United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr., United States District Judge
matter is before the Court on plaintiffs Paul Gillpatrick
(“Gillpatrick”) and Niccole Wetherell's
(“Wetherell” and collectively,
“plaintiffs”) Request for Attorney Fees and
Request for Taxable Costs (Filing No. 60) against defendants
Scott Frakes, in his official capacity as Director of
Nebraska Department of Correctional Services
(“NDCS”), Michele Capps (“Capps”), in
her official capacity as Warden of Nebraska State
Penitentiary (“NSP”), and Angela Folts-Oberle
(“Folts-Oberle” and collectively,
“defendants”), in her official capacity as Acting
Warden of Nebraska Correctional Center for Women
(“NCCW”). For the reasons stated below, the
motion is granted in part and denied in part.
plaintiffs are state prisoners serving lengthy sentences in
separate NDCS facilities. Since 2012, the plaintiffs have
made requests at their respective facilities to marry. NDCS
staff repeatedly rejected those requests, in part because
neither Gillpatrick nor Wetherell can be transported to
another NDCS facility for a marriage ceremony out of security
concerns. The plaintiffs exhausted their available NDCS
procedures to obtain permission to marry and moved to the
courts. The plaintiffs' legal battle has two chapters:
(1) the state chapter and (2) the federal chapter.
state chapter began on February 25, 2014, when the plaintiffs
sued NDCS, Diana Sabatka-Rine (“Sabatka-Rine, ”
then-Warden of NSP), Denise Skrobecki (“Skrobecki,
” then-Warden of NCCW), and Michael Kenney
(“Kenney, ” then-Director of NDCS) in the
District Court of Lancaster County, Nebraska (“state
court”), seeking declaratory and injunctive relief
based on their constitutional right to marry. On June 10,
2014, the plaintiffs filed an amended complaint naming only
Sabatka-Rine, Skrobecki, and Kenney in their individual
capacities (“state defendants”).
state court, the plaintiffs requested an electronic wedding
ceremony (“e-wedding ceremony”) using Skype (an
electronic-communication application) or similar
videoconferencing technology. The state defendants resisted
that request based on their understanding that Nebraska law
strictly mandates actual physical presence of wedding
participants. See Neb. Rev. Stat. § 42-109. On
the plaintiffs' motion, the state court granted summary
judgment in the plaintiffs' favor on February 2, 2016.
See Gillpatrick v. Neb. Dep't of Corr. Servs.,
Case CI14-669 (Neb. Dist. Ct. Feb. 2, 2016).
state defendants appealed that decision, however, and on
September 29, 2017, the Nebraska Supreme Court reversed and
remanded on procedural grounds, with instructions to vacate.
See Gillpatrick v. Sabatka-Rine, 902 N.W.2d 115');">902 N.W.2d 115, 119
(Neb. 2017). On January 2, 2018, the plaintiffs again amended
their complaint, naming Skrobecki, Robert Madsen (then-Warden
of NSP), and Frakes in their official capacities.
January 23, 2018, the federal chapter of the plaintiffs'
legal battle began when the case was removed (Filing No. 1)
to this Court. See 28 U.S.C. §§ 1331 and
1441(a). In this Court, the plaintiffs again sought an order
requiring the defendants to allow them to participate in an
plaintiffs and the defendants both moved for summary judgment
(Filing Nos. 51 and 48, respectively). In a Memorandum and
Order (Filing No. 56) and accompanying judgment (Filing No.
57), dated June 7, 2019, the Court granted in part and denied
in part both motions. Relevant to the present motion, the
Court permanently enjoined the defendants and their
successors and designees from denying the plaintiffs'
request to participate in an e-wedding ceremony, awarded the
plaintiffs taxable costs against the defendants, and directed
the plaintiffs to submit a request for attorney fees.
21, 2019, the plaintiffs filed the present motion seeking
$116, 742.50 in attorney fees and $2, 749.43 in
“taxable costs.” The defendants responded (Filing
No. 69) by conditionally stipulating to the reasonableness of the
plaintiffs' request for attorney fees incurred during the
federal chapter of the plaintiffs' legal battle. The
defendants, however, resist any fee award for the
“unsuccessful work” in state court.
42 U.S.C. § 1988, the Court may award reasonable
attorney fees to a prevailing party in an action under 42
U.S.C. § 1983. See also Fed. R. Civ. P. 54(d);
NECivR 54.3. A plaintiff is a prevailing party “when
actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the
defendant's behavior in a way that directly benefits the
plaintiff.” Doe v. Nixon, 716 F.3d 1041, 1048
(8th Cir. 2013) (quoting Advantage Media, LLC v. City of
Hopkins, 511 F.3d 833, 836 (8th Cir. 2008)).
Prison Litigation Reform Act (“PLRA”) limits the
recovery of attorney fees in actions brought by prisoners
“confined to any jail, prison or other correctional
facility.” 42 U.S.C. § 1997e(d)(1). Relevant here,
the PLRA (1) only allows attorney fees “directly and
reasonably incurred in proving an actual violation of the
plaintiff's rights protected by [§ 1983], ” 42
U.S.C. § 1997e(d)(1)(A), and (2) limits the hourly rate
for the fee award to 150 percent of the ...