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Hernandez v. Kalinowski

July 13, 1998


On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 96-cv-06269)

Before: Scirica, Cowen and BRIGHT,*fn1 Circuit Judges

The opinion of the court was delivered by: Bright, Circuit Judge.

Argued: May 7, 1998


This case presents the question whether under the Prison Litigation Reform Act an attorney who has successfully represented a prisoner in a civil rights action is entitled to attorney fees for time spent on the fee petition. This appears to be the first in the United States Courts of Appeal to address this important question which arises under the Prison Litigation Reform Act ("PLRA"), particularly § 803d, 42 U.S.C. § 1997e(d). In addition, appellant Hernandez seeks an increase in the hourly rate for the fees. We reverse on the issue of "fees on fees" and otherwise affirm.


On November 11, 1994, Sergio Hernandez, an inmate at the State Correctional Institute at Frackville, Pennsylvania, suffered serious injuries when his cellmate stabbed him multiple times with a razor. Hernandez had warned several officers of the Pennsylvania Department of Corrections of his danger prior to the attack, but the officers failed to take reasonable steps to protect him from his cellmate. Hernandez filed suit on September 16, 1996, seeking damages for violation of his Eighth Amendment rights.

The district court held a bench trial on May 27, 1997. The court granted judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure against several of the defendants. On May 30, 1997, after announcing its findings of fact and Conclusions of law, the court entered a $17,500 judgment against defendant Sergeant Andrew Kalinowski. Angus R. Love ("Love") represented Hernandez throughout the proceedings. Love initially informally requested costs and attorney's fees from Kalinowski, but Kalinowski rejected the request. Hernandez then formally moved the district court to award attorney's fees and costs, requesting a total of $22,680.90.

The district court determined that Love was entitled to attorney's fees under the traditional auspices of 42 U.S.C. § 1988 as a "prevailing party." See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989). The district court noted, however, that the PLRA limits fee awards in prisoner cases to those instances where "the fee was directly and reasonably incurred in proving an actual violation of the plaintiff 's rights . . .." 42 U.S.C. § 1997e(d)(1)(A). Thus, the district court examined Love's fee request and applied the lodestar analysis to calculate the amount of "direct and reasonable" fees. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Specifically, the district court multiplied (1) the number of hours reasonably expended on the action by (2) the reasonable hourly rates to reach the "lodestar." See id.

First, the district court determined the applicable reasonable hourly rates by applying the statutory scheme provided under 42 U.S.C. § 1997e(d)(3), to reach $67.50 for Love's out-of-court services and $97.50 for his in-court services. Second, the district court calculated the reasonable time expended. The court concluded that an across-the-board reduction of 10% applied to Love's fees because Hernandez did not succeed on his claims against two of the defendants. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (noting that an overall reduction in the fee is appropriate where the plaintiff achieved "only limited success"). Furthermore, the district court completely denied Love's fees for time spent preparing the fee petition concluding that the PLRA did not authorize fees for preparing a fee petition.

The court ultimately awarded Hernandez a total of $10,131.64 to pay Love's fees and $554.00 to pay costs. Hernandez appeals this award, challenging both the applicable hourly rates and the court's denial of fees relating to the fee petition. We give plenary review to the statutory construction of the PLRA. Chrysler Credit Corp. v. First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir. 1984).

Hernandez argues the district court erred when it denied him fees for the time Love spent preparing the fee petition. Generally, under the Civil Rights Attorney's Fees Awards Act of 1976 ("CRAFAA"), 42 U.S.C. § 1988, fees for preparing a motion requesting costs and fees, or "fees on fees," are recoverable. Hernandez v. George, 793 F.2d 264, 269 (10th Cir. 1986). The purpose of the CRAFAA is to ensure effective access to the judicial process for persons with civil rights claims, and to encourage litigation to enforce the provisions of the civil rights acts and constitutional civil rights provisions. Thus, courts consistently have interpreted fee shifting statutes, including the CRAFAA, to provide for reasonable fees for all time spent in the vindication of statutory or constitutional rights, including fees related to the preparation and litigation of motions for attorney's fees under the Act.*fn2

The district court concluded, however, that the PLRA does not explicitly authorize an award for "fees on fees." The relevant portion of the PLRA reads:

(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees ...

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