      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2    Lynch et al. v. Leis et al.          Nos. 03-3269/3279
   ELECTRONIC CITATION: 2004 FED App. 0288P (6th Cir.)
               File Name: 04a0288p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ARGUED: Philip L. Zorn, Jr., HAMILTON COUNTY
               FOR THE SIXTH CIRCUIT                     PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellant.
                 _________________                       Stephen R. Felson, Cincinnati, Ohio, for Appellees.
                                                         ON BRIEF: Philip L. Zorn, Jr., Christian J. Schaefer,
JEFF LYNCH ,                      X                      HAMILTON COUNTY PROSECUTOR’S OFFICE,
                       Plaintiff, -                      Cincinnati, Ohio, for Appellant. Stephen R. Felson, Robert
                                   -                     B. Newman, Cincinnati, Ohio, Lisa T. Meeks, NEWMAN &
                                   - Nos. 03-3269/3279   MEEKS, Cincinnati, Ohio, for Appellees.
MIKE POWERS ,                      -
            Plaintiff-Appellee/ >                                            _________________
                                   ,
              Cross-Appellant, -
                                                                                 OPINION
                                   -                                         _________________
           v.                      -
                                   -                        KAREN NELSON MOORE, Circuit Judge. Defendants-
SIMON L. LEIS , JR., Sheriff of    -                     Appellants-Cross-Appellees Simon L. Leis, Jr., Sheriff of
                                   -                     Hamilton County, Ohio, and Louis F. Strigari, Public
Hamilton County, Ohio, and
                                   -                     Defender of Hamilton County, Ohio, (collectively, “Hamilton
LOUIS F. STRIGARI, Public          -                     County”) appeal from the district court’s grant of attorney
Defender of Hamilton               -                     fees to Plaintiff-Appellee-Cross-Appellant Mike Powers
County, Ohio,                      -                     (“Powers”) in this 42 U.S.C. § 1983 suit challenging the
      Defendants-Appellants/ -                           Hamilton County Justice Center’s (“HCJC”) policy of
              Cross-Appellees. -                         allowing prisoners to make only collect telephone calls,
                                   -                     which in combination with the Hamilton County Public
                                  N                      Defender’s policy of refusing collect calls operated to deny
      Appeal from the United States District Court       pretrial detainees at the HCJC their Sixth Amendment right
    for the Southern District of Ohio at Cincinnati.     to counsel. Hamilton County argues that Powers lacked
     No. 00-00274—Susan J. Dlott, District Judge.        standing to bring the underlying action, that Powers could not
                                                         maintain this suit without exhausting his state remedies under
                Argued: August 11, 2004                  the Prison Litigation Reform Act (“PLRA”), that Powers is
                                                         not a “prevailing party” under 42 U.S.C. § 1988, that Powers
         Decided and Filed: August 31, 2004              is only entitled to attorney fees as mandated by the PLRA,
                                                         and that the district court abused its discretion in awarding
 Before: SILER, MOORE, and COLE, Circuit Judges.         attorney fees in the amount that it did. Powers argues in his
                                                         cross-appeal that the district court erred in not awarding fees

                           1
Nos. 03-3269/3279              Lynch et al. v. Leis et al.   3    4     Lynch et al. v. Leis et al.          Nos. 03-3269/3279

for the full amount of time spent on preparing the petition for   release on his own recognizance on April 24, 2000, he
attorney fees, and in determining the reasonable hourly rate of   continued to have trouble resolving his case and a capias—a
one of his counsel. Because we determine that Powers never        writ directing his arrest—was issued on June 21, 2000. That
had standing to bring this action, we REVERSE the decision        capias was recalled on July 23, 2000, and Powers’s case was
of the district court.                                            resolved on July 24, 2000, with a nolo contendere plea.
                    I. BACKGROUND                                    Lynch and Powers moved for a preliminary injunction on
                                                                  November 1, 2000, and to certify a class on February 2, 2001.
