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Attorney Fees in Section 1983 Litigation


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Section 1983 Damages and Attorneys’ Fees Using the Law to One’s Advantage in Court

Section of Litigation of the American Bar Association, Spring 2006
Defendants may seek compensation for infringement of their constitutional rights under Section 1983. Damages, taxation of recoveries, and attorney fees are all topics that are discussed in this article, as well as the overall structure for Section 1983 attorneys fees claims.

Claims Under 42 U.S.C. Section 1983 attorneys fees

Tort claims based on the 1983 Act have no basis in law. If your personal or property interests have been violated, you may take legal action under Section 1983 attorneys fees, which is similar to common law tort claims. 1 The term “constitutional tort” is often used to describe these types of claims.

Reconstruction Era legislation, the Civil Rights Act of 1871, gave rise to Section 1983 attorneys fees, which was used to enforce the newly-enacted Fourteenth Amendment. For one thing, governments were unable to keep up with organisations like the Ku Klux Klan2 because they couldn’t afford to do so.

Since many state courts have been unable to uphold the criminal laws of their respective states, and since many parts of our country’s life and property are outside the control of local governments, Congress should enact laws necessary to protect our citizens. 3

Defendants who violate federally protected rights while acting under the cover of state law are protected by Section 1983, a civil rights provision. Legislatively, there are no substantive rights conferred by the act at hand. 4 As a result, there is no Section 1983 attorneys fees violation without a denial of a right guaranteed by a different statute. A claimant under Section 1983 must thus specify the federally protected right that was infringed in order to succeed.

Both the challenged behaviour by an individual operating under colour of law, as well as the disputed conduct that denied the plaintiff a federal right must be included in an action brought under Section 1983 attorneys fees.

5 If a plaintiff is successful in a Section 1983 attorneys fees lawsuit, they must show that the defendant’s unlawful conduct caused their injury.6

Plaintiffs have the power to sue specific state actors under this Act if they believe they have been violated of their constitutional rights. The “state” is not a named defendant under Section 1983 attorneys fees, but a municipality is, if the behaviour complained of is related to an official municipal policy, custom, or practise that results in a constitutional tort.7. 8

The vast majority of complaints filed under Section 1983 attorneys fees include constitutional challenges rooted in the Fourteenth Amendment. Acts performed by government officials in the course of their official duties are often the subject of civil lawsuits.

There is no question that the alleged misconduct was carried out “under cover of law” in these instances. In circumstances when a private person is claimed to have collaborated with government authorities, the issue becomes more difficult to answer. Section 1983 attorneys fees claims may be brought before state and federal courts simultaneously under the concept of concurrent jurisdiction.

In the 35 years following the Supreme Court’s decision in Monroe v. Pape9, the number of complaints filed under Section 1983 attorneys fees has risen significantly. It’s also helpful to look at cases decided following Monroe v. Pape to see what damages and attorney costs may be recovered in this situation.


Section 1983 attorneys fees plaintiffs may be entitled to a wide range of both compensatory and punitive damages if they prevail. Back pay and lost future earnings are examples of compensatory damages that may be awarded to those who have been harmed by a medical malpractice lawsuit.

There will be no award of actual damages if guilt is established but no evidence of compensatory damages may be presented to the jury (typically one dollar).

Even a little amount of damages may open the way to an award of punitive damages or attorney costs, even if the amount is small. Predicted damages have been dismissed by courts unless conventional damages are impossible to demonstrate.

11 Courts may limit compensatory damages in cases when the plaintiff presents merely broad evidence of emotional anguish and suffering, not reaching to a level commensurate with the jury’s judgement.

12 It doesn’t matter whether state’s law governs the forum when it comes to Section 1983 attorneys fees damages, since they aren’t based on local common law. 13

The terms “front pay” and “loss future earnings awards” used in Section 1983 attorneys fees remedies are often misunderstood. However, lost future earnings qualify as a compensating remedy to be considered by a judge or a jury.

