Matthew John Thompson v. B. Smith
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Opinion
Case: 18-11671 Date Filed: 03/12/2020 Page: 1 of 49
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11671 ________________________
D.C. Docket No. 4:14-cv-00465-RH-GRJ
MATTHEW JOHN THOMPSON,
Plaintiff-Appellant,
versus
B. SMITH, Lt, J. SIKES, Capt, D. ATKINS, Co, D. PRICE, Co,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(March 12, 2020) Case: 18-11671 Date Filed: 03/12/2020 Page: 2 of 49
Before MARTIN, ROSENBAUM, and BOGGS,∗ Circuit Judges.
MARTIN, Circuit Judge:
After a trial, a jury returned a verdict in Matthew Thompson’s favor. The
jury found that while Mr. Thompson was incarcerated, prison guards violated his
First and Eighth Amendment rights by retaliating against him for filing grievances
and “spray[ing] him with chemical agents” without a legitimate reason for doing
so. But Mr. Thompson’s victory was tempered with disappointment. Before trial,
the District Court decided that because pepper spraying 1 does not cause a “physical
injury” within the meaning of the Prison Litigation Reform Act of 1995 (“PLRA”),
42 U.S.C. § 1997e(e), Mr. Thompson could recover only nominal damages for his
injuries. The District Court therefore granted Captain James Sikes, Officer Daniel
Price, and Officer William Goff summary judgment on Mr. Thompson’s claims for
compensatory and punitive damages. This left the jury with no choice but to award
Mr. Thompson just $10 in nominal damages after returning a verdict for him.
Mr. Thompson now appeals the District Court’s grant of summary judgment
on his claims for compensatory and punitive damages. He also appeals the District
Court’s attorney’s fee award, its denial of reasonable litigation expenses, and its
∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 1 Mr. Thompson was sprayed with oleoresin capsicum chemical agents. Oleoresin capsicum is colloquially known as “pepper spray,” see Dalrymple v. United States, 460 F.3d 1318, 1328 (11th Cir. 2006), and we use that term in this opinion. 2 Case: 18-11671 Date Filed: 03/12/2020 Page: 3 of 49
denial of his motion for an injunction. After careful consideration, and with the
benefit of oral argument, we affirm in part, reverse in part, and remand for a retrial
consistent with our opinion.
I. FACTS
On the morning of March 10, 2014, Mr. Thompson was doing legal research
in Liberty Correctional Institution’s (“Liberty”) law library when he was instructed
to go see Captain Sikes at the “center gate.” Mr. Thompson left the law library and
reported to the center gate as ordered, taking his legal papers with him. When Mr.
Thompson arrived, he saw Officer Price instead of Captain Sikes there. Officer
Price told Mr. Thompson to empty his pockets and remove his shoes. According
to Mr. Thompson, Officer Price then ripped Thompson’s shoes apart; took his legal
files; handcuffed him; and sent him to the medical unit for a pre-confinement
physical to determine whether he could withstand being pepper sprayed. Mr.
Thompson was then sent to “confinement,” a detention area within Liberty where
prisoners are denied certain privileges. Mr. Thompson was placed in a
confinement cell with another inmate. To date, Mr. Thompson’s confiscated legal
files are still missing.
Once in confinement, Mr. Thompson was given his “disciplinary report”
charge—that is, an explanation for why he was sent there. The disciplinary report
stated Mr. Thompson was sent to “administrative confinement” for writing an
3 Case: 18-11671 Date Filed: 03/12/2020 Page: 4 of 49
Inmate Request “in a very rude and disrespectful manner.” Mr. Thompson
testified at trial that he wrote the Inmate Request—although he recalled it as a
formal grievance—in response to being denied Ibuprofen.
Per Liberty’s disciplinary policy, Mr. Thompson was given the opportunity
to file a statement in response to the disciplinary report charge. Mr. Thompson
filed his response on March 15, 2014. In his response, he denied acting
disrespectfully and alleged Captain Sikes “threaten[ed] to lock [him] in
confinement” for as long as possible “because of [his] lawsuits [and]
administrative grievances.” Mr. Thompson also testified at trial the “real reason”
Captain Sikes placed him in confinement was as punishment “for writing so many
grievances about so many different issues.”
After Mr. Thompson’s response was filed, Captain Sikes came by his cell.
Captain Sikes told Mr. Thompson, “You got my attention now,” removed
Thompson from his shared cell, and placed him in an isolation cell on the other
side of the confinement block. The cell next to Mr. Thompson’s was empty.
The following morning on March 16, 2014, Mr. Thompson was quiet in his
cell. Officer Goff approached Mr. Thompson’s cell and asked if it was him
“making all of that noise, creating a disturbance.” Mr. Thompson responded with
“[c]ome on, man, it was quiet, it’s Sunday morning.” Officer Goff did not respond
and walked away. Captain Sikes then walked by Mr. Thompson’s cell. Mr.
4 Case: 18-11671 Date Filed: 03/12/2020 Page: 5 of 49
Thompson stopped Captain Sikes as he was passing by and told Captain Sikes
about his earlier exchange with Officer Goff. Captain Sikes informed Mr.
Thompson he would “make a note of it” and walked off.
Captain Sikes then returned to Mr. Thompson’s cell along with Officer
Robert Hoffman, who was recording the interaction with a handheld video camera.
The video recording showed the hallway was quiet and Mr. Thompson was not
creating any disturbances when Captain Sikes and Officer Hoffman approached his
cell. Captain Sikes informed Mr. Thompson that he needed to “cease and desist”
being disruptive and, if he did not, he would be pepper sprayed. Mr. Thompson
responded to Captain Sikes by asserting his “constitutional rights.” Mr. Thompson
and Captain Sikes spoke over each other during this conversation. Captain Sikes
turned to the camera and asserted that Mr. Thompson was “still excited” and that
he had been “counseled with.” Mr. Thompson responded calmly that he was “not
excited.” Captain Sikes then instructed Officer Hoffman to turn off the camera,
and Officer Hoffman did so.
Captain Sikes and Officer Hoffman left Mr. Thompson’s cell, and a few
minutes later Captain Sikes returned with Officer Goff. At the direction of Captain
Sikes, Officer Goff pepper sprayed Mr. Thompson while he was still inside his
cell. At trial, Mr. Thompson testified that as he was sprayed, he turned his head
and watched behind him as the wall turned yellow, “except for a white spot where
5 Case: 18-11671 Date Filed: 03/12/2020 Page: 6 of 49
[his] head was.” Mr. Thompson also testified that Officer Goff pepper sprayed
him once and described the effects of being pepper sprayed as: “It burns. I
couldn’t breathe. I had my eyes closed. Other inmates had told me not to
hyperventilate, so I tried to stay calm.” After Captain Sikes and Officer Goff
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Case: 18-11671 Date Filed: 03/12/2020 Page: 1 of 49
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11671 ________________________
D.C. Docket No. 4:14-cv-00465-RH-GRJ
MATTHEW JOHN THOMPSON,
Plaintiff-Appellant,
versus
B. SMITH, Lt, J. SIKES, Capt, D. ATKINS, Co, D. PRICE, Co,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(March 12, 2020) Case: 18-11671 Date Filed: 03/12/2020 Page: 2 of 49
Before MARTIN, ROSENBAUM, and BOGGS,∗ Circuit Judges.
MARTIN, Circuit Judge:
After a trial, a jury returned a verdict in Matthew Thompson’s favor. The
jury found that while Mr. Thompson was incarcerated, prison guards violated his
First and Eighth Amendment rights by retaliating against him for filing grievances
and “spray[ing] him with chemical agents” without a legitimate reason for doing
so. But Mr. Thompson’s victory was tempered with disappointment. Before trial,
the District Court decided that because pepper spraying 1 does not cause a “physical
injury” within the meaning of the Prison Litigation Reform Act of 1995 (“PLRA”),
42 U.S.C. § 1997e(e), Mr. Thompson could recover only nominal damages for his
injuries. The District Court therefore granted Captain James Sikes, Officer Daniel
Price, and Officer William Goff summary judgment on Mr. Thompson’s claims for
compensatory and punitive damages. This left the jury with no choice but to award
Mr. Thompson just $10 in nominal damages after returning a verdict for him.
Mr. Thompson now appeals the District Court’s grant of summary judgment
on his claims for compensatory and punitive damages. He also appeals the District
Court’s attorney’s fee award, its denial of reasonable litigation expenses, and its
∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 1 Mr. Thompson was sprayed with oleoresin capsicum chemical agents. Oleoresin capsicum is colloquially known as “pepper spray,” see Dalrymple v. United States, 460 F.3d 1318, 1328 (11th Cir. 2006), and we use that term in this opinion. 2 Case: 18-11671 Date Filed: 03/12/2020 Page: 3 of 49
denial of his motion for an injunction. After careful consideration, and with the
benefit of oral argument, we affirm in part, reverse in part, and remand for a retrial
consistent with our opinion.
I. FACTS
On the morning of March 10, 2014, Mr. Thompson was doing legal research
in Liberty Correctional Institution’s (“Liberty”) law library when he was instructed
to go see Captain Sikes at the “center gate.” Mr. Thompson left the law library and
reported to the center gate as ordered, taking his legal papers with him. When Mr.
Thompson arrived, he saw Officer Price instead of Captain Sikes there. Officer
Price told Mr. Thompson to empty his pockets and remove his shoes. According
to Mr. Thompson, Officer Price then ripped Thompson’s shoes apart; took his legal
files; handcuffed him; and sent him to the medical unit for a pre-confinement
physical to determine whether he could withstand being pepper sprayed. Mr.
Thompson was then sent to “confinement,” a detention area within Liberty where
prisoners are denied certain privileges. Mr. Thompson was placed in a
confinement cell with another inmate. To date, Mr. Thompson’s confiscated legal
files are still missing.
