
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1883                                   TOBY KLANG WARD,                                Plaintiff, Appellant,                                          v.                                CAROL HICKEY, ET AL.,                                Defendants, Appellees.                                 ____________________          No. 92-2240                                   TOBY KLANG WARD,                                 Plaintiff, Appellee,                                          v.                               CAROL A. HICKEY, ET AL.,                                Defendants, Appellees.                                 ____________________                     THE SCHOOL COMMITTEE OF THE TOWN OF BELMONT,                                Defendant, Appellant.                                 ____________________          No. 92-2241                                   TOBY KLANG WARD,                                 Plaintiff, Appellee,                                          v.                               CAROL A. HICKEY, ET AL.,                               Defendants, Appellants.                                 ____________________           No. 92-2271                                              TOBY KLANG WARD,                                Plaintiff, Appellant,                                          v.                                CAROL HICKEY, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                          and Burns,1 Senior District Judge.                                      _____________________                                _____________________               Americo  A. Salini,  Jr., with  whom Massachusetts  Teachers               ________________________             _______________________          Association, was on brief for plaintiff Toby Klang Ward.          ___________               Andrew J. McElaney, Jr.,  with whom John M.  Griffin, Daniel               _______________________             ________________  ______          R.  Harris, and  Nutter,  McClennen &  Fish,  were on  brief  for          __________       __________________________          defendants Carol A. Hickey and Mary N. Tinkham.               David  C.  Hawkins,  with  whom  Robert  J.  Morrissey,  and               __________________               _____________________          Morrissey  & Hawkins, were on  brief for the  School Committee of          ____________________          the Town of Belmont.                                 ____________________                                    June 15, 1993                                 ____________________                                        ____________________          1  Of the District of Oregon, sitting by designation.                    TORRUELLA,  Circuit   Judge.     Toby  Klang   Ward,  a                                _______________          nontenured biology  teacher in the Belmont,  Massachusetts public          schools, sued the  School Committee  of the Town  of Belmont  and          three members of  the Committee as  individuals for violation  of          her  First Amendment rights  by the  Committee's decision  not to          reappoint her on the basis of a classroom discussion.  Defendants          Mary Tinkham, Carol Hickey, and the late Margaret Gibson cast the          deciding votes against  Ward's reappointment.  Based on  a jury's          answers to various special  questions, the district court entered          judgment  in  favor   of  defendants,   but  denied   defendants'          subsequent request for  attorneys' fees.  We  affirm the district          court's  judgment, albeit on different grounds.   In addition, we          affirm part of the  attorneys' fees judgment and remand  the rest          for a  determination  of whether  any  of Ward's  litigation  was          frivolous.                                      BACKGROUND                                      BACKGROUND                                      __________                    The dispute arose  out of a discussion in  Ward's ninth          grade  biology  class  concerning  abortion  of  Down's  Syndrome          fetuses.1  Defendant  Tinkham learned of  this discussion from  a          parent of a student in that class.                    In  June 1982,  the  School Committee  voted on  Ward's          reappointment  for the  1982-83 school  year.   A  favorable vote          would  have granted Ward  tenure.  By  a deadlocked vote  of 3-3,                                        ____________________          1     Some  controversy  also  transpired   over  Ward's  alleged          discussion of  Proposition  2 1/2,  a  Massachusetts  referendum.          However, the jury found  that none of the defendants'  votes were          motivated by that  discussion, and  Ward did not  appeal on  that          issue.  We therefore leave it out of our analysis.                                          -3-          however, the School Committee decided to deny reappointment.                    