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No PLRA Fee Cap When Injunctive Relief Obtained
by John E. Dannenberg
The Ninth Circuit US Court of Appeals held that in prisoner 42 U.S.C. § 1983 civil rights lawsuits where both injunctive relief and damages are won (hybrid cases), attorney fee reimbursement for achieving the injunctive portion of the relief cannot be restricted under the 1996 Prison Litigation Reform Act (PLRA) merely because the damage judgment is small.
John Dannenberg, a prisoner at California's San Quentin State Prison and a PLN contributing writer, sued prison officials at the California Medical Facility State Prison in Vacaville for their retaliation against his successful jailhouse lawyering. (See PLN, March 2003, p.20, $90,169 Plus Injunction in California Retaliation Suit.) Prison officials appealed the award of attorney fees incurred after April, 1996 (i.e., post-PLRA enactment), complaining that the district court's approval of $57,566 for 511.7 hours at $112.50/hr. was in excess of the 150% PLRA fee cap that attached to the $9,000 damages won. (75.75 hours earned at pre-PLRA rates of $200/hr. were not challenged on appeal.)
The defendants argued that the Ninth Circuit should construe the two sections of the PLRA attorney fee statute, 42 U.S.C. § 1997e(d)(1) [permitting fees reasonably and directly incurred in proving the actual violation of plaintiff's rights] and § 1997e(d)(2) [permitting fees not exceeding 150% of any damages won] in such a manner that if any damages were won, the aggregate fee award could not exceed that permitted solely under subdivision e(d)(2)'s damages provision. They predicated their argument on subdivision e(d)(2)'s language "whenever a monetary judgment is awarded ..." as meaning that the event per se of a damages award automatically extinguished the right to any fees for efforts expended to gain concurrent injunctive relief. In the instant case, they argued that 150% of the $9,000 damages award thus permitted a maximum of $13,500 attorney fees far less than the $57,566 granted by the district court for the efforts of Elk Grove, California attorney Ronald L. Melluish in winning the principal claim for injunctive relief. That relief was to expunge Dannenberg's prison files of all references to the malevolently entered false data that could be (and in 1997 was) used to deny him parole.
The Ninth Circuit noted that three other Circuits had opined in dicta that in such hybrid cases the event of a damages award ought not restrict full recovery of attorney fees for concurrent injunctive relief, and further noted that no Circuit had suggested otherwise. The court flatly rejected the defendants' thesis because it would result in forcing prisoners into a Hobson's choice at the outset of their litigation of either suing for damages or foregoing monetary relief if significant injunctive relief litigation fees were anticipated. The court observed that nothing in either the legislative history or language of the statute suggested such a construction and that awarding proportionate fees for necessary work successfully done was the intent of each subdivision of § 1997e(d). In the case at bar, the court observed that because there had been no showing of any separable effort to prove damages, it was reasonable that all fees would apply to the injunctive relief obtained.
Accordingly, PLN readers should frame their § 1983 complaints to seek injunctive relief wherever possible, whether or not damages are sought. If only damages are won, the fees will be capped at the 150% limit. (See, e.g., Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2002) [limiting attorney fee to $1.50 for a $1 nominal damage award], PLN, Nov. 2002, pp.20, 21.) Conversely, if only injunctive relief is won, aside from the PLRA hourly rate cap of $112.50/hr., there is no formulaic limit to earned fees. (See, e.g., Webb v. Ada County, 195 F.3d 524, 526 (9th Cir. 1999) [PLN, March 2001, p.21] [$244,308 in fees awarded for injunctive relief where no damages were sought].) But if a hybrid result is obtained, fees may be recovered for both types of relief. If an appeal is taken, appellate fees incurred to recover fees earned below (fees on fees) may be awarded as well. (See: Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001) [PLN, Nov. 2002, p.20].)
Finally, the court determined that the district court had not adequately determined fees in proportion to the degree of success as to all of Dannenberg's original claims, and vacated and remanded for this limited purpose. See: Dannenberg v. Graham, 331 F.3d 106 (9th Cir. 2003).
The Ninth Circuit US Court of Appeals held that in prisoner 42 U.S.C. § 1983 civil rights lawsuits where both injunctive relief and damages are won (hybrid cases), attorney fee reimbursement for achieving the injunctive portion of the relief cannot be restricted under the 1996 Prison Litigation Reform Act (PLRA) merely because the damage judgment is small.
