## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3320

___________ John Wray, Timothy Dickenson, * * Plaintiffs/Appellants, * * Clarence Boppre, * * Plaintiff, * Appeal from the United States * District Court for the James Martinez, * District of Nebraska. * Plaintiff/Appellant, * * v. * * Harold W. Clarke, * * Defendant/Appellee, * * Frank X. Hopkins, * * Defendant. *

___________ Submitted: February 13, 1998 Filed: August 4, 1998

___________The HONORABLE ANDREW W. BOGUE, United States District Judge for 1 the District of South Dakota, sitting by designation. The Honorable David L. Piester, United States Magistrate Judge for the District 2 of Nebraska, to whom the case was referred by consent of the parties pursuant to 28 U.S.C. § 636(c). During the course of the litigation, the number of plaintiffs was reduced to four. 3 -2- Before McMILLIAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. 1

___________ WOLLMAN, Circuit Judge. This i s an appeal from the district court’s denial of a request for attorney fee s 2 pursuant to 42 U.S.C. § 1988. We affirm.
I. Alleging numerous unconstitutional conditions of confinement at the Nebrask a State Penitentiary, seven inmates commenced a pro se civil rights actio n 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 pa rties began to discuss the possibility of settlement. A settlement conference wa s scheduledto be held before a magistrate judge in July of 1996. In anticipation of this conference, the parties e xchanged 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, whichcounsel for Clarke interpreted as having been made in jest and to which sh e responded in either a sarcastic or flippant manner. The parties reached a-3-

settlement during th e course of the conference. Under the terms of this settlement, one in mate agreed to dismiss his claims voluntarily, while the other inmates agreed t o non monetary resolutions of their claims. The magistrate judge then issued an orde r indicat ing that a settlement had been reached and requiring that the parties file a join t stipulation for dismissal. In the following weeks, the parties attempted to draft a document embodying the terms of the ir agreement. Counsel for the inmates drafted a proposed stipulation tha t expressly reserved the inmates’ right to apply for attorney fees under 42 U.S.C. § 1988. Clarke responded by saying that bec ause attorney fees were not a part of the agreement re achedduring the settlement and because he had clearly and repeatedly made clear throug hout

the course of the negotiations that any settlement would encompass onl y pur ely nonmonetary relief to the inmates, any provision for attorney fees would b e unacceptable. Following several months of inconclus ive correspondence, the parties reached an impasse. Counsel for the

inmates continued to insist that a clause reserving the right to seek attorney fees beincluded 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.”
Cou nsel for the inmates responded by filing a motion to enforce the settlemen t agreement a nd by making an application for fees. Following an evidentiary hearin g befor e a different magistrate judge (Judge Piester), the court held that an enforceabl e settlement agreement had been reached and that the inmates had not reserved the right to seek attorney fees.-4- II.
The Civil R ights 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 Unite d States, a reasonable attorney’s fee as part of the costs.” Pursuant to thi s provision, a pre vailing party in a civil rights action is generally entitled to attorney fees “unle ss special circumstances would render such an award unjust.” Hensley v

. Eckerhart , 461 U.S. 424, 429 (1983). The term “prevail ing party” includes a civil rights complaina nt that prevails through settlement in lieu of litigation. See Maher v. Gagne , 448 U.S. 12 2, 129 (1980). Attorney fees may be waived as part of the settlemen t process. See Evans v. Jeff D. , 475 U.S. 717, 737-38 (1986).
Some cir cuits have held that parties must specifically agree to exclude a post

settleme nt

claim for attorney fees and that an intent to do so should not be presume d from a silent record

. See, e.g. , Muckleshoot Tribe v. Puget Sound Power & Light Co. , 875 F.2d 695, 698 (9th Cir. 1989); Ashley v. Atlant ic Richfield Co. , 794 F.2d 128, 138- 39 (3d Cir. 1986). In Young v. Powell , 729 F.2d 563 , 566-67 (8th Cir. 1984), however, we indicated that silence may constitute a waiver of the right to claim fees. In Young , we held that a party who had filed a comprehensive stipulation for dismissal that advised the district court that all disputed issues had been resolved and who requested that the case be dismissed could not thereafter seek attorney fees. See id. at 566. In addition, we advised prospective litigants that “[i]f a settlement does not resolve all issues in a cas e, the parties should not stipulate to a dismissal without reserving the unresolve d issues or in some appropriate way indicating their intent as to such issues.” Id. at 567 n.3. Thus, t he question before us is whether the parties intended their settlement t o dispose of the entire

range of issues between the parties. See Jennings v. Metropolitan Gov’t of Nashville , 715 F.2d 1111, 1114 (6th Cir. 1983). We agree with the distric t court that they did. The settlement was reached only after extensive negotiations-5-

between the parties. The parties agree that the matter of at torney fees was not discussed d u ring the settlement conference itself. Statements that are interpreted as having been made in je st do not bespeak an intention to reserve the right to later make a claim fo r attor ney fees, especially in a case in which, as here, the defendant has made i t unmi stakably clear that the relief provided by the settlement would be purel y nonmonetary in nature. Having manifested an intention duringthe settlement conference to settle all of the matters in dispute an d having failed to reserve a post-settlement claim for attorney fees, the inmates will not now be heard to raise such a claim. The judgment is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.