As a result of this decision, Ward sued, alleging:  (1)          defendants  retaliated  against her  for  discussing  abortion by          voting against  her  reappointment; (2)  defendants conspired  to          deny her constitutional rights by deciding not to rehire her; (3)          defendants acted arbitrarily and capriciously in violation of the          Fourteenth  Amendment; and  (4) defendants  wrongfully terminated          her in violation of the School Committee's internal policies.  On          November 16,  1989, a  magistrate recommended  that the  district          court  dismiss Ward's complaint for failure to state a claim, but          grant  Ward leave  to  amend her  complaint  to include  a  First          Amendment   "failure-to-forewarn"  claim.     According   to  the          magistrate, Ward had  a constitutional right  to notice that  her          discussion was prohibited before the School Board could retaliate          against  her  for  that discussion.    On  August  31, 1990,  the          district court adopted the magistrate's recommendation, dismissed          the complaint, and granted the requested leave to amend.                    Subsequently,  Ward filed  a  second amended  complaint          alleging the violation  suggested by the  magistrate.  The  court          denied defendants' motion to dismiss  with respect to that claim,          but  granted  it  to the  extent  that  the  complaint alleged  a          violation  of a  First Amendment  right to  discuss controversial          issues  in a high school  class.  Ward  voluntarily dismissed her          claim against Gibson after Gibson's death on January 3, 1991.                    Ultimately, the case went to a jury in  two phases.  At          the end of Phase I, the court  asked the jury for verdicts on six                                         -4-          special  questions.2   In response to  the first  five questions,          the  jury  concluded  that Tinkham  voted  against  reappointment          because  of the content of Ward's  classroom statements, and that          Hickey and  Gibson  were  not so  motivated.    Inexplicably,  in          response to question six, the jury found that all three committee          members who voted against reappointment did so based on what they          believed  Ward  said  in  her  biology  classroom  without  first          investigating  the matter.3  The jury also found that Tinkham and          Hickey acted recklessly in this decision.                    Having narrowed the disputed issues to the vote cast by          Tinkham,  the  district court  asked  the  jury three  additional          questions in Phase II.  In response to these questions, the  jury          concluded that  Tinkham's  views  regarding  abortion  of  Down's          Syndrome  fetuses did not  conflict with  the views  that Tinkham          believed Ward espoused.                    Armed  with  the  jury  verdicts,  the  district  court          entered judgment  for defendants.  Specifically,  the court found          for Hickey because  the disputed discussion did  not motivate her          vote.  The court then relied on Perry Educ. Ass'n  v. Perry Local                                          _________________     ___________          Educators' Ass'n, 460 U.S. 37  (1983), to conclude that Tinkham's          ________________          disagreement with Ward's views was an essential element of Ward's                                        ____________________          2  See the jury's special verdict forms in the appendix.          3  The jury's  response to question six contradicts  its response          to  the  other questions  regarding  Gibson and  Hickey,  and the          contradiction was unexplained on the record.  However, since Ward          dismissed her claim against  Gibson, and did not appeal  her case          against Hickey, the issue is moot.                                         -5-          First Amendment claim.4   Since the  jury found no  disagreement,          the court  found  for  Tinkham.    As its  members  did  not  act          improperly, the court ultimately found for the School Committee.                    The court  also  offered alternative  grounds  for  its          judgment.    According  to  the court,  Tinkham  was  entitled to          qualified  immunity,  and Ward  failed  to  establish the  School          Committee's liability under 42 U.S.C.   1983 (1981).                    After the court announced its decision, Tinkham and the          School Committee filed conditional  motions seeking relief in the          event that this court vacates the district court's judgment.  The          motions sought  to set  aside the  jury's special  verdicts which          found  that Tinkham's  vote  was motivated  by the  controversial          classroom discussion,  and the  verdict which concluded  that the          individual  defendants  voted  without  investigation  into  what          occurred in  Ward's classroom.  The defendants contended that the          verdicts  contradicted  the  weight  of  the evidence.    In  the          alternative,  they requested a new  trial.  The  court denied the          motion  to set aside the  jury's special verdicts,  but granted a          conditional new trial due  to the clear weight of  the evidence.5          Ward  appeals from the final  judgment and order,  except for the          portion of the judgment relating to Hickey.                    