IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51236

TONY SMITH,

Plaintiff – Appellant

v.

HUBERT ARTURO ACEVEDO, also known as Art Acevedo, In his official

capacity as Chief of Police of the City of Austin and in his personal capacity;

MIKE CRONIG, In his official capacity as Assistant City Attorney of the City

of Austin and in his personal capacity; CITY OF AUSTIN,

Defendants – Appellees

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 1:09-CV-620

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.

PER CURIAM:*

Tony Smith (“Smith”) brought this §1983 suit claiming that defendants:

(1) wrongfully terminated him as an Austin, Texas police officer based on an

unconstitutional Austin Police Department (“APD”) General Order

[A201.04(G)(2)]; (2) retaliated against him for exercising his First Amendment

rights; (3) deprived him of his “liberty and property rights,” in violation of §

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

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No. 10-51236

1983; (4) committed the Texas state tort of defamation; and (5) conspired

together to slander him. The parties then filed cross-motions for summary

judgment. The district court granted summary judgment in favor of Smith with

respect to his claim that the APD General Order A201.04(G)(2) was an

unconstitutional prior restraint of free speech. The district court otherwise

denied Smith’s motion for summary judgment, and granted the defendants’

motion for summary judgment on all remaining claims. Smith now appeals.

FACTS AND PROCEDURAL HISTORY

I. Factual Background

Smith is a former police officer for the City of Austin, Texas (“the City”),

who was terminated for insubordination, undermining the Chief of Police’s

authority, and misusing the City computers. In part, Smith’s termination

resulted from his 2005 agreed upon and non-appealable 60-day suspension for

various violations of APD General Orders. As described below, many of the

facts of this case are undisputed and were presented in a quasi-judicial

post-termination appeal hearing conducted by an independent hearing

examiner.

On May 30, 2008, Chief Hubert Acevedo (“Acevedo”) terminated APD

Sergeant Dustin Lee and issued a memorandum explaining that Lee had been

terminated for sexual harassment and dishonesty. Three days later, Smith was

serving as a patrol officer on the evening shift based out of the Central East

Substation in Austin, Texas, when he overheard several other officers

discussing Lee’s termination. During this discussion, Smith recalled reading

a newspaper article indicating that Acevedo had been accused of sexual

harassment at a former job. Because Smith believed it was “ironic” that

Acevedo had previously been accused of sexual harassment, but had terminated

Lee, Smith went into the “show-down” room to use a City computer to conduct

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additional research into the allegations against Acevedo. While researching,

1

Smith found a website that contained potentially embarrassing allegations

against Acevedo, copied that information to a word document, and printed the

document from a City printer. Smith then showed the document to Officers

Anderson and Justesen. Upon showing Anderson the document, Smith

questioned: “How is Acevedo going to terminate Lee when he did the same

thing?”2

Later, Smith posted the document on the bulletin board in the “showdown” room, where it could be viewed by officers of every patrol shift. Smith

acknowledged that the allegations contained in the document were potentially

personal and highly embarrassing to Acevedo, and that he did not know

whether the allegations were true. At the conclusion of the evening shift (the

next morning), Officer James Purcell noticed the document and reported

Smith’s actions to Sergeant Slater, a supervisor of another shift. Sergeant

Slater reported the incident up the chain of command to Commander Rob

Gamble. Believing that the incident was a violation of APD’s General Orders,

Commander Gamble initiated an Internal Affairs (“IA”) complaint against

Smith. On June 16, 2008, Smith signed a memorandum acknowledging his

receipt of the IA complaint.

After conducting an investigation, IA sent an “Investigative Summary”

memorandum to Acevedo on August 6, 2008. According to the Investigative

Summary, IA interviewed Smith, Purcell, and Justesen, and received written

3

statements from Sergeant Slater and Anderson. The Investigative Summary

The “show-down” room is where officers return to after their respective shifts and 1

draft reports and turn in evidence.

It is not exactly clear what Smith said, but both parties cite to facts that indicate

2

Smith said something along these lines. 

 Smith was represented by counsel during the IA interview. 3

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concluded by recommending that the allegations against Smith be sustained for

(1) violation of APD General Order A312.03(A)(1), for improper computer use;

and (2) violation of APD General Order A201.04(G)(2), for criticizing the APD

in a way that was defamatory and undermined its effectiveness.

