George L. Weaver v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 96-2952
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George L. Weaver, *
*
Plaintiff/Appellee, *
*
v. *
*
Harold W. Clarke, Director, *
Correctional Services, Lincoln *
Correctional Center; John J. Dahm, *
Warden, Chief Executive Officer, * Appeals from the United States
Lincoln Correctional Center; Douglas * District Court for the
L. Reeves; David Skow; Robby G. * District of Nebraska.
Predmore; Willem Looye, *
*
Defendants/Appellants, *
*
Roger O. Doerr, *
*
Defendant, *
*
Stephen W. Shutzer; Donald Earl *
Atkinson; Harold F. Thies, Jr., *
*
Defendants/Appellants. *
 ___________

No. 96-3008
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George L. Weaver, *
*
Plaintiff/Appellant, *
*
v. *
*
Harold W. Clarke, Director, *
Correctional Services, Lincoln *
Correctional Center; John J. Dahm, *
Warden, Chief Executive Officer, *
Lincoln Correctional Center; Douglas *
L. Reeves; David Skow; Robby G. *
Predmore; Willem Looye, *
*
Defendants/Appellees, *
*
Roger O. Doerr, *
*
Defendant, *
*
Stephen W. Shutzer; Donald Earl *
Atkinson; Harold F. Thies, Jr., *
*
Defendants/Appellees. *

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Submitted: March 13, 1997

Filed: July 23, 1997
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Before WOLLMAN and BEAM, Circuit Judges, and REASONER,1 District Judge.
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WOLLMAN, Circuit Judge.

The defendants, employees of the Nebraska Department of Correctional
Services, appeal from the district court’s2 judgment awarding attorney’s fees and costs
in the amount of $11,299.17 to George L. Weaver in Weaver’s suit for damages and
injunctive relief brought under 42 U.S.C. § 1983. Weaver cross-appeals. We affirm.

Weaver’s suit was based upon his allegations that the defendants had violated
his rights under the Eighth Amendment by causing him to be exposed to environmental
tobacco smoke. Following our affirmance of the district court’s denial of the
defendants’ motion to dismiss for failure to state a claim and on the basis of qualified
immunity, see Weaver v. Clarke, 45 F.3d 1253 (8th Cir. 1995), the district court
granted the defendants’ motion for summary judgment on the ground that Weaver had
failed to establish a claim of deliberate indifference to his serious medical needs.

Weaver’s motion for a preliminary injunction was referred to a United States
Magistrate Judge,3 who found that although Weaver had demonstrated a likelihood of
success on the merits, he had not established that he would suffer irreparable harm
during the pendency of the action. Accordingly, on January 29, 1996, the magistrate
judge entered a memorandum and order recommending that the motion for preliminary
injunction be denied. The order set an evidentiary hearing on the request for a

1
The HONORABLE STEPHEN M. REASONER, Chief Judge, United States
District Court for the Eastern District of Arkansas, sitting by designation.
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
3
The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska.

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permanent injunction for May 15, 1996, and established a discovery deadline and a
pretrial conference.

On February 12, 1996, defendant Clarke, in his capacity as director of the
Department of Correctional Services, imposed a smoking ban, effective March 18,
1996, in all buildings owned or operated by the Department. In announcing the ban,
Clarke stated that “pending inmate litigation, both locally and nationally on the issue
of second hand smoke are concerns that must be addressed.”

In light of Director Clarke’s ban on smoking, the district court found that Weaver
had attained all the prospective relief he had sought and therefore granted summary
judgment in favor of the defendants, withholding entry of judgment pending a ruling on
Weaver’s application for attorney fees. Weaver then filed an application requesting
fees in the amount of $17,595.00 and expenses in the amount of $4,722.59. After
finding that Weaver was a prevailing party, the district court awarded fees in the
amount of $8,346.35 and expenses in the amount of $2,952.82.

The defendants challenge the district court’s fee award on three grounds. First,
they contend that Seminole Tribe of Florida v. Florida, 116 S. Ct. 114 (1996), overruled
sub silentio the holding in Hutto v. Finney, 437 U.S. 678 (1978), that 42 U.S.C. § 1988
abrogates the states’ Eleventh Amendment immunity. We rejected the very same
argument in a decision filed some two weeks prior to the submission of the defendants’
brief in this case. See Jensen v. Clarke, 94 F.3d 1191, 1201-02 (8th Cir. 1996).

The defendants next argue that 42 U.S.C. § 1997(e), part of the Prison Litigation
Reform Act, prohibits an award of fees in this case. Again, we rejected this same
argument in Jensen v. Clarke, 94 F.3d at 1202-03, holding that section 1997(e) as
amended was not intended to be given retroactive application.

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 The defendants’ final argument is that Weaver is not a prevailing party within
the meaning of section 1988 because Director Clarke’s March 1996 smoking ban was
not implemented as a result of Weaver’s lawsuit but was in fact the culmination of
policies and proposals that Clarke had announced prior to the filing of Weaver’s
complaint. Citing Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), the district
court found that Weaver’s lawsuit was a necessary and important factor in achieving
the smoking ban and that the implementation of the ban was not gratuitous or voluntary.
In light of Director Clarke’s statement at the time he announced the ban that pending
inmate litigation, both local and national, regarding the issue of second-hand smoke
raised concerns that needed to be addressed, and given the temporal proximity between
the magistrate judge’s order setting an evidentiary hearing and Clarke’s announcement
of the smoking ban, we conclude that the district court did not err in finding that
Weaver was a prevailing party.4

Cross-Appeal

Weaver has cross-appealed, contending that the district court erred in finding
that the defendants had not been deliberately indifferent to Weaver’s serious medical
needs. Our review of the record persuades us otherwise, however, for the defendants
took action to house Weaver in a smoke-free cell and thereafter took reasonable steps
to insure that Weaver’s cellmate observed the no-smoking rule by issuing a misconduct
report, by searching the cell for tobacco products, and by advising Weaver that he
should contact the managers of the housing unit for an investigation, a course of action
that Weaver did not avail himself of. Thus, Weaver has failed to establish a claim of
deliberate indifference as that term has been defined by Farmer v. Brennan, 511 U.S.

4
The defendants’ attack upon the amount of the award of fees and expenses is
without merit, all the more so in light of the substantial reduction made by the district
court in response to the defendants’ objections to the fee application.

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825 (1994), and Estelle v. Gamble, 429 U.S. 97 (1976). See also Logan v. Clarke, No.
97-1314, slip op. (8th Cir. July 10, 1997); Weaver v. Clarke, 45 F.3d at 1255.

Weaver contends that the district court erred in disallowing a portion of the
amounts claimed for attorney fees and expenses because of his noncompliance with
Rule 83.14 of the Local Rules for the District of Nebraska, which specifies the
particularity with which a fee application must identify the services and expenses for
which compensation is sought. Having reviewed the defendants’ objections to
Weaver’s fee application, we cannot say that the district court abused its discretion in
reducing the number of allowable hours for services rendered and the amount of the
expenses claimed.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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