  The underlying facts of the case are not in dispute, and the    On February 8, they moved to consolidate their pending
merits of Powers’s suit is not at issue in this appeal. At the    motion for a preliminary injunction with a motion for a
time that the lawsuit commenced, pretrial detainees at the        permanent injunction. On March 16, 2001, a joint stipulation
HCJC who did not make bond were placed, following                 of facts was filed by the parties, including the stipulation that
arraignment, in a permanent housing unit where they were          the capias had been issued on June 21, 2000, and Hamilton
only allowed to make collect calls. The Public Defender’s         County filed a motion to dismiss for lack of subject matter
Office of Hamilton County, routinely assigned to indigent         jurisdiction. On January 22, 2002 the Third Amended
detainees charged with a misdemeanor, refused to accept           Complaint was filed by Lynch and Powers, containing for the
collect calls on its main line, while its staff attorneys, who    first time an allegation of the issuance of the capias, and on
had discretion to accept collect calls on their direct lines,     January 25, 2002, the district court ruled on Hamilton
accepted only a tiny fraction of incoming collect calls (6 of     County’s motion to dismiss, which was filed in response to
322 between October of 1999 and September of 2000). The           the Second Amended Complaint. Hamilton County had
district court determined that this violated the Sixth            moved to dismiss alleging the plaintiffs lacked standing and
Amendment rights of pretrial detainees.                           had failed to exhaust their administrative remedies under the
                                                                  PLRA. In response, the plaintiffs had argued with respect to
   What is hotly contested is whether the district court          Powers’s standing that he was free on his own recognizance
properly exercised jurisdiction over this case. This action was   on the date of the filing of the Second Amended
initiated on April 7, 2000, with Jeff Lynch as the initial        Complaint—when he was added to the litigation—and “thus
plaintiff. The first complaint sought “actual and punitive        in imminent danger of being reincarcerated if he failed to
damages,” as noted in its introduction, and prayed that the       perform as required.” J.A. at 112 (Mem. in Opp. to County
district court “[d]eclare that Defendants’ telephone policies     Defs. Mot. To Dismiss). They also noted, “That danger was
violate the Constitution,” as well award damages, fees, and       drastically multiplied by the issuance of a capias on June 21,
costs. Joint Appendix (“J.A.”) at 12, 17. Powers was initially    2000,” J.A. at 112, and obliquely implied the capias was still
added to the suit on May 25, 2000, in the Second Amended          outstanding: “even if Mr. Powers’ claim becomes moot by
Complaint. That complaint sought “nominal damages and             the disposition of his proceedings . . .” J.A. at 113 (emphasis
equitable relief.” J.A. at 19. Powers had been arrested on        added). Of course, at the time that this Memorandum was
January 19, 2000 for operating a motor vehicle without a          filed, his case had been resolved.
license and improper display of a license plate. He failed to
appear and was eventually arrested, on April 4, 2000. After         The district court dismissed Lynch from the suit on
failing to make bail, he was confined at the HCJC for twenty      January 25, 2002, for lack of standing, but denied Hamilton
days, when he was affected by the phone policies; after his       County’s motion to dismiss Powers from the suit, on the
Nos. 03-3269/3279              Lynch et al. v. Leis et al.    5    6     Lynch et al. v. Leis et al.           Nos. 03-3269/3279

ground that the capias had been outstanding against Powers            At that point, the defendants appealed to this court from the
since June 21, 2000, thereby creating a substantial threat of      district court’s decisions of January 25, 2002 (motion to
injury sufficient to confer standing. This factual conclusion      dismiss), February 19, 2002 (entry of permanent injunction),
was incorrect; while the parties had stipulated to the issuance    and May 8, 2002 (denial of motion to vacate). While the
of the capias, they had not stipulated to its continued            appeal was pending, the parties continued to litigate the issue
existence—but neither had they stipulated to its withdrawal.       of attorney fees. On June 4, 2002, Powers moved to dismiss
On January 30, 2002, the defendants filed their answer to the      the appeal as moot under prior case law, because Hamilton
Third Amended Complaint, admitting that a capias was issued        County was complying with the injunction rather than seeking
on June 21, 2000. On February 19, 2002, the district court         a stay, and arguing that there was no exception to the rule that
granted the plaintiffs’ motion for a permanent injunction. The     voluntary compliance moots an appeal for challenges to the
district court’s opinion again contained the erroneous             district court’s subject matter jurisdiction, as the appeals court
statement that the capias was “currently outstanding.” Lynch       had no jurisdiction in the first instance. A panel of this court
v. Leis, No. C-1-00-274, slip op. at 6 (S.D. Ohio. Feb. 19,        granted Powers’s motion to dismiss the appeal as moot.