Once in confinement, Mr. Thompson was given his “disciplinary report”
charge—that is, an explanation for why he was sent there. The disciplinary report
stated Mr. Thompson was sent to “administrative confinement” for writing an
3 Case: 18-11671 Date Filed: 03/12/2020 Page: 4 of 49
Inmate Request “in a very rude and disrespectful manner.” Mr. Thompson
testified at trial that he wrote the Inmate Request—although he recalled it as a
formal grievance—in response to being denied Ibuprofen.
Per Liberty’s disciplinary policy, Mr. Thompson was given the opportunity
to file a statement in response to the disciplinary report charge. Mr. Thompson
filed his response on March 15, 2014. In his response, he denied acting
disrespectfully and alleged Captain Sikes “threaten[ed] to lock [him] in
confinement” for as long as possible “because of [his] lawsuits [and]
administrative grievances.” Mr. Thompson also testified at trial the “real reason”
Captain Sikes placed him in confinement was as punishment “for writing so many
grievances about so many different issues.”
After Mr. Thompson’s response was filed, Captain Sikes came by his cell.
Captain Sikes told Mr. Thompson, “You got my attention now,” removed
Thompson from his shared cell, and placed him in an isolation cell on the other
side of the confinement block. The cell next to Mr. Thompson’s was empty.
The following morning on March 16, 2014, Mr. Thompson was quiet in his
cell. Officer Goff approached Mr. Thompson’s cell and asked if it was him
“making all of that noise, creating a disturbance.” Mr. Thompson responded with
“[c]ome on, man, it was quiet, it’s Sunday morning.” Officer Goff did not respond
and walked away. Captain Sikes then walked by Mr. Thompson’s cell. Mr.
4 Case: 18-11671 Date Filed: 03/12/2020 Page: 5 of 49
Thompson stopped Captain Sikes as he was passing by and told Captain Sikes
about his earlier exchange with Officer Goff. Captain Sikes informed Mr.
Thompson he would “make a note of it” and walked off.
Captain Sikes then returned to Mr. Thompson’s cell along with Officer
Robert Hoffman, who was recording the interaction with a handheld video camera.
The video recording showed the hallway was quiet and Mr. Thompson was not
creating any disturbances when Captain Sikes and Officer Hoffman approached his
cell. Captain Sikes informed Mr. Thompson that he needed to “cease and desist”
being disruptive and, if he did not, he would be pepper sprayed. Mr. Thompson
responded to Captain Sikes by asserting his “constitutional rights.” Mr. Thompson
and Captain Sikes spoke over each other during this conversation. Captain Sikes
turned to the camera and asserted that Mr. Thompson was “still excited” and that
he had been “counseled with.” Mr. Thompson responded calmly that he was “not
excited.” Captain Sikes then instructed Officer Hoffman to turn off the camera,
and Officer Hoffman did so.
Captain Sikes and Officer Hoffman left Mr. Thompson’s cell, and a few
minutes later Captain Sikes returned with Officer Goff. At the direction of Captain
Sikes, Officer Goff pepper sprayed Mr. Thompson while he was still inside his
cell. At trial, Mr. Thompson testified that as he was sprayed, he turned his head
and watched behind him as the wall turned yellow, “except for a white spot where
5 Case: 18-11671 Date Filed: 03/12/2020 Page: 6 of 49
[his] head was.” Mr. Thompson also testified that Officer Goff pepper sprayed
him once and described the effects of being pepper sprayed as: “It burns. I
couldn’t breathe. I had my eyes closed. Other inmates had told me not to
hyperventilate, so I tried to stay calm.” After Captain Sikes and Officer Goff
administered the pepper spray, they left. Approximately twenty minutes later,
Captain Sikes and Officer Goff returned to Mr. Thompson’s cell. Upon his return,
Captain Sikes asked Mr. Thompson if they had “an understanding,” and Thompson
replied they did and “[he] kn[ew] where [he was] at.”
Captain Sikes and Officer Goff took Mr. Thompson from his cell to shower.
According to Mr. Thompson, Captain Sikes forced him to take an extended shower
so that the pepper spray would “r[un] into [his] armpits and . . . groin” to increase
the burning sensation. After Mr. Thompson showered, Captain Sikes brought him
to the medical ward for a checkup and then returned him to the same cell in which
he was pepper sprayed. Mr. Thompson testified that the prison guards failed to
clean the pepper spray residue from the cell, thus exposing him to the chemical
agents again upon returning from the shower and medical ward. An inmate who
joined Mr. Thompson in the cell the next day complained about the chemical
agents and used his shirt to try to clean the residue off the wall.
The officers’ recollection of these incidents was different than Mr.
Thompson’s version. At trial, Captain Sikes testified that before the pepper-spray
6 Case: 18-11671 Date Filed: 03/12/2020 Page: 7 of 49
incident, he previously counseled Mr. Thompson about using cordial language in
grievances and not “attack[ing] the person that he’s writing a grievance about.”
On March 10, 2014, however, Mr. Thompson filed another grievance in a
“disrespectful” tone. As a result, Captain Sikes gave Mr. Thompson a disciplinary
report charge and sent him to confinement.
Captain Sikes testified that he checked on Mr. Thompson every day between
March 10 and March 15. During that time, Captain Sikes did not recall responding
to Mr. Thompson’s allegations with “You got my attention now.” And Officer
Goff could not recall how or why Mr. Thompson was moved from a shared cell to
isolation on March 15. He remembered only that Mr. Thompson was, in fact,
moved on that date.
Liberty’s disciplinary records indicate that in the early morning of March 16,
2014, Mr. Thompson was making a disturbance in his cell, “curs[ing] [at] staff and
yell[ing] down the” confinement block. The records recount that Officer Goff
spoke with Mr. Thompson to calm him down but was unsuccessful. Officer Goff
therefore notified Sergeant Jeremy Strength, the other confinement officer on duty
that morning, of Mr. Thompson’s behavior. Sergeant Strength then attempted to
counsel Mr. Thompson. However, Mr. Thompson did not cease acting
disruptively, “continu[ing] to yell down the [confinement] wing and curse staff.”
7 Case: 18-11671 Date Filed: 03/12/2020 Page: 8 of 49
Because of Mr. Thompson’s behavior, Sergeant Strength called Captain
Sikes. With Sergeant Strength in tow, Captain Sikes went to counsel Mr.
Thompson. Captain Sikes testified at trial that Mr. Thompson was not screaming
or yelling when he approached Thompson’s cell. After the two exchanged words,
Captain Sikes walked away, then Mr. Thompson began “screaming out of the cell
at [him].” Captain Sikes returned to speak with Mr. Thompson but left after a few
moments to attend to his “other duties on the compound.” Some time later,
Sergeant Strength called Captain Sikes to report that Mr. Thompson “continued his
disorderly behavior.”
Captain Sikes then checked Mr. Thompson’s medical records from his pre-
confinement physical to determine whether it was safe to pepper spray him.
Captain Sikes confirmed that it was. After receiving authorization from the duty
warden to pepper spray Mr. Thompson, Captain Sikes called Officer Hoffman to
record the interaction. As shown on the video recording, Captain Sikes and Officer
Hoffman returned to Mr. Thompson’s cell. Captain Sikes gave Mr. Thompson a
final “cease and desist” order and, after Thompson and Captain Sikes’s heated
discussion ensued, Captain Sikes instructed Officer Hoffman to turn off the
camera. Captain Sikes and Officer Hoffman then left Mr. Thompson’s cell area.
Captain Sikes testified at trial that he returned with Officer Goff, instead of Officer
8 Case: 18-11671 Date Filed: 03/12/2020 Page: 9 of 49
Hoffman, because Officer Goff was trained in administering chemical agents.
Officer Goff did not record the actual spraying of Mr. Thompson.
Per Captain Sikes’s command, Officer Goff pepper sprayed Mr. Thompson.
According to Captain Sikes, “it had little effect” and Mr. Thompson continued to
“yell[] and scream[].” As a result, Captain Sikes directed Officer Goff to pepper
spray Mr. Thompson another time and, after the second spraying, Thompson
“became compliant.” Captain Sikes took Mr. Thompson to the shower, then to the
medical unit for a checkup, and finally back to his cell. During that time, Officer
Goff cleaned the chemical agents from Mr. Thompson’s cell. And at trial, Officer
Goff testified that the residue left on the wall in Mr. Thompson’s cell was merely a
dye stain.
In August 2014, Mr. Thompson filed a pro se 42 U.S.C. § 1983 lawsuit
against Captain Sikes and Officer Price, alleging that they retaliated against him
for filing grievances against prison personnel. Mr. Thompson also claimed the two
violated his First Amendment rights by confiscating his legal papers. 2 Later, in
May 2015, Mr. Thompson filed a second pro se § 1983 lawsuit. This time, he
listed Captain Sikes and Officer Goff as defendants. In his second lawsuit, Mr.
2 Mr. Thompson sued several other prison guards, but his claims against them are not at issue in this appeal. As a result, we discuss only Mr. Thompson’s claims against Captain Sikes, Officer Price, and Officer Goff.
9 Case: 18-11671 Date Filed: 03/12/2020 Page: 10 of 49
Thompson alleged Captain Sikes and Officer Goff violated his Eighth Amendment
rights by unlawfully retaliating against him and pepper spraying him. In March
2016, Mr. Thompson amended his first lawsuit to include a claim that Captain
Sikes and Officer Goff violated his Eighth Amendment rights by pepper spraying
him. As a result, both complaints contained roughly the same allegations—that
Captain Sikes, Officer Price, and Officer Goff violated Mr. Thompson’s rights
under the First and Eighth Amendments by retaliating against him for filing
grievances and pepper spraying him without justification. The cases initially
proceeded separately before two different District Court judges.