14 “Front pay is an equitable remedy paid in place of promotion when advancement is improper or unattainable. Due to the fact that it is a substitute remedy that provides the plaintiff with the same benefit (or as near to an approximation as feasible), front pay is the functional equivalent of promotion.”

15 As a result, front pay is only given for a short period of time, simulating the impacts of reinstatement more accurately. Lost future earnings are awarded to a plaintiff in order to compensate them for intangible non-monetary losses (i.e., reputational or other injury to professional standing).

Loss of earning ability may only be compensated if the plaintiff can demonstrate that his injuries have reduced the number of employment options accessible to him. A plaintiff must demonstrate that his impairment has impacted his capacity to make a livelihood,” according to the law. 16

There are punitive damages applicable against individual defendants if acts were either intentionally or recklessly performed with callous disdain for the rights of the plaintiffs.

Furthermore, even in the absence of real harm, individual offenders may be subject to punitive damages.

18 Punitive damages, on the other hand, are not available to municipalities. 19 Consequently, only compensatory losses are subject to joint and several responsibility.

Among the factors considered by the jury in awarding punitive damages are the defendant’s reprehensibleness, impact on the plaintiff, the relationship between defendant and plaintiff and likelihood that the defendant will repeat the conduct if an award of damages is not made, the defendant’s financial condition, and the relation of any award of punitive damages to actual harm the plaintiff suffered.

“[t]he most essential indicium of the appropriateness of a punitive damages judgement is the degree of reprehensibility of the defendant’s behaviour,” states Supreme Court precedent.

Punitive damages awards that are out of proportion to the plaintiff’s genuine injury are often mentioned as a second sign of an unfair or disproportionate verdict.

22 The Supreme Court understands that the ratio approach has little significance where a plaintiff’s economic losses are small or virtually nominal. 23 The ratio of compensatory to punitive damages is likely to be larger when “injuries without a ready monetary value” are involved, such as when constitutional rights are violated without causing bodily hurt or other forms of harm for which damages may be awarded.

24 As a cost-cutting measure or as a means of limiting punitive damages, several jurisdictions’ common law requires that a plaintiff seeking punitive damages prove genuine malice. Punitive damage claims in other states must meet a higher bar of evidence, such as the clear and compelling standard of proof.

Finally, punitive damages are only allowed in Ohio and Kansas if the jury decides they should be given, with the judge deciding on the amount. These concerns are still being litigated,25 and it’s not yet clear whether these constraints apply to Section 1983 attorneys fees claims effectively.

Concerns about taxation

Except for those explicitly stated elsewhere in the code, gross income is defined under the Internal Revenue Code as “all revenue from whatever source generated.”

26 Compensation for personal injuries or illness is not included in gross income under the Code, regardless of how it is acquired (by litigation, agreement, or as a lump sum or as monthly instalments).

27 When it comes to proving that damages were obtained “on account of personal injury,” taxpayers under Section 1983 attorneys fees have an uphill battle since the Code provides no guidance. 28

Section 1983 attorneys fees claims are typically tort claims, thus they should be excluded from taxable income. There are a few exceptions to this rule, including those situations in which the plaintiff claims non-tort damages based on the plaintiff’s adherence to constitutional and statutory or state law.

When a plaintiff claims a constitutional tort and damages for lost earnings or contracts, the possible tax problem often emerges. At assess whether a claim is based on a claim of bodily injury or illness, courts look to the genuine substance of the claim in such circumstances As an example, in a tort/employment dispute, back pay amounts proven at trial might be used to estimate tort damages, so avoiding any tax responsibilities for the plaintiff.

A plaintiff may be taxed on a settlement or a judgement depending on how it is classified. Personal injury, punitive, and business-related damages should be explicitly and properly allocated in a complaint and settlement agreement, even if a client has a good faith personal injury claim.” 29

Finally, courts normally “do not enhance damages to compensate for potential tax liabilities on the damage judgement. Assuming that the defendant had performed its duties, the damages awarded to the plaintiff “would have been income and so taxable had the defendant’s violation not occurred.” 30

Paying an attorney’s bill

Parties in American litigation are typically responsible for their own legal bills, and the winner is not entitled to reimbursement from the loser. We in the United States follow a general rule of not paying fees to a successful party without specific legislation permission under the American Rule.

