Derrick McKinney v. Superintendent Kelchner

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DLD-265 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1150
___________
DERRICK MCKINNEY,
Appellant
v.
SUPERINTENDENT KELCHNER;
UNIT MANAGER STEIGERWALT;
C/O NIXDORF; C/O SNOOK; C/O WARNER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 05-cv-00205)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 13, 2009
Before: BARRY, AMBRO AND SMITH, Circuit Judges
(Opinion filed: October 15, 2009)
_________
OPINION
_________
PER CURIAM
Appellant Derrick McKinney appeals from an order of the District Court denying

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his motion for costs and expenses at the conclusion of his civil rights trial. For the
reasons that follow, we will summarily affirm the District Court’s order.
I.
As we write solely for the benefit of the parties, we will set forth briefly only those
facts necessary to our analysis. In January 2005, McKinney, a prisoner now incarcerated
at S.C.I. Graterford, sued three correctional officers, the unit manager, and the
superintendent of S.C.I. Camp Hill, where he was incarcerated at the initiation of his case.
In his suit, McKinney alleged that he was assaulted by the correctional officers, in
violation of the Eight Amendment, in an attempt to coerce him into dropping an unrelated
civil rights lawsuit against other prison officials.
After initiating the lawsuit pro se, McKinney was appointed counsel just prior to
trial. Before trial, one of the correctional officers passed away and was dismissed from
the case. After trial, the jury granted judgment in favor of the unit manager and
superintendent of the prison as to all claims, granted judgment on the First Amendment
claims in favor of the surviving correctional officers, but granted judgment in
McKinney’s favor against the surviving correctional officers on his Eighth Amendment
claim. Despite concluding that the correctional officers had violated McKinney’s Eighth
Amendment rights, the jury decided that he was not entitled to any compensatory or
punitive damages at all. The jury was not asked whether to award nominal damages.

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After he appealed, McKinney filed a motion for reconsideration with the District Court,1
but the District Court issued a notice informing him that it no longer had jurisdiction over the
case once an appeal was pending.
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Soon thereafter, McKinney, claiming that he was a prevailing party, filed a motion
for expenses and costs. The parties briefed the issue, and the District Court denied the
motion “[f]or all the reasons set forth in the defendants’ brief....” McKinney appealed,
and his motion to proceed in forma pauperis was granted.1
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Typically, to appeal a
judgment, the notice of appeal must be filed within 30 days of its entry. Rule 4(a)(4) of
the Federal Rules of Appellate Procedure lists six types of motions which delay the start
of the time for filing a notice of appeal until after an order disposing of said motion is
entered. Rule 4(a)(4)’s list does not include motions like McKinney’s, seeking court
costs. McKinney filed his notice of appeal after the expiry of the deadline to appeal the
judgment itself, so pursuant to Fed. R. App. P. 4(a)(4), his appeal is timely only as to
whether the District Court properly denied him court costs. Accordingly, our review is
limited to that discreet issue. We may summarily affirm the District Court’s order if the
appeal presents no substantial issue. See 3rd Cir. LAR 27.4 and IOP 10.6.
III.
McKinney claims that he is a prevailing party entitled to costs and expenses
pursuant to Fed. R. Civ. P. 54(d)(1), 28 U.S.C. § 1915, and 28 U.S.C. § 2412(a) because

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the jury concluded that two of the defendants violated his Eighth Amendment rights. At
the onset we note that 28 U.S.C. § 2412(a) is inapplicable here because it applies only to
civil actions “brought by or against the United States or any agency or official of the
United States.”
Under Rule 54(d)(1), “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs–other than attorney’s fees–should be allowed to the prevailing
party.” Subsection (f)(1) of 28 U.S.C. § 1915 permits awards of costs at the conclusion of
a suit advanced by an indigent prisoner “as in other proceedings.” While these sources
establish that McKinney was eligible to be compensated for expenses and costs, they do
not address the relevant question here, i.e. whether McKinney qualifies as a prevailing
party.
The United States Supreme Court addressed the question of what constitutes a
“prevailing party” in Farrar v. Hobby, 506 U.S. 103 (1992). In that case the plaintiffs
brought a civil rights suit seeking $17 million in damages, but were awarded only $1
because they failed to prove that a due process violation was the proximate cause of any
injury. The Supreme Court held that a plaintiff prevails when he receives an enforceable
money judgment of any size or “when actual relief on the merits of his claim materially
alters the legal relationship between the parties by modifying the defendant’s behavior in a
way that directly benefits the plaintiff.” Id. at 111-112. The Court emphasized that “a
judicial pronouncement that the defendant has violated the Constitution, unaccompanied

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by an enforceable judgment on the merits, does not render the plaintiff a prevailing party.”
Id. at 112.
Unfortunately for McKinney, he was awarded no damages at all, not even nominal
damages, and the judgment cannot be said to have altered his relationship with the
defendants, if for no other reason than the fact that he is no longer incarcerated at the
prison where they work, and therefore has no relationship with the defendants at all
anymore. See Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam) (reversing an award of
attorneys fees where one of the plaintiffs passed away and the other plaintiff was released
from prison before the litigation resulted in the change in prison policy the plaintiffs
sought because the change in policy did not benefit either plaintiff directly). Accordingly,
he is not a prevailing party within the meaning of Farrar, and he cannot prevail on his
claim.
IV.
For the reasons given, we will summarily affirm the District Court’s order pursuant
to 3 Cir. LAR 27.4 and Chapter 10.6 of the Court’s Internal Operating Procedures.rd

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