On June 19, 2017, Captain Sikes and Officer Price moved for summary
judgment in Mr. Thompson’s first lawsuit. They argued Mr. Thompson could not
recover compensatory and punitive damages under the PLRA because Mr.
Thompson had not “suffered a greater than de minimis [physical injury]” by being
pepper sprayed. Before ruling on Captain Sikes and Officer Price’s motion for
summary judgment, the District Court consolidated Mr. Thompson’s two lawsuits.
At this point, however, Captain Sikes and Officer Goff had also filed a
motion for summary judgment in the second case making a similar de minimis
injury argument. A magistrate judge in the second case issued a report and
recommendation (“R&R”) agreeing with the officers and recommended that the
District Court find that Mr. Thompson could not recover compensatory or punitive
10 Case: 18-11671 Date Filed: 03/12/2020 Page: 11 of 49
damages because he had not suffered a “physical injury” within the meaning of the
PLRA. Mr. Thompson, still proceeding pro se, did not file an objection, and the
District Court entered an order adopting the R&R and limiting Mr. Thompson’s
claims to nominal damages in the second case.
Returning to the officers’ motion for summary judgment in the first case, we
note the District Court directed the Clerk to invite members of the Northern
District of Florida bar to represent Mr. Thompson pro bono. Two attorneys 3
volunteered and, on behalf of Mr. Thompson, filed a response to Captain Sikes and
Officer Price’s motion for summary judgment. In that response, Mr. Thompson
argued that the facts supported a claim for compensatory and punitive damages
because he suffered more than a de minimis physical injury as a result of the
officers’ use of pepper spray on him. Mr. Thompson also argued that the District
Court was not bound by the earlier summary judgment ruling in the second case,
which was made prior to the consolidation of the cases by a different judge and
while Mr. Thompson was without counsel.
After hearing argument on Captain Sikes and Officer Price’s motion, the
District Court granted Captain Sikes, Officer Price, and Officer Goff summary
judgment in a pretrial order, stating that “[s]ummary judgment is granted on all
3 Chad Dunn volunteered to represent Mr. Thompson, and his law partner, K. Scott Brazil, joined him at trial.
11 Case: 18-11671 Date Filed: 03/12/2020 Page: 12 of 49
claims for compensatory or punitive damages; the case will go forward on the
nominal-damages claims against [] Sikes, [] Price . . . , and Goff.” Mr. Thompson
then proceeded to trial on his First and Eighth Amendment claims for nominal
damages.
The jury returned a verdict in favor of Mr. Thompson on both claims. The
jury found, among other things, that: (1) Mr. Thompson’s legal papers were taken
in retaliation “for his filing of grievances” and that Officer Price either participated
in the taking of the papers or was in a position to stop the taking of the papers and
failed to do so; (2) Thompson “[w]as . . . unlawfully sprayed with chemical
agents”; and (3) both Captain Sikes and Officer Goff were “responsible for the
unlawful spraying.” The jury awarded Mr. Thompson $10, the maximum amount
of nominal damages permitted under the District Court’s jury instructions.
Mr. Thompson then moved the District Court for injunctive relief to require
Captain Sikes, Officer Price, and Officer Goff to: (1) refrain from taking action
against him in retaliation for the jury’s verdict; (2) refrain from confiscating his
legal files; (3) make a reasonable effort to locate his previously confiscated legal
files; and (4) refrain from spraying or using force against him without justification.
Mr. Thompson also moved for a new trial, arguing, among other things, that the
District Court erred in failing to submit his claims for compensatory and punitive
damages to the jury.
12 Case: 18-11671 Date Filed: 03/12/2020 Page: 13 of 49
The District Court denied Mr. Thompson’s request for injunctive relief. The
District Court did so because Mr. Thompson never previously demanded injunctive
relief and Captain Sikes, Officer Price, and Officer Goff “would have had a
colorable defense” against Thompson’s injunction if he requested it earlier. 4 The
District Court also denied Mr. Thompson’s motion for a new trial, stating that
“[a]n unbroken line of decisions of district courts in [the Eleventh Circuit] holds
that [pepper] spraying that causes temporary pain but has no lasting effects does
not constitute ‘physical injury’ within the meaning” of the PLRA. The District
Court concluded that because Mr. Thompson could not show more than a de
minimis injury from being pepper sprayed he could not recover compensatory or
punitive damages.
Mr. Thompson also asked the District Court to determine the award of
attorney’s fees and expenses, arguing that because he prevailed at trial, he was
entitled to reasonable attorney’s fees under 42 U.S.C. § 1988. The District Court
agreed that Mr. Thompson prevailed at trial and was entitled to fees but concluded
that the PLRA (a) requires a district court to award the first 25% of a prisoner’s
judgment toward the payment of attorney’s fees; and (b) caps a total attorney’s fee
award at 150% of the judgment. The District Court therefore awarded $15 in
4 The District Court noted that prior to trial, Mr. Thompson was moved out of Liberty and no longer had any dealings with the defendants. 13 Case: 18-11671 Date Filed: 03/12/2020 Page: 14 of 49
attorney’s fees, $12.50 of which was to be paid for by Captain Sikes, Officer Price,
and Officer Goff, and the remaining $2.50 from Mr. Thompson’s $10 nominal
damages judgment. This is Mr. Thompson’s appeal.
II. STANDARDS OF REVIEW
This Court reviews de novo a District Court’s grant of summary judgment,
considering all evidence in the light most favorable to the non-moving party.
Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (per curiam). We affirm
the grant of summary judgment when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548,
2552 (1986).
The interpretation of a federal statute is a question of law that we also
review de novo. Truesdell v. Thomas, 889 F.3d 719, 723 (11th Cir. 2018). We
review the District Court’s determination to award expenses for an abuse of
discretion. Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir. 1983).
Although we review the grant or denial of an injunction for an abuse of discretion,
we review de novo the underlying legal issues related to an injunction. Common
Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir. 2009).
14 Case: 18-11671 Date Filed: 03/12/2020 Page: 15 of 49
III. DISCUSSION
Mr. Thompson’s appeal concerns the District Court’s construction of 42
U.S.C. §§ 1997e(e) and 1997e(d)(2)—two subsections of the PLRA. As relevant
here, subsection 1997e(e) bars prisoners from recovering damages for mental or
emotional injuries sustained while incarcerated except for instances where the
prisoner suffers a “physical injury.” 42 U.S.C. § 1997e(e). Subsection
1997e(d)(2) limits the award of attorney’s fees to be paid by the defendant in the
event that the prisoner-plaintiff prevails in his lawsuit. Id. § 1997e(d)(2).
First, Mr. Thompson argues that the harm he suffered as a result of being
pepper sprayed constitutes a physical injury within the meaning of § 1997e(e).
Because the text of § 1997e(e) contains no requirement for a lasting physical
injury, Mr. Thompson says temporary injuries, like the effects of being pepper
sprayed, suffice. Second, Mr. Thompson contends § 1997e(d)(2)’s cap on
attorney’s fees does not apply if the District Court’s calculation of a “reasonable”
attorney’s fee award exceeds 150% of the judgment. Last, Mr. Thompson argues
§ 1997e(d)(2)’s cap does not apply to the award of expenses. We address each
argument in turn.5
5 The officers argue Mr. Thompson waived his appeal of the District Court’s grant of summary judgment on the issue of compensatory and punitive damages. We reject this argument. Before the two cases were consolidated and counsel appointed, Mr. Thompson failed to object in the second case to a magistrate judge’s recommendation that he did not suffer a “physical injury” within the meaning of § 1997e(e). But once the District Court consolidated the two cases, Mr. Thompson’s counsel filed a memorandum in opposition to Captain Sikes and 15 Case: 18-11671 Date Filed: 03/12/2020 Page: 16 of 49
We begin with Mr. Thompson’s arguments about § 1997e(e). Titled
“Limitation on recovery,” § 1997e(e) provides, in relevant part, that “[n]o Federal
civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Subsection
1997e(e) does not limit a prisoner’s ability to bring constitutional claims in the
absence of a physical injury; it instead limits the damages that may be awarded in
those circumstances. Under the statute, for Mr. Thompson to be entitled to
compensatory or punitive damages, he must show that he suffered a “physical
injury.” Subsection 1997e(e) does not define what constitutes a “physical injury,”
see id., but this Court has determined the required “physical injury” must be more
than “de minimis,” although it “need not be significant.” Harris v. Garner (“Harris
I”), 190 F.3d 1279, 1286 (11th Cir.), reh’g en banc granted, vacated, 197 F.3d
1059 (11th Cir. 1999), and reinstated in relevant part on reh’g , 216 F.3d 970 (11th
Cir. 2000) (en banc) (“Harris II”); see also Mitchell v. Brown & Williamson
Tobacco Corp., 294 F.3d 1309, 1312–13 (11th Cir. 2002).
Officer Goff’s motion for summary judgment. In that motion, Mr. Thompson addressed arguments as to all three defendants—Captain Sikes, Officer Price, and Officer Goff. And, when the District Court ruled on that motion, it specifically stated “the case will go forward on the nominal-damages claims against [] Sikes, [] Price . . . , and Goff.” Because the District Court therefore issued a new summary judgment decision as to all three defendants once the cases were consolidated, Mr. Thompson did not waive his challenge of the District Court’s compensatory and punitive damages ruling on appeal. 16 Case: 18-11671 Date Filed: 03/12/2020 Page: 17 of 49
This Court crafted the de minimis standard by “fusing [together] the physical
injury analysis under section 1997e(e) with the framework set out by the Supreme
Court in [Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995 (1992)] for analyzing
claims brought under the Eighth Amendment for cruel and unusual punishment.”
