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
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
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
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)).
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
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,
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
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