On August 27, 2008, APD conducted a Disciplinary Review Hearing

(“DRH”). Because Acevedo was involved in the subject matter of the complaint,

Acevedo recused himself and appointed Assistant Chief Holt. Prior to the DRH,

Smith and his attorney were able to review the charges and evidence against

him.

At the outset of the DRH, Smith was advised that Acevedo, as Chief of

Police, was considering adding an additional allegation of insubordination

against him. During the DRH, Smith was provided the opportunity to answer

4

questions and make statements. He did both. Smith also submitted a written

statement wherein he admitted, “I understand that some of my actions were

violations of department policy.” At the conclusion of the DRH, Sergeant

Hightower, Lieutenant Rosch, and Commander Gamble (collectively “Smith’s

chain of command”) recommended to Acevedo that all allegations, including the

5

additional allegation of insubordination, be sustained against Smith. Acevedo

6

agreed with the recommendation and sustained all of the allegations against

Smith.

Although the record does not indicate the specific basis for this recommendation, APD 4

policy defines insubordination as "[d]efying the authority of any supervisor by obvious

disrespect, arrogant or disrespectful language or conduct, ridicule, or bold challenge to orders

issued." APD General Order A201.04(E)(2).

“Chain of command” is used throughout the parties’ briefs in order to describe an 5

officer’s supervisors.

Although Acevedo could recuse himself from attending the DRH, he could not recuse 6

himself from making the final disciplinary decision. According to Texas civil service law, the

police chief has the sole authority to suspend or terminate police officers. See TEX. LOC. GOV’T

CODE § 143.052(b).

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After the DRH, Acevedo offered Smith the opportunity to resign or to take

a 30-day unpaid suspension in lieu of termination. Smith declined both offers. 

However, Smith’s chain of command had recommended that Smith be

terminated. Before deciding the appropriate disciplinary action, both Smith’s

chain of command and Acevedo reviewed Smith’s work history.

On September 10, 2008, Acevedo issued a memorandum (“2008

memorandum”), drafted by Mike Cronig (“Cronig”), terminating Smith. 

According to the 2008 memorandum, Smith’s termination was based in-part on

a 2005 memorandum, which indicated that Smith had been suspended for sixty

days for violating five APD rules and regulations. Specifically, the 2005

memorandum indicated that Smith violated: (1) A201.02(H)(1), “Associating

with Persons of Bad Reputations”; (2) A201.03(E)(3)(d) & (e), “Unethical

Interference with Investigation of Legal Process”; (3) A201.01(C)(1) & (2),

committing Texas state law crimes of criminal conspiracy and money

laundering; (4) A201.04(E)(1), for insubordination; and (5) A312.03(A)(1), for

unauthorized computer use. The 2008 memorandum acknowledged that 7

Smith signed the 2005 memorandum acknowledging the receipt of the 2005

memorandum and his understanding that he forfeited his right to appeal the

60-day suspension in return for the then-Chief of Police Knee not exercising his

right to terminate Smith for the violations. Based on Smith’s conduct as

reported in the 2005 memorandum and the 2008 APD violations, Acevedo

signed the 2008 memorandum terminating Smith.

In 2005, Smith entered into an agreed 60-day unpaid suspension for conduct 7

associated with his sexual relationship with a known user of methamphetamine. During the

relationship, Smith used APD computers to conduct warrant searches on his paramour at her

request, failed to arrest or detain his paramour after he believed she had purchased drugs,

advised his paramour that she could conceal a drug transaction by obtaining a receipt for

cleaning services from her drug dealer, and continued to see his paramour despite his chain

of command's directive to terminate the relationship.

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Soon after his 2008 termination, Smith exercised his right to appeal to an

independent hearing examiner. Smith was represented by a lawyer throughout

the entire appeal process. Both parties were able to present documentary

evidence, subpoena witnesses, examine and cross-examine witnesses, make

evidentiary objections to the hearing examiner, and present opening statements

and closing arguments. Moreover, witnesses were placed under oath, the rule8

was invoked, and a transcript was made of the proceedings.

