Jeff Lynch v. SIMON L. LEIS, JR., Sheriff of Hamilton County, Ohio

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

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Nos. 03-3269/3279 Lynch et al. v. Leis et al. 3
for the full amount of time spent on preparing the petition for
attorney fees, and in determining the reasonable hourly rate of
one of his counsel. Because we determine that Powers never
had standing to bring this action, we REVERSE the decision
of the district court.
I. BACKGROUND
The underlying facts of the case are not in dispute, and the
merits of Powers’s suit is not at issue in this appeal. At the
time that the lawsuit commenced, pretrial detainees at the
HCJC who did not make bond were placed, following
arraignment, in a permanent housing unit where they were
only allowed to make collect calls. The Public Defender’s
Office of Hamilton County, routinely assigned to indigent
detainees charged with a misdemeanor, refused to accept
collect calls on its main line, while its staff attorneys, who
had discretion to accept collect calls on their direct lines,
accepted only a tiny fraction of incoming collect calls (6 of
322 between October of 1999 and September of 2000). The
district court determined that this violated the Sixth
Amendment rights of pretrial detainees.
What is hotly contested is whether the district court
properly exercised jurisdiction over this case. This action was
initiated on April 7, 2000, with Jeff Lynch as the initial
plaintiff. The first complaint sought “actual and punitive
damages,” as noted in its introduction, and prayed that the
district court “[d]eclare that Defendants’ telephone policies
violate the Constitution,” as well award damages, fees, and
costs. Joint Appendix (“J.A.”) at 12, 17. Powers was initially
added to the suit on May 25, 2000, in the Second Amended
Complaint. That complaint sought “nominal damages and
equitable relief.” J.A. at 19. Powers had been arrested on
January 19, 2000 for operating a motor vehicle without a
license and improper display of a license plate. He failed to
appear and was eventually arrested, on April 4, 2000. After
failing to make bail, he was confined at the HCJC for twenty
days, when he was affected by the phone policies; after his
4 Lynch et al. v. Leis et al. Nos. 03-3269/3279
release on his own recognizance on April 24, 2000, he
continued to have trouble resolving his case and a capias—a
writ directing his arrest—was issued on June 21, 2000. That
capias was recalled on July 23, 2000, and Powers’s case was
resolved on July 24, 2000, with a nolo contendere plea.
Lynch and Powers moved for a preliminary injunction on
November 1, 2000, and to certify a class on February 2, 2001.
On February 8, they moved to consolidate their pending
motion for a preliminary injunction with a motion for a
permanent injunction. On March 16, 2001, a joint stipulation
of facts was filed by the parties, including the stipulation that
the capias had been issued on June 21, 2000, and Hamilton
County filed a motion to dismiss for lack of subject matter
jurisdiction. On January 22, 2002 the Third Amended
Complaint was filed by Lynch and Powers, containing for the
first time an allegation of the issuance of the capias, and on
January 25, 2002, the district court ruled on Hamilton
County’s motion to dismiss, which was filed in response to
the Second Amended Complaint. Hamilton County had
moved to dismiss alleging the plaintiffs lacked standing and
had failed to exhaust their administrative remedies under the
PLRA. In response, the plaintiffs had argued with respect to
Powers’s standing that he was free on his own recognizance
on the date of the filing of the Second Amended
Complaint—when he was added to the litigation—and “thus
in imminent danger of being reincarcerated if he failed to
perform as required.” J.A. at 112 (Mem. in Opp. to County
Defs. Mot. To Dismiss). They also noted, “That danger was
drastically multiplied by the issuance of a capias on June 21,
2000,” J.A. at 112, and obliquely implied the capias was still
outstanding: “even if Mr. Powers’ claim becomes moot by
the disposition of his proceedings . . .” J.A. at 113 (emphasis
added). Of course, at the time that this Memorandum was
filed, his case had been resolved.
The district court dismissed Lynch from the suit on
January 25, 2002, for lack of standing, but denied Hamilton
County’s motion to dismiss Powers from the suit, on the

