IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40631

Summary Calendar

WILLIAM E. CHANCE, JR.,

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in 

his official capacity as Executive Director of the Texas Department of Criminal 

Justice; CYNTHIA LOWERY, in her individual capacity; BILL PIERCE, in his 

individual capacity; EDGAR BAKER, in his individual capacity; WARDEN 

JOHN RUPERT; WARDEN TODD FOXWORTH,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:11-CV-435

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant William E. Chance, Jr., appeals the district court’s 

denial of his motion for attorneys fees under 42 U.S.C. § 1988(b), following the 

settlement of his complaint under the Religious Land Use and 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 16, 2015

Lyle W. Cayce

Clerk

 Case: 14-40631 Document: 00513117496 Page: 1 Date Filed: 07/16/2015
No. 14-40631

2

Institutionalized Persons Act, 42 U.S.C. § 2000cc. Chance contends that the 

district court misinterpreted the settlement agreement and erred in concluding

that he was not the prevailing party and not entitled to attorneys fees under 

§ 1988. Even under de novo review, Chance’s claims are unavailing. See Davis 

v. Abbott, 781 F.3d 207, 213 (5th Cir. 2015). Particularly in the absence of the 

legal term of art “prevailing party” in its fees provision, the plain language and

the parties’ Rule 11 agreement left to the district court the resolution of the 

issue of entitlement to attorneys fees. See Davis, 781 F.3d at 213.

In determining whether a party is the prevailing party, courts use a 

tripartite test, traceable to the Supreme Court’s decision in Buckhannon Bd. 

& Care Home, Inc. v. W. Virginia Dep’t Of Health & Human Res., 532 U.S. 598 

(2001). Davis, 781 F.3d at 214. First, a “plaintiff must achieve judiciallysanctioned relief”; second, “the relief must materially alter the legal 

relationship between the parties”; and, third, “the relief must modify the 

defendant’s behavior in a way that directly benefits the plaintiff at the time 

the relief is entered.” Davis, 781 F.3d at 214, quoting Petteway v. Henry, 738 

F.3d 132, 137 (5th Cir. 2013).

Chance does not contest the district court’s construction of the parties’ 

agreement as a private settlement, and he fails to establish that the settlement

was anything other than a voluntary agreement by the defendants to alter 

their future conduct regarding particular religious items required for his

practice of a Native American ceremony. See Davis, 781 F.3d at 214. As such, 

the settlement lacked the required judicial imprimatur on the change to the 

parties’ relationship to constitute Chance as the prevailing party. See Davis, 

781 F.3d at 214.

The judgment of the district court is AFFIRMED.

 Case: 14-40631 Document: 00513117496 Page: 2 Date Filed: 07/16/2015