Gillpatrick et al v. Frakes et al

Filing 91

MEMORANDUM AND ORDER that plaintiff Paul Gillpatrick is awarded attorney fees and costs in the amount of $73,818.25. A separate judgment will issue. Ordered by Chief Judge Robert F. Rossiter, Jr. (JSF)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL GILLPATRICK,
Plaintiff,
v.
SCOTT FRAKES, MICHELE CAPPS, and
ANGELA FOLTS-OBERLE,

4:18CV3011
MEMORANDUM
AND ORDER

Defendants.
This matter is before the Court on remand after the Eighth Circuit vacated this
Court’s merits decision from June 7, 2019 (Filing No. 56) (“merits decision”). The Eighth
Circuit vacated that decision, finding it moot due to the death of then-plaintiff Niccole
Wetherell (“Wetherell”). 1 See Gillpatrick v. Frakes, 997 F.3d 1258, 1259 (8th Cir. 2021)
(“The ‘happenstance’ of Wetherell’s death moots the appeal of the merits judgment, so
vacatur of it is appropriate.”). The Eighth Circuit noted that “the parties dispute whether
the merits judgment’s mootness affects the district court’s attorney’s fees judgment” and
remanded the case to have this Court answer that question. Id. For the reasons stated
below, the Court finds Paul Gillpatrick (“Gillpatrick”) is a prevailing party and awards him
attorney fees.
I.

BACKGROUND
When this suit began, Gillpatrick and Wetherell were both state prisoners serving

lengthy sentences in separate correctional centers in Nebraska. Gillpatrick and Wetherell
made repeated requests to marry, but all their requests were rejected, in part because neither
could be transported to another correctional facility for security reasons. After exhausting

See Fed. R. Civ. P. 25(a)(2) (“After a party’s death, if the right sought to be
enforced survives only to or against the remaining parties, the action does not abate, but
proceeds in favor of or against the remaining parties.”).
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their available administrative remedies, Gillpatrick and Wetherell sued in Nebraska state
court, requesting an electronic wedding ceremony via Skype (or another similar
videoconferencing application). That case made its way to the Nebraska Supreme Court,
but it was reversed and remanded on procedural grounds, with instructions to vacate. See
Gillpatrick v. Sabatka-Rine, 902 N.W.2d 115, 119 (Neb. 2017). Gillpatrick and Wetherell
amended their complaint, and the defendants removed (Filing No. 1) it to this Court.
As more fully set forth in the merits decision, Gillpatrick and Wetherell and the
defendants moved for summary judgment, which the Court granted in part and denied in
part. As relevant here, the Court (1) declared Nebraska Department of Correctional
Service’s Policy Number 205.04 (“Policy Number 205.04”) facially unconstitutional under
Turner v. Safley, 482 U.S. 78 (1987), (2) permanently enjoined the defendants and their
successors and designees from denying Gillpatrick and Wetherell’s request to participate
in an e-wedding ceremony, (3) awarded Gillpatrick and Wetherell taxable costs against the
defendants, and (4) directed Gillpatrick and Wetherell to submit a request for attorney fees.
Gillpatrick and Wetherell submitted a request for $116,742.50 in attorney fees and
$2,749.43 in “taxable costs.” Finding that they prevailed in federal litigation because they
“received their requested relief of an order requiring the defendants to allow [Gillpatrick
and Wetherell] to participate in an e-wedding ceremony,” the Court awarded (Filing
No. 73) them reasonable attorney fees pursuant to 42 U.S.C. §§ 1988(b) and 1977e(d) in
the amount of $73,818.25 (“attorney-fee decision”).
In the interim, the defendants filed a Motion to Stay (Filing No. 65) the Court’s
merits decision pending appeal. The defendants noted that Gillpatrick and Wetherell did
not oppose a stay pending appeal to “maintain the status quo” until the matter could be
“fully adjudicated on appeal.” Gillpatrick maintains he did not oppose the stay because
“[w]ithout the stay, Gillpatrick and Wetherell would have been entitled to an immediate
e-wedding ceremony and such a ceremony would most certainly have mooted the appeal

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sought by Frakes.”