After the court entered  its final judgment, defendants                                        ____________________          4   The  district court employed  the wrong legal  standard.  See                                                                        ___          infra pp. 12-13.          _____          5  As the  court determined that the investigation  issue related          only  to the School Committee's liability,  the court granted the          new trial  on that issue  for the School  Committee, but not  for          Tinkham.                                         -6-          filed a motion for attorneys' fees pursuant to 42 U.S.C.    1988.          The district court  denied the  motion but suggested  that if  we          reverse the fee ruling, we should only grant fees for the portion          of the litigation that occurred after January 3, 1992.  The court          also  indicated  that  the  fees defendants  requested  for  that          portion were reasonable.   Defendants appeal the denial of  fees,          and Ward cross-appeals,  arguing for a  reduction of the  court's          fee award in its alternative judgment.                                      DISCUSSION                                      DISCUSSION                                      __________          I.  FIRST AMENDMENT          I.  FIRST AMENDMENT                    In general, as Ward was a nontenured teacher the School          Committee  could have refused to rehire her without any reason at          all.   Mount Healthy City Sch.  Dist. Bd. of Educ.  v. Doyle, 429                 ___________________________________________     _____          U.S. 274, 283 (1977).   However, a school committee  violates the          First Amendment, applicable to  the states through the Fourteenth          Amendment, if it denies rehiring in  retaliation for a nontenured          teacher's exercise of constitutionally  protected speech.  Id. at                                                                     ___          283-84; Perry v. Sinderman, 408 U.S. 593, 597 (1972).                  _____    _________                    To establish a First Amendment violation,  Ward had  to          show  that (1)  her  discussion of  abortion  of Down's  Syndrome          fetuses was  constitutionally protected;  and (2) the  discussion          was a motivating factor in the decision not to rehire her.  Mount                                                                      _____          Healthy City Sch. Dist. of Educ., 429 U.S. at 287; see also Miles          ________________________________                   ________ _____          v. Denver Public  Schs., 944 F.2d 773, 775 (10th  Cir. 1991).  If             ____________________          Ward  made  that  showing,  defendants  had  to  establish  by  a          preponderance  of the evidence  that they would  not have rehired                                         -7-          Ward even if she had not made the controversial statements.  Id.                                                                       ___                    We  begin with  the  proposition  that teachers  retain          their First Amendment right to free speech in  school.  Tinker v.                                                                  ______          Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969).          ______________________________________          On the other  hand, it  is well-settled that  public schools  may          limit  classroom speech to promote educational goals.  See id. at                                                                 ___ ___          507.   Courts  have long  recognized the  need for  public school          officials to  assure that their students  "learn whatever lessons          [an] activity is designed to teach, that readers or listeners are          not exposed to material that may be inappropriate for their level          of maturity, and that the views of the individual speaker are not          erroneously  attributed to the school."   Hazelwood Sch. Dist. v.                                                    ____________________          Kuhlmeier, 484 U.S. 260, 271 (1988).          _________                    In light of these competing principles, we  find that a          school committee  may regulate  a teacher's classroom  speech if:          (1)  the  regulation  is   reasonably  related  to  a  legitimate          pedagogical  concern, id. at 373; and (2) the school provided the                                ___          teacher with notice of what conduct was prohibited, see Keyishian                                                              ___ _________          v. Board of Regents, 385 U.S. 589, 604 (1967).             ________________                    Through  varying  tests  courts  have  afforded schools          great deference in regulating classroom speech.  Krizek  v. Board                                                           ______     _____          of  Educ., 713 F. Supp. 1131, 1138  (N.D. Ill. 1989).  