Bailey v. State of Mississippi

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005

Charles R. Fulbruge III
Clerk
No. 04-60412

TERESA BAILEY, on behalf of herself and all others similarly
situated; and GLORIA HARPER, on behalf of herself and all others
similarly situated,

Plaintiffs-Appellees,

versus

STATE OF MISSISSIPPI, et al.,

Defendants,

FAYE PETERSON, in her official capacity,

Defendant-Appellant.

Appeal from the United States District Court
For the Southern District of Mississippi

Before REAVLEY, DeMOSS, and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

This appeal stems from the district court’s grant of

attorney’s fees to Plaintiffs-Appellees Teresa Bailey and Gloria

Harper (“Plaintiffs”), on behalf of themselves and others similarly

situated, pursuant to 42 U.S.C. § 1988. Defendant-Appellant Hinds

County District Attorney Faye Peterson (“Peterson”) argues the

district court erred in finding that Plaintiffs qualified for §
1988 attorney’s fees as prevailing parties. We agree with

Peterson. For the following reasons, we REVERSE and VACATE the

award of attorney’s fees.

BACKGROUND

Plaintiffs were convicted of violating Mississippi’s Bad Check

law, MISS. CODE ANN. § 97-19-55, in Hinds County, Mississippi.

Without counsel, both women were sentenced to multiyear prison

sentences. These events arose due to the Hinds County District

Attorney’s office’s policy of enforcing the Bad Check law by taking

alleged bad check offenders directly to the justice court and

having them sign a waiver of attorney form without explanation.

The justice court judge did not conduct independent examinations

concerning the accused’s waiver of counsel. Those offenders who

could not pay were incarcerated.

In August 2001 Plaintiffs filed the instant 42 U.S.C. § 1983

lawsuit, challenging both the constitutionality of the Bad Check

law (equal protection violation) and the procedure by which Hinds

County enforced the law (deprivation of right to counsel).

Plaintiffs were serving their sentences when they filed their

federal action. Approximately one day later, Plaintiffs filed for

post-conviction relief in the County Court of Hinds County,

Mississippi, alleging the same constitutional violations as in

their § 1983 suit. In January 2002 the Mississippi state court

ruled in favor of Plaintiffs, finding that the policies and

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procedures employed by Peterson’s office were unconstitutional

because Plaintiffs had been denied their right to counsel. The

state court ordered that Plaintiffs be released. After this

ruling, Peterson’s office hired a consulting group to recommend

changes and subsequently made several revisions to the policies

used to enforce the Bad Check law to ensure accused offenders were

notified of their right to counsel.1 The federal lawsuit

continued.

Peterson moved to dismiss and for summary judgment on the

federal complaint in September 2002, arguing that the demand for

injunctive relief was moot because the policies and procedures had

already been thoroughly rewritten. The Mississippi Attorney

General also moved to dismiss, arguing the statutory scheme was

constitutional. Plaintiffs opposed such motions and obtained the

court’s permission to conduct additional discovery of Peterson.

The district court granted both motions to dismiss and

dismissed the complaint with prejudice in August 2003, ruling that

the Bad Check law was facially constitutional and choosing not to

“resolve whether there continues to exist a live and justiciable

claim for prospective equitable relief by plaintiffs.”

In September 2003 Plaintiffs moved for attorney’s fees

pursuant to § 1988. Plaintiffs argued they were “prevailing

1
The policy of Peterson’s office now requires officials to advise indigent defendants of
their right to counsel in writing; to obtain signed, written waivers of the right to counsel; and to
present all misdemeanor cases of bad checks to a circuit court rather than a justice court.

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parties” within the meaning of the statute because their lawsuits

had forced Peterson to change her office’s Bad Check law

procedures. Peterson opposed the request for attorney’s fees,

arguing the Supreme Court had rejected the “catalyst theory” that

allowed plaintiffs to recover attorney’s fees, even though they had

not obtained an actual judgment or consent decree. Plaintiffs

responded with a timeline of events to show that the post-

conviction relief combined with the “pending threat of injunctive

relief from this Court set into motion the very changes that were

at the heart of Plaintiffs’ Complaint.”

