* 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opinion should not be published and is not precedent except under the limited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

FIFTH CIRCUIT

_________________

No. 96-60543

(Summary Calendar)

_________________

ROBERT WALKER BOTTS,

Plaintiff-Appellant,

versus

DERRICK PRUITT, In His Official Capacity as

Sheriff of Lee County, et al,

Defendants,

ED CRIDER, In His Official Capacity as Sheriff

of Lee County,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:94-CV73-D-D)

May 14, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff Robert Walker Botts (“Botts”) appeals the district
2 Deputy Sheriff Pruitt is incorrectly identified in the caption of

this case as sheriff of Lee County.

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court’s award of attorney’s fees pursuant to 42 U.S.C. § 1988.

Botts also moves for remand of this case to district court for a

determination of the real party in interest and reconsideration of

the attorney’s fee award. We affirm the award of attorney’s fees

and deny Botts’s motion.

I

In 1993, Botts encountered Lee County Deputy Sheriff Derrick

Pruitt2 (“Pruitt”) at a local bar. Pruitt believed that Botts had

been dating Pruitt’s estranged wife. Pruitt allegedly attacked

Botts outside the bar and beat him with brass knuckles; as a result

of the attack, Botts required stitches. 

Botts thereafter attempted to initiate charges against Pruitt.

He contacted Lee County Justice Court Judge Mayo Grubbs who

allegedly refused to charge Pruitt. Botts next contacted Lee

County Sheriff Ed Crider (“Crider”) who told Botts that he would

resolve the situation. Botts then sent a letter to both Lee County

Prosecutor Charles Brett (“Brett”) and to Crider describing the

beating and requesting prosecution of Pruitt. Having received no

response to his letter, Botts filed suit under 42 U.S.C. § 1983

against Pruitt, Crider and Lee County alleging violation of his

civil rights.

On October 6, 1995, we affirmed the district court’s January

30, 1995 order granting summary judgment in favor of Defendants on
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Botts’s § 1983 claims. On November 14, 1995, Defendants moved for

attorney’s fees. The district court subsequently granted an award

of attorney’s fees pursuant to 42 U.S.C. § 1988. Botts appeals.

II

We review a district court’s award of attorney’s fees pursuant

to 42 U.S.C. § 1988 for an abuse of discretion and its findings of

fact supporting the award for clear error. Von Clark v. Butler,

916 F.2d 255, 258 (5th Cir. 1990). 

Botts correctly argues that the motion for fees was not filed

within fourteen days of entry of judgment and was therefore

untimely. See FED. R. CIV. P. 54(d)(2)(B) (providing that motion

for attorney’s fees must be filed within fourteen days of entry of

judgment). The district court entered judgment on January 30,

1995, but Defendants did not file their motion for attorney’s fees

until November 14, 1995. Defendants appear to contend that the

motion was timely because it was filed within fourteen days of

entry of this court’s judgment. The “entry of judgment” of which

Rule 54(d)(2)(B) speaks, however, is entry of judgment by the

district court. See United Indus., Inc. v. Simon-Hartley, Ltd., 91

F.3d 762, 765-66 (5th Cir. 1996) (relying on date of district

court’s entry of judgment as pertinent date for attorney’s fees

motion under Rule 54(d)(2)(B)). Thus, Defendants motion for

attorney’s fees was untimely and the district court should not have
3 We note that the district court’s improper consideration of

Defendants’ untimely fee request resulted in precisely the situation Rule

54(d)(2)(B) is intended to avoid. See FED. R. CIV. P. 54 advisory committee’s

note (“[Rule 54(d)(2)(B)] also enables the [district] court in appropriate

circumstances to make its ruling on a fee request in time for any appellate

review of a dispute over fees to proceed at the same time as review on the merits

of the case.”). 

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considered it.3

Botts, however, did not raise the timeliness issue in district

court. Generally, appellate courts will not consider issues not

urged in the district court except when the failure to do so would

result in grave injustice. McClellon v. Lone Star Gas Co., 66 F.3d

98, 100 (5th Cir. 1995). In the context of Federal Rule of

Criminal Procedure 52(b), the Supreme Court has held that for an

appellant in a criminal case to prevail with a new argument on

appeal, he must show: (1) that an error occurred; (2) that the

error was plain, which means clear or obvious; (3) that the plain

error affects substantial rights; and (4) that not correcting the

error would seriously affect the fairness, integrity or public

reputation of judicial proceedings. United States v. Olano, 507

U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993). We

have held that Olano applies a fortiori in the civil context.

Highlands Ins. v. National Union Fire Ins. Co. of Pittsburgh, 27

F.3d 1027, 1032 (5th Cir. 1994), cert. denied, __ U.S. __, 115 S.

Ct. 903, 130 L. Ed. 2d 786 (1995). “Olano augments this court’s

long-standing rule that reversal for plain error is ‘not a run-of

the mill remedy’ and will occur ‘only in exceptional circumstances
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to avoid a miscarriage of justice.’” Id. (quoting Peveto v. Sears,

Roebuck & Co., 807 F.2d 486, 489 (5th Cir. 1987)). 