The Court granted the stay (Filing No. 68) on July 2, 2019,

approximately three weeks after it entered the merits decision.
The defendants appealed the merits decision and attorney-fees decision, and shortly
thereafter, they slightly modified Policy Number 205.04 by adding the language,
“recognized under state law.” The defendants argue the amended policy language would
“continue[] to bar [Gillpatrick and Wetherell’s] request for an e-wedding ceremony” and
mooted the declaratory judgment. After both parties submitted briefing to the Eighth
Circuit, Gillpatrick notified that court that Wetherell unexpectedly died. The Eighth
Circuit ordered the parties to submit further briefing on the effect of Wetherell’s death. In
its final decision, the Eighth Circuit explained that Wetherell’s death mooted the merits
decision but did not decide whether the mootness would impact the attorney-fees decision.
See Gillpatrick, 997 F.3d at 1260. It remanded the case “for further proceedings consistent
with [its] opinion.” Id.
II.

DISCUSSION
A.

Prevailing-Party Status

The primary dispute is whether the mooted merits decision impacts the attorneyfees award. More specifically, the issue is whether Gillpatrick is still a “prevailing party”
under 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.”). When “the underlying action
has been dismissed as moot on appeal, the propriety of an award of attorney’s fees under
42 U.S.C. § 1988 turns on a determination of whether the plaintiff can be considered to
have been a ‘prevailing party’ in the underlying action in the district court.” Bishop v.
Comm. on Pro. Ethics & Conduct of Iowa State Bar Ass’n, 686 F.2d 1278, 1290 (8th Cir.
1982).
A “prevailing party” is “‘one who has been awarded some relief by the court,’ which
has created a ‘material alteration of the legal relationship of the parties.’” Libertarian Party
of Ark. v. Martin, 876 F.3d 948, 952 (8th Cir. 2017) (quoting Buckhannon Bd. & Care
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Home, Inc. v. W. Va. Dept. of Health and Human Res., 532 U.S. 598, 603 (2001)). In a
case where the merits judgment has been rendered moot, courts examine whether any
“material alteration in the legal relationship between the parties” occurred “prior to the
intervening act of mootness.” Id. (quoting Diffenderfer v. Gomez-Colon, 587 F.3d 445,
453 (1st Cir. 2009) (collecting cases)). “Enforceable judgments on the merits and consent
decrees create the requisite material alteration in the parties’ legal relationship to achieve
prevailing party status.” Advantage Media, LLC v. City of Hopkins, 511 F.3d 833, 837 (8th
Cir. 2008). An award of declaratory relief and deeming a statue unconstitutional or
imposing an injunction, even if later declared moot, can be sufficient to establish
prevailing-party status. See, e.g., Libertarian Party of Ark., 876 F.3d at 952 (finding “[t]he
Libertarian Party was the prevailing party in this case because the district court awarded it
declaratory relief and deemed the statutory scheme unconstitutional,” and so it obtained “a
material alteration in its legal relationship with the Secretary of State, prior to the legislative
action that rendered its lawsuit moot”); see also Bishop, 686 F.2d at 1291 (finding an award
of declaratory and injunctive relief established prevailing-party status despite mootness on
appeal).
The defendants argue Gillpatrick did not obtain the necessary “material alteration”
in their legal relationship because Gillpatrick “never obtained the outcome he sought.”
That is, Gillpatrick and Wetherell never got married. Although mootness pending appeal
does not necessarily prevent a party who secured a favorable judgment in the district court
from collecting attorney fees, see Libertarian Party of Ark., 876 F.3d at 952, the defendants
argue the stay issued in this case adversely affects Gillpatrick’s prevailing-party status. In
support, the defendants point to Doe v. Nixon, 716 F.3d 1041, 1045-46 (8th Cir. 2013).
In Doe, the district court granted a preliminary injunction that would have prevented
the enforcement of a statute prohibiting certain sexual offenders from participating in
activities involving children on Halloween. See Mo. Rev. Stat. § 589.426 (hereinafter,
“Halloween statute”). The Halloween statute only applied “on October thirty-first of each
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year.” Id. The district court granted the plaintiffs’ preliminary injunction on October 27,
2008, but the Eighth Circuit stayed that decision on October 30, 2008, one day before the
preliminary injunction could have had any affect. Doe, 716 F.3d at 1045. By November 1,
2008, the case was moot. Id. Because the preliminary injunction was never in force due
to the nature of the Halloween statute, the Eighth Circuit determined the plaintiffs were not
“prevailing parties” because they merely achieved “‘a transient victory at the threshold of
an action’” and “their initial success [was] undone without a change in the parties’ legal
relationship.” Id. at 1049 (quoting Sole v. Wyner, 551 U.S. 74, 78 (2007)).
The same is not true for Gillpatrick, who obtained a permanent injunction and
declaratory relief. Even though the unopposed stay impacted Gillpatrick and Wetherell’s
ability to marry, the merits decision was in force for three weeks prior to the imposition of
the stay and did change the parties’ legal relationship. See, e.g. Libertarian Party of Ark.,
876 F.3d at 952-53 (finding the district court’s decision awarding the plaintiff declaratory
relief and deeming a statute unconstitutional created “a material alteration in its legal
relationship with the [defendant],” even though the statute was changed, mooting the
appeal); Bishop, 686 F.2d at 1290 (“Even preliminary or temporary relief granted by the
district court may be sufficient to make a plaintiff a ‘prevailing party’ under section
1988.”). Unlike Doe, in which it was impossible for the plaintiffs to realize any benefit
from their temporary victory prior to the stay, Gillpatrick and Wetherell could have gotten
married during the three-week period between the entry of the merits decision and the stay
order.
In response, the defendants still maintain Gillpatrick and Wetherell did not realize
any benefit from the district court’s merits decision during those three weeks because the
defendants “continued to prevent [Gillpatrick and Wetherell] from proceeding with their
desired wedding ceremony.” If true, preventing their marriage would appear to be in direct
violation of the Court’s order. Relying on their apparent non-compliance with the merits
decision does not help them here. Although Gillpatrick and Wetherell did not actually get
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married, their success in obtaining a permanent injunction and declaratory relief provided
them with an opportunity to do so, even if only temporarily. See Planned Parenthood
Great Plains v. Williams, 863 F.3d 1008, 1012 (8th Cir. 2017) (finding the plaintiff who
successfully obtained a permanent injunction but was unable to achieve its ultimate goal—
finding a new physician for its clinic—before the claim became moot was a prevailing
party entitled to attorney fees). The Court concludes Gillpatrick is a prevailing party under
42 U.S.C. § 1988.
B.