On May 4, 2009, the hearing examiner issued a written opinion upholding

Acevedo’s decision to terminate Smith based on his finding that Smith violated

all three of the cited APD General Orders, as well as his finding that the 2005

discipline had failed to correct Smith’s conduct. Because Smith could not appeal

the hearing examiner’s decision to a Texas state court, see TEX. LOC. GOV’T

CODE § 143.057(j), Smith filed this suit in the District Court for the Western

District of Texas, Austin Division.

II. Procedural Background

On August 14, 2009, Smith brought suit against defendants Acevedo,

Cronig, and the City (collectively “the defendants”), alleging that: (1) Acevedo

and Cronig denied him his due process rights, in violation of 42 U.S.C. § 1983;

(2) Acevedo and Cronig wrongfully retaliated against him by terminating his

employment as an Austin Police Officer for exercising his First Amendment

rights; (3) the City has a policy that imposes a prior restraint on free speech in

violation of the First Amendment; (4) defendants committed the state law tort

of defamation against him; and (5) defendants conspired to slander him. The

defendants timely answered Smith’s complaint, denied the claims against them,

and asserted several affirmative defenses. Specifically, Acevedo and Cronig

 Although there is no reference to the specific rule invoked, we can assume that the 8

parties were referring to the exclusion of witnesses from the hearing under Federal Rule of

Evidence 615 because this is in the context of a hearing where witnesses were examined. 

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assert, inter alia, that they are entitled to qualified immunity for Smith’s

federal claims, and official immunity for Smith’s state law defamation and

slander claims. The City asserts that it is entitled to sovereign or governmental

immunity.

On August 2, 2010, the defendants filed their motion for summary

judgment. Smith then filed his motion for summary judgment. After reviewing

the parties’ motions, the district court granted Smith’s motion for summary

judgment with respect to his claim that APD General Order A201.04(G)(2),

prohibiting criticism of the departments, is an unconstitutional prior restraint

on free speech. The district court otherwise denied Smith’s motion for summary

judgment, and granted the defendants’ motion for summary judgment on all

remaining claims.

On September 20, 2010, the district court entered its final judgment,

awarding Smith nominal damages in the amount of one dollar, plus all costs,

with respect to his claim that APD General Order A201.04(G)(2) is a facially

unconstitutional prior restraint of free speech. In addition, the district court

entered its final judgment for the defendants on all remaining claims and taxed

all costs of defending the suit against Smith.

Thereafter,Smith filed two motions for reconsideration. The district court

denied both. Aggrieved by the district court’s final judgment, Smith timely

appealed.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, applying

the same legal standards as the district court. United States v. Caremark, Inc.,

643 F.3d 808, 814 (5th Cir. 2011). Summary judgment should be granted if

“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED.R.CIV.P. 56(a). A genuine issue of

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material fact exists when the evidence is such that a reasonable jury could

return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). “[A]ll facts and evidence must be taken in the light most

favorable to the non-movant.” LeMarie v. La. Dep’t of Transp. & Dev., 480 F.3d

383, 387 (5th Cir. 2007). To avoid summary judgment, however, the

non-movant must go beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448

F.3d 744, 752 (5th Cir. 2006). This court is “not limited to the district court's

reasons for its grant of summary judgment” and “may affirm the district court's

summary judgment on any ground raised below and supported by the record.” 

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008).

DISCUSSION

On appeal, Smith raises four issues challenging the district court’s order

granting in-part and denying in-part the parties’ motions for summary

judgment. Smith claims the district court erred in holding that: (1) Smith

suffered “no actual damage” with respect to his claim that APD General Order

A201.04(G)(2) constituted an unconstitutional prior restraint of his right to free

speech; (2) an officer is guilty of insubordination when that officer defies a rule

or regulation that is later determined to be unconstitutional; (3) Acevedo and

Cronig were entitled to qualified immunity; and (4) Smith was entitled only to

$2500.00 in attorney’s fees.