Harris I, 190 F.3d at 1286. Given the PLRA’s “essential purpose” to curtail
“frivolous and abusive prisoner litigation” about the “routine discomfort[s]” of
confinement, we looked to Hudson for guidance on what sorts of injuries fall
within those bounds. Id. (quotation marks omitted). Hudson, for its part, held that
“routine discomforts” and other de minimis uses of physical force do not trigger
the “Eighth Amendment’s prohibition on cruel and unusual punishments.” 6 503
U.S. at 9–10, 112 S. Ct. at 1000 (quotation marks omitted). In light of this overlap
between the PLRA’s purpose and the Supreme Court’s analysis in Hudson, this
Court adopted the de minimis standard and concluded that our “well established
Eighth Amendment standards . . . guide us in our section 1997e(e) analysis.”
Harris I, 190 F.3d at 1287.
The parties do not dispute that the de minimis standard applies. Instead,
they disagree about whether pepper spraying can cause a “greater than de minimis”
6 Nevertheless, the Supreme Court recognized that even a de minimis use of physical force could be sufficient for Eighth Amendment purposes if the use of force is the type that is “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9–10, 112 S. Ct. at 1000 (quotation marks omitted).
17 Case: 18-11671 Date Filed: 03/12/2020 Page: 18 of 49
physical injury. Like the District Court, the officers say § 1997e(e)’s physical
injury requirement bars prisoners from recovering compensatory or punitive
damages for injuries suffered from pepper spraying under this Court’s “greater
than de minimis” standard. 7 Mr. Thompson argues it does not and that his pepper
spraying injury, in particular, led to greater than de minimis physical injury.
First, we conclude § 1997e(e) does not categorically bar prisoners from
recovering compensatory or punitive damages for temporary (but greater than de
minimis) injuries resulting from the unlawful use of pepper spray against them.
We then address whether, in the context of a summary judgment motion, Mr.
Thompson’s alleged injury—being pepper sprayed and made to sit with the
chemical agents on him for nearly twenty minutes, forced to take an extended
shower to allow the chemicals to run into sensitive crevices of his body, and
returned to a cell contaminated with pepper spray for the rest of that day and part
of the following day—amounts to a greater than de minimis physical injury. We
conclude that a reasonable jury could find that it does. We therefore reverse the
District Court’s grant of summary judgment in favor of Captain Sikes, Officer
7 At oral argument, the officers conceded that § 1997e(e) does not bar recovery of compensatory or punitive damages for all instances of pepper spraying. Oral Arg. at 17:48–58 (“It is not the appellee’s position today that a spraying with chemical agents under any circumstances is necessarily de minimis.”). And they also conceded that they were no longer relying on the permanent/non-permanent distinction they cited in their brief to the Court. Id. at 18:32–37. But because the District Court relied on this distinction and the officers argued it in their response brief, we address it on appeal. 18 Case: 18-11671 Date Filed: 03/12/2020 Page: 19 of 49
Price, and Officer Goff and remand this case to the District Court for further
proceedings.
1. Subsection 1997e(e) does not categorically bar prisoners from recovering compensatory or punitive damages for a temporary injury resulting from unlawful pepper spraying
We begin with Mr. Thompson’s argument that § 1997e(e) does not
automatically bar compensatory or punitive damages for injuries, like pepper
spraying, which normally leave “no lasting effect[].” This Court has yet to
articulate boundaries for the de minimis standard we established in Harris I. See,
e.g., Brooks v. Warden, 800 F.3d 1295, 1307–08 (11th Cir. 2015) (“In this case,
[the plaintiff] did not allege any physical injury arising from his hospital stay.”);
Al-Amin v. Smith, 637 F.3d 1192, 1196 (11th Cir. 2011) (“[The plaintiff’s]
complaint does not allege a physical injury”); Boxer X v. Harris, 437 F.3d 1107,
1110 n.2 (11th Cir. 2006) (declining to address the physical injury requirement
because the defendant did not raise the issue below). We therefore follow Harris
I’s lead and look to our Eighth Amendment jurisprudence to guide our analysis.
See 190 F.3d at 1286–87 (relying on Shabazz v. Barnauskas, 790 F.2d 1536, 1538
(11th Cir. 1986) (per curiam), an Eighth Amendment case, to conclude that a
forced dry shave, “without more, is simply not the kind of ‘injury’ that is
cognizable under [sub]section 1997e(e)”).
19 Case: 18-11671 Date Filed: 03/12/2020 Page: 20 of 49
Eighth Amendment precedent from this circuit allows a plaintiff to recover
for the unlawful use of pepper spray. In Thomas v. Bryant, 614 F.3d 1288 (11th
Cir. 2010), this Court considered whether a prison’s non-spontaneous use-of-force
policy relating to the use of chemical agents violated the Eighth Amendment. Id.
at 1293–94, 1296–97. As a “disciplinary tool,” the policy allowed for “corrections
officers [to] administer chemical agents . . . into the cell of a recalcitrant inmate in
order to force the inmate to comply with the officer’s orders and to quell [an]
underlying disturbance.” Id. at 1296–97. The plaintiff, who was mentally ill, had
been subjected to the policy and sprayed with chemical agents thirty-six times
between 2001 and 2007. Id. at 1299.
This Court affirmed the District Court’s declaratory judgment against the
defendants. Id. at 1317. In deciding to affirm, the panel explained that although
“it is well-established that the use of chemical agents on recalcitrant prisoners is
not per se unconstitutional, . . . there are constitutional boundaries to its use.” Id.
at 1310 (citations omitted). We said “where chemical agents are used
unnecessarily, without penological justification, or for the very purpose of
punishment or harm, that use” may be the basis of an Eighth Amendment claim.8
8 In Thomas, we held that the prison’s non-spontaneous use-of-force policy was “unnecessary” and “without penological justification” in the plaintiff’s particular case, in part because his mental illness rendered him “unable to understand and comply with the [correctional] officers’ orders.” Thomas, 614 F.3d at 1310–12. 20 Case: 18-11671 Date Filed: 03/12/2020 Page: 21 of 49
Id. at 1311; see also Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008)
(holding that unnecessary and continued exposure to pepper spray after the initial
spraying due to lack of decontamination may form the basis of an Eighth
Amendment claim), overruled on other grounds as recognized by Randall v. Scott,
610 F.3d 701, 709 (11th Cir. 2010). Under our case law, then, a plaintiff may
assert an Eighth Amendment violation on the basis that he was unlawfully pepper
sprayed.
This Court has also allowed a plaintiff to assert an Eighth Amendment claim
even when he suffered only temporary, non-substantial injuries from being pepper
sprayed and subsequently confined to a poorly ventilated cell for twenty minutes
before being allowed to shower. See Danley, 540 F.3d at 1308–09 (finding an
Eighth Amendment violation from a pepper spraying incident although “[a]ny
injuries or discomfort Danley suffered . . . were neither substantial nor long
lasting” (emphasis added)); see also Williams v. Benjamin, 77 F.3d 756, 764, 768
(4th Cir. 1996) (reversing the grant of summary judgment on an Eighth
Amendment claim although the plaintiff “did not suffer any documented medical
injury” as a result of being sprayed with chemical agents and confined in four-
point restraints for eight hours because it was possible the “amount of mace used
could . . . have caused immense pain”). And the Supreme Court has signaled that a
significant and permanent injury is not required to support an excessive force claim
21 Case: 18-11671 Date Filed: 03/12/2020 Page: 22 of 49
under the Eighth Amendment. See Wilkins v. Gaddy, 559 U.S. 34, 38, 130 S. Ct.
1175, 1178–79 (2010) (per curiam) (“An inmate who is gratuitously beaten by
guards does not lose his ability to pursue an excessive force claim merely because
he has the good fortune to escape without serious injury.”); see also Hudson, 503
U.S. at 9, 112 S. Ct. at 1000 (explaining that there can be an Eighth Amendment
violation “whether or not significant injury is evident” because “[o]therwise, the
Eighth Amendment would permit any physical punishment, no matter how diabolic
or inhuman, inflicting less than some arbitrary quantity of injury.”).
We therefore conclude that just as an unlawful spraying of chemical agents
can lead to an Eighth Amendment violation, it may also give rise to a “greater than
de minimis” physical injury. See Harris I, 190 F.3d at 1286–87; Thomas, 614 F.3d
at 1312. We recognize that in most circumstances, pepper spraying is “designed to
disable a [prisoner] without causing permanent physical injury,” Vinyard v.
Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (quotation marks omitted), but that
fact does not exclude it from Eighth Amendment scrutiny, see Danley, 540 F.3d at
1308–09. Neither should it automatically preclude pepper spraying from counting
as a physical injury under § 1997e(e). For this reason, this Court’s “greater than de
minimis” requirement does not categorically bar compensatory or punitive
damages for temporary injuries arising from an unlawful pepper spraying. A
22 Case: 18-11671 Date Filed: 03/12/2020 Page: 23 of 49
prisoner-plaintiff may very well prevail under the de minimis threshold without
asserting a permanent, long-lasting physical injury.
But this conclusion does not end our analysis. Certainly not every use of
pepper spray, as a matter of law, gives rise to a “greater than de minimis” physical
injury. Cf. Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (“The Supreme
Court has never held, nor have we or any other court of appeals, so far as we can
determine, that the use of tear gas or a chemical agent is a per se violation of the
Eighth Amendment.”); Hudson, 503 U.S. at 8, 112 S. Ct. at 1000 (“What is
necessary to show sufficient harm for purposes of the Cruel and Unusual
Punishments Clause depends upon the claim at issue.”). But it is also true that
§ 1997e(e) does not, as a matter of law, preclude compensatory or punitive
damages for all pepper-spraying incidents. And in the same way § 1997e(e) does
not categorically bar compensatory or punitive damages for pepper spraying, nor
does it categorically require damages for the same. We must therefore decide
whether Mr. Thompson’s pepper-spraying injury, as alleged, exceeds the de
minimis threshold for purposes of defeating the summary judgment motion filed by
the officers.
