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November 9, 2004.


The opinion of the court was delivered by: DENNY CHIN, District Judge


In this case, plaintiff Beatrice Morris was sexually assaulted by defendant Gilbert Eversley in April 1999, when she was an inmate and he was a corrections officer at the Bayview Correctional Facility ("Bayview"), a women's prison. One night, while Morris was sleeping, Eversley entered her cell and attempted to rape her.

  A few weeks before she was released from prison, Morris brought this action for damages pro se under 42 U.S.C. § 1983 and state law against Eversley and other corrections officials. She eventually obtained counsel, and all claims but the § 1983 claim against Eversley were dismissed. The remaining claim against Eversley was tried twice. In the first trial, the jury found that Eversley had violated Morris's rights by subjecting her to cruel and unusual punishment, but awarded her only $500 in compensatory damages and $7,500 in punitive damages. In the second trial, which was limited solely to the amount of damages, the jury — a different jury — awarded Morris only $1,000 in compensatory damages and $15,000 in punitive damages.

  Morris moves for attorneys' fees and costs, seeking an award of $295,818.00 in fees and $58,228.23 in costs.

  Eversley opposes the application. First, raising an issue of first impression, he argues that any fee award is subject to the Prisoner Litigation Reform Act (the "PLRA"), which caps attorneys' fees in "any action brought by a prisoner who is confined to any jail, prison, or other correctional facility" to 150% of the recovery. 42 U.S.C. § 1997e(d). Eversley argues that the cap applies even though Morris was released from prison two-and-a-half weeks after filing suit. Under this theory, Morris's fees would be limited to $24,000 — 150% of her recovery of $16,000. Second, he argues that even if the PLRA cap does not apply and the Court applies the traditional lodestar method to calculate fees, the requested fees and costs are grossly excessive.

  As set forth below, I hold that the PLRA cap on fees does not apply to this case. Accordingly, I apply the lodestar method, and award Morris fees of $154,900 and costs of $25,000. BACKGROUND

  A. The Facts

  Early on April 20, 1999, Eversley, then a corrections officer at Bayview, used a master key to unlock Morris's cell. Morris v. Eversley, No. 00 Civ. 8166, 2004 WL 171337, at *1 (S.D.N.Y. Jan. 29, 2004). He entered, without asking Morris's permission, as she was still sleeping. Id. Morris awoke when Eversley touched her. Id. She ordered him to get out, but he refused and attempted to rape her. Id.

  Eversley was unable to penetrate Morris, and instead ejaculated on her leg and bed. Id. The next morning, using a pair of nail clippers, Morris cut out a piece of her sheet that had been stained by Eversley's semen. Id. She eventually reported the assault to prison officials and handed over the piece of stained sheet. Morris v. Eversley, 282 F. Supp. 2d 196, 199 (S.D.N.Y. 2003). DNA testing later confirmed that the semen on the sheet was, to a virtual certainty, Eversley's. Morris, 2004 WL 171337, at *1. Any such sexual conduct by Eversley was, by law, unlawful because inmates are deemed incapable of consenting to sexual contact with prison employees. Id. (citing N.Y. Penal Law § 130.05(3) (e) (McKinney 2004)).

  B. Procedural History

  On October 25, 2000, while incarcerated at the Taconic Correctional Facility, Morris filed a complaint pro se in this Court against Eversley, the New York State Department of Correctional Services, Superintendent Alexandreena Dixon, Assistant Deputy Superintendent of Programs Elnora Porter, and Captain Kenneth Werbacher. See Morris v. Eversley, 205 F. Supp. 2d 234 (S.D.N.Y. 2002). Morris alleged violations of her rights under federal and state law. (Def.'s Aff., Ex. A).

  Morris was released from prison on November 10, 2000, two-and-a-half weeks after filing her complaint. (Def.'s Aff., Ex. B). Milbank, Tweed, Hadley & McCloy LLP ("Milbank") was retained to represent her on a pro bono basis on December 17, 2001. (Pl.'s Mem. at 2). On January 18, 2002, with the assistance of counsel, Morris filed an amended complaint, asserting new facts, adding new defendants, and adding new allegations. She asserted claims under 42 U.S.C. § 1983 as well as state law claims for assault and battery and intentional infliction of emotional distress. Id. At the time Morris filed her amended complaint the statute of limitations governing her § 1983 claim had not expired. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) ("The statute of limitations applicable to claims brought under §§ 1981 and 1983 in New York is three years."). Defendants had not filed an answer or motion for summary judgment at the time she filed her amended complaint. (Pl.'s Reply Mem. at 1).

  On March 15, 2002, Dixon and Porter moved to dismiss the complaint on multiple grounds, including failure to exhaust administrative remedies pursuant to § 1997e(a) of the PLRA. Morris, 205 F. Supp. 2d 234. After oral argument on May 24, 2002, Morris discontinued her claims against two defendants added in the amended complaint. On June 13, 2002, I denied the remaining defendants' motion to dismiss this action, noting:
The PLRA requires exhaustion of `such administrative remedies as are available.' Thus, even if I were to dismiss Morris's claims, no administrative remedies are `available' to her because she is no longer a prisoner; Morris could simply refile her § 1983 claims unaffected by the PLRA's exhaustion requirement. . . . [C]onsiderations of judicial efficiency and economy advise against dismissal of Morris's claims.
205 F. Supp. 2d at 241 (citations and footnote omitted).

