United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 96-2952

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George L. Weaver, *

*

Plaintiff/Appellee, *

*

v. *

*

Harold W. Clarke, Director, *

Correctional Services, Lincoln *

Correctional Center; John J. Dahm, *

Warden, Chief Executive Officer, * Appeals from the United States

Lincoln Correctional Center; Douglas * District Court for the

L. Reeves; David Skow; Robby G. * District of Nebraska.

Predmore; Willem Looye, *

*

Defendants/Appellants, *

*

Roger O. Doerr, *

*

Defendant, *

*

Stephen W. Shutzer; Donald Earl *

Atkinson; Harold F. Thies, Jr., *

*

Defendants/Appellants. *
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 No. 96-3008

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George L. Weaver, *

*

Plaintiff/Appellant, *

*

v. *

*

Harold W. Clarke, Director, *

Correctional Services, Lincoln *

Correctional Center; John J. Dahm, *

Warden, Chief Executive Officer, *

Lincoln Correctional Center; Douglas *

L. Reeves; David Skow; Robby G. *

Predmore; Willem Looye, *

*

Defendants/Appellees, *

*

Roger O. Doerr, *

*

Defendant, *

*

Stephen W. Shutzer; Donald Earl *

Atkinson; Harold F. Thies, Jr., *

*

Defendants/Appellees. *

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 Submitted: March 13, 1997

 Filed: July 23, 1997

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The HONORABLE STEPHEN M. REASONER, Chief Judge, United States

1

District Court for the Eastern District of Arkansas, sitting by designation.

The Honorable Richard G. Kopf, United States District Judge for the District 2

of Nebraska.

The Honorable David L. Piester, United States Magistrate Judge for the District 3

of Nebraska.

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Before WOLLMAN and BEAM, Circuit Judges, and REASONER, District Judge. 1

___________

WOLLMAN, Circuit Judge.

The defendants, employees of the Nebraska Department of Correctional

Services, appeal from the district court’s judgment awarding attorney’s fees and costs 2

in the amount of $11,299.17 to George L. Weaver in Weaver’s suit for damages and

injunctive relief brought under 42 U.S.C. § 1983. Weaver cross-appeals. We affirm.

Weaver’s suit was based upon his allegations that the defendants had violated

his rights under the Eighth Amendment by causing him to be exposed to environmental

tobacco smoke. Following our affirmance of the district court’s denial of the

defendants’ motion to dismiss for failure to state a claim and on the basis of qualified

immunity, see Weaver v. Clarke, 45 F.3d 1253 (8th Cir. 1995), the district court

granted the defendants’ motion for summary judgment on the ground that Weaver had

failed to establish a claim of deliberate indifference to his serious medical needs.

Weaver’s motion for a preliminary injunction was referred to a United States

Magistrate Judge, who found that although Weaver had demonstrated a likelihood of 3

success on the merits, he had not established that he would suffer irreparable harm

during the pendency of the action. Accordingly, on January 29, 1996, the magistrate

judge entered a memorandum and order recommending that the motion for preliminary

injunction be denied. The order set an evidentiary hearing on the request for a
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permanent injunction for May 15, 1996, and established a discovery deadline and a

pretrial conference.

On February 12, 1996, defendant Clarke, in his capacity as director of the

Department of Correctional Services, imposed a smoking ban, effective March 18,

1996, in all buildings owned or operated by the Department. In announcing the ban,

Clarke stated that “pending inmate litigation, both locally and nationally on the issue

of second hand smoke are concerns that must be addressed.”

In light of Director Clarke’s ban on smoking, the district court found that Weaver

had attained all the prospective relief he had sought and therefore granted summary

judgment in favor of the defendants, withholding entry of judgment pending a ruling on

Weaver’s application for attorney fees. Weaver then filed an application requesting

fees in the amount of $17,595.00 and expenses in the amount of $4,722.59. After

finding that Weaver was a prevailing party, the district court awarded fees in the

amount of $8,346.35 and expenses in the amount of $2,952.82.

The defendants challenge the district court’s fee award on three grounds. First,

they contend that Seminole Tribe of Florida v. Florida, 116 S. Ct. 114 (1996), overruled

sub silentio the holding in Hutto v. Finney, 437 U.S. 678 (1978), that 42 U.S.C. § 1988

abrogates the states’ Eleventh Amendment immunity. We rejected the very same

argument in a decision filed some two weeks prior to the submission of the defendants’

brief in this case. See Jensen v. Clarke, 94 F.3d 1191, 1201-02 (8th Cir. 1996).

The defendants next argue that 42 U.S.C. § 1997(e), part of the Prison Litigation

Reform Act, prohibits an award of fees in this case. Again, we rejected this same

argument in Jensen v. Clarke, 94 F.3d at 1202-03, holding that section 1997(e) as

amended was not intended to be given retroactive application.
The defendants’ attack upon the amount of the award of fees and expenses is 4

without merit, all the more so in light of the substantial reduction made by the district

court in response to the defendants’ objections to the fee application.

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The defendants’ final argument is that Weaver is not a prevailing party within

the meaning of section 1988 because Director Clarke’s March 1996 smoking ban was

not implemented as a result of Weaver’s lawsuit but was in fact the culmination of

policies and proposals that Clarke had announced prior to the filing of Weaver’s

complaint. Citing Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), the district

court found that Weaver’s lawsuit was a necessary and important factor in achieving

the smoking ban and that the implementation of the ban was not gratuitous or voluntary.

In light of Director Clarke’s statement at the time he announced the ban that pending

inmate litigation, both local and national, regarding the issue of second-hand smoke

raised concerns that needed to be addressed, and given the temporal proximity between

the magistrate judge’s order setting an evidentiary hearing and Clarke’s announcement

of the smoking ban, we conclude that the district court did not err in finding that

Weaver was a prevailing party.4

Cross-Appeal

Weaver has cross-appealed, contending that the district court erred in finding

that the defendants had not been deliberately indifferent to Weaver’s serious medical

needs. Our review of the record persuades us otherwise, however, for the defendants

took action to house Weaver in a smoke-free cell and thereafter took reasonable steps

to insure that Weaver’s cellmate observed the no-smoking rule by issuing a misconduct

report, by searching the cell for tobacco products, and by advising Weaver that he

should contact the managers of the housing unit for an investigation, a course of action

that Weaver did not avail himself of. Thus, Weaver has failed to establish a claim of

deliberate indifference as that term has been defined by Farmer v. Brennan, 511 U.S.
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825 (1994), and Estelle v. Gamble, 429 U.S. 97 (1976). See also Logan v. Clarke, No.

97-1314, slip op. (8th Cir. July 10, 1997); Weaver v. Clarke, 45 F.3d at 1255.

Weaver contends that the district court erred in disallowing a portion of the

amounts claimed for attorney fees and expenses because of his noncompliance with

Rule 83.14 of the Local Rules for the District of Nebraska, which specifies the

particularity with which a fee application must identify the services and expenses for

which compensation is sought. Having reviewed the defendants’ objections to

Weaver’s fee application, we cannot say that the district court abused its discretion in

reducing the number of allowable hours for services rendered and the amount of the

expenses claimed.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.