I. Actual Harm

Smith claims that the district court erred in holding that he suffered “no

actual harm,” despite the district court’s finding that APD General Order

A201.04(G)(2), prohibiting criticism of the department, constituted an

unconstitutional prior restraint on free speech, in violation of the First

Amendment. In other words, Smith asserts, but for violating an APD General

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Order that was later determined to be unconstitutional, he would not have been

terminated. Furthermore, Smith states that the district court’s reliance on his

statement – “The reasons for the disciplinary action . . . were insubordination,

criticism of Acevedo, and unauthorized computer use. Any of these infractions

could have resulted in Plaintiff’s termination” – was erroneous because he was

terminated based primarily on criticizing Acevedo, the violation that was later

determined to be unconstitutional as a prior restraint on free speech. 

To the contrary, defendants claim that “Acevedo could have, and did in

fact, terminate Smith for violations of other applicable [APD] General Orders

as well as his prior disciplinary history.” Defendants primarily rely on the 2008

memorandum which focuses on Smith’s conduct as a whole; not on the fact that

Smith violated a particular APD General Order. This included “Smith’s work

performance, his disciplinary history, his presentation to Internal Affairs and

the [DRH], his working relationship with his peers, his untruthfulness, his

attempts to mitigate his true culpability . . . [and] Smith’s sustained violations,

especially his 2005 conduct . . . .” The defendants also cite to the DRH’s

independent hearing officer’s opinion in which the hearing officer stated:

The 2005 agreed suspension was for very serious misconduct. The

misconduct in this case is also serious. Because the computer and

insubordination charges are sustained in both cases, it is apparent

that the prior discipline did not correct the misconduct. Therefore,

it appears that an indefinite suspension is an appropriate discipline

in this case. 

As the district court granted defendants summary judgment as to actual

harm, we view the facts and evidence with regard to such issue “in the light

most favorable to the [Smith].” See LeMarie, 480 F.3d at 387. Nevertheless, it

is clear that, beyond violation of APD General Order A201.04(G)(2), Smith was

terminated based on his work performance, his disciplinary history, and

sustained violations for unauthorized computer use and insubordination in both

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2005 and 2008. Moreover, assuming that Smith was not charged with violating

APD General Order A201.04(G)(2), Smith conceded that he could have been

terminated based upon the insubordination or unauthorized computer use

violations. Although Smith argues that he would not have been terminated for

those infractions, he fails to cite any evidence in the record to create a genuine

dispute with the 2008 memorandum, which places significant emphasis on his

recidivism. Based on these facts, it is clear that Smith suffered no actual harm

for violating an unconstitutional APD General Order because Smith would have

been terminated notwithstanding that violation.

II. Finding of Insubordination

Here, Smith claims that the district court erred in determining that his

behavior was “clearly insubordinate” because “defiance of a rule that is in

violation of the First Amendment is NOT punishable as ‘insubordination.’” 

Smith argues that the City’s disciplinary process defines insubordination

differently than the district court; and therefore, the district court erred in

determining that he was insubordinate.

Because the district court granted summary judgment in favor of

defendants with respect to this claim, this court must view “all facts and

evidence . . . in the light most favorable to [Smith].” LeMarie v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). However, Smith offers no

evidence or authority in support of his claim that his insubordination charge

stemmed solely from his violation of an unconstitutional APD General Order. 

Smith offers only the conclusory allegation that “any rule purporting to punish

Tony Smith for disobeying [APD General Order A201.04(G)(2)] is likewise

invalid and unenforceable.” 

Pursuant to APD General Order A201.04(E)(2), an officer is guilty of

insubordination if he defies “the authority of any supervisor by obvious

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disrespect, arrogant or disrespectful language or conduct, ridicule, or bold

challenges to orders issued . . . .” APD General Order A201.04(E)(2). In

contrast to Smith's argument, insubordination does not require a violation of a

APD General Order, much less violation of APD General Order A201.04(G)(2). 

Prior to posting the highly personal and embarrassing allegations about

Acevedo, Smith showed that information to two other officers in response to

Acevedo’s termination of Lee. Smith further commented to at least one other

officer that Acevedo’s termination of Lee was hypocritical, or “How is he

(Acevedo) going to terminate Lee for sexual harassment when he (Acevedo) did

the same thing?” Here, it is evident that Smith’s conduct was disrespectful and

was obviously intended to ridicule Acevedo and his decisions concerning the

APD. According to APD General Order A201.04(E)(2) and the record before us,

the district court correctly determined that Smith’s conduct constituted

insubordination, regardless of whether it also violated APD General Order

A201.04(G)(2).

