SCOTUS Agrees to Hear Civil Rights Case; Timing ‘Unusual’

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By Bernie Pazanowski and Jordan S. Rubin

The U.S. Supreme Court Aug. 25 agreed to hear a case about attorneys’ fees that could affect whether prisoners can fully recover for rights violations they suffer while incarcerated, advocacy groups say ( Murphy v. Smith, U.S., No. 16-1067, review granted 8/25/17 ).

The statutory question presented in the case of Charles Murphy—who was beaten by correctional officers and won six-figure damages in a civil rights suit—involves calculating attorneys’ fees under the Prison Litigation Reform Act. Under the act, if a prisoner wins money damages, a portion of the damages—“not to exceed 25 percent”—is used to pay the prisoner’s attorneys’ fees.

The U.S. courts of appeal are split on whether that means the trial judge has discretion to vary the percentage of the award the prisoner must put toward fees up to 25 percent, or whether it means the prisoner pays all fees out of the award up to exactly 25 percent of it.

Four other circuits have ruled on the issue. The Seventh Circuit is alone in adopting the latter interpretation, according to Murphy.

The issue is important because it “arises almost every time a prisoner is awarded damages in a section 1983 suit,” Murphy said in his March 2 petition to the high court.

The case “affects the ability of men and women to recover a full measure of damages for injuries they suffer while incarcerated,” according to an amicus brief filed in support of Murphy by the Roderick & Solange MacArthur Justice Center, Northwestern Pritzker School of Law , Chicago, and the Uptown People’s Law Center, also in Chicago.

The Illinois Attorney General said the court shouldn’t take the case. Murphy overstates the circuit split; the issue doesn’t come up as often as Murphy says it does; and the Seventh Circuit’s ruling is correct because it forces prisoners to bear some of the cost of their litigation, the state said in its July 12 reply to Murphy’s petition. The state won’t comment on the case due to the ongoing litigation, press secretary Annie Thompson told Bloomberg BNA.

“It’s appropriate that cert. was granted,” David M. Shapiro told Bloomberg BNA. Shapiro is the director of appellate litigation at the justice center that filed the amicus brief in support of Murphy.

“There is a clear split, and the Seventh Circuit’s interpretation was at odds with the plain language of the statute,” Shapiro said.

“I am optimistic that the Court will conclude that the law says what it means and means what is says,” he said.

Murphy “has a stronger case on the literal reading” of the statute, “but the literal reading isn’t definitive” as to whether trial judges should have discretion to apportion attorneys’ fees, Lester Brickman, emeritus professor at the Benjamin N. Cardozo School of Law at Yeshiva University, New York, told Bloomberg BNA. Brickman specializes in contingency fees and their effect on the tort system.

In the circuits that allow such discretion—the circuits that ruled differently from the Seventh Circuit here—making defendants pay varying percentages of attorneys’ fees can serve as a “double punishment” on top of already having to pay damages to the prisoner, Brickman said.

These other circuits essentially say “as a policy matter, that judges should have discretion to award a much lower percentage of the fee against the prisoner because of the egregiousness of the defendant’s act,” Brickman said.

Seventh Circuit: No Discretion

While he was an inmate at an Illinois correctional facility in 2011, “correctional officers hit Murphy, fracturing part of his eye socket, and left him in a cell without medical attention,” the Seventh Circuit said in its decision below.

Murphy filed suit sued under federal civil rights law and state law. A jury awarded him damages on some of those claims and the district court awarded attorney fees under the federal law. It allocated 10 percent of the damage award to satisfy the attorney fee award.

Government defendants appealed, arguing that the PLRA requires that 25 percent of the damage award be used to pay the attorneys’ fees award.

The Seventh Circuit ruled for the government on the attorneys’ fees question. Under the PLRA, the district court doesn’t have discretion to allocate less than 25 percent of the damages award for attorneys’ fees, the appeals court said.

But the Seventh Circuit is the only one to hold that attorneys’ fees have to be exactly 25 percent of the damage award, Murphy said in his petition.

Other circuits—the Second, Third, Sixth, and Eighth—have a “literal” interpretation of the statute, so the Seventh Circuit’s “non-literal” interpretation “directly contradicts the text of the statute,” Murphy said in his petition.

Therefore the Seventh Circuit’s ruling “leaves prisoners whose constitutional rights have been violated with smaller net recoveries than Congress intended them to receive,” he said.

Grant Timing ‘Unusual,’ ‘A Surprise’

Though the cert. grant itself may not be atypical, the timing is.

The justices’ order granting review came down before the “long conference” at the end of September, when they typically consider the petitions that have piled up over the summer.

This is “unusual,” Shapiro said.

The timing is “a surprise,” Murphy’s attorney Stuart Banner told Bloomberg BNA. Banner heads the Supreme Court Clinic at UCLA Law School in Los Angeles.

The Supreme Court “seems to be behind the historical averages on cert. grants going into the summer,” Shapiro said.

“The timing may reflect a desire to catch up,” he said.

“But it may also reflect that this is a pretty straightforward statutory question, and one with significant implications for access to justice, as the amicus brief I filed suggests,” he said.

To contact the reporters on this story: Bernie Pazanowski in Washington at; Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; C. Reilly Larson at

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