United States Court of Appeals

For the First Circuit

No. 01-1309

DANA RICHARDSON,

Plaintiff, Appellant,

v.

OFFICER BRIAN MILLER, DETECTIVE STEVEN BLAIR,

BOSTON POLICE DEPARTMENT, AND CITY OF BOSTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Andrew M. Fischer, with whom Jason & Fischer was on brief,

for appellant.

Eve A. Piemonte Stacey, with whom Merita A. Hopkins was on

brief, for appellees.

January 29. 2002

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COFFIN, Senior Circuit Judge. Dana Richardson appeals the

district court's denial of attorney's fees in his civil rights

case against the City of Boston ("the City"). Finding no

manifest abuse of discretion, we affirm.

I. Background

On January 25, 2000, appellant was a passenger in a vehicle

driven by Angela Howell. A police officer stopped the vehicle

and requested a driver's license from Howell, who instead

produced a State of Michigan photo identification of "Donald

Beane." Appellant's picture was on Beane's identification. The

officer asked appellant to identify himself. The officer became

suspicious and requested further identification when appellant

told him he was Dana Richardson. In appellant's wallet were

credit cards and picture identifications, all in Beane's name.

Richardson also possessed some personal papers, including his

mother's death certificate and mortgage papers. The officer

seized all of the papers, credit cards and identifications.

Appellant repeatedly and unsuccessfully sought return of the

seized items and ultimately filed a lawsuit in state court

seeking to have the items returned and the government enjoined

from using the materials in any criminal investigation of him.

The City removed the case to federal court, and the district

court heard oral argument on appellant's motion for a
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restraining order. During the hearing, at the district court's

nudging, the parties agreed that the City would return some of

the seized materials to appellant. Because of the continuing

investigation, however, most of the returned materials were to

be photocopies rather than originals. The district court then

denied as moot appellant's motion. After continued negotiation

between the parties, the City returned appellant's wallet and

some of his personal papers. It never returned the so-called

"Beane documents" because they pertained to the criminal

investigation. Appellant was arrested soon thereafter and

charged with four counts of credit card fraud, but the charges

were later dropped for lack of sufficient evidence.

After the materials were returned, appellant offered several

times to dismiss the case. The parties could not agree,

however, on whether the case would be dismissed with, or

without, prejudice. Appellant eventually moved to voluntarily

dismiss and filed a petition for attorney's fees and costs as a

prevailing party under the Attorney's Fee Awards Act of 1976

("the Fees Act"), 42 U.S.C. § 1988, and its state analogue,

Mass. Gen. Laws ch. 12, § 11I. The district court dismissed the

case, with prejudice, but denied the fee petition, reasoning

that appellant was not a prevailing party as contemplated by the

statutes because the court did not issue any substantive rulings
1 Appellant also conclusorily states that he is appealing

the district court's denial of his motion to vacate the order of

dismissal. Appellant failed to develop that argument and it is

therefore waived. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).

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and the case did not proceed to trial. Appellant appeals from

that order.1

II. Standard of Review

We have long held that we are highly deferential to a

district court's decision whether to award attorney's fees, and

thus will set aside its ruling only if that ruling constituted

a "manifest abuse of discretion." Gay Officers Action League v.

Puerto Rico, 247 F.3d 288, 292 (1st Cir. 2001); see also Foley

v. City of Lowell, 948 F.2d 10, 18 (1st Cir. 2001). Our strict,

but sensible, standard reflects the fact that only the district

court has the "intimate knowledge of the nuances of the

underlying case." Gay Officers Action League, 247 F.3d at 292.

We therefore confine our review to whether the district court

has made a mistake of law or incorrectly weighed (or failed to

weigh) a factor in its decision. See Foster v. Mydas Assoc.,

Inc., 943 F.2d 139, 143 (1st Cir. 1991).

III. Discussion

A. "Prevailing Party" Status Under the Fees Act and the

Massachusetts Civil Rights Law
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Under the Fees Act, 42 U.S.C. § 1988, the district court may

award reasonable attorney's fees to a prevailing party in a

civil rights case brought under 42 U.S.C. § 1983. Like many

others before it, the key to this case is whether the plaintiff

achieved "prevailing party" status. Typically, a plaintiff is

deemed to have prevailed if he can show that he "succeeded on an

important issue in the case, thereby gaining at least some of

the benefit he sought in bringing suit." Gay Officers Action

League, 247 F.3d at 293 (citing Hensley v. Eckerhart, 461 U.S.

424, 433 (1983)). To be sure, a plaintiff need not prevail on

every claim and obtain all relief sought to qualify as a

prevailing party. E.g., Farrar v. Hobby, 506 U.S. 103, 111

(1992); Hewitt v. Helms, 482 U.S. 755, 760 (1987). Even so,

"[r]espect for ordinary language requires that a plaintiff

receive at least some relief on the merits of his claim before

he can be said to prevail." Hewitt, 482 U.S. at 760 (citing

Hanrahan v. Hampton, 446 U.S. 754, 757 (1980)).

Here, although some of appellant's materials were returned

to him (namely, the mortgage papers, his mother's death

certificate and a few other documents), most of the returned

materials were copies rather than originals, and the police

never returned the Beane documents. Appellant argues that all

of "his" possessions were returned, and that he never sought the
2 The government's later termination of criminal charges is

immaterial because its decision was not based on the return of

the seized materials.

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return of the Beane documents. However, that proposition is

clearly refuted by the complaint, which seeks the return of "all

materials seized."

