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Roe v. Snyder

United States District Court, E.D. Michigan, Southern Division

September 9, 2019

MARY ROE, Plaintiff,
RICHARD D. SNYDER, et al., Defendants.



         This matter is before the Court on Plaintiff Mary Roe's motion to find that she is the prevailing party for the purposes of 42 U.S.C. § 1988 (Dkt. 94). A convicted sex offender, Roe was told by a Royal Oak police officer that she must either quit her job or face prosecution under Michigan's Sex Offender Registration Act (“SORA”), Mich. Comp. Laws § 28.721 et seq., due to her office's proximity to a school. Two weeks earlier, the Sixth Circuit issued its decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), finding relevant portions of SORA to be unconstitutional. In light of this precedent, Roe sought injunctive relief, which this Court granted, enjoining various public officials, including the Wayne County prosecutor, Kym L. Worthy, from initiating any prosecution of Roe that conflicted with the holding of Does #1-5. After more than a year of litigation, the Wayne County Prosecutor finally stated that she would not initiate any prosecution of Roe under the SORA Amendments. Roe now seeks attorney fees. The motion has been fully briefed. Because oral argument will not aid the decisional process, the motion will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the following reasons, the motion is granted.

         I. BACKGROUND

         The relevant background is set forth in full in this Court's prior opinion, Roe v. Snyder, 240 F.Supp.3d 697 (E.D. Mich. 2017). In brief summary, Roe was convicted in 2003 of having sex with an underage teen when she was nineteen. As a result, she became subject to SORA. The Michigan legislature subsequently amended SORA, in pertinent part, in 2006 and 2011. On August 25, 2016, the Sixth Circuit issued Does #1-5, which held that the retroactive imposition of the 2006 and 2011 Amendments on individuals convicted before those Amendments were enacted violated the Ex Post Facto Clause.

         On September 9, 2016, Roe was informed by a Royal Oak police officer, Defendant Kevin Cavanaugh, that her place of employment, where she had been working for eight years, was within 1, 000 feet of a school, in violation of the 2006 SORA Amendment, Mich. Comp. Laws § 28.734(1)(a). The officer informed her that she must resign immediately or face prosecution for a SORA violation. Roe subsequently filed suit, arguing that the officer's instruction that she must quit her job violated Does #1-5. On March 3, 2017, this Court entered a preliminary injunction enjoining Defendants, whose duties touch on law enforcement, from initiating any prosecution of Roe that conflicted with the holding of Does #1-5, which holding remained operative while certiorari was sought in that case from the Supreme Court.

         The Supreme Court subsequently denied certiorari in Does #1-5 on October 2, 2017, see 138 S.Ct. 55, and the district court entered a stipulated final judgment on January 18, 2018, providing declaratory and injunctive relief to the named plaintiffs in that case. See 1/26/2018 Stipulated Final Judgment, Ex. 2 to Def. Resp. (Dkt. 83-3).

         Other than the Wayne County Prosecutor, all Defendants in this case-Jessica Cooper (Oakland County Prosecutor); Corrigan O'Donohue (Royal Oak Police Chief); Kevin Cavanagh (Royal Oak Police Officer); Richard Snyder (then-Governor of Michigan); and Kriste Etue (Director of Michigan State Police)-settled with Roe. See Dkts. 77, 82, 87. The sole remaining Defendant, the Wayne County Prosecutor, refused to disavow the prosecution of Roe for any post-2005 SORA-amendment violation pending the final resolution in Does #1-5. Finally, in response to Roe's motion for summary judgment, the Wayne County Prosecutor conceded that she was bound by Does #1-5. Def. Resp. to Mot. for Summ. J. at 2 (Dkt. 83). Shortly thereafter, Roe withdrew her objection to the Wayne County Prosecutor's motion to dissolve the preliminary injunction (Dkt. 89).

         Roe nonetheless sought a declaratory judgment that retroactive application of the 2006 and 2011 SORA Amendments violated the Ex Post Facto Clause, thereby extending the protection of Does #1-5 to her; and that, in the event of any discrepancy between her interpretation of Does #1-5 and that of the Wayne County Prosecutor, the scope of Does #1-5 would be left for this Court to decide. The Court denied the relief because, in light of the Wayne County Prosecutor's public statement that she is bound by Does #1-5, Roe no longer had standing to pursue this case. See 9/12/18 Op. (Dkt. 90) (granting motion to dissolve the preliminary injunction). What remains of this matter is whether Roe is entitled to attorney fees as the prevailing party in this case.


         For civil rights actions brought under 42 U.S.C. § 1983, courts are authorized to award the prevailing party reasonable attorney fees as part of the costs. 42 U.S.C. § 1988(b). “[T]o be a prevailing party, the plaintiff must obtain a ‘material' change in the legal relationship between [her]self and the defendant.” McQueary v. Conway, 614 F.3d 591, 598 (6th Cir. 2010) (quoting Sole v. Wyner, 551 U.S. 74, 82 (2007)). However, with respect to preliminary injunctions, the “preliminary” nature of the relief will generally counsel against fees. Id. at 601. Determining whether the winner of a preliminary injunction is a prevailing party is, therefore, a contextual and case-specific inquiry. Id.

         For example, “[p]revailing party status . . . does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” Sole, 551 U.S. at 83. In other words, a plaintiff who “has won a battle but lost the war, ” is not entitled to fees. Id. at 86 (citation and internal marks omitted). However, prevailing party status may attend achievement of a preliminary injunction where the injunction (1) caused a change, (2) the change directly benefitted the plaintiff, and (3) the change endured. Miller v. Caudill, ___F.3d ___, 2019 WL 3979593, *3 (6th Cir. Aug. 23, 2019) (citing McQueary, 614 F.3d at 597-599). When a plaintiff “receives everything it asked for in the lawsuit, and all that moots the case is court-ordered success and the passage of time, ” attorney fees may be warranted. McQueary, 614 F.3d at 599. By way of illustration, where “protesters seek an injunction to exercise their First Amendment rights at a specific time and place-say to demonstrate at a Saturday parade-a preliminary injunction will get them all the court-ordered relief they need and the end of the parade will moot the case.” Id.

         III. ANALYSIS

         In opposition to Roe's motion, the Wayne County Prosecutor spends a great deal of time arguing the underlying facts of this case, none of which are particularly relevant to the present motion. The inquiry here is simply whether Roe is the prevailing party.[1] To that point, the Wayne County Prosecutor argues that the present case is indistinguishable from McQueary v. Conway, No. 06-CV-24-KKC, 2012 WL 3149344, at *2 (E.D. Ky. Aug. 1, 2012). Resp. at 14 (Dkt. 97). The Court disagrees.

         McQueary involved the infamous Westboro Baptist Church, whose members regularly staged anti-homosexual protests at military funerals. McQueary, 614 F.3d at 595. Kentucky enacted three criminal misdemeanor laws designed to curb the Westboro Baptist Church's behavior. Id. A district court issued a preliminary injunction enjoining the enforcement of the laws, finding that portions of the laws were unconstitutionally overbroad. Id. at 598. A few months later, the Kentucky legislature repealed the challenged portions of the laws and the case was dismissed as ...

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