The district court ruled in favor of Plaintiffs in April 2004

and awarded them attorney’s fees and expenses in the amount of

$23,114.14. In its decision, the court recognized that the

catalyst theory was no longer a viable basis for awards but cited

the state court’s ruling as proof that the policies of Peterson’s

office were unconstitutional. The order also stated the court “was

poised to order relief to plaintiffs on the basis of the

deficiencies identified by” the state court. Peterson timely

appealed.

DISCUSSION

This Court reviews the district court’s decision to award

attorney’s fees pursuant to § 1988 for abuse of discretion. Volk

v. Gonzalez, 262 F.3d 528, 534 (5th Cir. 2001). “The factual

findings supporting an award of attorney’s fees are reviewed for

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clear error; the conclusions of law underlying the award are

reviewed de novo.” Id.

Prior to the Supreme Court’s decision in Buckhannon Board and

Care Home, Inc. v. West Virginia Department of Health and Human

Resources, 532 U.S. 598 (2001), this Court used to describe

prevailing-party status as an underlying factual determination

subject only to clear error review. Scham v. Dist. Courts Trying

Criminal Cases, 148 F.3d 554, 557 (5th Cir. 1998). We had also

followed the catalyst theory: plaintiffs were considered

prevailing parties even if their cases settled or became moot, so

long as the lawsuit itself was a substantial factor or significant

catalyst that caused the defendants to voluntarily change their

behavior to the result plaintiffs desired. See Foreman v. Dallas

County, Tex., 193 F.3d 314, 318-21 (5th Cir. 1999).

However, the Supreme Court in Buckhannon expressly found the

catalyst theory no longer viable in the context of an award of

attorney’s fees to a prevailing party under the Fair Housing

Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12205. Buckhannon, 532

U.S. at 605, 610. The Court abrogated use of the catalyst theory

for awards under fee-shifting statutes because it “allows an award

where there is no judicially sanctioned change in the legal

relationship of the parties.” Id. at 605. “We cannot agree that

the term ‘prevailing party’ authorizes federal courts to award

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attorney’s fees to a plaintiff who, by simply filing a nonfrivolous

but nonetheless potentially meritless lawsuit (it will never be

determined), has reached the ‘sought-after destination’ without

obtaining any judicial relief.” Id. at 606 (citation omitted).

The Court stated that “enforceable judgments on the merits and

court-ordered consent decrees create the ‘material alteration of

the legal relationship of the parties’ necessary to permit an award

of attorney’s fees.” Id. at 604 (citation omitted). Judgments on

the merits and consent decrees thus fall on the prevailing-party

side of the line. See id. In contrast, the Court explained that

an interlocutory ruling which reverses a dismissal for failure to

state a claim, a reversal of a directed verdict for defendant, and

a pronouncement of unconstitutionality unaccompanied by judicial

relief are not legal victories for plaintiffs. Id. at 605-06.

Post-Buckhannon, every Circuit to address the issue has

determined that the characterization of prevailing-party status for

awards under fee-shifting statutes such as § 1988 is a legal

question subject to de novo review.2 This Court agrees that, post-

Buckhannon, we will review such question de novo.

2
See, e.g., Palmetto Props., Inc. v. County of DuPage, 375 F.3d 542, 547 (7th Cir. 2004)
(42 U.S.C. § 1988); Pres. Coalition of Erie County v. Fed. Transit Admin., 356 F.3d 444, 450
(2d Cir. 2004) (National Historic Preservation Act, 16 U.S.C. § 470w-4); Richard S. v. Dep’t of
Developmental Servs., 317 F.3d 1080, 1085-86 (9th Cir. 2003) (§ 1988); Christina A. ex rel.
Jennifer A. v. Bloomberg, 315 F.3d 990, 992 (8th Cir. 2003) (§ 1988); Truesdell v.
Philadelphia Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002) (§ 1988); Smyth ex rel. Smyth v.
Rivero, 282 F.3d 268, 274 (4th Cir. 2002) (§ 1988); Fireman's Fund Ins. Co. v. Tropical
Shipping & Constr. Co., Ltd., 254 F.3d 987, 1012 (11th Cir. 2001) (F.R.C.P. 54(d)).

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Whether the district court abused its discretion in awarding
Plaintiffs attorney’s fees pursuant to § 1988.

