(7th Cir. 2003) (denying fees where plaintiff was not prevailing
party even though city repealed ordinance in question after
district court’s opinion).

The Court only granted declaratory relief insofar as
Defendants prior “Special management Status” (“SMS”) was
unconstitutional. However, the Court did not grant any injunctive
relief on this issue because Defendants “made a sufficient showing
that the new policy, [taking effect in September 2004], is in fact
being implemented at the [Joliet Treatment and Detention
Facility].” (1/13/05 Mem. Op. and Order at 40.) Over Plaintiffs’
arguments, the Court found “that this litigation has caused a good
faith reexamination and change in the insufficient past SMS
policy.” Id. This case falls squarely within Buckhannon’s
reasoning. Accordingly, the Court concludes that Plaintiffs do not
qualify as prevailing parties and cannot pursue recovery of
attorney’s fees.

Cc. Parties Bear Their Own Costs and Attorney’s Fees

The Court also will address Defendant’s potential recoupment
of attorney’s fees and both parties’ requests for costs. In its
discretion, the Court finds that both parties should bear their own
costs and fees.

1. Attorney’s Fees
Attorney’s fees are governed by FED. R. Civ. P. 54(d) (2) and 42

U.S.C. § 1988. Section 1988(b) states that “the court, in its


one claim, both parties’ limited success compels them to bear their
own costs). The Court entered judgment in favor of Defendants on
all claims (but one) for injunctive and declaratory relief.
However, Plaintiffs achieved some measure of change, although not
through judicial order, and a favorable declaratory finding on one
claim’s past practice. For all the above stated reasons, the Court
denies Defendants’ motion for Bill of Costs.

Plaintiffs are not a “prevailing party” for purposes of
recovering attorney’s fees under § 1988. See supra Section I.B.
In order to recoup attorney’s fees and other costs under the
statutes and Fep. R. Crv. P. 54(d), a party must be the “prevailing
party” in litigation. However, Buckhanon suggested that in certain
cases the analysis of prevailing party for costs may differ from
that of fees because of the presumption in favor of costs. 532
U.S. at 606 n.8; see also Petersen, 372 F.3d at 867-68. The
Seventh Circuit has stated that to recover costs, a party must
prevail “as to the substantial part of the litigation.” See Testa
v. Village of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996
(denying costs to both parties where jury awarded plaintiff $1,500
on malicious prosecution claim, but lost on § 1983 claim). As the
Court previously discussed, at best, Plaintiffs achieved mixed
results and limited success. Accordingly, in its discretion, the

Court also denies Plaintiffs’ motion for Bill of Costs.


Home v. W. Va. Dep’t of Health & Human Resources, stated that “[a]
defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the change.”
Buckhannon, 532 U.S. 598, 605 (2001); see also Petersen, 372 F.3d
at 866 (adopting Buckhannon’s analysis on prevailing party).
B. Plaintiffs’ Status

Defendants voluntarily modified their practices and procedures
at the facilities in question before the bench trial. Thereafter,
the Court entered judgment in favor of Defendants on all claims
except one, and awarded solely declaratory relief on the remaining
claim. The Court’s judgment did not require modification of
Defendants’ behavior, nor did it materially alter the legal
relationship between the parties. (See 1/13/05 Mem. Op. and
Order); see Cady v. City of Chicago, 43 F.3d 326, 330 (7th Cir.
1994) (denying fees when defendant Chicago removed the objected
newsstand and stated that “where a plaintiff obtains a declaratory
judgment but is not benefitted by any change of the defendant’s
behavior toward him, he normally does not qualify as a prevailing
party”). Although Plaintiffs may consider Defendants’ facility and
policy changes to be a favorable outcome, Defendants’ actions were
not pursuant to Court injunction or other order and therefore do
not form the basis for Plaintiffs recovery of fees. See Fed’n of

Advertising Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924


discretion, may allow the prevailing party . .. a reasonable
attorney’s fee... .” (emphasis added). The ACLU represented the
civilly committed and primarily indigent plaintiffs throughout the
course of the litigation. During the pendency of the case,
Defendants voluntarily revamped many procedures and practices at
the facilities where Plaintiffs reside, which mooted most of
Plaintiffs’ claims. Besides the SMS issue, the remaining claims
were unsuccessful at trial, but were of colorable merit. “A
prevailing defendant in a case brought under 42 U.S.C. § 1983 may
recover attorney's fees from the plaintiff only upon a finding that
the plaintiff’s action was ‘frivolous, unreasonable or without
foundation, even though not brought in subjective bad faith.’”
Hughes v. Rowe, 449 U.S. 5, 14 (1980) (citation omitted); see also
Citizens for a Better Env’t v. Steel Co., 230 F.3d 923, 930 (7th
Cir. 2000).

To date, Defendants have not filed for attorney’s fees. In
the interest of judicial economy, the Court concludes that any such
attorney fee petition by Defendants would be unwarranted because
the action clearly was not frivolous. Likewise, Plaintiffs do not
qualify for attorney’s fees. See supra Section I.B.

2. Costs

Costs are governed by FED. R. Civ. P. 54(d) (1) and 28 U.S.C.

§ 1920. Courts have “‘discretion to determine whether and to what

extent’” a prevailing party may be awarded its requested costs.


II. CONCLUSION

On July 18, 2005, the Court granted the parties’ Agreed Motion
for Extension of Time related to Defendants’ Motion. The Court
hereby vacates the Order Re-setting Briefing Schedule. The law on
‘prevailing party” is clear and the relevant facts concerning the
Court’s judgment and resolution of Plaintiffs’ claims are readily
apparent. The parties need not incur any additional costs or time
briefing this matter.

