Wray v. Clarke, 97-3320

Decision Date04 August 1998
Docket NumberNo. 97-3320,97-3320
Citation151 F.3d 807
PartiesJohn WRAY, Timothy Dickenson, Plaintiffs/Appellants, Clarence Boppre, Plaintiff, James Martinez, Plaintiff/Appellant, v. Harold W. CLARKE, Defendant/Appellee, Frank X. Hopkins, Defendant.
CourtU.S. Court of Appeals — Eighth Circuit

Robert S. Lannin, Omaha, NE, argued (Richard L. Anderson, on the brief), for appellant.

Terri Marie Weeks, Lincoln, NE, argued (Don Stenberg, Attorney General, on the brief), for appellee.

Before McMILLIAN and WOLLMAN, Circuit Judges, and BOGUE, 1 District Judge.

WOLLMAN, Circuit Judge.

This is an appeal from the district court's 2 denial of a request for attorney fees pursuant to 42 U.S.C. § 1988. We affirm.


Alleging numerous unconstitutional conditions of confinement at the Nebraska State Penitentiary, seven inmates commenced a pro se civil rights action under 42 U.S.C. § 1983 against Harold W. Clarke, Director of the Nebraska Department of Correctional Services. 3

As the case proceeded and after the appointment of counsel for the inmates, the parties began to discuss the possibility of settlement. A settlement conference was scheduled to be held before a magistrate judge in July of 1996. In anticipation of this conference, the parties exchanged several letters and proposals in an attempt to reach a mutually agreeable resolution. No mention of attorney fees was made during the course of this correspondence. Just prior to the commencement of the settlement conference, counsel for the inmates made a remark regarding the prospect of seeking attorney fees, which counsel for Clarke interpreted as having been made in jest and to which she responded in either a sarcastic or flippant manner. The parties reached a settlement during the course of the conference. Under the terms of this settlement, one inmate agreed to dismiss his claims voluntarily, while the other inmates agreed to nonmonetary resolutions of their claims. The magistrate judge then issued an order indicating that a settlement had been reached and requiring that the parties file a joint stipulation for dismissal.

In the following weeks, the parties attempted to draft a document embodying the terms of their agreement. Counsel for the inmates drafted a proposed stipulation that expressly reserved the inmates' right to apply for attorney fees under 42 U.S.C. § 1988. Clarke responded by saying that because attorney fees were not a part of the agreement reached during the settlement and because he had clearly and repeatedly made clear throughout the course of the negotiations that any settlement would encompass only purely nonmonetary relief to the inmates, any provision for attorney fees would be unacceptable.

Following several months of inconclusive correspondence, the parties reached an impasse. Counsel for the inmates continued to insist that a clause reserving the right to seek attorney fees be included in the settlement agreement. Clarke's response rejected this demand: "In light of the disagreement regarding the payment of attorney fees, there has been no settlement in this matter. Therefore, none of the provisions discussed at the settlement conference will be implemented at this time."

Counsel for the inmates responded by filing a motion to enforce the settlement agreement and by making an application for fees. Following an evidentiary hearing before a different magistrate judge (Judge Piester), the court held that an enforceable settlement agreement had been reached and that the inmates had not reserved the right to seek attorney fees.


The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that "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." Pursuant to this provision, a prevailing party in a civil rights action is generally entitled to attorney fees "unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The term "prevailing party" includes a civil rights complainant that prevails through settlement in lieu of litigation. See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). Attorney fees may be waived as part of the settlement process. See Evans v. Jeff D., 475 U.S. 717, 737-38, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986).

Some circuits have held that parties must specifically agree to exclude a post-settlement claim for attorney fees and that an intent to do so should not be presumed from a silent record....

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9 cases
  • Ellis v. University of Kansas Medical Center
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 21, 1998
    ...prevailing party must show that a settlement agreement and release specifically does not waive a section 1988 claim. See Wray v. Clarke, 151 F.3d 807, 809 (8th Cir.1998); Elmore v. Shuler, 787 F.2d 601, 603 (D.C.Cir.1986). We respectfully disagree with the view that the burden of showing th......
  • Cody v. Hillard, 00-3918.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 11, 2002
    ...other civil rights statutes. A plaintiff who prevails under a statute covered by § 1988 is normally entitled to fees. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir.1998). We review legal issues relating to fee awards de novo, the awards themselves for abuse of discretion. Jenkins v. Missouri, ......
  • Christianson v. Henderson
    • United States
    • U.S. District Court — Southern District of Iowa
    • March 1, 2003
    ...§ 27 cmt. c (1979)). An agreement to settle litigation does not need a formal writing for its full expression. Cf. Wray v. Clarke, 151 F.3d 807, 808-809 (8th Cir. 1998) (holding inmates failed to reserve post-settlement claim for attorney fees when they reached settlement agreement during c......
  • Genetically Modified Rice Litig. v. Downing
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 22, 2014
    ...must contribute to the Fund, Phipps did not attempt to memorialize those objections in the Settlement Agreement. See Wray v. Clarke, 151 F.3d 807, 809 (8th Cir.1998). If the Settlement Agreement did not resolve the disputes underlying the 2010 Order, then Phipps should not have stipulated t......
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