This appeal stems from the district court’s grant of attorney’s fees to Plaintiffs-Appellees Teresa Bailey and Gloria Harper (“Plaintiffs”), on behalf of themselves and others similarly situated, pursuant to 42 U.S.C. § 1988. Defendant-Appellant Hinds County District Attorney Faye Peterson (“Peterson”) argues the district court erred in finding that Plaintiffs qualified for § 1988 attorney’s fees as prevailing parties. We agree with Peterson. For the following reasons, we REVERSE and VACATE the award of attorney’s fees.
BACKGROUND
Plaintiffs were convicted of violating Mississippi’s Bad Check law, Miss.Code Ann. § 97-19-55, in Hinds County, Mississippi. Without counsel, both women were sentenced to multiyear prison sentences. These events arose due to the Hinds County District Attorney’s office’s policy of enforcing the Bad Check law by taking alleged bad check offenders directly to the justice court and having them sign a waiver of attorney form without explanation. The justice court judge did not conduct independent examinations concerning the accused’s waiver of counsel. Those offenders who could not pay were incarcerated.
In August 2001 Plaintiffs filed the instant 42 U.S.C. § 1983 lawsuit, challenging both the constitutionality of the Bad Check law (equal protection violation) and the procedure by which Hinds County enforced the law (deprivation of right to counsel). Plaintiffs were serving their sentences when they filed their federal action. Approximately one day later, Plaintiffs filed for post-conviction relief in the County Court of Hinds County, Mississippi, alleging the same constitutional violations as in their § 1983 suit. In Jan- *686 nary 2002 the Mississippi state court ruled in favor of Plaintiffs, finding that the policies and procedures employed by Peterson’s office were unconstitutional because Plaintiffs had been denied their right to counsel. The state court ordered that Plaintiffs be released. After this ruling, Peterson’s office hired a consulting group to recommend changes and subsequently made several revisions to the policies used to enforce the Bad Check law to ensure accused offenders were notified of their right to counsel. 1 The federal lawsuit continued.
Peterson moved to dismiss and for summary judgment on the federal complaint in September 2002, arguing that the demand for injunctive relief was moot because the policies and procedures had already been thoroughly rewritten. The Mississippi Attorney General also moved to dismiss, arguing the statutory scheme was constitutional. Plaintiffs opposed such motions and obtained the court’s permission to conduct additional discovery of Peterson.
The district court granted both motions to dismiss and dismissed the complaint with prejudice in August 2003, ruling that the Bad Check law was facially constitutional and choosing not to “resolve whether there continues to exist a live and justi-ciable claim for prospective equitable relief by plaintiffs.”
In September 2003 Plaintiffs moved for attorney’s fees pursuant to § 1988. Plaintiffs argued they were “prevailing parties” within the meaning of the statute because their lawsuits had forced Peterson to change her office’s Bad Check law procedures. Peterson opposed the request for attorney’s fees, arguing the Supreme Court had rejected the “catalyst theory” that allowed plaintiffs to recover attorney’s fees, even though they had not obtained an actual judgment or consent decree. Plaintiffs responded with a timeline of events to show that the post-conviction relief combined with the “pending threat of injunc-tive relief from this Court set into motion the very changes that were at the heart of Plaintiffs’ Complaint.”
The district court ruled in favor of Plaintiffs in April 2004 and awarded them attorney’s fees and expenses in the amount of $23,114.14. In its decision, the court recognized that the catalyst theory was no longer a viable basis for awards but cited the state court’s ruling as proof that the policies of Peterson’s office were unconstitutional. The order also stated the court “was poised to order relief to plaintiffs on the basis of the deficiencies identified by” the state court. Peterson timely appealed.
DISCUSSION
This Court reviews the district court’s decision to award attorney’s fees pursuant to § 1988 for abuse of discretion.
Volk v. Gonzalez,
Prior to the Supreme Court’s decision in
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,
However, the Supreme Court in
Buck-hannon
expressly found the catalyst theory no longer viable in the context of an award of attorney’s fees to a prevailing party under the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205.
Buckhannon,
Post-Buckhannon, every Circuit to address the issue has determined that the characterization of prevailing-party status for awards under fee-shifting statutes such as § 1988 is a legal question subject to de novo review. 2 This Court agrees that, post-Buckhannon, we will review such question de novo.
Whether the district court abused its discretion in awarding Plaintiffs attorney’s fees pursuant to § 1988.