Moreover, and more fundamentally, the crux of the complaint

is that the seizure of the materials should have been deemed

unlawful and unconstitutional, and that the City thus should

have been enjoined from using the materials in its

investigation. The return of the documents, however, did not

prevent the City from continuing its investigation.2 To the

contrary, the parties agreed that all but a few of the returned

materials would be photocopied so that law enforcement

authorities could continue their investigation. Given the

limited nature of the plaintiff's success, neither the district

court's finding that appellant was not a prevailing party, nor

its refusal to award attorney's fees, was an abuse of

discretion, let alone a manifest one. See, e.g., Gay Officers

Action League, 247 F.3d at 294 (a court is "well within its

rights to deny prevailing party status" if plaintiff's success

was "purely technical or de minimis") (internal citation

omitted).
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Appellant also argues that he achieved his goals in this

lawsuit by receiving something akin to a consent decree. See

Maher v. Gagne, 448 U.S. 122, 129 (1980) (permitting attorney's

fees in judicially approved settlements). He concedes that the

district court neither ordered the parties to comply, nor ruled

on the merits, yet he contends that the district court's

brokering of the deal was a de facto, if not de jure,

settlement. The district court, however, found to the contrary

and concluded that its involvement in the case "in no way

represent[ed] the Court's adjudication of the parties' claims."

The district court is obviously in the best position to evaluate

its own actions and their weight. Cf. Lefkowitz v. Fair, 816

F.2d 17, 22 (1st Cir. 1997) (explaining that "uncertainty as to

the meaning and intendment of a district court order can

sometimes best be dispelled by deference to the views of the

writing judge"). The record provides no basis for secondguessing the court's conclusion that its intervention was not

the equivalent of a consent decree, and we therefore find no

abuse of discretion in the court's determination that appellant

did not prevail in his lawsuit.

Likewise, appellant is not a prevailing party under section

11I of the Massachusetts Civil Rights Law. Appellant contends

that he is entitled to attorney's fees under the Massachusetts
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law because, unlike the federal Fees Act, which permits a

district court to exercise discretion in awarding attorney's

fees, the phrasing of the Massachusetts statute is absolute:

"Any aggrieved person or persons who prevail in an action

authorized by this section shall be entitled to an award of the

costs of the litigation and reasonable attorneys' fees in an

amount to be fixed by the court." Mass. Gen. Laws ch. 12, § 11

(emphasis added). Thus, appellant argues, he is automatically

entitled to attorney's fees. However, our conclusion that

appellant was not a prevailing party applies to both the state

and federal statutes. The Massachusetts attorney's fees

provision is therefore inapplicable.

B. The Catalyst Theory

Until recently, a plaintiff in a civil rights dispute could

also achieve prevailing party status under the catalyst theory.

This theory permitted attorney's fees if a lawsuit acted as a

"'catalyst' in prompting defendants to take action to meet

plaintiff's claims . . . despite the lack of judicial

involvement in the result." Nadeau v. Helgemoe, 581 F.2d 275,

279 (1st Cir. 1978). In other words, a plaintiff would be deemed

to have "prevailed" in a lawsuit "even if there [was] no award

or injunction, so long as the lawsuit effectively achieved a

favorable result sought by the plaintiff." Stanton v. S.
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Berkshire Regional Sch. Dist., 197 F.3d 574, 577 (1st Cir.

1999).

The Supreme Court, however, has expressly rejected the

catalyst theory. See Buckhannon Bd. and Care Home, Inc. v. W.

Va. Dep't of Health and Human Res., 121 S. Ct. 1835 (2001).

Although Buckhannon applied to the Fair Housing Amendments Act

and the Americans with Disabilities Act, the Court specifically

noted that the fee-shifting provisions of several other

statutes, including the Fees Act, should be interpreted

consistently. See id. at 1839 n.4. Although we approved the

catalyst theory in the past, see, e.g., Nadeau, 581 F.2d at 279,

we are constrained to follow the Court's broad directive and

join several of our sister circuits in concluding that the

catalyst theory may no longer be used to award attorney's fees

under the Fees Act. See, e.g., Chambers v. Ohio Dep't of Human

Servs., 273 F.3d 690, 691-93 (6th Cir. 2001); Johnson v. ITT

Aerospace/Communications Div. of ITT Indus., Inc., 272 F.3d 498,

500 (7th Cir. 2001); N.Y. State Fed'n of Taxi Drivers, Inc. v.

Westchester County Taxi and Limousine Comm'n, 272 F.3d 154, 158

(2d Cir. 2001); Griffin v. Steeltek, Inc., 261 F.3d 1026, 1029

(10th Cir. 2001); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th

Cir. 2001); Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir.

2001).
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Appellant argues that the theory is still viable under

Massachusetts law, and reasons that the lawsuit was a catalyst

for change because the City voluntarily agreed to return the

seized property. However, he does not cite (nor have we found)

a single case in which Massachusetts ever has recognized the

theory as a basis for recovery under the state civil rights

statute. To the contrary, it appears that the Massachusetts

courts have applied the catalyst theory only in awarding fees

under the Fees Act.

Even assuming arguendo that Massachusetts recognizes the

catalyst doctrine, appellant's claim nevertheless fails.

Regardless of the return of some of the seized materials, the

City was still able to undertake its criminal investigation of

appellant and the City never returned many of the seized items.

Thus, the district court concluded that "in the totality of the

circumstances, it is obvious that Richardson did not prevail in

any plausible sense of the word." We find no abuse of

discretion in that determination. See, e.g., Pearson v. Fair,

980 F.2d 37, 44 (1st Cir. 1992) (explaining that party seeking

fees under catalyst theory must show that "whatever changes

[his] lawsuit caused . . . were not de minimis.").

Affirmed.