2002), J.A. at 139.                                                Lynch v. Leis, No. 02-3610 (6th Cir. Aug. 13, 2002) (order
                                                                   granting motion to dismiss), J.A. at 461-62. On August 26,
  On February 20, 2002, the defendants filed a motion under        2002, the defendants moved again in the district court to
Federal Rules of Civil Procedure 52(b), 59(a), and 60(b) to        dismiss the case and Powers’s request for attorney fees due to
vacate the district court’s January 25 and February 19, 2002       lack of jurisdiction. On January 24, 2003, the district court
orders, based on the results of an investigation into Powers’s     denied that motion and granted Powers’s motion for attorney
court case, revealing that the capias was withdrawn. They          fees, awarding $71,782.50 in fees and $2,201.08 in costs,
apologized for the failure to bring the information to the         based on a lodestar of $57,426 and a multiplier of 1.25. In
district court’s attention in a timely manner. After further       doing so, the district court incorporated its previous rulings on
papers from both sides, the district court denied Hamilton         standing, the PLRA, and mootness, and threatened the
County’s motion to vacate on May 8, 2002. The district court       defendants with sanctions for repeatedly arguing the points.
reasoned that under Rules 59 and 60(b), the only evidence          It is from that ruling that all parties appeal.
that could be admitted on motion was that not discoverable
through due diligence, and that court records were certainly                              II. ANALYSIS
discoverable through due diligence. The district court
rejected the defendants’ reliance on the usual rule that subject   A. Standard of Review
matter jurisdiction can be raised any time, reasoning that the
defendants had “stipulated facts giving rise to jurisdiction.”       The issue of standing is reviewed de novo. Cleveland
J.A. at 233. The district court also rejected what it              Branch, NAACP v. City of Parma, 263 F.3d 513, 523 (6th Cir.
characterized as Hamilton County’s oblique argument that the       2001).
case was moot due to voluntary compliance; they had in fact
made the slightly more nuanced, though rather more flawed          B. Standing
argument that their voluntary compliance deprived Powers of
initial standing.                                                    As a preliminary matter, Powers asserts that this appeal, to
                                                                   the extent it raises issues on the merits declared moot in
                                                                   Hamilton County’s previous appeal, is moot, both as a matter
Nos. 03-3269/3279                     Lynch et al. v. Leis et al.          7    8       Lynch et al. v. Leis et al.               Nos. 03-3269/3279

of law of the case and because Hamilton County has complied                     party. That the previous appeal was moot because the
fully with the lower court’s injunction. This argument is                       judgment below—the injunction—no longer presented a
unavailing, and can be dealt with briefly. The first appeal was                 matter of dispute between the parties is totally irrelevant to
dismissed as moot because no live case or controversy                           the question of whether the judgment below on this
existed; no further dispute existed between the parties because                 appeal—the fee award—presents such a dispute. Powers also
Hamilton County had voluntarily complied with the                               requests sanctions against Hamilton County for bringing a
injunction.1 This appeal concerns the propriety of the fee                      frivolous appeal; that request fails, as explained below.
award, which presents a live case or controversy between the
parties: a monetary judgment against the defendants below                          Hamilton County asserts in this appeal—as it did in the
indubitably presents a live appeal. If Powers is not a proper                   previous appeal and before the district court numerous
prevailing party, the fee award was in error. If Powers never                   times—that Powers never had standing to seek injunctive
had standing to bring the case,2 he is not a proper prevailing                  relief, as there was not a “threat of injury . . . both real and
                                                                                immediate, not conjectural or hypothetical.” City of L.A. v.