See, e.g.,          _________                                              ___  ____          Zykan  v. Warsaw Community Sch.  Corp., 631 F.2d  1300, 1306 (7th          _____     ____________________________          Cir.  1980) (abuse  of discretion  standard for  analyzing school          board's decision to remove books from  curriculum); Cary v. Board                                                              ____    _____          of  Educ. Arapahoe Sch. Dist., 598 F.2d 535, 543 (10th Cir. 1979)          _____________________________                                         -8-          (local  school  boards may  determine  subjects  taught, even  if          promoting particular viewpoint).   Similarly, in this circuit, we          have   determined   the  propriety   of  school   regulations  by          considering  circumstances  such  as  age  and sophistication  of          students,   relationship  between   teaching  method   and  valid          educational objectives, and  context and manner  of presentation.          Mailloux  v.  Kiley, 448  F.2d 1242,  1243  (1st Cir.  1971) (per          ________      _____          curiam).                    Recently, the  Supreme Court in Kuhlmeier,  484 U.S. at                                                    _________          273,  held  that  educators  may  limit  the  content  of school-          sponsored  speech  as long  as  the  limitations are  "reasonably          related to legitimate pedagogical concerns."  While the  facts in          Kuhlmeier differ from  those in  the present case,  at least  one          _________          court has applied this  test to teachers' classroom speech.   See                                                                        ___          Miles, 944 F.2d at 775-79; cf. Krizek, 713 F. Supp. at 1139.          _____                      ___ ______                    In  Kuhlmeier,  a school  principal  prevented students                        _________          from  printing  certain articles  in  a  school  newspaper.   The          students participated in the production  of the newspaper as part          of a journalism  class.  The Court found that  because the school          newspaper  was  not  a  public forum,  the  school  could  impose          reasonable   restrictions  of   expression  through   the  paper.          Kuhlmeier, 484 U.S. at  260.  The newspaper did not  constitute a          _________          public  forum because  the  school never  exhibited that  intent.          Indeed, the Court's  decision that  a school newspaper  is not  a          public  forum also derived from the fact  that it was part of the          journalism class  curriculum and a  "regular classroom activity."                                         -9-          Id. at 268.          ___                    Similarly, a  teacher's statements  in class  during an          instructional  period are also part of a curriculum and a regular          class activity.  Like Kuhlmeier's school newspaper, the classroom                                _________          is not a  public forum,  and therefore is  subject to  reasonable          speech  regulation.    See  Miles,  944  F.2d  at  776  (ordinary                                 ___  _____          classroom  is not public forum); Bishop v. Aronov, 926 F.2d 1066,                                           ______    ______          1071 (11th Cir. 1991).                    After determining  that the newspaper was  not a public          forum,  the Supreme Court reasoned that because the speech in the          school newspaper was part of the school curriculum, and therefore          school-sponsored, the  school was  entitled to more  deference in          speech  regulation  than  it  would  be  with  respect  to  other          "personal  expression  that  happens   to  occur  on  the  school          premises."   Kuhlmeier, 484 U.S. at 271.  The Court reasoned that                       _________          schools cannot be required to sponsor inappropriate speech.  Id.                                                                       ___                    Like  the  newspaper, a  teacher's classroom  speech is          part of the curriculum.   Indeed, a teacher's principal classroom          role is to teach  students the school curriculum.   Thus, schools          may  reasonably limit  teachers'  speech in  that  setting.   See                                                                        ___          Miles, 944 F.2d at 776.          _____                    This circuit's test of  teachers' speech regulation, as          set out in Mailloux, is consistent with the Supreme Court's test,                     ________          as set out in  Kuhlmeier.  Cf. Krizek, 713  F.Supp. at 1139.   It                         _________   ___ ______          stands to reason that whether a  regulation is reasonably related          to legitimate  pedagogical concerns  will depend on,  among other                                         -10-          things,  the   age  and  sophistication  of   the  students,  the          relationship  between  teaching  method  and   valid  educational          objective, and the context and manner of the presentation.                    