John Dannenberg, a prisoner at California's San Quentin State Prison and a PLN contributing writer, sued prison officials at the California Medical Facility State Prison in Vacaville for their retaliation against his successful jailhouse lawyering. (See PLN, March 2003, p.20, $90,169 Plus Injunction in California Retaliation Suit.) Prison officials appealed the award of attorney fees incurred after April, 1996 (i.e., post-PLRA enactment), complaining that the district court's approval of $57,566 for 511.7 hours at $112.50/hr. was in excess of the 150% PLRA fee cap that attached to the $9,000 damages won. (75.75 hours earned at pre-PLRA rates of $200/hr. were not challenged on appeal.)
The defendants argued that the Ninth Circuit should construe the two sections of the PLRA attorney fee statute, 42 U.S.C. § 1997e(d)(1) [permitting fees reasonably and directly incurred in proving the actual violation of plaintiff's rights] and § 1997e(d)(2) [permitting fees not exceeding 150% of any damages won] in such a manner that if any damages were won, the aggregate fee award could not exceed that permitted solely under subdivision e(d)(2)'s damages provision. They predicated their argument on subdivision e(d)(2)'s language "whenever a monetary judgment is awarded ..." as meaning that the event per se of a damages award automatically extinguished the right to any fees for efforts expended to gain concurrent injunctive relief. In the instant case, they argued that 150% of the $9,000 damages award thus permitted a maximum of $13,500 attorney fees far less than the $57,566 granted by the district court for the efforts of Elk Grove, California attorney Ronald L. Melluish in winning the principal claim for injunctive relief. That relief was to expunge Dannenberg's prison files of all references to the malevolently entered false data that could be (and in 1997 was) used to deny him parole.
The Ninth Circuit noted that three other Circuits had opined in dicta that in such hybrid cases the event of a damages award ought not restrict full recovery of attorney fees for concurrent injunctive relief, and further noted that no Circuit had suggested otherwise. The court flatly rejected the defendants' thesis because it would result in forcing prisoners into a Hobson's choice at the outset of their litigation of either suing for damages or foregoing monetary relief if significant injunctive relief litigation fees were anticipated. The court observed that nothing in either the legislative history or language of the statute suggested such a construction and that awarding proportionate fees for necessary work successfully done was the intent of each subdivision of § 1997e(d). In the case at bar, the court observed that because there had been no showing of any separable effort to prove damages, it was reasonable that all fees would apply to the injunctive relief obtained.
Accordingly, PLN readers should frame their § 1983 complaints to seek injunctive relief wherever possible, whether or not damages are sought. If only damages are won, the fees will be capped at the 150% limit. (See, e.g., Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2002) [limiting attorney fee to $1.50 for a $1 nominal damage award], PLN, Nov. 2002, pp.20, 21.) Conversely, if only injunctive relief is won, aside from the PLRA hourly rate cap of $112.50/hr., there is no formulaic limit to earned fees. (See, e.g., Webb v. Ada County, 195 F.3d 524, 526 (9th Cir. 1999) [PLN, March 2001, p.21] [$244,308 in fees awarded for injunctive relief where no damages were sought].) But if a hybrid result is obtained, fees may be recovered for both types of relief. If an appeal is taken, appellate fees incurred to recover fees earned below (fees on fees) may be awarded as well. (See: Volk v. Gonzalez, 262 F.3d 528 (5th Cir. 2001) [PLN, Nov. 2002, p.20].)
Finally, the court determined that the district court had not adequately determined fees in proportion to the degree of success as to all of Dannenberg's original claims, and vacated and remanded for this limited purpose. See: Dannenberg v. Graham, 331 F.3d 106 (9th Cir. 2003).
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Related legal case
Dannenberg v. Valadez
| Year | 2003 |
|---|---|
| Cite | 338 F.3d 1070 (9th Cir. 2003) |
| Level | Court of Appeals |
| Conclusion | Jury Verdict |
| Attorney Fees | 81000 |
| Damages | 9000 |
| Injunction Status | N/A |
In enacting the PLRA, "the government's interest was apparently to curtail frivolous prisoners' suits and to minimize the costs-which are borne by taxpayers-associated with those suits." See Madrid v. Gomez, 190 F.3d 990, 996(9th Cir.1999). Toward that end, the PLRA contains restrictions on the availability of attorneys' fees for inmate lawsuits. Specifically, 42 U.S.C. § 1997e(d) provides:
(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 shall not be awarded, except to the extent that-
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) 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 not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
The district court awarded Dannenberg attorneys' fees in the amount of $57,556.25. Appellants contend that this amount was excessive because section 1997e(d)(2) limits recoverable attorneys' fees to 150 percent of any monetary judgment. Since the jury awarded Dannenberg only $9,000 in damages, appellants believe that the fee award should have been no higher than $13,500.
