IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31135

RICKY D FOX,

Plaintiff - Appellant

v.

BILLY RAY VICE, Chief of Police for the Town of Vinton; 

TOWN OF VINTON,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from the district court's order granting DefendantsAppellees attorneys' fees and costs after the dismissal of Appellant Fox's federal

claims. Fox argues that the district court erred because Appellees were not

prevailing parties, and because Fox still maintains state-law claims against

Appellees. For the following reasons, we AFFIRM.

I. BACKGROUND

Fox's causes of action stem from two incidents that took place in 2005 after

Fox and Appellee Vice each announced his candidacy to be police chief in the

Town of Vinton, Louisiana. The first event took place in January, when

United States Court of Appeals

Fifth Circuit

F I L E D

January 19, 2010

Charles R. Fulbruge III

Clerk

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No. 08-31135

2

incumbent Vice sent Fox an "anonymous" letter in which Vice attempted to

blackmail Fox into not running for office. The second event took place at a local

high school basketball game in February, when a third party accused Fox of

uttering a racial slur and, at the instigation of Vice, filed a false police report

regarding Fox's alleged utterance.

In December 2005, Fox brought a suit in Louisiana state court against

Vice and the Town of Vinton, alleging the above-stated facts and claiming

federal and state causes of action. In January 2006, the case was removed to

federal court. In April 2007, Vice was tried and found guilty of extortion in state

criminal court for the anonymous letter. Meanwhile, discovery in the civil case

produced evidence of Vice's participation in the filing of the false police report.

In September 2007, the defendants brought a motion for judgment on the

pleadings and for summary judgment. In their motion, they argued that Fox's

claims had no basis in federal law. In his response to the motion, Fox admitted

that he had failed to properly present any federal cause of action. Specifically,

Fox stated:

Defendants correctly argue that Fox presents no valid claim

pursuant to 42 U.S.C. § 1983. As to the extortion letter, it was sent

anonymously. Vice did not act under "color of law" concerning the

extortion letter.

As to the fabricated basketball game incident, Fox cannot show a

deprivation of a right, privilege or immunity secured by the United

States Constitution and its laws. Although Vice and Cary acted

under "color of law" whenever they conspired to fabricate the

basketball game incident and file a false police report, Fox was not

prevented from running for election. Nor is the defamation Fox

suffered as a result of this fabrication deprivation of a property

right.

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 This section states, in relevant part, that "[i]n any action or proceeding to enforce a

1

provision of section[] . . . 1983. . . , 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).

 This section states, in relevant part, that "[u]nless a federal statute, these rules, or 2

a court order provides otherwise, costs – other than attorney's fees – should be allowed to the

prevailing party." FED. R. CIV. P. 54(d)(1).

 577 F.3d 578, 595 (5th Cir. 2009). 3

 519 F.3d 517, 520 (5th Cir. 2008). 4

449 U.S. 5, 14, 101 S. Ct. 173, 178 (1980) (citing Christiansburg Garment Co. v.

5

EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700 (1978)).

 549 F.3d 985, 997 (5th Cir. 2008). 6

3

In light of Fox's own admissions, the district court dismissed Fox's federal claims

with prejudice and remanded the remaining state-law claims to state court.

The defendants moved for attorneys' fees pursuant to 42 U.S.C. § 19881

and for costs pursuant to Federal Rule of Civil Procedure 54, arguing that Fox's 2

federal claims were frivolous, unreasonable and without foundation. The district

court granted that motion, and Fox now appeals.

II. ANALYSIS

We review a district court's award of attorneys' fees under 42 U.S.C.

§ 1988 for abuse of discretion. Merced v. Kasson. We review findings of fact for 3

clear error and conclusions of law de novo. Dearmore v. City of Garland.

4

For the district court to properly award a defendant attorneys' fees in a

§ 1983 action, the court must find that (1) the defendant is a prevailing party,

and (2) that the plaintiff's claims are frivolous, unreasonable, or without

foundation. Hughes v. Rowe; Stover v. Hattiesburg Pub. Sch. Dist. An award 5 6

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See FED. R. CIV. P. 54(d)(1). 7

 240 F.3d 505, 508 (5th Cir. 2001). 8

 532 U.S. 598, 603-04, 121 S. Ct. 1835, 1839-40 (2001) (judgment on the merits altering 9

legal relationship of parties establishes a prevailing party).

 891 F.2d 533, 539 (5th Cir. 1990) (dismissal with prejudice is tantamount to 10

judgment on the merits, rendering defendants prevailing parties for costs purposes under Rule

54).

