United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING PLAINTIFF'S MOTION
TO FIND THAT SHE IS THE PREVAILING PARTY (DKT. 94)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
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.
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.
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 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).
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).
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.
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.
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.
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. 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.
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