George L. WEAVER, Plaintiff-Appellee, 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-Appellants, Roger O. Doerr, Defendant, Stephen W. Shutzer; Donald Earl Atkinson; Harold F. Thies, Jr., Defendants-Appellants. 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.
Nos. 96-2952, 96-3008
United States Court of Appeals, Eighth Circuit
July 23, 1997
Submitted March 13, 1997.
Bernard J. Monbouquette, Omaha, NE, argued (Ruth W. Beyerhelm, Omaha, NE, on the brief), for appellee.
WOLLMAN, Circuit Judge.
The defendants, employees of the Nebraska Department of Correctional Services, appeal from the district court‘s2 judgment awarding attorney‘s fees and costs in the amount of $11,299.17 to George L. Weaver in Weaver‘s suit for damages and injunctive relief brought under
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,3 who found that although Weaver had demonstrated a likelihood of 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 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, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), overruled sub silentio the holding in Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978), that
The defendants next argue that
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
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. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), and Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). See also Logan v. Clarke, 119 F.3d 647 (8th Cir. 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.