2. A reasonable jury could find that Mr. Thompson’s injury exceeds the de minimis threshold
Our survey of this Court’s precedent, as well as our sister circuits’, reveals
no consensus for how to determine when a physical injury is “greater than de 23 Case: 18-11671 Date Filed: 03/12/2020 Page: 24 of 49
minimis.” We recognize that the PLRA was designed to curtail frivolous prisoner
litigation. See Harris II, 216 F.3d at 977. Yet it was not intended to allow only
those prisoner-plaintiffs with severe physical injuries to recover compensatory or
punitive damages. See id. And our circuit’s Eighth Amendment case law allows a
prisoner to recover for greater than de minimis physical injury even if it falls short
of requiring professional medical attention. See Danley, 540 F.3d at 1308–09.
The decisions of our sister circuits identify a spectrum of injuries alleged by
prisoners, ranging from trivial to serious. The injuries on this spectrum that do not
meet the de minimis threshold include nausea and vomiting from the smell of raw
sewage covering the floor of an isolation cell, Alexander v. Tippah County, 351
F.3d 626, 631 (5th Cir. 2003) (per curiam), and a forced dry shave causing
“bleeding, inflammation, irritation, ingrowing of hairs, infection, purulence and
pain,” Harris I, 190 F.3d at 1287 (quotation marks omitted). These injuries, like
the “push or shove” described by the Supreme Court in Hudson, 503 U.S. at 9, 112
S. Ct. at 1000 (quotation marks omitted), attest to a routine discomfort associated
with confinement.
The other end of this spectrum is made up of injuries far more severe and, in
many cases, life-altering. See, e.g., McAdoo v. Martin, 899 F.3d 521, 525 (8th Cir.
2018) (holding that fractured shoulder, which required surgery and caused “some
amount of permanent disability” was greater than de minimis physical injury);
24 Case: 18-11671 Date Filed: 03/12/2020 Page: 25 of 49
Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008) (finding a punch resulting in
loosened teeth and two months of breathing difficulties was greater than de
minimis physical injury within the meaning of § 1997e(e)). These injuries cannot
be chalked up to routine discomforts of confinement. See Wilkins, 559 U.S. at 37,
130 S. Ct. at 1178 (noting that “contemporary standards of decency always are
violated” when officials act “maliciously and sadistically . . . to cause harm”
(quotation marks omitted)).
While we do not set forth a specific test to determine whether injuries from
pepper spraying are more than de minimis, the foregoing examples demonstrate
those types of injuries falling on either side of the de minimis injury threshold. We
also reiterate that “routine discomforts” associated with confinement do not cross
this threshold. Of course, spraying done sadistically, with no penological
justification, does not constitute a “routine discomfort” associated with
confinement.
Viewing the evidence in the light most favorable to Mr. Thompson, see
Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir. 2019), we now turn to Mr.
Thompson’s alleged injury. See e.g. Lawrence v. Bowersox, 297 F.3d 727, 731
(8th Cir. 2002) (in an incident involving pepper spray, a case-specific inquiry
should take place “consider[ing] the extent of the pain inflicted in order to
determine whether a constitutional deprivation has occurred”). Mr. Thompson
25 Case: 18-11671 Date Filed: 03/12/2020 Page: 26 of 49
says he was pepper sprayed and left with the chemical agents on his face for
approximately twenty minutes; experienced coughing, difficulty breathing, and a
prolonged burning sensation; was forced to take an extended shower to exacerbate
the effects of the pepper spray; and was returned to a cell that remained
contaminated with pepper-spray residue. Mr. Thompson says he continued to
suffer for at least an additional day until another inmate used his shirt to try to
clean the pepper-spray residue from the wall of the cell.
These allegations, combined with the well-known fact that “[p]epper spray is
designed to disable . . . by causing intense pain, a burning sensation that causes
mucus to come out of the nose, an involuntary closing of the eyes, a gagging
reflex, and temporary paralysis of the larynx,” Danley, 540 F.3d at 1309 (quotation
marks omitted), could reasonably be construed as more akin to the type of injuries
our sister circuits have characterized as greater than de minimis. And, as we have
recognized, being pepper sprayed sadistically and without penological justification
is not a routine discomfort of confinement. See Thomas, 614 F.3d at 1308–11;
Danley, 540 F.3d at 1308 (“[S]ubjecting a prisoner to special confinement that
causes him to suffer increased effects of environmental conditions—here, the
pepper spray lingering in the air and on him—can constitute excessive force.”).
Nor is it so frivolous as to frustrate the purpose of the PLRA. See Harris I, 190
F.3d at 1286.
26 Case: 18-11671 Date Filed: 03/12/2020 Page: 27 of 49
We therefore reverse the District Court’s grant of summary judgment to
Captain Sikes, Officer Price, and Officer Goff and vacate the jury’s award of
nominal damages. On remand, the District Court should conduct a new trial on the
issue of whether Mr. Thompson suffered greater than a de minimis physical injury
when he was pepper sprayed, as well as the issue of his damages.
IV. CONCLUSION
We reverse the District Court’s grant of summary judgment to Captain
Sikes, Officer Price, and Officer Goff, and remand for a new trial on whether Mr.
Thompson suffered a greater than de minimis physical injury, as well as his
damages. 9 By remanding for a new trial on these two issues, we do not disturb the
jury verdict finding defendants liable for retaliation and unlawful pepper spraying.
9 As we have noted, Mr. Thompson also appeals the District Court’s denial of his motion for injunctive relief. We need not reach that issue because we reverse the District Court’s grant of summary judgment. If Mr. Thompson still seeks injunctive relief, he should request that relief upon remand so that Captain Sikes, Officer Price, and Officer Goff will have the opportunity to defend against it. See Fed. R. Civ. P. 54(c); Int’l Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 891 (5th Cir. 1977). 27 Case: 18-11671 Date Filed: 03/12/2020 Page: 28 of 49
PER CURIAM:
We now turn to Mr. Thompson’s arguments regarding the computation of
his attorney’s fee award. 1 Mr. Thompson argues the District Court erred in
calculating the attorney’s fee award under the PLRA and limiting his fees to $15—
150% of his nominal damages award of $10. He contends if a reasonable
attorney’s fee is greater than 150% of the judgment, then the limitation on
attorney’s fees imposed by Section 1997e(d)(2) of the PLRA does not apply. He
also says the PLRA’s cap on attorney’s fees does not apply to the award of
expenses. We address Mr. Thompson’s arguments in turn, holding that
§ 1997e(d)(2) caps the attorney’s fee award at 150% of the judgment, and the cap
includes expenses.
1. Subsection § 1997e(d)(2)’s Cap on Attorney’s Fees
“In the United States, the prevailing litigant is ordinarily not entitled to
collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616 (1975). However,
Congress can alter this presumption by statute and define both the circumstances
1 We address Mr. Thompson’s attorney’s fee award arguments because he may face the same issues if he prevails at his second trial. Our precedent permits this in the interest of judicial economy. See Williamson v. Tucker, 645 F.2d 404, 416–17 (5th Cir. 1981); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981).
28 Case: 18-11671 Date Filed: 03/12/2020 Page: 29 of 49
under which attorney’s fees can be shifted and the district court’s discretion to do
so. See id. at 254–57, 261–62, 95 S. Ct. at 1620–21, 1624. Congress did so when
it granted district courts discretion to award reasonable attorney’s fees to prevailing
civil-rights litigants under 42 U.S.C. § 1988(b). And Congress likewise allowed
for an award of attorney’s fees in certain situations where the plaintiff is a prisoner
bringing a civil-rights claim.
But Congress also imposed limitations on those attorney’s fees awards when
it enacted the PLRA. Specifically, subsection § 1997e(d)(2) limits the fees that a
district court can award to prisoners’ lawyers in civil cases under § 1988(b). See
Murphy v. Smith, ___ U.S. ___, 138 S. Ct. 784, 789 (2018) (noting the PLRA
“expressly qualifies the usual operation of § 1988(b) in prisoner cases” and that
Section 1997e(d) limits the “district court’s pre-existing discretion under §
1988(b)”); see also Shepherd v. Goord, 662 F.3d 603, 606 (2d Cir. 2011) (“With
the 1996 enactment of the PLRA, Congress imposed substantial restrictions on §
1988(b) attorney’s fee awards to prevailing prisoner-plaintiffs.” (quotation marks
omitted)). Relevant here, the PLRA limits the recovery of attorney’s fees in
§ 1983 cases as follows:
Whenever a monetary judgment is awarded in [favor of a prisoner who is entitled to recover fees under 42 U.S.C. § 1988], a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant. 29 Case: 18-11671 Date Filed: 03/12/2020 Page: 30 of 49
42 U.S.C. § 1997e(d)(2). The Supreme Court has interpreted this provision to
require a district court to award the first 25% of a prisoner’s judgment towards the
payment of his attorney’s fees. Murphy, 138 S. Ct. at 787–88. Mr. Thompson
does not contest this point. Instead, he argues the PLRA does not cap an attorney’s
fee award in the event the reasonable attorney’s fee is greater than 150% of the
judgment. We disagree and join all of our sister courts who have addressed this
issue.
We begin our analysis of § 1997e(d)(2) by looking at the language of the
statute itself. See United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004).
“If the statute’s meaning is plain and unambiguous, there is no need for further
inquiry.” United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002); see also
Harris II, 216 F.3d at 976 (“When the import of the words Congress has used is
clear, as it is here, we need not resort to legislative history, and we certainly should
not do so to undermine the plain meaning of the statutory language.”). Courts
presume that a legislature says in a statute what it means and means what it says.
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). But if a statute’s text
is ambiguous, we may look to legislative history “for additional guidance as to
Congress’s intent.” United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th
Cir. 2012).