Awarding Attorney Fees

The defendants alternatively argue that if the Court finds Gillpatrick is a prevailing
party, the Court should award Gillpatrick “far less than the $73,000-plus he seeks.” As
they see it, his success was merely “technical,” citing Farrar v. Hobby, 506 U.S. 103, 114
(1992), for support. In Farrar, the Supreme Court decided that a plaintiff who was awarded
$1 in nominal damages on a claim for $17 million dollars in compensatory damages was a
prevailing party but not entitled to attorney fees. Id. It is difficult to see any similarities
between Farrar and this case.
In similar cases where a merits judgment was mooted, the Eighth Circuit has not
found a prevailing party’s success—even if limited—to be “so technical” as to render the
amount of attorney fees unreasonable. See Planned Parenthood Great Plains, 863 F.3d at
1012; see also Libertarian Party of Ark., 876 F.3d at 952-53 (finding the case moot on
appeal but affirming the district court’s award of costs and attorney fees). Upon careful
review, the Court finds that the death of Wetherell and subsequent mootness of the merits
decision does not make its prior award of $73,818.25 unreasonable.
Accordingly,
IT IS ORDERED:
1.

Plaintiff Paul Gillpatrick is awarded attorney fees and costs in the amount of
$73,818.25.

2.

A separate judgment will issue.
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Dated this 18th day of August 2021.
BY THE COURT:

Robert F. Rossiter, Jr.
Chief United States District Judge

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