Plaintiffs seek fees under § 1988 here. Section 1988 provides, in relevant part: “In any action or proceeding to enforce a provision of section! ] ... 1983 ... of this title ... 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.” 42 U.S.C. § 1988(b). In
Farrar v. Hobby,
Therefore, to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an en *688 forceable judgment. against the defendant from whom fees are sought ... or comparable relief through a consent decree or settlement .... Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to “affec[t] the behavior of the defendant toward the plaintiff.” Only under these circumstances can civil rights litigation effect “the material alteration of the legal relationship of the parties” and thereby transform the plaintiff into a prevailing party. In short, a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.
Id.
at 111-12,
Peterson argues that Plaintiffs obtained no judicial relief in their § 1983 action and thus cannot be considered prevailing parties under § 1988. Peterson underscores that the fee-shifting provision of § 1988 is merely “part of the § 1983 remedy” and creates no independent cause of action.
See Maine v. Thiboutot,
Peterson also maintains Plaintiffs’ post-conviction relief in the state trial court is irrelevant to the § 1988 analysis. Peterson notes this is not a case where preclusion resulted from the state court case and spurred a favorable judgment in the § 1983 action. Peterson relies on
Healy v. Town of Pembroke Park,
Finally, Peterson contends the arguments Plaintiffs put forth in their motion for attorney’s fees were precisely the type of catalyst theory arguments the Supreme Court unmistakably precluded in
Buck-
*689
hannon.
Although the district court acknowledged Buckhannon’s holding, its emphasis on chronology was reminiscent of
pre-Buckhannon
practice “to assess the provocative effect of the plaintiffs lawsuit.”
Hennigan v. Ouachita Parish Sch. Bd.,
Plaintiffs respond first that the district court made it clear that it “was poised to order relief to plaintiffs on the basis of the deficiencies identified” by the state court. Plaintiffs argue the changes in policy could hardly be labeled voluntary and that the combination of the state court’s ruling and the federal court lawsuit resulted in those changes. Plaintiffs contend they cannot be faulted for ill timing: that the state court ruling preceded that of the federal court.
Plaintiffs next rely on
Palmetto
for the proposition that where a defendant’s change in action is made only after a court has made a substantive determination of the issues, that “action is most persuasively construed as involuntary — indeed exhibiting judicial imprimatur.”
Finally, Plaintiffs maintain that their circumstances are unusual and that the court properly considered the individual posture of their case. Plaintiffs emphasize the district court would have granted them relief if the state court’s decision had not resulted in policy changes by Peterson’s office. Plaintiffs contend denying them fees here inequitably rewards Peterson for a fortuity in timing.
Here, the district court, in its memorandum order dismissing Plaintiffs’ § 1983 action with prejudice, expressly stated: “The cursory briefing on these arguments [regarding prospective relief] is regrettable, given the complexity of the standing and mootness issues presented by the case.” The court then determined that it did not need to resolve the issue and only mentioned the issue hypothetically in its order awarding fees. Although the district court in its order awarding attorney’s fee essen *690 tially determined that the parties’ legal relationship had been altered in favor of Plaintiffs as a result of their § 1983 case still being pending, regardless of the fact that neither a consent decree nor any specific judgment in favor of Plaintiffs had been issued, this reasoning was based solely on the chronology of the events in the two courts and on the hypothetical “poised” relief that the district court alleged it would have granted had Peterson’s office not changed its bad check policies.
While Plaintiffs did not corral their arguments for fees under the catalyst theory, and the district court properly memorialized its inability to rely on the catalyst theory to award such fees, this is precisely what occurred. The district court allowed an award where the court itself had effected “no judicially sanctioned change in the legal relationship of the parties” — a key component of catalyst theory-based awards — in violation of
Buckhannon,
CONCLUSION
Having carefully reviewed the record, the parties’ respective briefs and arguments, for the reasons discussed above, we conclude the district court legally erred by designating Plaintiffs as prevailing parties under § 1988. We thus REVERSE and VACATE the district court’s award of attorney’s fees to Plaintiffs as an abuse of discretion.
REVERSED and VACATED.
Notes
. The policy of Peterson's office now requires officials to advise indigent defendants of their right to counsel in writing; to obtain signed, written waivers of the right to counsel; and to present all misdemeanor cases of bad checks to a circuit court rather than a justice court.
.
See, e.g., Palmetto Props., Inc. v. County of DuPage,
. We note
Palmetto
is distinguishable because there, the plaintiff had achieved partial relief on summary judgment in the instant federal § 1983 action, even if it was not final judgment on the merits or a consent decree. The plaintiff won a favorable ruling in the federal action that could have been enforced on final judgment had the plaintiff not "graciously— and in reliance upon Defendants' assurances — waited for the Defendants to amend the regulation and moot the case.”