake City Corp., 371

F.3d 1248, 1268 (10th Cir. 2004) (“The Sixth and Ninth Circuits, like

ours, squarely hold that a claim for nominal damages is sufficient to

render a case justiciable.”) (McConnell, J., concurring); Murray v. Bd. of

Trs., 659 F.2d 77, 79 (6th Cir. 1981) (district court erred in dismissing

entire complaint as moot, rather than simply dismissing claim for

injunctive relief, where plaintiff sought nominal damages and fees).

However, at oral argument, counsel for Powers indicated that the claim

for nominal damages was no longer live, as the district court had issued

its final decision on the merits without awarding damages, a decision

of law of the case and because Hamilton County has complied

fully with the lower court’s injunction. This argument is

unavailing, and can be dealt with briefly. The first appeal was

dismissed as moot because no live case or controversy

existed; no further dispute existed between the parties because

Hamilton County had voluntarily complied with the

injunction.1 This appeal concerns the propriety of the fee

award, which presents a live case or controversy between the

parties: a monetary judgment against the defendants below

indubitably presents a live appeal. If Powers is not a proper

prevailing party, the fee award was in error. If Powers never

had standing to bring the case,2 he is not a proper prevailing

8 Lynch et al. v. Leis et al. Nos. 03-3269/3279

which went unappealed by Powers. Therefore, because Powers lacked

standing on the one claim on which he prevailed, the fee award cannot

stand.

3

In fact, Hamilton County’s court records are available to the public

online at http://www.courtclerk.org.

party. That the previous appeal was moot because the

judgment below—the injunction—no longer presented a

matter of dispute between the parties is totally irrelevant to

the question of whether the judgment below on this

appeal—the fee award—presents such a dispute. Powers also

requests sanctions against Hamilton County for bringing 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—that Powers never had standing to seek injunctive

relief, as there was not a “threat of injury . . . both real and

immediate, not conjectural or hypothetical.” City of L.A. v.

Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks

omitted). The county complains that the district court

incorrectly inferred that the capias was outstanding from June

21, 2000 forward, and relied upon that incorrect inference in

holding that Powers had standing to bring the action. In

response, Powers asserts first that the district court’s rationale

for refusing Hamilton County’s attempt to introduce new

evidence which it could have discovered earlier through due

diligence

3

 was correct; then that Hamilton County had

stipulated to facts which created standing, see Eng’g

Contractors Ass’n of S. Fla. Inc. v. Metro. 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 was 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.” Cleveland Branch, NAACP, 263 F.3d at 524. The
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 9

4

The operative complaint here could not be the first complaint

consonant with County of Riverside, and it could not be the Third

Amended Complaint consonant with the general rule that while “a

plaintiff may correct the complaint to show that jurisdiction does in fact

exist . . ., [federal jurisdiction] may not be created by amendment.”

JAMES WM. MOORE, 3 MOORE’S FEDERAL PRACTICE § 15.14[3], at 15-34

(3d ed. 2000).

parties dispute whether the operative complaint is the first

complaint, initiating the action, the Second Amended

Complaint, adding Powers, or the Third Amended Complaint,

the final complaint filed. This confusion seems to be

generated byCounty of Riverside v. McLaughlin, 500 U.S. 44,

51 (1991), which in the course of conferring standing to seek

injunctive relief on warrantless arrestees who at the time their

complaint was filed were suffering constitutional injury,

referred to the final 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 operative pleading, but because it was that complaint

which named “three additional plaintiffs” who were “still in

custody” at the time the complaint was filed, and who were

the plaintiffs found to have standing by the 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 Court on “second amended complaint making the

claim in question” (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

entirely irrelevant to the question of standing.

4

Instead, Powers’s standing to seek injunctive relief must

rise or fall on his status on May 25, 2000, at which

point he was out on bond, with two separate cases

proceeding against him. See State v. Powers, No.

C/00/TRD/5236/ A, B (Hamilton County Municipal 

Traffic Division May 6, 2000) (docket sheet),

http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?C/00/T

10 Lynch et al. v. Leis et al. Nos. 03-3269/3279

5

As noted above, these court records are available online to members

of the public; as they are court records, this court may take judicial notice

of them. See Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999). 

RD/5236; State v. Powers, No. 00/TRD/23718, A, B

(Hamilton County Municipal Traffic Division

Janu ary 19, 2000) (docket sheet) ,

http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?/00/TR

D/23718.5 In at least one of those cases, No.

C/00/TRD/5236/A, B (“No. 5236”), that relied upon below,

his case hadn’t moved forward beyond his release from

custody. The question then becomes whether the mere

pendency of proceedings against Powers could create a

sufficient risk that he would again be subject to the

deprivation of his Sixth Amendment right by being placed in

detention at the HCJC to confer standing upon Powers to seek

injunctive relief to prevent that deprivation. In Lyons, the

Supreme Court explained that “a real and immediate” threat

did not exist to confer standing where such a threat was

attenuated by both the unlikeliness that Lyons would have

another encounter with the police and the unlikelihood that

the police would employ a chokehold during that encounter.

461 U.S. at 101-09. In the instant case, while there was

certainty that if placed in detention again Powers would have

been subject to the unconstitutional policy, there was no

certainty that he would have been placed in detention again.

“[F]or purposes of assessing the likelihood that state

authorities will reinflict a given injury, [the Supreme Court]

generally ha[s] been unwilling to assume that the party

seeking relief will repeat the type of misconduct that would

once again place him or her at risk of that injury.” Honig v.

Doe, 484 U.S. 305, 320 (1988); see also Lyons, 461 U.S. at

101-09; Grendell v. Ohio Supreme Ct., 252 F.3d 828, 833

(6th Cir. 2001) (likelihood that plaintiff would again bring a

lawsuit so frivolous as to place him at risk of sanctions too

remote to support standing). Powers would have had to fail

to appear for a scheduled court date on his pending matters,

violate the conditions of his pretrial release in some other
Nos. 03-3269/3279 Lynch et al. v. Leis et al. 11

6

Powers does not argue that the substantive law forbidding his

conduct (in this case, the Ohio vehicle code) is invalid, but instead that

some consequence of his citation is unlawful. Where the law forbidding

the illegal act is itself challenged, an allegation that the plaintiff wishes to

engage in the unlawful activity is sometimes sufficient to confer standing

to challenge the law. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355

n.3 (1983).

way, or commit some other conduct leading to his arrest.

This chance, based on Powers’s likelihood of violating

unchallenged laws,6 is insufficient to confer Article III

standing.

It is unfortunate that the confusion between the parties

below over this most fundamental of jurisdictional issues has

led to this outcome, where a prevailing party whose attorneys

won an 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 under

which a party seeks attorney’s fees contains an independent

grant of jurisdiction, an appellate court must vacate an award

of attorney’s fees if the district court did not have subject

matter jurisdiction over the litigation.” Greater Detroit Res.

Recovery Auth. & Combustion Eng’g v. United States EPA,

916 F.2d 317, 320 (6th Cir. 1990); see also Friends of the

Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 886-

887 (8th Cir. 1995). The award of attorney fees and costs to

Powers is therefore REVERSED.