 617 F.2d 1164, 1169-70 (5th Cir. 1980) (dismissal of claims with prejudice is an 11

adjudication on the merits for purposes of res judicata, making defendant a prevailing party)

See Dean, 240 F.3d at 511. 12

4

of costs simply requires a determination that the defendant was a prevailing

party.

7

1. Whether Appellees are prevailing parties 

We address first whether Appellees are prevailing parties for purposes of

§ 1988 and Rule 54. See Dean v. Riser. The record shows that the court granted 8

Appellees' motion for judgment on the pleadings and dismissed Fox's

§ 1983 claims with prejudice after Fox conceded that he had failed to state a

federal claim. All other things being equal, this makes Appellees prevailing

parties. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &

Human Res.; Sheets v. Yamaha Motors Corp., U.S.A.; Anthony v. Marion 9 10

County Gen. Hosp. However, Fox argues that Appellees are not prevailing 11

parties because Fox voluntarily dismissed his federal claims. Fox points to our

decision in Dean, where we held that when a plaintiff voluntarily dismisses his

claims in a § 1983 action, the defendant is not a "prevailing party" for attorneys'

fees purposes "unless the defendant can demonstrate that the plaintiff withdrew

to avoid a disfavorable judgment on the merits."12

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See FED. R. CIV. P. 41(a) (allowing plaintiff to dismiss claims before opposing party 13

files answer or motion for summary judgment). 

See Dean, 240 F.3d at 510 (stating potentially valid grounds for voluntarily dropping 14

federal claims).

Id. at 510 (quoting Christiansburg, 434 U.S. at 420, 98 S. Ct. at 694). 15

5

Fox did not file a motion to voluntarily dismiss his federal claims before

defendants responded. Rather, Fox allowed the case to proceed for more than 13

eighteen months in federal court and through considerable discovery before he

was challenged on the legal sufficiency of his federal claims. At that point, Fox

was forced to concede their lack of legal merit and shifted focus to his state

claims. Therefore, any decision Fox made to abandon his federal claims did not

"merely indicate[] his preferred forum," or a change in the law or decisive facts.14

 Rather, it represented recognition that Fox's federal claims should never have

been brought. Moreover, without decisive action by Appellees, Fox's baseless

federal claims would have proceeded to trial. He chose to dismiss the federal

claims because he could manufacture no argument to support them when he was

challenged. To deny fees under these circumstances would defeat the purpose

of ever recognizing defendants as "prevailing parties," which is to "'protect

defendants from burdensome litigation having no legal or factual basis.'" 

15

We hold, therefore, that Appellees are "prevailing parties" for purposes of

Rule 54 and § 1988.

2. Whether Fox's § 1983 claims are frivolous, unreasonable, or without

foundation

We next look to the merit of Fox's claims. When determining whether a

claim is frivolous, unreasonable, or without foundation, a district court should

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 211 F.3d 289, 292 (5th Cir. 2000). 16

Christiansburg, 434 U.S. at 421-22, 98 S. Ct. at 700 (emphasis in original).

17

Stover, 549 F.3d at 997-98 (quoting Jones v. Tex. Tech Univ., 656 F.2d 1137, 1145 (5th 18

Cir. 1981)).

 Fox attempts to argue in his appellate brief that the evidence provided through 19

discovery actually provided federal grounds for relief pursuant to § 1983. Because Fox

abandoned these arguments at the district court, we will not consider them now. See Martinez

v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 574 (5th Cir. 2002) (noting the general rule

that "failure to timely raise an issue in district court waives that issue on appeal").

6

consider (1) whether the plaintiff established a prima facie case, (2) whether the

defendant offered to settle, and (3) whether the court held a full trial. Myers v.

City of West Monroe. In making these determinations, a court must "resist the 16

understandable temptation to engage in post hoc reasoning by concluding that,

because a plaintiff did not ultimately prevail, his action must have been

unreasonable or without foundation." Instead, a court must ask whether "'the 17

case is so lacking in arguable merit as to be groundless or without foundation

rather than whether the claim was ultimately successful.'"18

Looking to the first factor, the district court correctly concluded that Fox

failed to establish any prima facie federal claim. Contrary to Fox's assertions on

appeal, the dismissal of Fox's federal constitutional claims is not based on

evidentiary hurdles that he faced at the end of discovery. Rather, Fox's claims

are groundless because the offenses as alleged in his Complaint have no redress

in the Constitution or laws of the United States. The anonymous nature of 19

Vice's letter to Fox and the lack of constitutionally-protected harm stemming

from the false police report were circumstances of which Fox was aware from the

outset of litigation. Consequently, no evidence produced in the discovery process

could change the underlying deficiencies in Fox's Complaint.