30 Case: 18-11671 Date Filed: 03/12/2020 Page: 31 of 49
Subsection 1997e(d)(2) is not ambiguous when it comes to the attorney’s fee
cap. The last sentence of § 1997e(d)(2) affirmatively states that “[i]f the award of
attorney’s fees is not greater than 150 percent of the judgment, the excess shall be
paid by the defendant.” 42 U.S.C. § 1997e(d)(2). By its terms, the statute
unambiguously permits imposing liability for an award of attorney’s fees on
defendants only for a total fee amount that does not exceed 150% of the judgment,
with the first 25% of the fee amount to be furnished from the plaintiff’s judgment.
Mr. Thompson, though, contends that the statutory language means Captain
Sikes, Officer Price, and Officer Goff are liable for the full amount of a reasonable
attorney’s fee award up until 150% of the monetary judgment. But once a
reasonable fee exceeds 150% of the monetary judgment Mr. Thompson argues §
1997e(d)(2) no longer applies, and the District Court may award reasonable fees
under § 1988(b) without restriction.
Mr. Thompson’s argument misses the mark. Under Mr. Thompson’s
interpretation, the defendants are always liable for the entirety—except for an
amount equal to the first 25% of the judgment—of a prisoner-plaintiff’s
reasonable attorney’s fee award. He says that if the reasonable attorney’s fee is
less than 150% of the monetary judgment, the defendant is liable for the full
amount. And if the reasonable fee is greater than 150% of the monetary judgment,
the defendant is still liable for the full amount. So according to Mr. Thompson, the
31 Case: 18-11671 Date Filed: 03/12/2020 Page: 32 of 49
defendant is always liable for attorney’s fees, regardless of the amount. We reject
Mr. Thompson’s proposed construction of § 1997e(d)(2) because it would render
the second sentence of the provision meaningless. See In re Walter Energy, Inc.,
911 F.3d 1121, 1146 (11th Cir. 2018) (“[W]e generally construe a statute so that no
clause, sentence, or word is rendered superfluous, void, or insignificant.”
(quotation marks omitted)); United States v. Fuentes-Rivera, 323 F.3d 869, 872
(11th Cir. 2003) (per curiam) (“[I]t is necessary to give meaning to all [a statute’s]
words so that no words shall be discarded as being meaningless, redundant, or
mere surplusage.” (quotation marks omitted)).
Our dissenting colleague also asserts our interpretation of the statutory text
is incorrect. See Dissent at 46–47. She points to the word “if” in § 1997e(d)(2)’s
statement that “if the award of attorney’s fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant,” and contends that our reading
of the provision “renders the clause’s use of the word ‘if’ meaningless.” Id. at 47.
It does so, in her view, because “[u]nder [our] interpretation, there is no ‘event,’ or
second alternative, that may occur because the fee cap applies in all
circumstances.” Id. Put simply, Judge Martin contends that our interpretation
“voids” the word “if” in § 1997e(d)(2).
We respectfully disagree. In fact, we think the word “if” in § 1997e(d)(2)
mandates the statutory construction we adopt today. Section 1997e(d)(2) has two
32 Case: 18-11671 Date Filed: 03/12/2020 Page: 33 of 49
sentences. The first provides, “Whenever a monetary judgment is awarded in [a
qualifying action], a portion of the judgment (not to exceed 25 percent) shall be
applied to satisfy the amount of attorney’s fees awarded against the defendant.”
This sentence requires the district court in every case where a prisoner is awarded
fees to direct the first 25% of the prisoner’s judgment towards the payment of his
attorney’s fees. Murphy, 138 S. Ct. at 787–88. The second sentence of §
1997e(d)(2) provides, “If the award of attorney’s fees is not greater than 150
percent of the judgment, the excess shall be paid by the defendant.” To give
meaning to this second sentence of § 1997e(d)(2)—including the word “if”—we
must construe it to differentiate between two subsets of cases where a prisoner is
awarded fees: those where the prisoner’s total fees do not exceed 150 percent of
the judgment, and those where they do.
In the subset of cases where the prisoner’s total attorney’s fees amount to
150 percent of the judgment or less, the defendant must pay anything above the
first 25 percent of the amount of the judgment. But a different rule governs the
subset of cases where the prisoner’s total fees amount to more than 150 percent of
the judgment: there, the fees in excess of 150 percent of the judgment are not paid
by the defendant; they are paid by the prisoner. If this were not the case, the word
“if” in the second sentence would have no meaning because the defendant’s
payment of the fees would not be contingent on anything; rather, the defendant
33 Case: 18-11671 Date Filed: 03/12/2020 Page: 34 of 49
would always pay anything above the first 25 percent of the amount of the
judgment, in every case where the plaintiff was awarded fees.
We agree with other courts that § 1997e(d)(2)’s language is awkwardly
phrased and “inartful.” Robbins v. Chronister, 435 F.3d 1238, 1240 (10th Cir.
2006). But we believe its meaning is clear. The statute explains that the excess—
or remainder of attorney’s fees after the prisoner’s judgment satisfies an amount
equal to 25% of the judgment—shall be paid by the defendant. 42 U.S.C. §
1997e(d)(2). But the award of attorney’s fees cannot be “greater than 150 percent
of the judgment.” Id. We therefore join all of our sister circuits that have
addressed this issue in holding that under § 1997e(d)(2), a defendant’s liability for
attorney’s fees is capped at 150% of the judgment (less the amount contributed by
the prisoner from his judgment).2 See Boivin v. Black, 225 F.3d 36, 40 (1st Cir.
2000) (construing § 1997e(d)(2) to “impose[ ] a ceiling on the defendants' liability
for attorneys’ fees equal to 150% of the amount of [monetary] judgment”);
Shepherd, 662 F.3d at 608 (2d Cir. 2011) (Ҥ1997e(d)(2) caps the amount of
attorney’s fees that a prevailing prisoner-plaintiff may recover from a defendant at
150 percent of the monetary judgment awarded”); Parker v. Conway, 581 F.3d
198, 201 (3d Cir. 2009) (construing § 1997e(d)(2) to “limit[ ] a prevailing prisoner-
2 Our holding today conforms with our previous acknowledgment of a “fee cap” in § 1997e(d)(2). See Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 798 (11th Cir. 2003).
34 Case: 18-11671 Date Filed: 03/12/2020 Page: 35 of 49
plaintiff's attorney's fee award to 150 percent of the [monetary] judgment”); Volk
v. Gonzalez, 262 F.3d 528, 536 (5th Cir. 2001) (holding that fees-on-fees were
subject to § 1997e(d)(2)'s “limitation on the judgment debtors' responsibility for
fees to 150 percent of the judgment”); Walker v. Bain, 257 F.3d 660, 667 (6th Cir.
2001) (“We believe that § 1997e(d)(2) must be read to limit defendants' liability
for attorney fees to 150 percent of the money judgment”); Johnson v. Daley, 339
F.3d 582, 583 (7th Cir. 2003) (en banc) (rejecting equal-protection challenge to §
1997e(d) limitations on fee awards to prisoner-plaintiffs, including provision that
“fees attributable to [monetary] relief cannot exceed 150% of the damages”); Keup
v. Hopkins, 596 F.3d 899, 905 (8th Cir. 2010) (stating that circuit had “repeatedly
construed” § 1997e(d)(2) “to cap awards of attorney fees in prisoner rights cases to
150% of the monetary damages awarded”); Dannenberg v. Valadez, 338 F.3d
1070, 1074–75 (9th Cir. 2003) (construing § 1997e(d)(2) to impose 150% fee cap);
Robbins, 435 F.3d at 1244 (10th Cir. 2006) (en banc) (Section 1997e(d)(2)’s plain
meaning, “limit[s] recovery of attorney fees from the defendant to 150% of the
damage award”).3
3 We recognize that the language used by some of the courts is inexact. Defendants are not responsible to pay for the prisoner’s attorney’s fees in the amount of 150% of the judgment. Instead, a prisoner’s attorney’s fee award is capped at 150% of the judgment, with the prisoner paying an amount equal to the first 25% of the judgment and the defendant paying the remaining amount. 35 Case: 18-11671 Date Filed: 03/12/2020 Page: 36 of 49
Our holding today is also in line with Supreme Court guidance. In Murphy,
the Supreme Court expressly acknowledged that § 1997e(d) limits the district
court’s discretion to award fees under § 1988(b). Murphy, 138 S. Ct. at 789. And
in a dissent, Justice Sotomayor recently suggested an interpretation of §
1997e(d)(2) identical to that that we set forth today. In Murphy, when discussing
the bounds of Section 1997e(d)(2), Justice Sotomayor stated, “if the prisoner-
plaintiff was awarded damages, [the district court] may not award attorney's fees in
excess of 150 percent of the monetary judgment.” Murphy, 138 S. Ct. at 796
(Sotomayor, J., dissenting). See also id. at 797 (“A district court likewise still has
the discretion to determine what constitutes a reasonable amount of fees to award;
it simply must abide by the two 150-percent caps in doing so.”). 4 Nor does the fact
4 As we have explained, we conclude that § 1997e(d)(2)’s language is plain and unambiguous, so we do not resort to the legislative history. Nevertheless, we note that the section’s legislative history also favors our holding. As the Supreme Court noted in Murphy, Congress considered and rejected language prior to enacting the current attorney's fee apportionment provision. An earlier version of Section 1997e(d)(2) provided, Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is greater than 25 percent of the judgment, the excess shall be paid by the defendant. Murphy, 138 S. Ct. at 790, n.2 (quoting Prison Litigation Reform Act of 1995, S. 1279, 104th Cong., 1st Sess., § 3(d), p. 16 (1995) (emphasis in original)). The rejection of the earlier language further bolsters the conclusion that the current version of the statute provides a 150% cap on fees. If, as Mr. Thompson suggests, no such cap existed, there would have been no need for Congress to reject the original language, since that language clearly provided that a defendant would pay any fees that were greater than 25% of the judgment. By rejecting this language and adopting the current version of the statute, Congress placed a limit on the amount of fees for which a defendant would be responsible. 36 Case: 18-11671 Date Filed: 03/12/2020 Page: 37 of 49
that this case involves an award of only nominal damages alter the result. The
150% fee cap applies regardless of the amount of damages awarded. See, e.g.,
Boivin, 225 F.3d at 36; Shepherd, 662 F.3d at 607; Walker, 257 F.3d at 669;
Pearson v. Welborn, 471 F.3d 732, 742-44 (7th Cir. 2006); Keup, 596 F.3d at 905;
Robbins, 435 F.3d at 1239.