III. Qualified Immunity and Due Process Claims

In his first amended complaint, Smith contends that the defendants

deprived him of his (1) property interest in his reputation; (2) his liberty

interest in free speech and freedom of the press; and (3) liberty and property 9

interest in his employment. The district court, however, dismissed Smith’s

claims because Smith failed to establish a violation of his due process rights,

some or all of Smith’s claims were time barred by the statute of limitations, and

the evidence established that the defendants were entitled to qualified

immunity. 

On appeal, Smith fails to challenge the district courts holding with respect to this 9

issue. Therefore, we do not address this issue here.

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Initially, it should be noted that Smith’s brief to this court fails to

specifically argue that the district court erred when it determined Smith was

not deprived of his liberty or property interest. Instead, Smith makes the

conclusory statement that defendants are not entitled to qualified immunity

because they acted without the authority of law. The only factual evidence 10

Smith seems to rely on comes from his reply to the defendants’ response to

plaintiff’s motion for summary judgment. 

In his reply, Smith states that Cronig drafted the 2005 memorandum

containing the money laundering and criminal conspiracy charges but made no

effort to support those charges with any evidence. Smith claims that Cronig

then drafted the 2008 memorandum and inserted the 2005 money laundering

and criminal conspiracy charges without further investigating the truth ofthose

charges. Finally, Smith asserts that when Acevedo and Cronig published the

2008 memorandum they violated his due process rights because neither of them

knew of any evidence to support the 2005 money laundering and criminal

conspiracy charges.

Here, it is apparent that Smith is trying to challenge the authenticity of

the 2005 money laundering and criminal conspiracy charges by claiming that

the defendants, in 2008, did not have any evidence to support their allegations

that Smith committed the 2005 offenses. However, to the extent that Smith

alleges due process violations that occurred in 2005, his claims are time barred.

Because § 1983 does not have a designated statute of limitations, the

forum state’s general tort statute of limitations applies; in Texas, this statute

of limitations period is two years. Price v. City of San Antonio, Tex., 431 F.3d

890, 892 (Tex. 2005). Smith signed the 2005 memorandum on April 20, 2005;

Smith attempts to make an ultra vires claim against defendants, but again cites only 10

to case law and concludes, without more, that defendants acted without authority of law and

are therefore not entitled to qualified immunity.

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he brought this suit on August 14, 2009. Therefore, any claims stemming from

the process he received in 2005 are time barred.

IV. Attorney’s Fees

In its final judgment, the district court ordered that the City of Austin pay

costs associated with the claim on which Smith prevailed, and that Smith

should pay costs for the remaining claims. Thereafter, both parties filed their

motions for attorney’s fees and bill of costs.

Title 42 U.S.C. § 1988 provides that in a federal civil rights action “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 . . . .” See 42 U.S.C.

§1988(b). In Jimenez v. Wood County, Tex., 621 F.3d 372 (5th Cir. 2010), we

restated the basic procedure and standard for determining attorney’s fees:

The determination of a fees award is a two-step process. 

First the court calculates the “lodestar” which is equal to the

number of hours reasonably expended multiplied by the prevailing

hourly rate in the community for similar work. The court should

exclude all time that is excessive, duplicative, or inadequately

documented. Once the lodestar amount is calculated, the court can

adjust it based on the twelve factors set forth in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). The

court must provide a reasonably specific explanation for all aspects

of a fee determination. We review the award for abuse of

discretion.

621 F.3d at 379-80 (internal citations and quotation marks omitted). According

to Johnson, the following factors are to be considered when setting a reasonable

award of attorney’s fees: (1) time and labor required; (2) novelty and difficulty

of the questions presented; (3) skill requisite to perform the legal services

properly; (4) preclusion of other employment; (5) customary fee; (6) whether the

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

circumstances; (8) amount involved and the result obtained; (9) experience,

reputation, and ability of the attorneys; (10) “undesirability” of the case; (11)

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nature and length of the professional relationship with the client; and (12)

awards in similar cases. 488 F.2d at 717-19. 

In his motion for attorney’s fees, Smith seeks approximately $100,000. 