Defendants’ Motion is granted insofar as the Court finds that
Plaintiffs are not a “prevailing party” for purposes of fees.
Defendants’ and Plaintiffs’ motions for Bill of Costs are denied.

The Court directs that both parties bear their own fees and costs.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: AddS


IN THE UNITED STATES DISTRICT COURT N
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Fy L E D

JUL 2
JEFFERY HARGETT, et al., Junge 8 2005
HARR
Plaintiffs, Us. DIsTRIOY. ‘COUMENMEBER

Case No. 02 C 1456
v.
Hon. Harry D. Leinenweber
CAROL ADAMS, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

Before the Court are the Defendants’ Motion for Ruling that
Plaintiffs’ are not entitled to costs and attorney’s fees (the
‘“Motion”); Defendants’ Bill of Costs; and Plaintiffs’ Bill of
Costs. The Court grants Defendants’ Motion and declines to award
attorney’s fees or other costs to either party.

I. DISCUSSION

Defendants argue that in order for a party to recover any
portion of the requested attorney’s fees under 42 U.S.C. § 1988,
the party must be a “prevailing party” in the litigation.
Defendants contend that under case law, Plaintiffs cannot be
considered a “prevailing party,” and therefore are barred from
seeking fees.

Plaintiffs respond that Defendants’ motion is an improper
procedural motion that results in judicial inefficiency.

Plaintiffs argue that Local Rule 54.3 requires Defendants to engage


Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993) (citation omitted);
see also Goldsmith v. Murphy, No. 02 C 5777, 2005 WL 442230, at *3-
4 (N.D. Ill. Feb. 22, 2005) (directing each party to bear its own
costs in a mixed result case). However, the Court recognizes the
strong presumption that a prevailing party will recover costs. See
Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003)
(discussing overcoming the presumption where there is misconduct by
the party seeking costs or a pragmatic exercise of discretion when
the losing party is indigent). Even so, courts in this district
have consistently denied costs to both parties where the plaintiffs
are prisoners and filed colorable claims pursuant to 42 U.S.C.
§ 1983. See, e.g., Hammond v. Griley, No. 02 C. 6990, 2004 WL
413293 (N.D. Ill. Jan. 29, 2004) (granting summary judgment because
plaintiff did not have “triable eighth amendment claims”); Greer v.
McCurry, No. 02 C 4326, 2003 WL 21826549 (N.D. Ill. Aug. 5, 2003)
(granting defendant’s summary judgment motion finding no evidence
in support of prisoner’s § 1983 medical action); Berrum v. United
States, No. 02 C 7714, 2003 WL 21078040 (N.D. Ill. May 13, 2003)
(finding no due process violation in prisoner’s pro se civil rights
action regarding notice during government property seizure).

Both Plaintiffs and Defendants filed for recovery of costs.
This case afforded mixed results for both parties. See Goldsmith,
2005 WL 442230, at *3 (concluding that where defendants prevailed

on most claims, but plaintiff received monetary relief on at least


in a discussion regarding disputed fees or other nontaxable
expenses and then enter into a “pre-motion agreement” and “joint
statement.” Also, Plaintiffs have filed only their bill of costs
and not their fee petition, making Defendants’ motion premature.
Both Defendants and Plaintiffs agree that Defendants’ motion
is a “departure from the requirements of Local Rule 54.3.”
Contrary to Plaintiffs’ arguments, however, Defendants’ motion is
appropriate at this juncture as the Court stated in open court on
June 23, 2005. Even though Plaintiffs have not formally filed for
attorney’s fees, on May 6, 2005 they sent a Local Rule 54.3
attorney’s fee petition letter to Defendants. (See 5/27/05 Agreed
Mot.) Although Defendants include a collateral discussion
concerning Plaintiffs’ actual fees and costs, this is not the crux
of their motion and Defendants agreed to put aside this section for
purposes of ruling on the threshold “prevailing party” issue.
Defendants correctly contend that if Plaintiffs are barred
from seeking fees because they are not a “prevailing party,” then
the line-item dispute process of Local Rule 54.3 is unnecessary.
To recover attorney’s fees, the party must be considered a
“prevailing party.” See 42 U.S.C. § 1988; Feb. R. Civ. Proc. 54(d).
Therefore, resolution of Plaintiffs’ status under the governing law
is in the interests of judicial economy and the Court waives the

local rule for these purposes. Obviously, if resolved in


Plaintiffs’ favor, then the parties should proceed according to
Local Rule 54.3's requirements.
A. Prevailing Party

To recover attorney’s fees under 42 U.S.C. § 1988, a party
must be a “prevailing party” in the litigation. To be a
“prevailing party,” a plaintiff must obtain some tangible relief,
either in the form of damages or an injunction that “must directly
benefit him at the time of the judgment or settlement.” Farrar v.
Hobby, 506 U.S. 103, 110 (1992); see also Rhodes v. Stewart, 488
U.S. 1, 4 (1988) (explaining some type of action by defendant is
necessary, e.g., “the payment of damages, or some specific
performance, or termination of some conduct”).

A plaintiff must point to “actual relief on the merits of his
claim [that] materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.” Farrar, 506 U.S. at 111-12.
“The relief requirement emphasizes the practical impact of a
lawsuit.” Peterson v. Gibson, 372 F.3d 862, 865 (7th Cir. 2004).
A declaratory judgment does not provide the type of relief
necessary for a plaintiff to be considered a “prevailing party.”
See Rhodes, 488 U.S. at 4 (finding no prevailing party status to
plaintiff who obtained declaratory judgment that prison officials
violated plaintiff’s First and Fourteenth Amendment rights). The

most recent Supreme Court case on this issue, Buckhannon Bd. & Care