We now turn to the District Court’s calculation of Mr. Thompson’s
attorney’s fee award. The jury returned a verdict in Mr. Thompson’s favor and
awarded him $10 in nominal damages. Under § 1997e(d)(2), the District Court
awarded Mr. Thompson $15 in attorney’s fees, with Captain Sikes, Officer Price,
and Officer Goff responsible for $12.50 and the remaining $2.50 to be taken from
Mr. Thompson’s judgment. The calculation required Mr. Thompson to pay an
amount equal to the first 25% of the judgment (i.e., $2.50) and the defendants to
pay the excess amount (i.e., $12.50), up to a total fee amount of 150% of the
judgment. Because this calculation follows the requirements of § 1997e(d)(2), the
District Court did not err in its attorney’s fee award.5
2. Subsection § 1997e(d)(2)’s Cap Applies to Expenses
Mr. Thompson also claims that the District Court “erred in failing to award
[Mr. Thompson] . . . the reasonable expenses he incurred in litigating his case that
5 Because we vacate the jury’s award of nominal damages, we affirm only the District Court’s method of calculating attorney’s fees under § 1997e(d)(2). On remand, the District Court should apply the same methodology to recalculate these fees if the judgment changes. 37 Case: 18-11671 Date Filed: 03/12/2020 Page: 38 of 49
did not qualify as taxable court costs recoverable under 28 U.S.C. § 1920.” Mr.
Thompson argues that he incurred expenses, such as “court filing fee[s], jury
consultant fees, copies, federal express and hotel/airline/parking charges,” which
should be recoverable from Captain Sikes, Officer Price, and Officer Goff.
As an initial matter, after reviewing the district court’s order on attorney’s
fees, we note that it is not entirely clear whether the court included a consideration
of expenses in its $15 award. We proceed, though, under the assumption that it did
and found that expenses were also capped and part of the award.
As set out above, the shifting of attorney’s fees in civil-rights disputes is
governed by 42 U.S.C. § 1988. Section 1988 provides, in relevant part, that “the
[district] court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). This Court has held that
expenses are considered a part of an attorney’s fee award under § 1988. See
Dowdell v. City of Apopka, 698 F.2d 1181, 1190 (11th Cir. 1983) (“Reasonable
attorneys’ fees under [§ 1988] must include reasonable expenses because
attorneys’ fees and expenses are inseparably intertwined as equally vital
components of the costs of litigation.”). And because the PLRA modifies the
award of attorney’s fees under § 1988, it must also modify the award of expenses
under that same provision, in light of this Court’s conclusion that reasonable
attorney’s fees under § 1988 include reasonable expenses. See id. The District
38 Case: 18-11671 Date Filed: 03/12/2020 Page: 39 of 49
Court therefore did not err when it declined to award separate expenses to Mr.
Thompson outside of the attorney’s fee award.6
CONCLUSION
We affirm the methodology employed by the District Court to calculate
attorney’s fees. If Mr. Thompson prevails at trial and recovers damages, the
District Court should employ the same method of calculation in determining his
attorney’s fee award.
REVERSED IN PART AND AFFIRMED IN PART.
6 The parties appear to have conflated costs and expenses. Taxable costs are those items listed in 28 U.S.C. § 1920(1)–(6). Expenses, which include travel costs, telephone, and postage expenses, fall within the purview of § 1988, see Dowdell, 698 F.2d at 1190–1192, and may be reimbursable in addition to costs under § 1920, see Sullivan Cty. v. Home Indem. Co., 925 F.2d 152, 153 (6th Cir. 1991) (“Congress expressed an unambiguous intent in 42 U.S.C. § 1988 to award attorney’s fees ‘as part of costs’; i.e., as an additional component of the traditional costs taxed by the court pursuant to 28 U.S.C. § 1920.” (quotation marks omitted)). Here, because travel costs and postage are considered to be expenses, Mr. Thompson’s attempt to recover for Federal Express costs and his attorneys’ hotel, airline, and parking expenses are limited by the 150% cap as set forth in the PLRA. See Dowdell, 698 F.2d at 1190-92. In addition, the jury- consultant fees sought by Mr. Thompson are properly deemed an “expense” limited by the 150% cap and are also not recoverable under Section 1920 as a “cost.” Rimini Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 878 (2019). Finally, we note that Section 1920(1) allows for taxation of “fees of the clerk,” and Section 1920(4) allows for “the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” Accordingly, on remand, Mr. Thompson could request reimbursement of his court filing fees and copies (assuming he could show such copies were necessarily obtained for use in his case).
39 Case: 18-11671 Date Filed: 03/12/2020 Page: 40 of 49
MARTIN, Circuit Judge, dissenting:
The majority opinion holds that 42 U.S.C. § 1997e(d)(2) caps any award of
attorney’s fees in prisoner civil rights suits at 150% of the judgment. Maj. Op. at
28–39. My reading of § 1997e(d)(2) does not support this result. Subsection
1997e(d)(2) provides, in relevant part, that “[i]f the award of attorney’s fees is not
greater than 150 percent of the judgment, the excess shall be paid by the
defendant.” 42 U.S.C. § 1997e(d)(2) (emphasis added). The statute does not
speak to what happens when the award of attorney’s fees is greater than 150% of
the judgment. Because the statute makes no provision for the treatment of
attorney’s fees awarded in an amount above 150%, the majority’s ruling that caps
attorney’s fees at 150% of the judgment adds meaning to § 1997e(d)(2) that
Congress never wrote. I therefore respectfully dissent from the majority’s
interpretation of § 1997e(d)(2). See Nichols v. United States, 578 U.S. __, 136 S.
Ct. 1113, 1118 (2016) (“To supply omissions transcends the judicial function.”
I.
Matthew Thompson filed his lawsuit pro se. His status as a pro se litigant is
40 Case: 18-11671 Date Filed: 03/12/2020 Page: 41 of 49
no surprise, since the vast majority of prisoners file their civil rights lawsuits on
their own in this Court. 1 Without counsel, Mr. Thompson tried to navigate the
timely filing of his complaint as well as respond to the officers’ motion to dismiss
and other deadlines on his own. Mr. Thompson was then fortunate enough to have
the District Court solicit members of the Northern District of Florida bar to
represent him. Likely due to his counsel’s care and diligence—if not certainly—
Mr. Thompson prevailed on his civil rights claim at trial.
After winning Mr. Thompson’s trial, counsel sought attorney’s fees and
expenses as allowed by 42 U.S.C. § 1983 for a prevailing party in a civil rights
case. If Mr. Thompson were not incarcerated, his counsel would have been
allowed to recover a reasonable attorney’s fee award under 42 U.S.C. § 1988. In
fact, Congress passed § 1988 to encourage “the retention of independent counsel
by victims of civil rights violations,” Massengale v. Ray, 267 F.3d 1298, 1302
(11th Cir. 2001) (per curiam), in an effort to “ensure effective access to the judicial
process for persons with civil rights grievances,” Hensley v. Eckerhart, 461 U.S.
424, 429, 103 S. Ct. 1933, 1937 (1983) (quotation marks omitted).
1 Between September 30, 2017 and September 30, 2018, approximately 94% of civil prisoner suits were filed pro se in the district courts of the Eleventh Circuit. See Table C-13, U.S. District Courts–Civil Statistical Tables for the Federal Judiciary (Sept. 30, 2018), Admin. Office of the Courts, https://www.uscourts.gov/sites/default/files/data_tables/jb_c13_0930.2018.pdf. 41 Case: 18-11671 Date Filed: 03/12/2020 Page: 42 of 49
But since Mr. Thompson is a prisoner, his lawsuit is governed by the Prison
Litigation Reform Act (“PLRA”). The majority properly recognizes that the
PLRA “limits the fees that a district court can award to prisoners’ lawyers in civil
cases under § 1988(b).” Maj. Op. at 29. Subsection 1997e(d)(2) does so in two
ways. First, § 1997e(d)(2) requires that up to 25% of the prisoner’s judgment be
used to satisfy the attorney’s fee award. 42 U.S.C. § 1997e(d)(2); see Murphy v.
Smith, ___ U.S. ___, 138 S. Ct. 784, 787–88 (2018). Second, § 1997e(d)(2) says
that “[i]f the award of attorney’s fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant.” 42 U.S.C. § 1997e(d)(2).
The majority construes § 1997e(d)(2)’s second limitation on attorney’s fees
as a 150% fee cap on all awards. Maj. Op. at 31–32. I write separately because
that interpretation adds language to § 1997e(d)(2)’s text that does not exist,
rendering a result not commanded by the statute. The plain language of
§ 1997e(d)(2) imposes no such cap on attorney’s fees recoverable in lawsuits
governed by the PLRA.
II.
The majority opinion concludes that § 1997e(d)(2) caps the award of
attorney’s fees at 150% of the judgment, because, per the majority, the plain text of
the statute “unambiguously permits imposing liability for an award of attorney’s
fees on defendants only for a total fee amount that does not exceed 150% of the
42 Case: 18-11671 Date Filed: 03/12/2020 Page: 43 of 49
judgment.” Maj. Op. at 31. This idea, in turn, comes from § 1997e(d)(2)’s use of
the phrase “‘greater than 150 percent of the judgment.’” Id. at 34 (quoting 42
U.S.C. § 1997e(d)(2)). Relying on this language, the majority explains that “after
the prisoner’s judgment satisfies an amount equal to 25% of the judgment,” the
remainder “shall be paid by the defendant.” Id. But, according to the majority, the
remainder, or “excess,” to be paid for by the defendant cannot be greater than 150
percent of the judgment. Id.