Even  if under the above  test a school  may prohibit a          teacher's  statements before she  makes them, however,  it is not          entitled to  retaliate against  speech that it  never prohibited.          Cf. Mount Healthy City Bd.  of Educ., 429 U.S. at  284 (classroom          ___ ________________________________          speech was  constitutionally protected when school  board did not          suggest that teacher violated any established policy, or that the          board's reaction to the communication was "anything more than  an          ad hoc response  to [plaintiff's] communication .  . . .").   Few          subjects lack controversy.  If teachers must fear retaliation for          every utterance, they will  fear teaching.  As the  Supreme Court          warned  in Keyishian  385  U.S. at  604,  "[t]he danger  of  that                     _________          chilling effect upon the exercise of vital First Amendment rights          must be guarded against  by sensitive tools which  clearly inform          teachers what is being proscribed."                    Although  the Court  in Kuhlmeier  did not  address the                                            _________          notice issue  with respect to school-sponsored  speech, it stated          only that prepublication control need  not be pursuant to express                    ______________________          regulation.  Kuhlmeier,  484 U.S. at 273 n.6.  This suggests that                       _________          the  Court  would  agree that  postpublication  retaliation  must                                         ____________________________          derive from some prior limitation.  Indeed, this circuit has long          recognized a  teacher's right to notice of what classroom conduct          is prohibited.  See, e.g.,  Mailloux, 448 F.2d at 1243; Keefe  v.                          ___  ____   ________                    _____          Geanakos, 418 F.2d 359, 362 (1st Cir. 1969).          ________                                         -11-                    Of course, while we acknowledge a First Amendment right          of  public school teachers to know what conduct is proscribed, we          do  not  hold  that  a  school  must  expressly   prohibit  every          imaginable inappropriate conduct by teachers.  Cf. Krizek, 713 F.                                                         ___ ______          Supp. at 1140 (warning that such requirement is an impossible and          undesirable burden).  The relevant inquiry is:  based on existing          regulations,   policies,  discussions,   and   other   forms   of          communication between school administration  and teachers, was it          reasonable for the school to expect the teacher to know  that her          conduct was prohibited?          II. THE DISTRICT COURT'S ANALYSIS          II. THE DISTRICT COURT'S ANALYSIS                    The district court found  that under Perry Educ. Ass'n,                                                         _________________          the School Committee's  retaliation was permissible as long as it          did  not  suppress  Ward's  speech  based  on the  viewpoint  she          expressed.    In  Perry Educ.  Ass'n,  pursuant  to  a collective                            __________________          bargaining agreement, a school  permitted a teachers' association          to  use   the  interschool  mailing  system   and  the  teachers'          mailboxes.   Under the  same agreement,  the school  permitted no          access by rival teachers' associations.  A rival association sued          alleging  a First Amendment violation.  The Supreme Court in that          case  held that the preferential access did not violate the First          Amendment.  Perry  Educ. Ass'n,  460 U.S.  at 44-54.   The  court                      __________________          reasoned  that  a  state  may  reserve  public property  for  its          intended use.  However,  it may regulate speech on  that property          only  if  the  regulation is  reasonable  and  not  an effort  to          suppress expression due to the view expressed.  Id. at 46.                                                          ___                                         -12-                    Under the  Kuhlmeier rationale, Perry Educ.  Ass'n does                               _________            __________________          not  apply to  teachers'  classroom speech.    A faculty  mailing          system significantly  differs from a  school-sponsored curriculum          being taught to a  captive audience of youngsters.   Schools need          not fear that  speech on  a faculty mailing  system will  prevent          students  from learning  appropriate classroom lessons.   Indeed,          while  citing Perry Educ. Ass'n,  the Court in  Kuhlmeier did not                        _________________                 _________          require  that school  regulation  of  school-sponsored speech  be          viewpoint neutral.  See Kuhlmeier, 484 U.S. at 270.                              ___ _________                    Moreover,  Perry Educ.  