  Following discovery, defendants Dixon and Porter, joined by Eversley, moved for summary judgment. On September 23, 2003, I granted the motion for summary judgment as to the supervisory defendants only. Morris, 282 F. Supp. 2d at 208-09. Morris and Eversley thereafter stipulated to the dismissal of all remaining claims except the 42 U.S.C. § 1983 claim. (Pl.'s Mem. at 2).

  On January 28, 2004, after a three-day trial on the § 1983 claim, a jury found that Eversley acted intentionally and maliciously and violated Morris's Eighth Amendment right to be free from cruel and unusual punishment. Morris, 2004 WL 171337, at *1. The jury, however, awarded Morris only $500 in compensatory and $7,500 in punitive damages. Id. In an order issued February 26, 2004, the Court held that the jury's damages were so grossly inadequate as to shock the conscience, vacated the jury's verdict in part, and ordered a new trial on the issues of punitive and compensatory damages only. On April 21, 2004, after a two-and-a-half-day trial, a second jury awarded Morris $1,000 in compensatory and $15,000 in punitive damages. Judgment was entered in favor of Morris against Eversley for $1,000 in compensatory damages and $15,000 in punitive damages on April 23, 2004.

  C. The Fee Application

  On May 7, 2004, Morris filed her motion, pursuant to 42 U.S.C. § 1988 and Rule 54(d) of the Federal Rules of Civil Procedure, to recover reasonable attorneys' fees and costs. Morris requests $295,818.00 in attorneys' fees and $58,228.23 in costs.


  I address first the threshold question of whether the PLRA restrictions on attorneys' fees applies to a case such as this, where the plaintiff in a prisoner's civil rights case is released from prison less than three weeks after filing suit and she asserts significant, meritorious, and ultimately successful claims. As I conclude that the PLRA's restrictions do not apply, I then proceed to a traditional lodestar analysis.

  A. Applicability of the PLRA

  Eversley asserts that Morris's attorneys' fees award should be capped at 150% of her monetary award, or $24,000, pursuant to the PLRA, 42 U.S.C. § 1997e(d), because Morris was a prisoner when she filed her initial complaint. He asserts that the fact she was released from custody shortly after filing her complaint has no bearing on whether her attorneys' fees award is subject to the PLRA. He also argues that 25% of the $16,000 judgment, or $4,000, must be paid from the plaintiff's judgment to satisfy attorneys' fees, leaving $20,000 to be paid by the defendant.

  1. The Statute

  In 1996, Congress passed the PLRA, which "contains numerous provisions governing the course of prisoner litigation in the federal courts." Martin v. Hadix, 527 U.S. 343, 349-50 (1999). The PLRA, codified in 42 U.S.C. § 1997e, was adopted with "the principal purpose of deterring frivolous prisoner lawsuits and appeals." Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997), cert. denied, 523 U.S. 1126 (1998). Section 1997e(d)*fn1 imposes "substantial restrictions" on attorneys' fees that can be awarded to a prisoner-plaintiff who succeeds on a civil rights claim, despite the allowances provided by 42 U.S.C. § 1988. Blissett v. Casey, 147 F.3d 218, 220 (2d Cir. 1998).

  The Second Circuit has interpreted § 1997e(d) to cap a defendant's liability for attorneys' fees at 150% of a plaintiff's monetary judgment in a civil rights case brought by a prisoner. Torres v. Walker, 356 F.3d 238, 242 (2d Cir. 2004). Accordingly, a prisoner-plaintiff's attorneys' fees award is directly proportional to the monetary success of his or her claim. The PLRA also allows for a portion of the prisoner-plaintiff's judgment, up to but not to exceed 25% of the monetary value, to be applied to satisfy the payment of attorneys' fees, but does not provide courts with guidelines for determining the percentage (25% or below) to be applied. 42 U.S.C. § 1997e(d)(2).

  The PLRA is not applicable to a plaintiff who is no longer a confined prisoner when the suit is filed. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (holding that the term "prisoner" does not comprehend a felon who has been released). If a plaintiff is a prisoner at the time a civil rights violation is suffered, but waits until release from custody before filing a complaint, the attorneys' fees restrictions of § 1997e are simply inapplicable. In such a case, the prevailing plaintiff is free to recover full reasonable attorneys' fees under § 1988. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (holding that a prisoner who files a civil rights action after release from confinement is not subject to the PLRA's statutory exhaustion requirement); cf. Gibson v. Brooks, 335 F. Supp. 2d 325 (D. Ct. 2004) (distinguishing Greig and holding that plaintiff who was incarcerated when civil rights claim accrued, then released, and then re-imprisoned at time he filed suit was subject to exhaustion requirements of PLRA).

  The parties have not cited and the Court has not found any decision addressing the applicability of the PLRA restrictions on fees to a situation where a prisoner-plaintiff files suit while she ...

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