I reject to the majority’s reading of the phrase “greater than 150 percent of
the judgment” in isolation. First, proper statutory construction does not permit
cherry-picking of certain phrases, clauses, or words in a statute. See Wachovia
Bank, N.A. v. United States, 455 F.3d 1261, 1268 (11th Cir. 2006) (explaining
that, when interpreting a statute, this Court cannot “read words or strings of
[words] in isolation”). Second, this Court must interpret the plain language of a
statute “in context,” id., and give meaning “to every word and clause” in a statute’s
text to the extent possible. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm.
of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1195
(11th Cir. 2008).
The majority interprets the last sentence of § 1997e(d)(2), which provides
that “[i]f the [fee] award . . . is not greater than 150 percent of the judgment, the
excess shall be paid by the defendant,” to mean that if the fee award is greater than
43 Case: 18-11671 Date Filed: 03/12/2020 Page: 44 of 49
150% of the judgment, the defendant need not pay any excess fees. But this
formulation of § 1997e(d)(2) incorporates a fallacy. Known as the “fallacy of the
inverse,” or denying the antecedent, the reconstruction of § 1997e(d)(2)’s meaning
in the majority opinion is premised on “the incorrect assumption that if P implies
Q, then not-P implies not-Q.” NLRB v. Noel Canning, 573 U.S. 513, 589, 134 S.
Ct. 2550, 2603 (2014) (Scalia, J., concurring); Ruggero K. Aldisert, Logic for
Lawyers: A Guide to Clear Legal Thinking 158–63 (3d ed. 1997) (explaining that
the denial of the antecedent, or “[t]he component proposition following ‘if,’” does
not warrant a denial of the consequent, or “[t]he component proposition following
‘then’”). Using this approach, the majority opinion reads § 1997e(d)(2)’s text to
mean its inverse. That is, the majority opinion construes, “If the award . . . is not
greater than 150% of the judgment, then the excess shall be paid for by the
defendant,” 42 U.S.C. § 1997e(d)(2) (emphasis added), to mean that, “If the award
is greater than 150% of the judgment, the excess shall not be paid for by the
defendant.”
Where, as here, the statutory language is plain, it is this Court’s job to
construe a statute as it is written. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83,
98–99, 111 S. Ct. 1138, 1147 (1991). It is not our duty to enlarge or supplement a
statute with language Congress omitted. Id. “The manner in which the law could
have been written has no bearing; what matters is the law [Congress] did enact.”
44 Case: 18-11671 Date Filed: 03/12/2020 Page: 45 of 49
Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 403, 130 S. Ct.
1431, 1440 (2010) (quotation marks and citations omitted); see also Trevan v.
Office of Personnel Mgmt., 69 F.3d 520, 526 (Fed. Cir. 1995) (“[W]e must enforce
the statute as written and are not free to ignore what appears to have been a
conscious choice by Congress. . . .”). Subsection 1997e(d)(2) speaks only to what
happens when the reasonable attorney’s fee is “not greater than” 150% of the
judgment. 42 U.S.C. § 1997e(d)(2). It is silent as to what happens when the award
of attorney’s fees is greater than 150% of the judgment. See id.
The statutory context also supports my reading of § 1997e(d)(2). Utility Air
Regulatory Grp. v. EPA, 573 U.S. 302, 320, 134 S. Ct. 2427, 2441 (2014) (“[T]he
words of a statute must be read in their context and with a view to their place in the
overall statutory scheme.” (quotation marks omitted)). The provision immediately
following § 1997e(d)(2) states: “No award of attorney’s fees [recoverable in a
prisoner civil suit] shall be based on an hourly rate greater than 150 percent of the
hourly rate established under [the Criminal Justice Act] for payment of court-
appointed counsel.” 42 U.S.C. § 1997e(d)(3). If Congress intended to limit
attorney’s fees to 150% of the judgment in all circumstances, it would have done
so explicitly and, presumably, with similar language. See Russello v. United
States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (“Where Congress includes
particular language in one section of a statute but omits it in another section of the
45 Case: 18-11671 Date Filed: 03/12/2020 Page: 46 of 49
same Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” (citations omitted and alteration adopted)).
Indeed, Congress could have simply said, “No award of attorney’s fees shall
exceed 150 percent of the judgment.” But it did not. See id.; cf. Kurtz v. Comm’r,
575 F.3d 1275, 1280 (11th Cir. 2009) (noting that this Court “must presume that
Congress said what it meant and meant what it said” (quotation marks omitted)).
Thus, while § 1997e(d)(2) sets out what happens if the award of attorney’s
fees is not greater than 150% of the judgment, the statute is silent as to awards that
are greater than 150% of the judgment. Yet the majority opinion breathes meaning
into § 1997e(d)(2)’s silence. That is something we—as judges—may not do. See
Nichols, 136 S. Ct. at 1118. We are confined to the meaning of the plain text of
§ 1997e(d)(2), which by its terms imposes no absolute cap on the award of
reasonable attorney’s fees.
III.
In support of its interpretation of § 1997e(d)(2), the majority opinion
explains that the contrary interpretation would have bad consequences. It says that
if § 1997e(d)(2) does not cap attorney’s fees at 150% of the judgment, regardless
of the reasonable attorney’s fee award, the last sentence of § 1997e(d)(2) would be
rendered meaningless. Maj. Op. at 31–31. But the interpretation given in the
majority opinion also renders a portion of § 1997e(d)(2)’s text meaningless.
46 Case: 18-11671 Date Filed: 03/12/2020 Page: 47 of 49
Again, § 1997e(d)(2) says “if the award of attorney’s fees is not greater than
150 percent of the judgment, the excess shall be paid by the defendant.” 42 U.S.C.
§ 1997e(d)(2) (emphasis added). The word “if” is a conditional word meaning
“[i]n the event that” or “[o]n condition that,” Webster’s New College Dictionary
563 (3d ed. 2008), and can be used to “introduce[e] a clause of condition or
supposition,” Oxford English Dictionary (2d ed. 1989). Implicit, therefore, in
§ 1997e(d)(2) attorney’s fee provision is a condition precedent to its applicability.
But the construction of § 1997e(d)(2) given in the majority opinion renders
the clause’s use of the word “if” meaningless. Under the majority’s interpretation,
there is no “event,” or second alternative, that may occur because the fee cap
applies in all circumstances. Our precedent requires us to reject an interpretation
that voids a clause, sentence, or word. See In re Walter Energy, Inc., 911 F.3d
1121, 1146 (11th Cir. 2018) (“[W]e generally construe a statute so that no clause,
sentence, or word is rendered superfluous, void, or insignificant.” (quotation marks
omitted)); United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003) (per
curiam) (“[I]t is necessary to give meaning to all [a statute’s] words so that no
words shall be discarded as being meaningless, redundant, or mere surplusage.”
47 Case: 18-11671 Date Filed: 03/12/2020 Page: 48 of 49
(quotation marks omitted)).2 For this reason, I cannot subscribe to the majority’s
holding.
IV.
Last, the majority points to the decisions of our sister circuits holding that
§ 1997e(d)(2) caps attorney’s fees at 150% of the judgment. Maj. Op. at 34–35. I
recognize that my interpretation is not a widely accepted one. But it is our job to
review de novo the District Court’s interpretation of § 1997e(d)(2). See Truesdell
v. Thomas, 889 F.3d 719, 723 (11th Cir. 2018). And although our sister circuits
(and a dissenting Justice) may coalesce around an interpretation of this statute that
is different from mine, my view merely adheres to the straightforward text of the
statute. See Generali v. D’Amico, 766 F.2d 485, 489 (11th Cir. 1985). 3
2 The majority also points to § 1997e(d)(2)’s legislative history to support its position that § 1997e(d)(2) caps attorney’s fees in all circumstances. Maj. Op. at 36. n.13. The majority says that § 1997e(d)(2)’s text is unambiguous, and we therefore need not resort to § 1997e(d)(2)’s legislative history to interpret its meaning. Id. But even if we did, the PLRA’s stated purpose supports my conclusion. Congress enacted the PLRA to curtail frivolous and abusive prisoner litigation. See Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), reh’g en banc granted, vacated, 197 F.3d 1059 (11th Cir. 1999), reinstated in relevant part on reh’g by 216 F.3d 970 (11th Cir. 2000) (en banc). It was not, however, intended to discourage attorneys from representing prisoners in civil rights cases. See Woodford v. Ngo, 584 U.S. 81, 117, 126 S.Ct. 2378, 2401 (2006) (Breyer, J., concurring) (noting the PLRA was meant to “perserv[e] prisoners’ capacity to file meritorious claims”). I fear the majority’s construction of § 1997e(d)(2) will do just that. Notably, the PLRA allows for prevailing prisoners to recover attorney’s fees, see 42 U.S.C. § 1997e(d), indicating a congressional intent to ensure access to the judicial process for prisoners with civil rights claims. See Hensley, 461 U.S. at 429, 103 S. Ct. at 1937. 3 Justice Kagan has observed, “we’re all textualists now.” Justice Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes at 8:28 (Nov. 25, 2015), https://today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation/. 48 Case: 18-11671 Date Filed: 03/12/2020 Page: 49 of 49
The plain and unambiguous text of § 1997e(d)(2) does not impose an
absolute cap on the award of attorney’s fees. I therefore respectfully dissent from
the majority’s opinion holding to the contrary.
Related
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Matthew John Thompson v. B. Smith, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthew-john-thompson-v-b-smith-ca11-2020.