The district court rejected appellants' position, holding that the 150-percent cap applies to cases in which the plaintiff obtains only monetary relief. Since Dannenberg also received injunctive relief in this case-to wit, an order that the lieutenant's report be expunged from his prison record-the court did not apply the cap.
This circuit has yet to consider whether section 1997e(d)(2) caps available fees when an inmate obtains injunctive relief in *1074 addition to monetary damages. Although three other circuits have spoken on this issue, their consideration has been confined to footnotes. In Boivin v. Black, 225 F.3d 36 (1st Cir.2000), the First Circuit, rejecting the argument that the fee cap is unconstitutional, noted that [i]n a case in which the court orders non-monetary redress (say, an injunction) along with a monetary judgment, the fee cap contained in section 1997e(d)(2) would not restrict the total amount of attorneys' fees that the court could award. In such a "hybrid" case, the court would be free to take into account all the provisions of section 1997e(d). Id. at 41 n. 4. Citing to Boivin, the Sixth Circuit has similarly "caution[ed] that if non-monetary relief is obtained, either with or without money damages, § 1997e(d)(2) would not apply." Walker v. Bain, 257 F.3d 660, 667 n. 2 (6th Cir.2001). And the Eighth Circuit, citing to both Boivin and Walker, has noted the same. See Foulk v. Charrier, 262 F.3d 687, 703 n. 17 (8th Cir.2001) ("[I]f non-monetary relief is ordered (whether with or without a monetary award), the attorney's fees cap in 42 U.S.C. § 1997e(d)(2) does not apply.").
Although appellants do not cite to a single case that has adopted a contrary interpretation of the fees provision, they urge this Court to decline to follow the Boivin line of cases because those cases' interpretation of section 1997e(d)(2), in addition to being dicta, allegedly conflicts with the plain meaning of the statute. Specifically, appellants contend that because the relevant provision of the statute begins with the phrase " whenever a monetary judgment is awarded """," the statute envisages no exception for cases in which a monetary judgment is accompanied by some other form of relief.
Under appellants' interpretation, a prison inmate who obtains only slight monetary damages can recover commensurately limited attorneys' fees no matter how sweeping the injunctive relief he manages to secure. In the context of prison litigation, which frequently involves constitutional challenges to prison conditions or practices for which the desired relief is primarily nonmonetary, a rule that tethered attorneys' fees solely to monetary relief would be difficult to square with the rest of section 1997e(d). See United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999) (courts should interpret statutory provisions in a manner that renders them internally consistent). Whereas the statute provides for attorneys' fees in an amount "proportionately related to the court-ordered relief,"42 U.S.C. § 1997e(d)(1)(B)(i), appellants' interpretation of subsection (d) would require courts setting attorneys' fees to disregard completely a plaintiff's degree of injunctive success whenever the plaintiff also obtains money damages. Inmates would thus be forced to choose, at the outset of litigation, between seeking money damages-with the knowledge that success in that regard could significantly limit available attorneys' fees-or foregoing money damages to which they may legitimately be entitled in order to protect their right to seek full reimbursement for fees. Nothing in the text or history of the PLRA supports a rule that would impose such a Hobson's choice on prison inmates.
Rejecting appellants' interpretation of section 1997e(d) does not, as appellants suggest, read out the statute's "whenever" clause. To the contrary, the only construction of section 1997e(d) that is consistent with the statute's provision for attorneys' fees "proportionately related to the court ordered relief" is one that restricts application of the fee cap to the portion of total fees that was incurred solely in order to obtain money damages. Thus, "whenever a monetary judgment is awarded,"*1075 subsection (d)(2) caps attorneys' fees incurred for the sole purpose of securing the monetary judgment. By contrast, fees incurred to obtain injunctive relief, whether or not monetary relief was also obtained as a result of those fees, are not limited by this provision. Construing the fee limitation this way frees district courts to "take into account all the provisions of section 1997e(d)," Boivin, 225 F.3d at 41 n. 4, enabling them to award fees in an amount proportional to the overall relief obtained while honoring the cap on fees incurred to obtain money damages.
Appellee in this case obtained injunctive relief in addition to money damages, and there has been no showing that any portion of the attorneys' fees was incurred for the sole purpose of obtaining monetary relief. Accordingly, we find no error in the district court's ruling that no portion of the fees was limited to 150 percent of money damages.
B. The Fee Calculation
Having found that section 1997e(d)(2)'s fee limitation did not apply in this case, the district court granted appellee's motion for attorneys' fees in its entirety. Appellants contend that the court erred by not reducing the fee award to reflect appellee's incomplete success on the merits.