Plaintiffs seek fees under § 1988 here. Section 1988

provides, in relevant part: “In any action or proceeding to

enforce a provision of section[] . . . 1983 . . . of this title .

. . the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as part

of the costs.” 42 U.S.C. § 1988(b). In Farrar v. Hobby, 506 U.S.

103 (1992), the Supreme Court stated in the context of fees under

§ 1988:

Therefore, to qualify as a prevailing party, a civil
rights plaintiff must obtain at least some relief on the
merits of his claim. The plaintiff must obtain an
enforceable judgment against the defendant from whom fees
are sought . . . or comparable relief through a consent
decree or settlement . . . . Whatever relief the
plaintiff secures must directly benefit him at the time
of the judgment or settlement. Otherwise the judgment or
settlement cannot be said to “affec[t] the behavior of
the defendant toward the plaintiff.” Only under these
circumstances can civil rights litigation effect “the
material alteration of the legal relationship of the
parties” and thereby transform the plaintiff into a
prevailing party. In short, a plaintiff “prevails” 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 111-12 (alteration in original) (internal citations

omitted). In Foreman, pre-Buckhannon, this Court declined to

definitively resolve whether, after Farrar, the catalyst theory was

viable. 193 F.3d at 320 (labeling Farrar “seemingly at odds with

the catalyst theory which allows a plaintiff to claim prevailing

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party status even if there is no material change in the legal

relationship between the parties”). Buckhannon answered that

question in the negative. The parties do not dispute the

applicability of Buckhannon here. Thus, the only issue here is the

legal relevance of the facts found by the district court.

Peterson argues that Plaintiffs obtained no judicial relief in

their § 1983 action and thus cannot be considered prevailing

parties under § 1988. Peterson underscores that the fee-shifting

provision of § 1988 is merely “part of the § 1983 remedy” and

creates no independent cause of action. See Maine v. Thiboutot,

448 U.S. 1, 11 (1980). Peterson contends that all Plaintiffs

received from the district court in their federal lawsuit was a

mere comment, in the court’s order awarding fees, suggesting that

the old policies on bad check prosecutions were constitutionally

flawed; favorable statements of law, however, are not enough to

justify an award of attorney’s fees. See Buckhannon, 532 U.S. at

606; Farrar, 506 U.S. at 112.

Peterson also maintains Plaintiffs’ post-conviction relief in

the state trial court is irrelevant to the § 1988 analysis.

Peterson notes this is not a case where preclusion resulted from

the state court case and spurred a favorable judgment in the § 1983

action. Peterson relies on Healy v. Town of Pembroke Park, 831

F.2d 989, 994 (11th Cir. 1987), for the proposition that liability

in state court proceedings does not equate with relief on the

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merits in federal court under § 1983. See also Lui v. Comm’n on

Adult Entm’t Establishments, 369 F.3d 319, 327-28 (3d Cir. 2004)

(holding district court lacks authority to award attorney’s fees

after dismissing § 1983 action on abstention grounds, even if state

criminal court grants relief); Quinn v. Missouri, 891 F.2d 190, 194

(8th Cir. 1989) (denying attorney’s fees where § 1983 action

dismissed, although plaintiff obtained state court relief).

Peterson argues the state court victories contributed nothing to

Plaintiffs’ § 1983 action, which was dismissed with prejudice.

Filing both actions at the same time was a tactical decision of

Plaintiffs that Peterson does not second-guess; however, because

Plaintiffs obtained no relief at all from the district court, they

cannot be considered prevailing parties.

Finally, Peterson contends the arguments Plaintiffs put forth

in their motion for attorney’s fees were precisely the type of

catalyst theory arguments the Supreme Court unmistakably precluded

in Buckhannon. Although the district court acknowledged

Buckhannon’s holding, its emphasis on chronology was reminiscent of

pre-Buckhannon practice “to assess the provocative effect of the

plaintiff’s lawsuit.” Hennigan v. Ouachita Parish Sch. Bd., 749

F.2d 1148, 1152 (5th Cir. 1985). Peterson argues if the actions of

the defendant are not compelled by a judgment or a consent decree

in the § 1983 action, then there is no material alteration in the

parties’ legal relationship sufficient to support a fee award.

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Buckhannon, 532 U.S. at 605.