Ass'n  does not  stand for  the                               __________________          proposition that where a state reserves property for its intended          use, regulation of speech on that property is permissible as long          as  it is  viewpoint  neutral.   Even  under Perry  Educ.  Ass'n,                                                       ___________________          viewpoint discrimination is not an  essential element of a  First          Amendment claim.  The  Court in that case specifically  held that          the regulation also must  be reasonable.  Perry Educ.  Ass'n, 460                                                    __________________          U.S. at  46.  Thus, even if a regulation is viewpoint neutral, it          can be impermissible under Perry Educ. Ass'n.                                     _________________          III. APPLICATION TO THE PRESENT CASE          III. APPLICATION TO THE PRESENT CASE                    On  appeal,  Ward  does   not  argue  that  the  School          Committee  was not  entitled  to limit  her  statements had  they          chosen  to do  so in advance.   She  argues only  that the School          Committee failed to notify her  that her conduct was  prohibited.          Since the  trial jury never determined whether Ward received such          notice, she requests a trial on that issue.  We  find that she is          not entitled to one.                                         -13-                    Rule 51 of the Federal Rules of Civil Procedure  states          that  without objecting  before the  jury retires,  no party  may          later complain of a failure  to give an instruction.6  This  rule          equally applies to special  interrogatories.  Phav. v. Trueblood,                                                        _____    __________          Inc.,  915  F.2d 764,  769 (1st  Cir.  1990) (citing  Anderson v.          ____                                                  ________          Cryovac, 862 F.2d 910, 918 (1st Cir. 1988)).          _______                    In  the present  case, Ward  never requested  a special          interrogatory on  the  issue of  notice.   Moreover,  while  Ward          essentially  argues that  she  had no  meaningful opportunity  to          request such a  question, we find  otherwise.  Before  submitting          the Phase I special verdict form to  the jury, the district court          judge  held a  conference  in which  he specifically  invited the          parties' suggestions.  (Conference  on Verdict Form at 4).   Ward          failed  to  request  an  interrogatory on  notice  at  that time.          Additionally,  Ward failed to mention the notice issue in both of          her  submissions of proposed changes to the Phase I verdict form.          After considering  the court's proposed verdict  form, Ward moved          for  additional interrogatories to the jury.  Again, Ward made no          request for a  question on  the notice issue.   Similarly,  while          defendants'  counsel  inquired  about  the  notice  issue  before          submitting the Phase  II verdict form to  the jury, Ward  did not                                        ____________________          6  Rule 51 provides in relevant part:                      No party may  assign as error the  giving                      or the  failure  to give  an  instruction                      unless that party objects  thereto before                      the jury retires to consider its verdict,                      stating distinctly the matter objected to                      and the grounds of the objection.                                         -14-          request a question  on the  matter.  In  response to  defendants'          inquiry, the court stated that it would not address that issue in          Phase  II, and would address any further issues in future phases.          After the jury answered the Phase II questions, Ward again missed          her chance  to  request an  interrogatory  on the  notice  issue.          Indeed, after  Phase II, Ward specifically argued to the district          court that  "it's not necessary to  have a phase  that deals with          the question of  notice."  (Hearing on Motions, July  7, 1992, at          22).  Instead, Ward asked the court to find a lack of notice as a          matter of law, which the court  refused to do.  It was not  until          six days after  the court's entry of  a final judgment that  Ward          finally  requested  a  jury finding  on  the  notice  issue.   We          conclude that although Ward had numerous opportunities to request          a  jury determination  on the  principal issue  of her  case, she          failed to  do so.   She  therefore has waived  the right  to that          determination, and has not made her case against defendants.          IV.  ATTORNEYS' FEES          IV.  ATTORNEYS' FEES                    Under  42 U.S.C.   1988  (Supp. 1992), a  court, in its          discretion,  may award attorneys' fees to a prevailing party in a          civil rights case.7   A  prevailing defendant in  a civil  rights                                        ____________________          7  Section 1988 provides in relevant part:                      In any action or proceeding to enforce  a                      provision of sections  1981, 1982,  1983,                      1985, and 1986 of this title, title IX of                      Public  Law  92-318, or  title VI  of the                      Civil Rights Act of  1964, 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.                                         -15-          case may recover attorneys' fees if it can show that "plaintiff's          action was  frivolous, unreasonable,  or groundless, or  that the          plaintiff  continued to  litigate  after it  clearly became  so."          Foster v. Mydas  Assocs., Inc.,  943 F.2d 139,  145-46 (1st  Cir.          ______    ____________________          1991) (quoting Christianburg Garment Co.  v. EEOC, 434 U.S.  412,                         _________________________     ____          422 (1978)).                    The   district  court   denied   attorneys'   fees   by          analogizing  to the  interrelated  claims  doctrine discussed  in          Lipsett v.  Blanco, 975  F.2d 934  (1st  Cir.  1992).   Under the          _______     ______          doctrine, once a court decides that a party has prevailed for the          purposes of  a fee-shifting  statute, the  fee award  may include          fees for  work performed on  unsuccessful claims if  that party's          unsuccessful claims are interrelated  to the successful claims by          a common core of facts or related legal theories.  Id. at 940-41.                                                             ___                    In  the present  case,  the district  court found  that          while some of  Ward's legal theories  might have been  frivolous,          some of the claims were permissible.  The court also found all of          Ward's  claims   interrelated.     Thus,   analogizing   to   the          interrelated  claims doctrine,  the court denied  fees on  all of          Ward's claims.                    We   find  the   district  court's   reliance   on  the          interrelated claims  doctrine misplaced.   That doctrine  is used          for convenience in the  difficult task of calculating fees.   See                                                                        ___          id.   It  is inapplicable  unless the  court initially  finds the          ___          plaintiff a prevailing party.   A court may not use the  doctrine          to decide not to grant any fees.                                         -16-                    The standard  for a  civil rights defendant  to receive          fees  is high to encourage  legitimate civil rights  claims.  See                                                                        ___          Foster v.  Mydas Assoc.,  Inc., 943  F.2d at 144.   On  the other          ______     ___________________          hand, frivolous civil rights claims waste judicial resources that          would  otherwise  be  used  for  legitimate  claims.     See  id.                                                                   ___  ___          Accordingly, a  district court should not deny fees for defending          frivolous claims merely because  calculation would be  difficult.          We therefore  refuse to  adopt the district  court's primary  fee          judgment.                    In addition  to denying fees, the  district court ruled          in the alternative that  "even if persuaded" that some  of Ward's          claims were frivolous, the litigation that took place  before the          court's order of January  3, 1992 was not frivolous, and that the          requested  fees   for  the  litigation  beyond   that  time  were          reasonable.   Given the muddled state of the law surrounding this          case,  we  find  that  the  district  court  did  not  abuse  its          discretion  in  finding  that  Ward's  claims  were  not  clearly          frivolous before January  3, 1992.   Thus, we  adopt the  court's          ruling to the extent that it  denies fees for the litigation that          occurred before that time.                    However, in  its alternative ruling, the district court          never determined whether any  of Ward's litigation that continued          beyond that time was frivolous.  We  ask  the  district court  on          remand  to  make  that  determination,  and  calculate  any  fees          accordingly.                                      CONCLUSION                                      CONCLUSION                                      __________                                         -17-                    We affirm the district  court's judgment for defendants                       ______          on the merits.  We also affirm the district court's alternate fee                                  ______          ruling to the extent that it denies fees for the litigation prior          to  January 3, 1992.   However, we remand  for a determination of                                             ______          which,  if any, of Ward's  litigation beyond January  3, 1992 was          frivolous.  If there  was any frivolous litigation, the  district          court should award fees to defendants accordingly.                                         -18-