The payment of attorney’s fees to the victorious side, however, has been permitted by various acts by the United States Congress….” 31 In pertinent part, the Civil Rights Attorney’s Fees Awards Act of 197632 stipulates:

When enforcing any law or regulation

Except in actions brought against a judicial officer for an act or omission taken in that officer’s capacity as a judge, such officer shall not be held liable for any expenses including attorney’s fees, unless such action was clearly outside the jurisdiction of that officer.

Section 1983 attorneys fees damages are meant to recompense those who have been deprived of their fundamental rights. A party may only be awarded legal fees if he or she has succeeded on the facts. 33 In order to get a discretionary award of attorney fees under section 1988, a party must be a “prevailing party.”

When it comes to legal fees, “[l]liability on the merits and accountability for fees are intertwined; when a defendant has not been prevailed against, either due to legal immunity or on the merits, a fee judgement against that defendant is not permitted.” 34

“[A] civil rights plaintiff must get at least some redress on the merits of his claim to qualify as a prevailing party. An enforceable judgement against the defendant from whom fees are sought, or a similar remedy via a consent decree or settlement, is required by the plaintiff.

In order for a settlement or judgement to be binding, it must directly benefit the plaintiff at the time of the agreement or verdict. If the judgement or settlement does not “change the defendant’s conduct toward the plaintiff,” it cannot be claimed to have this effect.

35 Under Section 1988, attorneys’ fees are also recoverable pendente lite: To the extent that a party has proved his right to relief on the basis of his claims in the trial court or on appeal, such awards are appropriate. 36

According to the “catalyst theory,”37 in which a plaintiff’s case led to a voluntary change in the defendant’s behaviour, but without lowering those claims to judgement, attorney fees are not attainable.

Although a defendant’s voluntary change in behavior may accomplish what the plaintiff hoped to achieve via the action, it lacks the requisite court imprimatur, which is why this general rule is in effect. 38

Even in the abstract, determining whether a certain side is a “prevailing party” in a given circumstance may be challenging. The degree of success achieved is one of the most important variables in establishing the appropriateness of a fee award. 39

It is evident from two separate decisions by the Seventh Circuit Court of Appeals that applying the law is challenging. In the first, Judge Easterbrook, writing for the panel, held that any award of attorney fees would be strongly weighed against a plaintiff’s failure to collect at least 10% of the damages it sought. 40

After writing for the panel, then-Chief Judge Posner argued that “[s]ince a defendant must take seriously a large demand and prepare its defence accordingly, it is right to penalise a plaintiff for placing the defendant to bother of defending against a much larger claim than the plaintiff could prove.” 41

A “fair attorney’s fee” might be more expensive than the value of the claim, according to Chief Judge Posner, since “the expense of defending a claim includes a fixed component.” 42 To ensure that even minor claims may be heard in court, the Seventh Circuit argued that restricting lawyers’ fees awards at the amount of damages awards would defeat the purpose of fee shifting for those who win. 43

The Supreme Court has listed 12 considerations to utilise in determining the reasonableness of a fee award, which is beyond the scope of this article to explore in detail.

44 According to the Supreme Judge, a court may “lawfully award low fees or no fees without stating the 12 elements bearing on reasonableness, or multiplying ‘the number of hours fairly spent by a reasonable hourly rate'” without reciting the 12 factors bearing on reasonableness. 45

Even if a small damage award meets the requirements for prevailing party status, it is not uncommon for no fees to be awarded.

Even if a plaintiff is declared the victor under 1988, the attorney’s fees may be withheld in specific cases. In many cases, the successful party is a plaintiff who demands compensatory damages but only obtains minimal compensation…

Even if a nominal damages award does not make a plaintiff a victorious party, it does enable him to assert his absolute right to procedural due process. However, the granting of nominal damages in a civil rights complaint also shows the plaintiff’s inability to establish real, compensable harm.

