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DOE v. VILLAGE OF CRESTWOOD

April 2, 1991

JOHN DOE, Plaintiff,
v.
VILLAGE OF CRESTWOOD, ILLINOIS, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Plaintiff John Doe ("Doe") has filed a petition (the "Petition") for the award of attorneys' fees and related out-of-pocket expenses under 42 U.S.C. § 1988 ("Section 1988"), based on his having been the "prevailing party" in 42 U.S.C. § 1983 ("Section 1983") litigation against the Village of Crestwood and its Mayor Chester Stranczek (collectively "Village"). *fn1" Village opposes the Petition in its entirety on conceptual grounds or, if it proves unsuccessful in that respect, contests some specifics of the Petition. For the reasons stated in this memorandum opinion and order, Doe is granted substantially all the relief that he seeks.

 Village's Section 1988 Liability

 It is unnecessary to recount the history of the proceedings to and including the Court of Appeals decision reported at 917 F.2d 1476 (7th Cir. 1990), which affirmed this Court's issuance of what was effectively a preliminary injunction (though labeled a temporary restraining order, "TRO") barring the conduct of a Catholic mass on Village property as an integral part of the annual Village-sponsored Italian Festival. What happened after that was that Village affirmatively represented to this Court that it would no longer engage in the challenged practice in the future, and that affirmative representation caused this Court to grant Village's motion to dismiss this action on mootness grounds -- there was no longer a live case or controversy to support the consideration of permanent injunctive (or, for that matter, even declaratory) relief.

 To resist its now being taxed with Doe's attorneys' fees, Village urges that he was not a "prevailing party" within the meaning of Section 1988. To that end it invokes last December's decision of our Court of Appeals in Libby by Libby v. Illinois High School Association, 921 F.2d 96 (7th Cir. 1990). But as was equally true of Village's legal arguments that it tendered on the merits of this litigation, it prefers to ignore the fact that the very authority on which it seeks to rely carries the seeds of its own certain defeat.

 
A plaintiff who obtains provisional relief, such as a TRO, becomes a prevailing party only if that relief was a determination on the merits or acted as a catalyst to obtain concessions from the appellee, but not where the grant of provisional relief merely preserves the status quo.

 Nor was that underscored alternative an expression of any startling new doctrine. In our own Circuit it has been established law for at least a decade in the related circumstance where a Section 1983 action is settled before the merits are reached ( Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir. 1981) (citations omitted)):

 
Essentially, to prevail in a settled case, the plaintiffs' lawsuit must be causally linked to the achievement of the relief obtained. Secondly, the defendant must not have acted wholly gratuitously, i.e., the plaintiffs' claims, if pressed, cannot have been frivolous, unreasonable, or groundless.

 Accord as to the relevant test, Crosby v. Bowling, 683 F.2d 1068, 1070 (7th Cir. 1982). And the same doctrine of the plaintiff as a statutory "prevailing party" because of having served as the catalyst for change has continued to be recognized and applied in such cases elsewhere as, for example, Fields v. City of Tarpon Springs, Florida, 721 F.2d 318, 321 (11th Cir. 1983) (per curiam) (citations omitted):

 
The Fees Act authorizes an award of attorney's fees to the "prevailing party" in a civil rights action such as this one. 42 U.S.C. § 1988 (1980). The law in this circuit recognizes that a party may prevail without obtaining formal judicial relief. For example, a party may prevail when remedial action effectively moots the lawsuit before trial.
 
* * * *
 
To determine if a party has prevailed when there is no judicial relief this circuit has used the catalyst test. The catalyst test of prevailing party requires showing that the lawsuit is a ...

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