Botts successfully meets the first two requirements of Olano,

i.e., the district court’s consideration of Defendants’ untimely

attorney’s fees motion was plain error. Botts does not, however,

even argue that the district court’s error affects his substantial

rights, nor does he argue that our failure to correct the error

will seriously affect the fairness, integrity or public reputation

of judicial proceedings. As a result, we will not reverse the

district court’s award of attorney’s fees on untimeliness grounds.

Timeliness notwithstanding, Botts also appears to argue that

the district court’s findings that Botts’s claims were frivolous

and without foundation were clearly erroneous. Prevailing

defendants may receive attorney’s fees under § 1988 only upon a

finding that the plaintiff’s action was frivolous, unreasonable, or

without foundation or that the plaintiff continued to litigate

after it clearly became so. Mylett v. Jeane, 910 F.2d 296, 299

(5th Cir. 1990).

As the district court construed Botts’s complaint, Botts

proceeded in this suit under two § 1983 theories. First, Botts

argued that Lee County, acting through Judge Grubbs, Sheriff Crider

and Prosecutor Brett, violated his civil rights by refusing to

prosecute Pruitt because Pruitt was a deputy sheriff. Second, he

argued that Lee County was liable for Pruitt’s alleged attack on
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Botts because Pruitt attacked him while acting under color of state

law. 

In determining that Botts’s claim against Lee County regarding

Judge Grubbs’s alleged behavior lacked foundation, the district

court reiterated its finding, initially made in its summary

judgment order, that the claim lacked any legal basis because the

Fifth Circuit has repeatedly held that a state court judge acting

in his official judicial capacity does not constitute a government

official whose actions are attributable to a county. Krueger v.

Reimer, 66 F.3d 75, 77 (5th Cir. 1995); Johnson v. Moore, 958 F.2d

92, 94 (5th Cir. 1992); Bigford v. Taylor, 834 F.2d 1213, 1221-22

(5th Cir. 1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.),

cert. denied, 474 U.S. 1007, 106 S. Ct. 529, 88 L. Ed. 2d 461

(1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.

1980). In light of this extensive and long-standing precedent, we

find no error in the district court’s conclusion that Botts’s claim

against Lee County based on Judge Grubbs’s alleged inaction was

without foundation.

The district court also reiterated its findings that Botts’s

claims against Lee County for the actions of Crider and Brett

lacked foundation because Botts never presented any evidence

indicating that Crider and Brett did not pursue charges against

Pruitt for constitutionally impermissible reasons. In concluding

that Botts’s § 1983 claims based on Pruitt’s actions lacked
4 Botts also argues that Congress did not intend that prevailing

defendants be awarded attorney’s fees under circumstances similar to those in

this case. The plain language of § 1988 states, however, that awards of

attorney’s fees under that section are left to the discretion of the district

court. See 42 U.S.C. § 1988 (“[T]he Court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee as part of the costs.”)

(emphasis added). Where the language of a statute is plain, we look no further

to discern its purpose. See United States v. Ron Pair Enters., Inc., 489 U.S.

235, 241, 109 S. Ct. 1026, 1030, 103 L. Ed. 2d 290 (1989) (stating that when

statute’s language is plain, “the inquiry should end”).

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foundation, the district court again observed that Botts never

presented any evidence indicating that Pruitt acted under color of

state law at the time of the alleged attack. The record supports

these findings; the district court did not abuse its discretion in

awarding attorney’s fees to Defendants based on these findings.4

Botts also moves for remand of this case to district court for

a determination of the real party in interest. Botts contends that

Coregis Insurance Company (“Coregis”), Lee County’s liability

carrier, is the real party in interest in this case because it

allegedly has subrogation rights under its policy with Lee County.

Botts maintains that in the event that Coregis is deemed the real

party in interest, the district court must reconsider its fee award

in light of that information.

Botts essentially contends that the district court may have

made a different decision regarding the award of attorney’s fees

had it known that the fees would be paid to Coregis. Botts’s

argument, however, presumes that the identity of the recipient of

an attorney’s fees award under § 1988 is relevant to the award. To

the contrary, “[t]he purpose of awarding attorneys’ [sic] fees to
5 Because the identity of the recipient of the fee award does not bear

on the assessment of the award, we need not resolve the parties’ dispute

regarding whether Coregis is the real party in interest. 

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a defendant in a civil rights case is to deter frivolous or

harassing litigation; the fact that a defendant is insured is

irrelevant to this purpose.” Ellis v. Cassidy, 625 F.2d 227, 230

(9th Cir. 1980); see also Christiansburg Garment Co. v. Equal

Employment Opportunity Comm’n, 434 U.S. 412, 420, 98 S. Ct. 694,

699, 54 L. Ed. 2d 648 (1978) (concluding that purpose of attorney’s

fee provision in Title VII is to deter frivolous lawsuits);

Fidelity Guarantee Mortgage Corp. v. Reben, 809 F.2d 931, 936 (1st

Cir. 1987) (rejecting argument that “because an insurance company

is the ultimate recipient of the attorney’s fee award, it should be

treated differently than an award to an individual”). Thus,

Botts’s contention that this case should be remanded to the

district court for reconsideration of the attorney’s fee award in

light of the alleged identity of the recipient has no merit.5 

AFFIRMED. MOTION DENIED.