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Hensley v. Eckerhart, 461 U.S. 424, 429 n.2, 103 S. Ct. 1933, 1937 n.2 (1983). 20

Hughes, 449 U.S. at 14, 101 S. Ct. at 178. 21

Christiansburg, 434 U.S. at 421-22, 98 S. Ct. at 700.

22

7

Looking to the second factor, the district court did not clearly err in finding

that Appellees did not engage in settlement negotiations with Fox. The evidence

presented by both parties shows that all the documented settlement attempts

were one-sided, with Fox asserting the settlement demands. No evidence points

to Appellees making their own settlement offers. While Fox points to billing

statements from Appellees' counsel showing charges for discussions of

settlement and possible mediation with Fox, these statements alone do not show

clear error in the district court's finding. They only show that Appellees

considered Fox's demands, not that they replied with their own. 

Regarding the third factor, it is undisputed that Fox's federal claims were

all dismissed without trial.

In conclusion, all the factors establishing a frivolous case have been

satisfied. Accordingly, we hold the district court did not abuse its discretion in

finding Appellees entitled to attorneys' fees.

3. Whether Appellees must prevail over the entire case to be awarded fees

In the alternative, Fox argues that even if his federal claims are meritless,

Appellees are not entitled to attorneys' fees and costs because Appellees did not

prevail over the entire action. Specifically, Fox points to the fact that the district

court remanded Fox's state claims that were based on the same alleged facts.

When speaking of whether a defendant is entitled to attorneys' fees, the

Supreme Court describes a "suit," an "action," and both a "claim" and an 20 21

"action" as the proper quanta for determining frivolity, with little guidance as 22

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Compare Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006); 23

Quintana v. Jenne, 414 F.3d 1306, 1312 (11th Cir. 2005); Ward v. Hickey, 996 F.2d 448, 455-56

(1st Cir. 1993); Curry v. A.H. Robins Co., 775 F.2d 212, 220-21 (7th Cir. 1985); Lotz Realty Co.

v. United States Dep't of Hous. & Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) with Balmer

v. HCA, Inc., 423 F.3d 606, 616-17 (6th Cir. 2005); Colombrito v. Kelly, 764 F.2d 122, 132 (2d

Cir. 1985).

Tutor-Saliba Corp., 452 F.3d at 1064 (quoting Quintana, 414 F.3d at 1312). The 24

courts inTutor-Saliba and Quintana addressed situations where the non-frivolous claims were

ultimately unsuccessful. See Tutor-Saliba Corp., 452 F.3d at 1064; Quintana, 414 F.3d at

1312. However, we hold that the ultimate success of a non-frivolous claim is not dispositive

of whether the defendant is entitled to attorneys' fees on a frivolous claim, particularly when

the remaining claims are no longer under the federal court's jurisdiction. See Head v.

Medford, 62 F.3d 351, 356 (11th Cir. 1995) (defendants potentially entitled to attorneys' fees

on frivolous civil rights claims when district court declines supplemental jurisdiction over

state-law claims and dismisses them).

Tutor-Saliba Corp., 452 F.3d at 1064. Our holding is reinforced by dicta in Hensley,

25

where the Supreme Court stated that a defendant may recover attorneys' fees incurred in

responding to a frivolous claim when a plaintiff also brought unrelated and presumably non8

to which is the final determinant. There also appears to be no Fifth Circuit

precedent on whether a defendant must prevail over an entire suit before that

defendant may seek attorneys' fees or whether success on an individual claim is

sufficient. Indeed, other circuits appear to be split on the issue.23

Having reviewed the other circuits' holdings, we agree with the majority

of circuits that a defendant does not have to prevail over an entire suit in order

to recover attorneys' fees for frivolous § 1983 claims. We agree with the Ninth

and Eleventh Circuits that "it would 'undermine the intent of Congress to allow

plaintiffs to prosecute frivolous claims without consequences merely because

those claims were joined'" with additional non-frivolous claims. Such a rule 24

would also make a defendant's entitlement to attorneys' fees "depend not upon

the district court's review of the merits of a plaintiff's § 1983 claims, but upon

how a plaintiff chose to draft his complaint."25

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frivolous claims in the same suit. See Hensley, 461 U.S. at 435 & n.10, 103 S. Ct. at 1940 &

n.10.

Cf. Hensley, 461 U.S. at 434-35, 103 S. Ct. at 1940 (noting that a plaintiff may not 26

seek fees for work on unsuccessful claims that are not related to the plaintiff's § 1983 claims).

See Ward, 996 F.2d at 455-56 (noting that a district court may not deny fees "because 27

calculation would be difficult" or use interrelation of claims as grounds "notto grant any fees").

