Bailey v. Crosby Indep Sch

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20947
Summary Calendar
GARY BAILEY, by next friend Elizabeth
Bailey; CAREN BAILEY, Individually, by
next friend Elizabeth Bailey,
Plaintiffs-Appellants,
versus
CROSBY INDEPENDENT SCHOOL DISTRICT, Board
of Trustees; LOIS SCHMIDT, Individually; CROSBY
INDEPENDENT SCHOOL DISTRICT,
Defendants-Appellees.
__________________________________________
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1198
__________________________________________
June 21, 2001
Before POLITZ, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiffs, Gary and Caren Bailey, individually and on behalf of their
daughter, Elizabeth Bailey, appeal the district court’s award of attorneys’ fees to
defendants under Fed. R. Civ. P. 54(d)(2) and 42 U.S.C. § 1988. Plaintiffs contend
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
that there was no independent statutory basis for the award of attorneys’ fees under
Rule 54(d); the district court failed to find that their claims were frivolous; the
award is contrary to public policy; the court did not consider their financial
condition; and the trial court failed to consider the factors outlined in Johnson v.
Georgia Highway Express, Inc.1 before determining the amount of the award.
A trial court’s decision to award attorney’s fees, and its determination as to
the reasonableness of such fees, are reviewed for abuse of discretion.2
Plaintiffs’ contentions that there was no independent statutory basis for the
award of attorneys’ fees under Rule 54(d) and that the award was contrary to the
public policy of encouraging vigorous prosecution of civil rights violations are
reviewed for plain error.3 We need not and do not address the merits of the first
assignment of error as the district court based the award on Rule 54(d) and 42
U.S.C. § 1988. Title 42 U.S.C. § 1988 grants to district courts the discretionary
authority to award reasonable attorneys' fees to prevailing parties in civil rights
actions.4 The second of these assignments also lacks persuasive merit. Although
plaintiffs’ statement of public policy has force, there is also a manifest public policy
1
488 F.2d 714, 717-19 (5th Cir. 1974).
2
Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981); Davis v. City of Abbeville, 633 F.2d
1161 (5th Cir. Unit A Jan. 1981).
3
Forbush v. J.C. Penney Co., 98 F.3d 817 (5th Cir. 1996).
4
42 U.S.C. § 1988.
2
of protecting defendants from burdensome litigation having no legal or factual
foundation.5
We find no abuse of discretion in the district court’s award of attorneys’ fees.
The frivolity of plaintiffs’ claims is evident from the record6.
Plaintiffs’ remaining contentions were not preserved for appeal, namely that
the district court failed to consider their financial condition;7 that it did not conduct a
proper Johnson analysis before determining the reasonableness of the award;8 and
that it failed to apportion the award among the various claims.9
The district court’s award of attorneys’ fees to defendants is AFFIRMED.
5
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
6
Vaughner v. Pulito, 804 F.2d 873 (5th Cir. 1986); White v. South Park Indep. Sch. Dist.,
693 F.2d 1163 (5th Cir. 1982).
7
Alizadeh v. Safeway Stores, Inc., 910 F.2d 234 (5th Cir. 1990).
8
Blum v. Stenson, 465 U.S. 886 (1984) and Transamerica Ins. Co. v. Avenell, 66 F.3d
715 (5th Cir. 1995).
9
United States v. Wallace, 143 F.3d 955 (5th Cir. 1998).
3