* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30776

Summary Calendar

EDWARD T. LAIN,

Plaintiff-Appellant,

VERSUS

STATE OF LOUISIANA; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONS; WARDEN LENSING, Warden Hunt Correctional Center; 

HUNT CORRECTIONAL CENTER 

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

(93-CV-2021)

January 24, 1996

Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

FACTS

Louisiana prisoner Edward T. Lain (“Lain”), represented by

retained attorney Linda M. Meyer (“Meyer”), filed a 42 U.S.C.
 

1The district court also allowed Lain 20 days from the date of

the order to either amend his complaint to state causes of action

against Lensing and Terrell individually or to face dismissal of

those claims. Lain failed to properly amend his complaint and the

district court dismissed Terrell and Lensing, in their individual

capacities, for failure to allege facts sufficient to state a cause

of action against them. The district court also dismissed Warden

Farrar, in his official capacity, and Union Parish Detention Center

as immune from suit under the Eleventh Amendment and dismissed any

claims against Farrar individually for failure to allege facts

sufficient to state a cause of action. The district court entered

judgment in their favor. 

2

§ 1983 action against the State of Louisiana; the Louisiana

Department of Public Safety and Corrections (“LDPSC”); Union Parish

Detention Center; Hunt Correctional Center; Allen Parish

Correctional Center; and Wardens Thomas Lensing, Terry Terrell, and

George Farrar, in their individual and official capacities, for

alleged constitutional violations. The State of Louisiana, LDPSC,

Hunt Correctional Center, and Warden Thomas Lensing, in his

official capacity, moved to dismiss the claims against them

pursuant to Fed. R. Civ. P. 12(b)(6), contending that they were

absolutely immune from suit under the Eleventh Amendment. Lain

conceded that the State of Louisiana, LDPSC, Hunt Correctional

Center, and Allen Parish Correctional Center were improper parties

and should be dismissed from the suit. The district court

ultimately dismissed Lain's claims against the State of Louisiana,

LDPSC, Hunt Correctional Center, Allen Parish Correctional Center,

and Lensing and Terrell, in their official capacities, as immune

from suit under the Eleventh Amendment and entered final judgment

in their favor.1
3

After entry of final judgment, the State of Louisiana, LDPSC,

Hunt Correctional Center, and Warden Lensing, in his official

capacity, moved the district court to tax Lain for attorneys' fees

and court costs, pursuant to 28 U.S.C. § 1924 and 42 U.S.C. § 1988.

Lain opposed the motion. In ruling on the motion, the district

court found Lain's suit against these defendants so lacking in

merit as to be groundless. The district court then determined that

the defendants were entitled to attorneys' fees and costs pursuant

to § 1988. The district court also sua sponte raised whether Meyer

was subject to sanctions under Fed. R. Civ. P. 11 and ordered her

to submit objections to the imposition of sanctions. 

Over Meyer's objections the district court later assessed $250

as Rule 11 monetary sanctions against Meyer. The district court

also determined that the moving defendants were entitled under

§ 1988 to $960.50 in costs and attorneys' fees from Lain. Lain

filed a pro se notice of appeal from the judgment regarding the

sanctions and attorneys' fees. The district court granted Lain in

forma pauperis status on appeal.

DISCUSSION

Lain argues that the district court erred in ordering him to

pay attorneys' fees to the defendants under § 1988. Lain contends

that the district court correctly imposed monetary sanctions

against Meyer, but erred in continuing on to award fees and costs

against him. He contends that Meyer, not himself, was at fault for

failing to acknowledge that the defendants were absolutely immune

under the law, and that as a client uneducated in the law, he
4

depended on Meyer to know whether his action was frivolous.

Alternatively, Lain contends that, if the district court correctly

awarded attorneys' fees and court costs against him, then the

amount was excessive considering that Lain is "an indigent inmate

who earns no wages, has no assets, funds, property, bonds or

stocks."

AWARD OF ATTORNEYS’ FEES AND COSTS 

District courts have discretion to award attorneys’ fees to

prevailing parties, other than the United States, in civil rights

cases. 42 U.S.C. § 1988. A reviewing court will reverse an award

of attorneys’ fees under § 1988 only on finding an abuse of

discretion. Islamic Center of Miss., Inc. v. City of Starkville,

Miss., 876 F.2d 465, 468 (5th Cir. 1989). "[P]revailing defendants

are entitled to attorney fees only when a plaintiff's underlying

claim is frivolous, unreasonable, or groundless. [This court]

review[s] frivolity by asking whether the case was so lacking in

merit that it was groundless, rather than whether the claim was

ultimately successful." United States v. Mississippi, 921 F.2d

604, 609 (5th Cir. 1991) (internal citation omitted).

Lain admits on appeal that his action was frivolous but

contends that he relied on his attorney to know whether the action

was without merit. He contends that his attorney did not consult

him about the frivolity of the case and decided on her own to

pursue the action and later withdraw it. Neither Lain nor his

attorney presented this argument in the district court as a reason

against awarding the defendants’ attorneys' fees. Instead, Lain's
5

attorney argued to the district court that the suit was not

frivolous. 

“[I]ssues raised for the first time on appeal are not

reviewable by this court unless they involve purely legal questions

and failure to consider them would result in manifest injustice."

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (internal

citations and quotations omitted). Holding Lain liable for

attorneys’ fees under § 1988 despite his attorney’s alleged failure

to advise him of the frivolous nature of his case does not rise to

the level of manifest injustice.

AMOUNT OF ATTORNEYS’ FEES

Lain complains that the attorneys' fees are excessive and

unreasonable because the district court did not consider Lain's

status as an indigent inmate. This court reviews a district

court's factual findings surrounding the award of attorneys’ fees

for clear error. Shipes v. Trinity Indus., 987 F.2d 311, 319 (5th

Cir.), cert. denied, --U.S.--, 114 S. Ct. 548, 126 L. Ed. 2d 450

(1993). To determine the award amount, courts in this circuit must

first calculate the "lodestar" by multiplying the number of

compensable hours reasonably spent on the litigation times a

reasonable hourly rate. Watkins v. Fordice, 7 F.3d 453, 457 (5th

Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.

Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983)).

When analyzing the reasonableness of the hours expended and

the hourly rate requested the district court is to consider: (1)

the time and labor required; (2) the novelty and difficulty of the
6

questions; (3) the skill required to perform the legal service

properly; (4) the preclusion of other employment by the attorney

due to acceptance of the case; (5) the customary fee; (6) whether

the fee is fixed or contingent; (7) time limitations imposed by the

client or the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and ability of

the attorneys; (10) the "undesirability" of the case; (11) the

nature and length of the professional relationship with the client;

and (12) awards in similar cases. Id. at 457 n.4 (citing Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.

1974)). Once determined, the lodestar may be adjusted upward or

downward if the above factors, not included in the reasonable fee

analysis, warrant the adjustment. Id. (internal citation omitted).

A strong presumption exists that the lodestar represents a

reasonable fee that should be modified only in exceptional cases.

Id.

The possible inability of a losing party to pay the fees and

costs assessed against him is not a factor about which the district

court needs to inquire when determining a reasonable fee.

Consequently, the district court did not err when it assessed

attorneys' fees of $960.50 against Lain. 

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.