" '[T]he most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.' " Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). While it is the district court's responsibility to "make the assessment of what is a reasonable fee under the circumstances of the case," id. at 115, 113 S.Ct. 566 (quoting Blanchard v. Bergeron, 489 U.S. 87, 96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)), the court must exercise its discretion with an eye toward "the relationship between the extent of success and the amount of the fee award." Id. at 115-16, 113 S.Ct. 566(quoting Hensley, 461 U.S. at 438, 103 S.Ct. 1933). When a plaintiff "achieve[s] only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Id. at 114, 113 S.Ct. 566(quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933).
Here, the district court awarded Dannenberg fees for all 511.7 hours that counsel expended on his case subsequent to enactment of the PLRA. According to Dannenberg, this number includes hours that counsel spent deposing numerous witnesses as well as preparing for and conducting a five-day jury trial. In the view of the district court, all of this time was "directly and reasonably" attributable to "proving this violation of plaintiff's constitutional rights."
It is undisputed, however, that Dannenberg did not prevail on all of his claims. Dannenberg's causes of action for denial of medical treatment and access to the courts were decided against him by way of summary judgment. On his claim for retaliation, Dannenberg prevailed against four defendants but was unsuccessful against four others. Moreover, Dannenberg obtained only a fraction of the damages he sought and only part of his desired injunctive relief.
The district court based its determination that Dannenberg was entitled to full fees on the fact that Dannenberg prevailed on his "principle [sic] contention." Be that as it may, unless Dannenberg's counsel expended no time pursuing the claims on which Dannenberg was unsuccessful, the district court's conclusion that all 511.7 hours were "directly and reasonably incurred in proving an actual violation of plaintiff's rights,"42 U.S.C. § 1197e(d)(1), cannot be correct. On the record before *1076 the Court, therefore, it appears that the district court did not properly consider appellee's degree of success in arriving at a reasonable fee award.
Accordingly, the district court's order granting Dannenberg's motion for attorneys' fees is hereby vacated and the case remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED.
(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 shall not be awarded, except to the extent that-
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) 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 not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
The district court awarded Dannenberg attorneys' fees in the amount of $57,556.25. Appellants contend that this amount was excessive because section 1997e(d)(2) limits recoverable attorneys' fees to 150 percent of any monetary judgment. Since the jury awarded Dannenberg only $9,000 in damages, appellants believe that the fee award should have been no higher than $13,500.
The district court rejected appellants' position, holding that the 150-percent cap applies to cases in which the plaintiff obtains only monetary relief. Since Dannenberg also received injunctive relief in this case-to wit, an order that the lieutenant's report be expunged from his prison record-the court did not apply the cap.
This circuit has yet to consider whether section 1997e(d)(2) caps available fees when an inmate obtains injunctive relief in *1074 addition to monetary damages. Although three other circuits have spoken on this issue, their consideration has been confined to footnotes. In Boivin v. Black, 225 F.3d 36 (1st Cir.2000), the First Circuit, rejecting the argument that the fee cap is unconstitutional, noted that [i]n a case in which the court orders non-monetary redress (say, an injunction) along with a monetary judgment, the fee cap contained in section 1997e(d)(2) would not restrict the total amount of attorneys' fees that the court could award. In such a "hybrid" case, the court would be free to take into account all the provisions of section 1997e(d). Id. at 41 n. 4. Citing to Boivin, the Sixth Circuit has similarly "caution[ed] that if non-monetary relief is obtained, either with or without money damages, § 1997e(d)(2) would not apply." Walker v. Bain, 257 F.3d 660, 667 n. 2 (6th Cir.2001). And the Eighth Circuit, citing to both Boivin and Walker, has noted the same. See Foulk v. Charrier, 262 F.3d 687, 703 n. 17 (8th Cir.2001) ("[I]f non-monetary relief is ordered (whether with or without a monetary award), the attorney's fees cap in 42 U.S.C. § 1997e(d)(2) does not apply.").
Although appellants do not cite to a single case that has adopted a contrary interpretation of the fees provision, they urge this Court to decline to follow the Boivin line of cases because those cases' interpretation of section 1997e(d)(2), in addition to being dicta, allegedly conflicts with the plain meaning of the statute. Specifically, appellants contend that because the relevant provision of the statute begins with the phrase " whenever a monetary judgment is awarded """," the statute envisages no exception for cases in which a monetary judgment is accompanied by some other form of relief.