Plaintiffs respond first that the district court made it clear

that it “was poised to order relief to plaintiffs on the basis of

the deficiencies identified” by the state court. Plaintiffs argue

the changes in policy could hardly be labeled voluntary and that

the combination of the state court’s ruling and the federal court

lawsuit resulted in those changes. Plaintiffs contend they cannot

be faulted for ill timing: that the state court ruling preceded

that of the federal court.

Plaintiffs next rely on Palmetto for the proposition that

where a defendant’s change in action is made only after a court has

made a substantive determination of the issues, that “action is

most persuasively construed as involuntary – indeed exhibiting

judicial imprimatur.” 375 F.3d at 550. In Palmetto, plaintiffs

challenged the constitutionality of state and local adult

entertainment regulations; the court found a portion of the statute

unconstitutional on summary judgment. Id. at 546. By the time a

final judgment was entered, the order was for dismissal inasmuch as

the case was mooted by the ordinance being amended. Id. However,

the court of appeals upheld the fee award on the basis that the

defendant’s cessation of the challenged practice occurred only

after the plaintiffs won partial summary judgment. Id. at 550.

Plaintiffs contend that here the legal relationship between the

parties was unquestionably altered and, but for the fortuity that

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the state court ruled first, would have been so altered as a result

of the federal lawsuit.3

Finally, Plaintiffs maintain that their circumstances are

unusual and that the court properly considered the individual

posture of their case. Plaintiffs emphasize the district court

would have granted them relief if the state court’s decision had

not resulted in policy changes by Peterson’s office. Plaintiffs

contend denying them fees here inequitably rewards Peterson for a

fortuity in timing.

Here, the district court, in its memorandum order dismissing

Plaintiffs’ § 1983 action with prejudice, expressly stated: “The

cursory briefing on these arguments [regarding prospective relief]

is regrettable, given the complexity of the standing and mootness

issues presented by the case.” The court then determined that it

did not need to resolve the issue and only mentioned the issue

hypothetically in its order awarding fees. Although the district

court in its order awarding attorney’s fee essentially determined

that the parties’ legal relationship had been altered in favor of

3
We note Palmetto is distinguishable because there, the plaintiff had achieved partial relief
on summary judgment in the instant federal § 1983 action, even if it was not final judgment on the
merits or a consent decree. The plaintiff won a favorable ruling in the federal action that could
have been enforced on final judgment had the plaintiff not “graciously – and in reliance upon
Defendants’ assurances – waited for the Defendants to amend the regulation and moot the case.”
375 F.3d at 550. The summary judgment ruling for the plaintiff struck down as unconstitutional
the portion of the adult-entertainment zoning ordinance pertaining to forest preserves; the court
interpreted that as a “judicially sanctioned change in the parties’ legal relationship.” Id. (internal
quotation marks omitted). It was not merely a favorable statement of law, but rather a partial
judicial ruling on the merits.

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Plaintiffs as a result of their § 1983 case still being pending,

regardless of the fact that neither a consent decree nor any

specific judgment in favor of Plaintiffs had been issued, this

reasoning was based solely on the chronology of the events in the

two courts and on the hypothetical “poised” relief that the

district court alleged it would have granted had Peterson’s office

not changed its bad check policies.

While Plaintiffs did not corral their arguments for fees under

the catalyst theory, and the district court properly memorialized

its inability to rely on the catalyst theory to award such fees,

this is precisely what occurred. The district court allowed an

award where the court itself had effected “no judicially sanctioned

change in the legal relationship of the parties” – a key component

of catalyst theory-based awards – in violation of Buckhannon, 532

U.S. at 605. The dismissal with prejudice inured solely to

Defendants’ and Peterson’s benefit. We therefore find that the §

1983 suit’s dismissal with prejudice does not qualify as action

taken by the district court bearing the sufficient judicial

imprimatur to survive Buckhannon and support an award of attorney’s

fees.

CONCLUSION

Having carefully reviewed the record, the parties’ respective

briefs and arguments, for the reasons discussed above, we conclude

the district court legally erred by designating Plaintiffs as

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prevailing parties under § 1988. We thus REVERSE and VACATE the

district court’s award of attorney’s fees to Plaintiffs as an abuse

of discretion.

REVERSED and VACATED.

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