Hensley, 461 U.S. at 436-37, 103 S. Ct. at 1941. 

28

Quintana, 414 F.3d at 1312.

29

9

However, even though a defendant need not prevail on all claims in a suit

to be entitled to attorneys' fees, a defendant is only entitled to attorneys' fees for

work which can be distinctly traced to a plaintiff's frivolous claims. Inasmuch 26

as a non-frivolous claim in the same suit can be the basis for the work of a

defendant's attorney, the court must consider the interrelated nature of the

frivolous and non-frivolous claims to determine the appropriate fee. We

27

recognize that "[t]here is no precise rule or formula for making these

determinations," and much should be left to the district court's equitable

discretion. Nevertheless, "we are confident that the district court will be able 28

properly to weigh and assess the amount of attorney's fees attributable

exclusively to [a plaintiff's] frivolous . . . claim[s]."29

In its order awarding Appellees attorneys' fees, the district court noted

that "the focus of both plaintiff and defendants was plaintiff’s § 1983 claim." The

court also noted in the second order that "defendant’s [sic] request for attorney’s

fees relates only to proceedings before this court." Finally, the court noted that

"Defendant’s [sic] do not appear to request attorney’s fees related to the defense

of the state law claims remanded for decision to the Louisiana state court."

Because the district court specifically restricted its award of attorneys' fees to

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the proceedings before it, and because the court found that Appellees did not

seek attorneys' fees for the defense of the state law claims, we do not find its

award of attorneys' fees an abuse of discretion.

III. CONCLUSION

The district court's order granting Appellees attorneys' fees is AFFIRMED.

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SOUTHWICK, Circuit Judge, dissenting.

The majority has ably identified the relevant facts and discussed legal

issues that arise with claims for attorneys’ fees. My disagreement is narrow, but

it has consequence in this case.

I agree with the majority that we should affirm on the finding that the

plaintiff continued too long after it became clear that there was no federal case.

So some attorneys’ fees should be reimbursed. The District Court properly

stated that usually a party seeking attorneys’ fees must allocate the fees

separately between the successful claims and the unsuccessful. That was not

done here because the claims were found to be too interrelated. It is at that

point that I depart from the reasoning we are affirming.

The standard quoted by the Magistrate Judge was taken from a precedent

that applied a Texas statute that allowed attorneys’ fees:

The district court did not require that File-Steele segregate its fees

into those fees incurred for successful claims and those incurred for

unsuccessful claims. Instead, the court found that no segregation

was required because the claims arose out of the same transaction

and were so interrelated that their prosecution or defense entailed

proof or denial of essentially the same facts. 

U.S. for Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 915, 919

(5th Cir. 1998). The relevant Texas statute in Varco authorized payment of fees

for the collection of a debt. TEX. CIV. PRAC. REM. CODE ANN. § 38.001 (Vernon

1986). The court found an explanation of that fee statute in a state decision.

Varco, 161 F.3d at 919 (citing Flint & Assocs. v. Intercont’l Pipe & Steel, Inc., 739

S.W.2d 622 (Tex. App.-Dallas 1987, writ denied)). The Flint court stated that

the recoverable fees were only those necessary for the claim for which the statute

authorized fees. Flint, 739 S.W.2d at 624. However, fees were also permitted

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for legal services “rendered in connection with all claims, even if recovery of

attorney fees is not authorized for [some of the] claims, if they arise out of the

same transaction and are so interrelated that their prosecution or defense

entails proof or denial of essentially the same facts.” Id. at 624-25.

I find the Magistrate Judge erred in using this standard from a debt

collection statute for allowing fees to a creditor, then applying it equivalently to

plaintiffs and defendants in civil rights cases. Congress wanted plaintiffs of

limited financial means to bring meritorious suits and recover their attorneys’

fees, while also permitting defendants to recover fees when the action was

“frivolous, unreasonable, or groundless,” or, even if not initially clear, the

plaintiff continued to litigate the case after its frivolousness was clear.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). No such

limitation would likely exist, nor was one mentioned, in Varco or Flint. 

We have held that “the standard for awarding attorneys’ fees differs if a

defendant rather than a plaintiff prevails.” White v. South Park Indep. Sch.

Dist., 693 F.2d 1163, 1169 (5th Cir. 1982). We instead apply a “more rigorous

standard for awarding attorney’s fees to prevailing defendants.” Dean v. Riser,

240 F.3d 505, 508 (5th Cir. 2001)(citing Christiansburg, 434 U.S. at 421). 

This demanding framework stems from Congress’s admonition that

plaintiffs in civil rights actions occupy a unique and protected role in vindicating

the rights enumerated in Section 1983. See Dean, 240 F.3d at 507. Viewing a

civil rights plaintiff as a “private attorney general,” we do not permit awards of

attorneys’ fees against a civil rights plaintiff absent a showing that his suit was

“vexatious, frivolous, or otherwise without merit.” Id. at 508. 