                                                                                Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks
    1                                                                           omitted). The county complains that the district court
       This holding may very well have been precipitous, as “[a]
defendant’s voluntary cessation of allegedly unlawful conduc t ordinarily
                                                                                incorrectly inferred that the capias was outstanding from June
does not suffice to moot a case.” Friend s of the Earth, Inc. v. Laidlaw        21, 2000 forward, and relied upon that incorrect inference in
Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). Nonetheless, in another          holding that Powers had standing to bring the action. In
exam ple of the confusion surrounding basic federal courts issues in this       response, Powers asserts first that the district court’s rationale
case, Hamilton County had “concede[d] that they are now in full                 for refusing Hamilton County’s attempt to introduce new
compliance with the inju nction and that the alleged wrongful conduct           evidence which it could have discovered earlier through due
cannot reasonably be expected to recur,” thus vo luntarily mooting their
own appeal. Lynch v. L eis, No. 02-3610, 1 (6th Cir. Aug. 13, 2002)             diligence3 was correct; then that Hamilton County had
(ord er granting motion to dism iss), J.A. at 461 .                             stipulated to facts which created standing, see Eng’g
                                                                                Contractors Ass’n of S. Fla. Inc. v. Metro. Dade County, 122
    2
       W e note briefly that Powers had asserted below a claim for nominal      F.3d 895, 905 (11th Cir. 1997); and finally that at the time of
dama ges, which is normally sufficient to establish standing, defeat            the filing of the Third Amended Complaint, “the stipulated
moo tness, and grant prevailing party status for the purpose of attorney        fact was that an outstanding capias existed for Plaintiff
fees under 42 U.S.C. § 1988. See Buckhannon B d. & Care Home, Inc. v.           Powers.” Appellee’s/Cross-Appellant’s Br. at 20.
W. Va. Dep ’t of Health & Hum an R es., 532 U.S. 598, 604 (2001)
(“[E]ven an award of nominal damages suffices under [the prevailing
party] test.”); Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[T]he                  Standing “is to be determined as of the time the complaint
dep rivation of such [absolute] rights [is] actionable for nominal              is filed.” Cleveland Branch, NAACP, 263 F.3d at 524. The
damages”); Utah Animal Rights Coalition v. Salt Lake City Corp., 371
F.3d 1248, 1268 (10th Cir. 2004) (“The Sixth and Ninth Circuits, like
ours, squarely hold that a claim for nominal d amages is sufficien t to
render a case justiciable.”) (M cCo nnell, J., co ncurring); Murray v. Bd. of
Trs., 659 F.2d 7 7, 79 (6th Cir. 1981) (district court erred in dismissing      which went unappealed by Powers. Therefore, because Powers lacked
entire complaint as moot, rather than simply dismissing claim for               standing on the one claim on which he prevailed, the fee award cannot
injunctive relief, where plaintiff sought nominal damages and fees).            stand.
However, at oral a rgument, counsel for Po wers ind icated that the claim           3
for nominal damages was no longer live, as the district court had issued              In fact, Hamilton County’s court records are available to the public
its final decision on the merits without awarding damages, a decision           online at http://www.courtclerk.org.
Nos. 03-3269/3279                   Lynch et al. v. Leis et al.         9    10       Lynch et al. v. Leis et al.                Nos. 03-3269/3279

parties dispute whether the operative complaint is the first                 RD/5236; State v. Powers, No. 00/TRD/23718, A, B
complaint, initiating the action, the Second Amended                         (Hamilton        County      Municipal      Traffic   Division
Complaint, adding Powers, or the Third Amended Complaint,                    January 19, 2000) (docket sheet),
the final complaint filed. This confusion seems to be                        http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?/00/TR
generated by County of Riverside v. McLaughlin, 500 U.S. 44,                 D/23718.5        In at least one of those cases, No.
51 (1991), which in the course of conferring standing to seek                C/00/TRD/5236/A, B (“No. 5236”), that relied upon below,
injunctive relief on warrantless arrestees who at the time their             his case hadn’t moved forward beyond his release from
complaint was filed were suffering constitutional injury,                    custody. The question then becomes whether the mere
referred to the final complaint filed in the case, the second                pendency of proceedings against Powers could create a
amended complaint, as “the operative pleading.” Id. at 48. A                 sufficient risk that he would again be subject to the
careful reading of County of Riverside demonstrates that the                 deprivation of his Sixth Amendment right by being placed in
second amended complaint was important not because it was                    detention at the HCJC to confer standing upon Powers to seek
the operative pleading, but because it was that complaint                    injunctive relief to prevent that deprivation. In Lyons, the
which named “three additional plaintiffs” who were “still in                 Supreme Court explained that “a real and immediate” threat
custody” at the time the complaint was filed, and who were                   did not exist to confer standing where such a threat was
the plaintiffs found to have standing by the Court. Id. at 49,               attenuated by both the unlikeliness that Lyons would have
51; see also Rosen v. Tenn. Comm’r of Fin. & Admin., 288                     another encounter with the police and the unlikelihood that
F.3d 918, 929 (6th Cir. 2002) (describing focus of County of                 the police would employ a chokehold during that encounter.