Damages granted in a 1983 case must always be intended to remedy losses caused by the constitutional deprivation, regardless of the constitutional foundation for substantive culpability. Usually the only fair fee is none at all when a plaintiff only receives minor damages because of his inability to show an important aspect of his claim for monetary relief. 46

As a result, in order to get an attorney fee, a plaintiff’s success must be more than technical or minor in character. In spite of the fact that a “pittance” is adequate to make [the plaintiff] a prevailing party, it does not by itself preclude his success from being entirely technical. 47

Lastly, “[t]he fact that the fees granted exceed the damages awarded is not determinative either. It’s possible for an attorney’s fee to surpass the worth of your claim since the expense of fighting one has a fixed component,” he says. 48

Section 1988 and Rule 68 in Relation to Each Other

Defendant may offer judgement against it in a defined sum under Rule 68. If plaintiff does not accept the offer and subsequently receives a judgement that is less favourable than the offer, plaintiff must pay defendant’s costs incurred as of the time of the offer, as per rule.

49 To get plaintiffs to settle for an acceptable amount, “Rule 68 of the Federal Rules of Procedure” may be an effective tool. 50 A defendant may claim that a plaintiff is not a ‘prevailing party,’ even if its recovery represents a minor increase over the Rule 68 offer, since Section 1988 allows legal costs to be recovered from the winning party. 51

A Rule 68 offer in excess of what a plaintiff may obtain at trial may deprive a court of jurisdiction under Article III of the Constitution in circumstances where the attainable damages are minor and recovery of lawyers’ fees is the primary reason for continuing the proceedings.” 52

Considerations for the Real World

Getting money for your client is the sole purpose of a trial, according to David A. Ball, Ph.D., a trial consultant and author.

53 Even if monetary compensation is not the primary issue in a Section 1983 attorneys fees lawsuit, a jury may only award damages. As stated by Dr. Ball, juries are meant to remedy what can be mended, assist those who can be helped, and compensate for those who can’t. 54

The plaintiff’s attorney’s role is to demonstrate to the jury how they may accomplish their duty by assigning damages. “Until [the trial attorney] can convince them to walk in [the plaintiff’s] shoes,” jurors “cannot judge the full weight of the injury.” 55

“Effort saves money.”

Attorneys who are pursuing damages for a client must remember to devote a considerable amount of time to resolving damages, not just enough time to get the job done. Damages, losses, and money should account for 30 to 50 percent of the whole trial time. 57

“A trial counsel must explain to the jury how they can figure out how much to make up for the injuries and losses,” since a jury has a difficult time deciding how much to award as a verdict. 58 This is especially critical if the court sets a time restriction on the amount of evidence that may be presented.

Federal Rule 16(c)(15) of the Federal Rules of Civil Procedure states that “the court may take appropriate action, with regard to an order to impose a reasonable limit on the time permitted for presenting evidence” at any pre-trial conference convened under the rule.

Courts are increasingly using their Rule 16 jurisdiction to restrict the length of time the parties have to present their argument at trial because of congested dockets and limited judicial resources—the ongoing tension between supply and demand.” 59 Compensation (and/or punitive) damages are often determined by the efficiency with which an attorney utilises his or her time.

Under present legislation, there is no sign of a decrease in the amount of Section 1983 attorneys fees lawsuits being brought. Legal counsel for both sides must understand the core issues raised by these claims and be well-versed in the nuances of the damages that may be awarded.

It is impossible for a lawyer to provide comprehensive advice and representation to a client without having access to this kind of data.


1. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624 (1999).

2. Monroe v. Pape, 365 U.S. 167, 175, 81 S. Ct. 473, 478 (1961).

3. Id. at 176 (citing Senator Osborn of Florida, CONG. GLOBE, 42d Cong., 1st Sess. 653).

4. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618, 99 S. Ct. 1905, 1916 (1979).

5. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923 (1980).

6. Carey v. Piphus, 435 U.S. 247, 263, 98 S. Ct. 1042, 1052 (1978).

7. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66–67, 109 S. Ct. 2304, 2310 (1989).

8. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691, 98 S. Ct. 2018 (1972).

9. 365 U.S. 167, 175, 81 S. Ct. 473, 478 (1961).

10. 7th Cir. Pattern Jury Instructions § 7.23.

11. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 106 S. Ct. 2537 (1986)

12. Whitfield v. Melendez-Rivera, 431 F.3d 1, 47 (1st Cir. 2005).

13. Basista v. Weir, 340 F.2d 74, 86 (3d Cir. 1965).

14. Williams v. Pharmacia, Inc., 137 F.3d 944, 954 (7th Cir. 1998).

15. Miles v. Indiana, 387 F.3d 591, 601 (7th Cir. 2003) (internal citation and quotes omitted).

16. Williams, 137 F.3d at 952 (internal quotes omitted).

17. Smith v. Wade, 461 U.S. 30, 51, 103 S. Ct. 1625, 1637 (1983).

18. King v. Marci, 993 F.2d 294, 297 (2d Cir. 1993).

19. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261, 101 S. Ct. 2748, 2756 (1981).

20. 7th Cir. Pattern Jury Instructions § 7.24.

21. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S. Ct. 1513, 1521 (2003).

22. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580, 116 S. Ct. 1589, 1601 (1996).

23. Lee v. Edwards, 101 F.3d 805, 810–12 (2d Cir. 1996).

24. Argentine v. United Steel Workers of Am., AFL-CIO, CLC, 287 F.3d 476, 488 (6th Cir. 2002).

25. SWORD & SHIELD REVISITED: A PRACTICAL APPROACH TO Section 1983 attorneys fees (Mary Massaron Ross ed. 1998).

26. I.R.C. § 61(a) (1994).

27. I.R.C. § 104(a) (1994).

28. Seay v. Comm’r, 58 T.C. 32, 36 (1972); Nicole Marie Mosesian, How to Avoid Unfavorable Tax Consequences for Your Personal Injury Client’s Settlement or Judgment, 30 GONZ. L. REV. 343, 344 (1995).

29. Mosesian, supra note 28, at 364.

30. Oddi v. Ayco Corp., 947 F.2d 257, 267 (7th Cir. 1991).

31. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 1839 (2001) (internal citation and quotes omitted).

32. 90 Stat. 2641, as amended, codified at 42 U.S.C. § 1988.

33. Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S. Ct. 1987 (1980) (per curiam).

34. Farrar v. Hobby, 506 U.S. 103, 109, 113 S. Ct. 566, 572 (1992).

35. Id. at 111 (internal citations omitted).

36. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790, 109 S. Ct. 1486, 1492 (1989).

37. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 605 (2001).

38. Id. at 605.

39. Farrar, 506 U.S. at 114.

40. Perlman v. Zell, 185 F.3d 850, 859–60 (7th Cir. 1999).

41. Tuf Racing Prods., Inc. v. Am. Suzuki Motor Co., 223 F.3d 585, 592 (7th Cir. 2000).

42. Id.

43. Id.

44. See Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933 (1983) (reciting 12 factors bearing on reasonableness).

45. Farrar v. Hobby, 506 U.S. 103, 115 (1992) (internal citations omitted).

46. Id. at 115 (internal citation, quotes, and emphasis omitted).

47. Id. at 120 (internal citation omitted) (O’Connor, J., concurring).

48. Tuf Racing Prods., Inc. v. Am. Suzuki Motor Co., 223 F.3d 585, 592 (7th Cir. 2000).

49. Id.

50. Ian H. Fisher, Federal Rule 68, A Defendant’s Subtle Weapon: Its Use and Pitfalls, 14 DEPAUL BUS. L.J. 89 (Fall 2001) (describing the use of Rule 68 offers of judgment).

51. Id. at 94.

52. Id.


54. Id. at 4.

55. Id. at 10.

56. Id. at 5.

57. Id.

58. Id. at 4.

59. Martha K. Gooding and Ryan E. Lindsey, Tempus Fugit: Practical Considerations for Trying a Case Against the Clock, FED. LAW., January 2006, at 42.


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