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In the debt collection precedent the Magistrate Judge cited, we declined

to require the plaintiff to segregate the work done in support of its successful

claims from its unsuccessful ones because the work on each was so interrelated

as not to be divisible. Varco, 161 F.3d at 919. The majority here does not refer

to that same caselaw, but it is the legal standard used by the Magistrate Judge

after deciding that the legal work on the various claims could not be

disentangled. As I will explain, in my view that was error and it affected the

manner in which the facts were analyzed.

The Varco approach is sensible when attorneys’ fees are being awarded to

plaintiffs. A plaintiff’s counsel may perform legal services that support

successful and unsuccessful legal theories. When it is factually impossible to

allocate the services, requiring a defendant to reimburse them all will assure

that a plaintiff is recovering what was necessary to bring the suit, a payment to

which the plaintiff is entitled. Any artificial discount because of the interrelated

services may lead to less than total fee reimbursement. In such a case, the

approach of the Texas debt collection statute makes sense because the interests

are the same – allowing a plaintiff fully to recover, including attorneys’ fees.

On the other hand, when a defendant has successfully fended off some but

not all claims as frivolous, there is still one or more claims for which the

defendant has not been found to deserve any attorneys’ fees. The plaintiff may

well – it has not been resolved – be entitled to bring those claims. So long as the

plaintiff’s remaining claims are not found to be frivolous, no reimbursement to

the defendant for the fees on those claims is permissible even if the plaintiff does

not prevail. Consequently, when some claims are dismissed as frivolous and

others are not, allowing a defendant full recovery of his fees because the services

for the various claims are too interrelated gives too much. 

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In summary, when work done on a plaintiff’s successful and unsuccessful

claims is confusingly interrelated, not requiring attorneys’ fees awarded to be

artificially segregated avoids an unfair discount. Quite differently, using

interrelatedness as the reason not to segregate fees awarded to a defendant

causes an inequitable windfall. See Blum v. Stenson, 465 U.S. 886, 893-94

(1984) (Section 1988 should not produce windfalls to attorneys). 

In the present case, it appears that almost all the defendant’s discovery

and factual analysis would have been necessary even if no federal claims had

been brought. Generally, the same witnesses would be deposed, the same

documents produced, and the same factual disputes resolved. Only the legal

work allocable solely or dominantly to the dismissed federal claims was

unnecessary.

The suit will proceed now in state court. If the state to which a case such

as this is remanded has a fee-shifting statute similar to Section 1988, and if the

state claims prove frivolous, the defendant can then recover the fees for the

overlapping work performed in federal court. Only then will it be known that

the highly interrelated legal services were all on groundless claims. If the

plaintiff prevails, then all he recovers is for the legal work necessary to succeed,

plus such fees as were too interrelated to allocate with the dismissed federal

claims. Finally, if the plaintiff loses but at least the claims are not found to be

groundless, no one receives any fee reimbursement.

If there is no fee-shifting statute for the state law claims that operates

similarly to Section 1988, then this approach still avoids a windfall. When there

is no specific authority for awarding fees, each party bears its own. We would

only be enforcing in advance the state’s refusal to shift fees.

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Accordingly, I would reject the Magistrate Judge’s application of the Varco

standard to this case. The majority refers to another part of the Magistrate

Judge’s decision in which she stated that both parties focused throughout

litigation on the federal claim. That finding does not affect my view that any fee

for services by Vice’s counsel that was also necessary for the state claims is not

recoverable, no matter what the focus of counsel might have been.

Therefore, I find an abuse of discretion by the district court. See Merced

v. Kasson, 577 F.3d 578, 595 (5th Cir. 2009). The only fees Fox should be

required to pay are those solely applicable to his federal claims. The defendant

is entitled to be paid for the legal services necessary to remove the action and

now to address the remand, as well as any services uniquely arising from the

legal work to have the Section 1983 claims dismissed. If those cannot be

segregated from the other fees, then it would appear the defendant’s fee records

are suspect. If that much can be shown but no other division can be made, then

I would end the award there. 

Requiring all interrelated fees to be reimbursed intrudes on the right of

a civil right’s plaintiff to bring a non-frivolous claim without having to pay

attorneys’ fees to the defense even when the case is unsuccessful.

I respectfully dissent.

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