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Nos. 03-3269/3279 Lynch et al. v. Leis et al. 5
ground that the capias had been outstanding against Powers
since June 21, 2000, thereby creating a substantial threat of
injury sufficient to confer standing. This factual conclusion
was incorrect; while the parties had stipulated to the issuance
of the capias, they had not stipulated to its continued
existence—but neither had they stipulated to its withdrawal.
On January 30, 2002, the defendants filed their answer to the
Third Amended Complaint, admitting that a capias was issued
on June 21, 2000. On February 19, 2002, the district court
granted the plaintiffs’ motion for a permanent injunction. The
district court’s opinion again contained the erroneous
statement that the capias was “currently outstanding.” Lynch
v. Leis, No. C-1-00-274, slip op. at 6 (S.D. Ohio. Feb. 19,
2002), J.A. at 139.
On February 20, 2002, the defendants filed a motion under
Federal Rules of Civil Procedure 52(b), 59(a), and 60(b) to
vacate the district court’s January 25 and February 19, 2002
orders, based on the results of an investigation into Powers’s
court case, revealing that the capias was withdrawn. They
apologized for the failure to bring the information to the
district court’s attention in a timely manner. After further
papers from both sides, the district court denied Hamilton
County’s motion to vacate on May 8, 2002. The district court
reasoned that under Rules 59 and 60(b), the only evidence
that could be admitted on motion was that not discoverable
through due diligence, and that court records were certainly
discoverable through due diligence. The district court
rejected the defendants’ reliance on the usual rule that subject
matter jurisdiction can be raised any time, reasoning that the
defendants had “stipulated facts giving rise to jurisdiction.”
J.A. at 233. The district court also rejected what it
characterized as Hamilton County’s oblique argument that the
case was moot due to voluntary compliance; they had in fact
made the slightly more nuanced, though rather more flawed
argument that their voluntary compliance deprived Powers of
initial standing.
6 Lynch et al. v. Leis et al. Nos. 03-3269/3279
At that point, the defendants appealed to this court from the
district court’s decisions of January 25, 2002 (motion to
dismiss), February 19, 2002 (entry of permanent injunction),
and May 8, 2002 (denial of motion to vacate). While the
appeal was pending, the parties continued to litigate the issue
of attorney fees. On June 4, 2002, Powers moved to dismiss
the appeal as moot under prior case law, because Hamilton
County was complying with the injunction rather than seeking
a stay, and arguing that there was no exception to the rule that
voluntary compliance moots an appeal for challenges to the
district court’s subject matter jurisdiction, as the appeals court
had no jurisdiction in the first instance. A panel of this court
granted Powers’s motion to dismiss the appeal as moot.
Lynch v. Leis, No. 02-3610 (6th Cir. Aug. 13, 2002) (order
granting motion to dismiss), J.A. at 461-62. On August 26,
2002, the defendants moved again in the district court to
dismiss the case and Powers’s request for attorney fees due to
lack of jurisdiction. On January 24, 2003, the district court
denied that motion and granted Powers’s motion for attorney
fees, awarding $71,782.50 in fees and $2,201.08 in costs,
based on a lodestar of $57,426 and a multiplier of 1.25. In
doing so, the district court incorporated its previous rulings on
standing, the PLRA, and mootness, and threatened the
defendants with sanctions for repeatedly arguing the points.
It is from that ruling that all parties appeal.
II. ANALYSIS
A. Standard of Review
The issue of standing is reviewed de novo. Cleveland
Branch, NAACP v. City of Parma, 263 F.3d 513, 523 (6th Cir.
2001).
B. 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

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Nos. 03-3269/3279 Lynch et al. v. Leis et al. 7
1This holding may very well have been precipitous, as “[a]
defendant’s voluntary cessation of allegedly unlawful conduc t ordinarily
does not suffice to moot a case.” Friend s of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). Nonetheless, in another
exam ple of the confusion surrounding basic federal courts issues in this
case, Hamilton County had “concede[d] that they are now in full
compliance with the injunction and that the alleged wrongful conduct
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)
(order granting motion to dism iss), J.A. at 461 .
2W e note briefly that Powers had asserted below a claim for nominal
damages, which is normally sufficient to establish standing, defeat
mootness, and grant prevailing party status for the purpose of attorney
fees under 42 U.S.C. § 1988. See Buckhannon B d. & Care Home, Inc. v.
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
dep rivation of such [absolute] rights [is] actionable for nominal
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 sufficient to
render a case justiciable.”) (McCo nnell, J., co ncurring); Murray v. Bd. of
Trs., 659 F.2d 7 7, 79 (6th Cir. 1981) (district court erred in dismissing
entire complaint as moot, rather than simply dismissing claim for
injunctive relief, where plaintiff sought nominal damages and fees).
However, at oral argument, counsel for Powers ind icated that the claim
for nominal damages was no longer live, as the district court had issued
its final decision on the merits without awarding damages, a decision
of law of the case and because Hamilton County has complied
fully with the lower court’s injunction. This argument is
unavailing, and can be dealt with briefly. The first appeal was
dismissed as moot because no live case or controversy
existed; no further dispute existed between the parties because
Hamilton County had voluntarily complied with the
injunction.1 This appeal concerns the propriety of the fee
award, which presents a live case or controversy between the
parties: a monetary judgment against the defendants below
indubitably presents a live appeal. If Powers is not a proper
prevailing party, the fee award was in error. If Powers never
had standing to bring the case,2 he is not a proper prevailing
8 Lynch et al. v. Leis et al. Nos. 03-3269/3279
which went unappealed by Powers. Therefore, because Powers lacked
standing on the one claim on which he prevailed, the fee award cannot
stand.
3In fact, Hamilton County’s court records are available to the public
online at http://www.courtclerk.org.
party. That the previous appeal was moot because the
judgment below—the injunction—no longer presented a
matter of dispute between the parties is totally irrelevant to
the question of whether the judgment below on this
appeal—the fee award—presents such a dispute. Powers also
requests sanctions against Hamilton County for bringing a
frivolous appeal; that request fails, as explained below.
Hamilton County asserts in this appeal—as it did in the
previous appeal and before the district court numerous
times—that Powers never had standing to seek injunctive
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
omitted). The county complains that the district court
incorrectly inferred that the capias was outstanding from June
21, 2000 forward, and relied upon that incorrect inference in
holding that Powers had standing to bring the action. In
response, Powers asserts first that the district court’s rationale
for refusing Hamilton County’s attempt to introduce new
evidence which it could have discovered earlier through due
diligence3 was correct; then that Hamilton County had
stipulated to facts which created standing, see Eng’g
Contractors Ass’n of S. Fla. Inc. v. Metro. Dade County, 122
F.3d 895, 905 (11th Cir. 1997); and finally that at the time of
the filing of the Third Amended Complaint, “the stipulated
fact was that an outstanding capias existed for Plaintiff
Powers.” Appellee’s/Cross-Appellant’s Br. at 20.
Standing “is to be determined as of the time the complaint
is filed.” Cleveland Branch, NAACP, 263 F.3d at 524. The