According to Smith, Bill Gammon billed seventy-three hours at a rate of $400

per hour and David Roger, Gammon’s associate, billed 252 hours at a rate of

$250 per hour. Smith then applies a multiplier of 1.2 to each of his attorneys’

fees based on the Court of Appeals for the Ninth Circuit’s approval of a 2.0

multiplier. Thus, Smith requested attorneys’ fees of $88,512. In addition,

11

Smith claims that Rogers spent $192.00 in process service costs, $2,361.10 in

deposition costs, $1,718.80 in photocopying and printing costs, $4,475 as

payment for paralegal research and document drafting, and $1,182.50 as

payment for legal secretary case management. Thus, Smith claims a total of

$98,441.40 in attorney’s fees and costs.

However, based on the district court’s calculation, Smith was awarded

attorney’s fees and costs in an amount significantly less than that requested. 

The district court determined:

Having considered all of the Johnson factors, the evidence

provided by Smith’s counsel, and the arguments and objections of

the parties, the district court awarded Smith $2,500 in attorney’s

fees and costs. This sum appropriately reflects Smith’s very limited

success, while still recognizing the useful time spent by counsel, the

minor controversy involved in the case, and the importance of civil

rights litigation.

In Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir. 1996),

11

the Ninth Circuit affirmed a district court’s determination that a 2.0 multiplier to the lodestar

figure applied because of “the extreme undesirability of the case, the likelihood that no other

attorney on island would have accepted the case, and the rare and exceptional nature of the

case, particularly in the small island community of Guam” and “[s]uch an enhancement is

clearly necessary to a reasonable fee where the district court finds that the case is of the type

that attorneys are unwilling to take for fear of ostracization and out of concern for their

personal safety.” 100 F.3d at 697. Neither Smith’s motion for attorney’s fees nor his brief to

this court provide reasons as to why we should adopt the approach of the Ninth Circuit in

applying their 2.0 enhancement theory. 

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Here, Smith claims that the district court erred in awarding $2,500 in

attorney’s fees and costs because the Johnson factors support a more

substantial award. Smith notes that while a district court has the discretion to

reduce the fee award based on the plaintiff’s lack of success, a reduction of

approximately 97.5% is excessive.

“Where a decision awarding attorneys' fees is adequately supported by the

record and the district court has explained its reasons for the award, there is no

abuse of discretion.” Freiler v. Tangipahoa Parish Bd. Of Educ., 185 F.3d 337,

348 (5th Cir. 1999) (citing Strong v. BellSouth Telecomms., Inc., 137 F.3d 844,

851 (5th Cir.1998)). “Indeed, ‘the most critical factor’ in determining the

reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v.

Hobby, 506 U.S. 103, 114 (1992) (citations omitted). Here, Smith received

nominal damages of one dollar instead of the approximately $650,000 in actual

damages that he sought. Smith’s relatively minor success in this case

accomplished little beyond giving him “the moral satisfaction of knowing that

a federal court concluded that his rights had been violated.” See Hewitt v.

Helms, 482 U.S. 755, 762 (1987).

In this case, the district court “flatly reject[ed]” Smith’s claims for fees and

awarded Smith $2,500. Citing Farrar, the district court reasoned that “when

a plaintiff recovers only nominal damages because of his failure to prove an

essential element of his claim for monetary relief, the only reasonable fee is

usually no fee at all.” 506 U.S. at 115. The district court found that Smith’s

recovery met this description. Nevertheless, the district court considered the

“Johnson factors, the evidence provided by Smith’s counsel, and the arguments

and objections of the parties” and determined that Smith should not be denied

attorney’s fees entirely. Instead, the district court determined that “Smith’s

very limited success, while still recognizing the useful time spent by counsel,

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the minor controversy involved in this case, and the importance of civil rights

litigation,” entitled Smith to $2,500 in attorney’s fees and costs.

While Smith brought multiple claims againstthe defendants he succeeded

on only one of them for which he was awarded only nominal damages of one

dollar. Based on the record before us, the district court did not abuse its

discretion in awarding Smith $2,500 in attorney’s fees. 

CONCLUSION

Based on the foregoing analysis, the district court’s order granting in-part

and denying in-part Smith’s motion for summary judgment is AFFIRMED. 

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