Riverside Court on “second amended complaint making the                      461 U.S. at 101-09. In the instant case, while there was
claim in question” (emphasis added)). Therefore, the                         certainty that if placed in detention again Powers would have
operative complaint is the one adding Powers to the action,                  been subject to the unconstitutional policy, there was no
and the operative date is May 25, 2000, rendering the capias                 certainty that he would have been placed in detention again.
entirely irrelevant to the question of standing.4                            “[F]or purposes of assessing the likelihood that state
                                                                             authorities will reinflict a given injury, [the Supreme Court]
   Instead, Powers’s standing to seek injunctive relief must                 generally ha[s] been unwilling to assume that the party
rise or fall on his status on May 25, 2000, at which                         seeking relief will repeat the type of misconduct that would
point he was out on bond, with two separate cases                            once again place him or her at risk of that injury.” Honig v.
proceeding against him.       See State v. Powers, No.                       Doe, 484 U.S. 305, 320 (1988); see also Lyons, 461 U.S. at
C/00/TRD/5236/ A, B (Hamilton County Municipal                               101-09; Grendell v. Ohio Supreme Ct., 252 F.3d 828, 833
Traffic     Division May 6, 2000) (docket sheet),                            (6th Cir. 2001) (likelihood that plaintiff would again bring a
http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?C/00/T                    lawsuit so frivolous as to place him at risk of sanctions too
                                                                             remote to support standing). Powers would have had to fail
                                                                             to appear for a scheduled court date on his pending matters,
    4                                                                        violate the conditions of his pretrial release in some other
      The operative complaint here could not be the first complaint
consonant with County of Riverside, and it could not be the Third
Amended Com plaint consonant with the general rule that while “a
plaintiff may correct the complaint to show that jurisdiction does in fact        5
exist . . ., [federal jurisdiction] may not b e crea ted by amendm ent.”           As noted above, these court records are available o nline to members
J AMES W M . M OORE , 3 M OORE ’S F EDERAL P RACTICE § 15.14[3], at 15-34    of the public; as they are court records, this court may take judicial notice
(3d ed. 2000 ).                                                              of them . See Lyons v. Stovall, 188 F.3d 327 , 332 n.3 (6th Cir. 1999 ).
Nos. 03-3269/3279                      Lynch et al. v. Leis et al.          11

way, or commit some other conduct leading to his arrest.
This chance, based on Powers’s likelihood of violating
unchallenged laws,6 is insufficient to confer Article III
standing.
  It is unfortunate that the confusion between the parties
below over this most fundamental of jurisdictional issues has
led to this outcome, where a prevailing party whose attorneys
won an important victory for all pretrial detainees at the
Hamilton County Justice Center is denied a fee award after a
completed successful action, but “[u]nless the statute under
which a party seeks attorney’s fees contains an independent
grant of jurisdiction, an appellate court must vacate an award
of attorney’s fees if the district court did not have subject
matter jurisdiction over the litigation.” Greater Detroit Res.
Recovery Auth. & Combustion Eng’g v. United States EPA,
916 F.2d 317, 320 (6th Cir. 1990); see also Friends of the
Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 886-
887 (8th Cir. 1995). The award of attorney fees and costs to
Powers is therefore REVERSED.




     6
       Powers does not argue that the substantive law forbidding his
conduct (in this case, the Ohio vehicle code) is invalid, but instead that
some consequence of his citation is unlawful. Where the law forbidding
the illegal act is itself challenged, an allegation that the plaintiff wishes to
engage in the unlawful activity is sometimes sufficient to confer standing
to challenge the law. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355
n.3 (1983).