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Nos. 03-3269/3279 Lynch et al. v. Leis et al. 9
4The 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
exist . . ., [federal jurisdiction] may not b e created by amendment.”
JAMES W M . MOORE, 3 MOORE’S FEDERAL PRACTICE § 15.14[3], at 15-34
(3d ed. 2000 ).
parties dispute whether the operative complaint is the first
complaint, initiating the action, the Second Amended
Complaint, adding Powers, or the Third Amended Complaint,
the final complaint filed. This confusion seems to be
generated by County of Riverside v. McLaughlin, 500 U.S. 44,
51 (1991), which in the course of conferring standing to seek
injunctive relief on warrantless arrestees who at the time their
complaint was filed were suffering constitutional injury,
referred to the final complaint filed in the case, the second
amended complaint, as “the operative pleading.” Id. at 48. A
careful reading of County of Riverside demonstrates that the
second amended complaint was important not because it was
the operative pleading, but because it was that complaint
which named “three additional plaintiffs” who were “still in
custody” at the time the complaint was filed, and who were
the plaintiffs found to have standing by the Court. Id. at 49,
51; see also Rosen v. Tenn. Comm’r of Fin. & Admin., 288
F.3d 918, 929 (6th Cir. 2002) (describing focus of County of
Riverside Court on “second amended complaint making the
claim in question” (emphasis added)). Therefore, the
operative complaint is the one adding Powers to the action,
and the operative date is May 25, 2000, rendering the capias
entirely irrelevant to the question of standing.4
Instead, Powers’s standing to seek injunctive relief must
rise or fall on his status on May 25, 2000, at which
point he was out on bond, with two separate cases
proceeding against him. See State v. Powers, No.
C/00/TRD/5236/ A, B (Hamilton County Municipal
Traffic Division May 6, 2000) (docket sheet),
http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?C/00/T
10 Lynch et al. v. Leis et al. Nos. 03-3269/3279
5As noted above, these court records are available online to members
of the public; as they are court records, this court may take judicial notice
of them . See Lyons v. Stovall, 188 F.3d 327 , 332 n.3 (6th Cir. 1999 ).
RD/5236; State v. Powers, No. 00/TRD/23718, A, B
(Hamilton County Municipal Traffic Division
J a n u a r y 1 9 , 2 0 0 0 ) ( d o c k e t s h e e t ) ,
http://www.courtclerk.org/aps/ttl/lns/smcpb026.asp?/00/TR
D/23718.5 In at least one of those cases, No.
C/00/TRD/5236/A, B (“No. 5236”), that relied upon below,
his case hadn’t moved forward beyond his release from
custody. The question then becomes whether the mere
pendency of proceedings against Powers could create a
sufficient risk that he would again be subject to the
deprivation of his Sixth Amendment right by being placed in
detention at the HCJC to confer standing upon Powers to seek
injunctive relief to prevent that deprivation. In Lyons, the
Supreme Court explained that “a real and immediate” threat
did not exist to confer standing where such a threat was
attenuated by both the unlikeliness that Lyons would have
another encounter with the police and the unlikelihood that
the police would employ a chokehold during that encounter.
461 U.S. at 101-09. In the instant case, while there was
certainty that if placed in detention again Powers would have
been subject to the unconstitutional policy, there was no
certainty that he would have been placed in detention again.
“[F]or purposes of assessing the likelihood that state
authorities will reinflict a given injury, [the Supreme Court]
generally ha[s] been unwilling to assume that the party
seeking relief will repeat the type of misconduct that would
once again place him or her at risk of that injury.” Honig v.
Doe, 484 U.S. 305, 320 (1988); see also Lyons, 461 U.S. at
101-09; Grendell v. Ohio Supreme Ct., 252 F.3d 828, 833
(6th Cir. 2001) (likelihood that plaintiff would again bring a
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,
violate the conditions of his pretrial release in some other

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Nos. 03-3269/3279 Lynch et al. v. Leis et al. 11
6Powers 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).
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.

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