$60,000 Settlement for Kansas Prisoner’s Excessive Force Claim, $578,000 for His Attorneys
by David M. Reutter
On March 26, 2024, the U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s award of more than $578,000 in attorneys’ fees and costs made as part of a $60,000 offer of judgment to settle an excessive force claim by Kansas prisoner Samuel Lee Dartez, II. The appeal required the Court to decide how an offer of judgment affects statutory provisions allowing and limiting a fee award.
Dartez sued 15 Kansas Highway Patrol (KHP) officers in November 2015, alleging they used excessive force after his arrest one year earlier. To settle, KHP made a $60,000 offer of judgment to Dartez “plus reasonable attorneys’ fees and costs allowed by law, if any.” Because Dartez was incarcerated by the time he sued, his complaint was subject to the Prison Litigation Reform Act, 42 U.S.C. § 1997e—a statute that limits recovery of legal fees and costs. But the U.S. District Court for the District of Kansas assumed the offer of judgment trumped the statutes, and it awarded Dartez $576,242.28 in attorneys’ fees and costs. Defendants appealed.
The Tenth Circuit began by first rejecting Defendants’ “perfunctory” argument that Dartez was not entitled to an award of attorneys’ fees for failure to prove an actual civil rights violation. The Court then quickly moved on to find ambiguity existed in the offer of judgment and the applicable statutes; the offer of judgment’s provision of “reasonable attorneys’ fees and costs allowed by law, if any” was susceptible to two different interpretations.
The Court was charged with interpreting that clause in light of 42 U.S.C. § 1988(b), which allows recovery of a reasonable amount of attorneys’ fees, and PLRA, which caps attorneys’ fees at 150% of the judgment, requires a prisoner to pay up to 25% of the recovery towards attorneys’ fees, and caps hourly rates at 150% of the hourly rates for criminal defense attorneys under the Criminal Justice Act.
That cap could reasonably be waived by the offer of judgment, the Court wrote. But the core issue was whether the phrase “allowed by law” not only modified an award of costs but also the phrase “reasonable attorneys’ fees.” The Court said the last-antecedent rule required the modifier applied only to the award of costs, pointing to Cyan v. Beaver Cnty. Emps. Ret. Fund, 583 U.S. 416 (2018).
But even if that rule did not apply, the Court said, the district court had resolved the ambiguity by using two interpretive tools: Defendants’ role in drafting the offer of judgment and the existence of extrinsic evidence. Reasonably interpreted language is construed against the drafter, the Court recalled, citing Vasconcelo v. Miami Auto Max,Inc., 981 F.3d 934 (11th Cir. 2020). Additionally, defense counsel had expressed a willingness to pay attorneys’ fees of $100,000 or more, which exceeded the statutory cap. Given that, the Tenth Circuit found no error in calculating the fee, agreeing that the offer of judgment included a payment plus attorneys’ fees—thereby leaving Dartez with all $60,000 of Defendants’ offer of judgment and negating any requirement that he pay part of it toward the fees.
Judge Allison H. Eid concurred, but said she would have reversed the district court’s order for misapplying the last-antecedent rule—except that Defendants waived the issue on appeal. So even though she disagreed with both the district court and the Tenth Circuit’s majority, the outcome would be the same. The district court’s order was thus affirmed, awarding $576,242.28 in fees and $2,052.67 in costs to Dartez’s attorneys, David G. Seely, Lyndon W. Vix and Ryan K. Myer with Fleeson, Gooing, Coulson & Kitch, LLC in Witchita. See: Dartez v. Peters, 97 F.4th 681 (10th Cir. 2024).