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 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 *646 the injunction. [FN1] 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, [FN2] he is not a proper prevailing 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.

FN1. This holding may very well have been precipitous, as "[a] defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Nonetheless, in another example 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 voluntarily mooting their own appeal. Lynch v. Leis, No. 02-3610, 1 (6th Cir. Aug. 13, 2002) (order granting motion to dismiss), J.A. at 461.

FN2. We 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 Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ("[E]ven an award of nominal damages suffices under [the prevailing party] test."); Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("[T]he deprivation 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 damages is sufficient to render a case justiciable.") (McConnell, J., concurring); Murray v. Bd. of Trs., 659 F.2d 77, 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 indicated 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 which went unappealed by Powers. Therefore, because Powers lacked standing on the one claim on which he prevailed, the fee award cannot stand.

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, 103 S.Ct. 1660, 75 L.Ed.2d 675 (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 diligence [FN3] 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 *647 Plaintiff Powers." Appellee's/Cross-Appellant's Br. at 20.

FN3. In fact, Hamilton County's court records are available to the public online at http://www.courtclerk.org.

Standing "is to be determined as of the time the complaint is filed." Cleveland Branch, NAACP, 263 F.3d at 524. The 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, 111 S.Ct. 1661, 114 L.Ed.2d 49 (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, 111 S.Ct. 1661. 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, 111 S.Ct. 1661; 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. [FN4]

FN4. The operative complaint here could not be the first complaint consonant with County of Riverside, and it could not be the Third Amended Complaint 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 be created by amendment." James Wm. Moore, 3 Moore's Federal Practice § 15.14[3], at 15-34 (3d ed.2000).

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/TRD/5236; State v. Powers, No. 00/TRD/23718, A, B (Hamilton County Municipal Traffic Division January 19, 2000) (docket sheet), http: // www.courtclerk.org/aps/ttl/lns/smcpb026.asp?/00/TRD/23718. [FN5] 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, 103 S.Ct. 1660. In the instant case, while there was certainty that if *648 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, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also Lyons, 461 U.S. at 101-09, 103 S.Ct. 1660; 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 way, or commit some other conduct leading to his arrest. This chance, based on Powers's likelihood of violating unchallenged laws, [FN6] is insufficient to confer Article III standing.

FN5. As 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).

FN6. Powers 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, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

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 Wildernessv. Thomas, 53 F.3d 881, 886-887 (8th Cir.1995). The award of attorney fees and costs to Powers is therefore REVERSED.

382 F.3d 642, 2004 Fed.App. 0288P

END OF DOCUMENT