Under appellants' interpretation, a prison inmate who obtains only slight monetary damages can recover commensurately limited attorneys' fees no matter how sweeping the injunctive relief he manages to secure. In the context of prison litigation, which frequently involves constitutional challenges to prison conditions or practices for which the desired relief is primarily nonmonetary, a rule that tethered attorneys' fees solely to monetary relief would be difficult to square with the rest of section 1997e(d). See United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999) (courts should interpret statutory provisions in a manner that renders them internally consistent). Whereas the statute provides for attorneys' fees in an amount "proportionately related to the court-ordered relief,"42 U.S.C. § 1997e(d)(1)(B)(i), appellants' interpretation of subsection (d) would require courts setting attorneys' fees to disregard completely a plaintiff's degree of injunctive success whenever the plaintiff also obtains money damages. Inmates would thus be forced to choose, at the outset of litigation, between seeking money damages-with the knowledge that success in that regard could significantly limit available attorneys' fees-or foregoing money damages to which they may legitimately be entitled in order to protect their right to seek full reimbursement for fees. Nothing in the text or history of the PLRA supports a rule that would impose such a Hobson's choice on prison inmates.
Rejecting appellants' interpretation of section 1997e(d) does not, as appellants suggest, read out the statute's "whenever" clause. To the contrary, the only construction of section 1997e(d) that is consistent with the statute's provision for attorneys' fees "proportionately related to the court ordered relief" is one that restricts application of the fee cap to the portion of total fees that was incurred solely in order to obtain money damages. Thus, "whenever a monetary judgment is awarded,"*1075 subsection (d)(2) caps attorneys' fees incurred for the sole purpose of securing the monetary judgment. By contrast, fees incurred to obtain injunctive relief, whether or not monetary relief was also obtained as a result of those fees, are not limited by this provision. Construing the fee limitation this way frees district courts to "take into account all the provisions of section 1997e(d)," Boivin, 225 F.3d at 41 n. 4, enabling them to award fees in an amount proportional to the overall relief obtained while honoring the cap on fees incurred to obtain money damages.
Appellee in this case obtained injunctive relief in addition to money damages, and there has been no showing that any portion of the attorneys' fees was incurred for the sole purpose of obtaining monetary relief. Accordingly, we find no error in the district court's ruling that no portion of the fees was limited to 150 percent of money damages.
B. The Fee Calculation
Having found that section 1997e(d)(2)'s fee limitation did not apply in this case, the district court granted appellee's motion for attorneys' fees in its entirety. Appellants contend that the court erred by not reducing the fee award to reflect appellee's incomplete success on the merits.
" '[T]he most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.' " Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). While it is the district court's responsibility to "make the assessment of what is a reasonable fee under the circumstances of the case," id. at 115, 113 S.Ct. 566 (quoting Blanchard v. Bergeron, 489 U.S. 87, 96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)), the court must exercise its discretion with an eye toward "the relationship between the extent of success and the amount of the fee award." Id. at 115-16, 113 S.Ct. 566(quoting Hensley, 461 U.S. at 438, 103 S.Ct. 1933). When a plaintiff "achieve[s] only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Id. at 114, 113 S.Ct. 566(quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933).
Here, the district court awarded Dannenberg fees for all 511.7 hours that counsel expended on his case subsequent to enactment of the PLRA. According to Dannenberg, this number includes hours that counsel spent deposing numerous witnesses as well as preparing for and conducting a five-day jury trial. In the view of the district court, all of this time was "directly and reasonably" attributable to "proving this violation of plaintiff's constitutional rights."
It is undisputed, however, that Dannenberg did not prevail on all of his claims. Dannenberg's causes of action for denial of medical treatment and access to the courts were decided against him by way of summary judgment. On his claim for retaliation, Dannenberg prevailed against four defendants but was unsuccessful against four others. Moreover, Dannenberg obtained only a fraction of the damages he sought and only part of his desired injunctive relief.
The district court based its determination that Dannenberg was entitled to full fees on the fact that Dannenberg prevailed on his "principle [sic] contention." Be that as it may, unless Dannenberg's counsel expended no time pursuing the claims on which Dannenberg was unsuccessful, the district court's conclusion that all 511.7 hours were "directly and reasonably incurred in proving an actual violation of plaintiff's rights,"42 U.S.C. § 1197e(d)(1), cannot be correct. On the record before *1076 the Court, therefore, it appears that the district court did not properly consider appellee's degree of success in arriving at a reasonable fee award.
Accordingly, the district court's order granting Dannenberg's motion for attorneys' fees is hereby vacated and the case remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED.