UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-60543
(Summary Calendar)
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ROBERT WALKER BOTTS,
Plaintiff-Appellant,
versus
DERRICK PRUITT, In His Official Capacity as
Sheriff of Lee County, et al,
Defendants,
ED CRIDER, In His Official Capacity as Sheriff
of Lee County,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
(1:94-CV73-D-D)
May 14, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff Robert Walker Botts (“Botts”) appeals the district
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
court’s award of attorney’s fees pursuant to 42 U.S.C. § 1988.
Botts also moves for remand of this case to district court for a
determination of the real party in interest and reconsideration of
the attorney’s fee award. We affirm the award of attorney’s fees
and deny Botts’s motion.
I
In 1993, Botts encountered Lee County Deputy Sheriff Derrick
Pruitt2 (“Pruitt”) at a local bar. Pruitt believed that Botts had
been dating Pruitt’s estranged wife. Pruitt allegedly attacked
Botts outside the bar and beat him with brass knuckles; as a result
of the attack, Botts required stitches.
Botts thereafter attempted to initiate charges against Pruitt.
He contacted Lee County Justice Court Judge Mayo Grubbs who
allegedly refused to charge Pruitt. Botts next contacted Lee
County Sheriff Ed Crider (“Crider”) who told Botts that he would
resolve the situation. Botts then sent a letter to both Lee County
Prosecutor Charles Brett (“Brett”) and to Crider describing the
beating and requesting prosecution of Pruitt. Having received no
response to his letter, Botts filed suit under 42 U.S.C. § 1983
against Pruitt, Crider and Lee County alleging violation of his
civil rights.
On October 6, 1995, we affirmed the district court’s January
30, 1995 order granting summary judgment in favor of Defendants on
2
Deputy Sheriff Pruitt is incorrectly identified in the caption of
this case as sheriff of Lee County.
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Botts’s § 1983 claims. On November 14, 1995, Defendants moved for
attorney’s fees. The district court subsequently granted an award
of attorney’s fees pursuant to 42 U.S.C. § 1988. Botts appeals.
II
We review a district court’s award of attorney’s fees pursuant
to 42 U.S.C. § 1988 for an abuse of discretion and its findings of
fact supporting the award for clear error. Von Clark v. Butler,
916 F.2d 255, 258 (5th Cir. 1990).
Botts correctly argues that the motion for fees was not filed
within fourteen days of entry of judgment and was therefore
untimely. See FED. R. CIV. P. 54(d)(2)(B) (providing that motion
for attorney’s fees must be filed within fourteen days of entry of
judgment). The district court entered judgment on January 30,
1995, but Defendants did not file their motion for attorney’s fees
until November 14, 1995. Defendants appear to contend that the
motion was timely because it was filed within fourteen days of
entry of this court’s judgment. The “entry of judgment” of which
Rule 54(d)(2)(B) speaks, however, is entry of judgment by the
district court. See United Indus., Inc. v. Simon-Hartley, Ltd., 91
F.3d 762, 765-66 (5th Cir. 1996) (relying on date of district
court’s entry of judgment as pertinent date for attorney’s fees
motion under Rule 54(d)(2)(B)). Thus, Defendants motion for
attorney’s fees was untimely and the district court should not have
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considered it.3
Botts, however, did not raise the timeliness issue in district
court. Generally, appellate courts will not consider issues not
urged in the district court except when the failure to do so would
result in grave injustice. McClellon v. Lone Star Gas Co., 66 F.3d
98, 100 (5th Cir. 1995). In the context of Federal Rule of
Criminal Procedure 52(b), the Supreme Court has held that for an
appellant in a criminal case to prevail with a new argument on
appeal, he must show: (1) that an error occurred; (2) that the
error was plain, which means clear or obvious; (3) that the plain
error affects substantial rights; and (4) that not correcting the
error would seriously affect the fairness, integrity or public
reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993). We
have held that Olano applies a fortiori in the civil context.
Highlands Ins. v. National Union Fire Ins. Co. of Pittsburgh, 27
F.3d 1027, 1032 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S.
Ct. 903, 130 L. Ed. 2d 786 (1995). “Olano augments this court’s
long-standing rule that reversal for plain error is ‘not a run-of
the mill remedy’ and will occur ‘only in exceptional circumstances
3
We note that the district court’s improper consideration of
Defendants’ untimely fee request resulted in precisely the situation Rule
54(d)(2)(B) is intended to avoid. See FED. R. CIV. P. 54 advisory committee’s
note (“[Rule 54(d)(2)(B)] also enables the [district] court in appropriate
circumstances to make its ruling on a fee request in time for any appellate
review of a dispute over fees to proceed at the same time as review on the merits
of the case.”).
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to avoid a miscarriage of justice.’” Id. (quoting Peveto v. Sears,
Roebuck & Co., 807 F.2d 486, 489 (5th Cir. 1987)).
Botts successfully meets the first two requirements of Olano,
i.e., the district court’s consideration of Defendants’ untimely
attorney’s fees motion was plain error. Botts does not, however,
even argue that the district court’s error affects his substantial
rights, nor does he argue that our failure to correct the error
will seriously affect the fairness, integrity or public reputation
of judicial proceedings. As a result, we will not reverse the
district court’s award of attorney’s fees on untimeliness grounds.
Timeliness notwithstanding, Botts also appears to argue that
the district court’s findings that Botts’s claims were frivolous
and without foundation were clearly erroneous. Prevailing
defendants may receive attorney’s fees under § 1988 only upon a
finding that the plaintiff’s action was frivolous, unreasonable, or
without foundation or that the plaintiff continued to litigate
after it clearly became so. Mylett v. Jeane, 910 F.2d 296, 299
(5th Cir. 1990).
As the district court construed Botts’s complaint, Botts
proceeded in this suit under two § 1983 theories. First, Botts
argued that Lee County, acting through Judge Grubbs, Sheriff Crider
and Prosecutor Brett, violated his civil rights by refusing to
prosecute Pruitt because Pruitt was a deputy sheriff. Second, he
argued that Lee County was liable for Pruitt’s alleged attack on
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Botts because Pruitt attacked him while acting under color of state
law.
In determining that Botts’s claim against Lee County regarding
Judge Grubbs’s alleged behavior lacked foundation, the district
court reiterated its finding, initially made in its summary
judgment order, that the claim lacked any legal basis because the
Fifth Circuit has repeatedly held that a state court judge acting
in his official judicial capacity does not constitute a government
official whose actions are attributable to a county. Krueger v.
Reimer, 66 F.3d 75, 77 (5th Cir. 1995); Johnson v. Moore, 958 F.2d
92, 94 (5th Cir. 1992); Bigford v. Taylor, 834 F.2d 1213, 1221-22
(5th Cir. 1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.),
cert. denied, 474 U.S. 1007, 106 S. Ct. 529, 88 L. Ed. 2d 461
(1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.
1980). In light of this extensive and long-standing precedent, we
find no error in the district court’s conclusion that Botts’s claim
against Lee County based on Judge Grubbs’s alleged inaction was
without foundation.
The district court also reiterated its findings that Botts’s
claims against Lee County for the actions of Crider and Brett
lacked foundation because Botts never presented any evidence
indicating that Crider and Brett did not pursue charges against
Pruitt for constitutionally impermissible reasons. In concluding
that Botts’s § 1983 claims based on Pruitt’s actions lacked
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foundation, the district court again observed that Botts never
presented any evidence indicating that Pruitt acted under color of
state law at the time of the alleged attack. The record supports
these findings; the district court did not abuse its discretion in
awarding attorney’s fees to Defendants based on these findings.4
Botts also moves for remand of this case to district court for
a determination of the real party in interest. Botts contends that
Coregis Insurance Company (“Coregis”), Lee County’s liability
carrier, is the real party in interest in this case because it
allegedly has subrogation rights under its policy with Lee County.
Botts maintains that in the event that Coregis is deemed the real
party in interest, the district court must reconsider its fee award
in light of that information.
Botts essentially contends that the district court may have
made a different decision regarding the award of attorney’s fees
had it known that the fees would be paid to Coregis. Botts’s
argument, however, presumes that the identity of the recipient of
an attorney’s fees award under § 1988 is relevant to the award. To
the contrary, “[t]he purpose of awarding attorneys’ [sic] fees to
4
Botts also argues that Congress did not intend that prevailing
defendants be awarded attorney’s fees under circumstances similar to those in
this case. The plain language of § 1988 states, however, that awards of
attorney’s fees under that section are left to the discretion of the district
court. See 42 U.S.C. § 1988 (“[T]he Court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee as part of the costs.”)
(emphasis added). Where the language of a statute is plain, we look no further
to discern its purpose. See United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989) (stating that when
statute’s language is plain, “the inquiry should end”).
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a defendant in a civil rights case is to deter frivolous or
harassing litigation; the fact that a defendant is insured is
irrelevant to this purpose.” Ellis v. Cassidy, 625 F.2d 227, 230
(9th Cir. 1980); see also Christiansburg Garment Co. v. Equal
Employment Opportunity Comm’n, 434 U.S. 412, 420, 98 S. Ct. 694,
699, 54 L. Ed. 2d 648 (1978) (concluding that purpose of attorney’s
fee provision in Title VII is to deter frivolous lawsuits);
Fidelity Guarantee Mortgage Corp. v. Reben, 809 F.2d 931, 936 (1st
Cir. 1987) (rejecting argument that “because an insurance company
is the ultimate recipient of the attorney’s fee award, it should be
treated differently than an award to an individual”). Thus,
Botts’s contention that this case should be remanded to the
district court for reconsideration of the attorney’s fee award in
light of the alleged identity of the recipient has no merit.5
AFFIRMED. MOTION DENIED.
5
Because the identity of the recipient of the fee award does not bear
on the assessment of the award, we need not resolve the parties’ dispute
regarding whether Coregis is the real party in interest.
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