                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        May 5, 2006
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 04-31089



CHADWICK E. WELLS,

                                           Plaintiff-Appellant,

versus

CITY OF ALEXANDRIA, ET AL.,

                                           Defendants,

CITY OF ALEXANDRIA; JOHN HAMERNICK; WILLIAM GERARD ALWELL,

                                           Defendants-Appellees.

                          ______________________

            Appeal from the United States District Court
                for the Western District of Louisiana
                        USDC No. 1:01-CV-01686
                        ______________________

Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

      After Chadwick Wells filed various claims against defendants,

the City of Alexandria and some of its employees, the district

court granted summary judgment to defendants and later awarded them

attorneys fees and costs.         Wells appeals the award of fees and

costs.    We reverse in part and remand in part.




      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                          I

     On August 16, 2001, plaintiff Chadwick Wells filed an action

in Louisiana state court against his former employer, the City of

Alexandria, and two of his former supervisors, John Hamernick and

Gerard Alwell. Wells, an employee of the City electric department,

alleged in the complaint that defendants intentionally ordered him

to perform duties that exceeded his doctor’s post-knee surgery

restrictions, exacerbating his injuries and causing him to miss a

physical therapy appointment.            Although he never referenced the

Americans with Disabilities Act, he mentioned his “disability” four

times and stated that Hamernick and Alwell “deliberately did not

accommodate” his disability.          Although he never referenced § 1983,

he   claimed     that    defendants’      actions   were   “intentional   and

discriminatory towards him.”            The parties agree that he claimed

under Louisiana law an intentional tort and constructive discharge,

and under a whistleblower statute,1 for acts in reprisal for

reporting that defendants wrongfully received roofing material from

a city contractor.         Wells also sought attorneys fees.       Fees are

recoverable under the ADA and § 1983, but not under any of the

Louisiana causes of action.

     Defendants removed to federal district court on the grounds

that Wells’s complaint alleged violations of the ADA and § 1983.

Wells did not move to remand.


     1
         LA. REV. STAT. ANN. 23:967 (2005).

                                          2
      Defendants then moved for summary judgment, alleging that: 1)

Wells did not timely assert a claim under the ADA or seek an

administrative remedy as required by that statute; 2) Wells did not

meet other requirements of the ADA; 3) Wells had no right under the

whistleblower statute because he did not advise the City of any

violation of the law, because defendants did not violate any law,

and because there was no proof that defendants acted in reprisal;

and   4)   Wells       had   no   claim    for    an    intentional     tort    because

defendants’ actions were not “substantially certain” to cause Wells

harm.   The City also argued that any illegal acts by Hamernick and

Allwell    were    outside        the   scope    of    their    employment.       Wells

responded that there were genuine issues of material fact as to the

state claims. He specifically disavowed making any federal claims,

noting that he did not contest federal jurisdiction after removal

because there was diversity jurisdiction.

      The district court granted defendants’ motion on July 15,

2003.      It held that Wells had abandoned any ADA or state law

disability claims he may have made initially; it did not mention §

1983. The court dismissed the remainder of Wells’s state claims on

various grounds.

      Wells appealed on July 30, 2003.                 Prior to oral argument, in

response    to     a    request     from   this       court    for   letter    briefing

concerning the subject matter jurisdiction of the district court,

Wells stated that while he never made federal claims, diversity

jurisdiction existed.             We affirmed the summary judgment on April

                                            3
29, 2004, observing that, “insofar” as Wells initially asserted ADA

or other federal claims, he had abandoned them on appeal.2                       We

denied rehearing on May 24.             Wells’s cert petition was denied on

November 29.

      On May 13, while the petition for rehearing was pending,

defendants filed a joint motion for fees and costs, claiming

$109,540.86 in fees and $3,306.45 in costs as prevailing parties on

the federal claims.

      Wells opposed the motion, denying that he ever claimed under

the ADA or § 1983 and contending that the joint motion, filed 303

days after the court granted summary judgment, was untimely under

Federal Rule 54(d) and Local Rule 54.3 and that his claims were not

frivolous, unreasonable, or without justification, as the statutes

require.       He also urged that defendants were not entitled to costs

for   depositions      not    filed    in   evidence     and   taken   solely   for

investigative purposes and that defendants failed to comply with

this court’s requirements for substantiating the amount of fees and

costs.     The district court granted defendants’ motion on September

17, 2004, rejecting Wells’s first four arguments.                 Finding “some”

merit     in    Wells’s   fifth       argument,   that     defendants    had    not

substantiated the amount of their fees and costs, the court sua

sponte gave defendants ten business days to submit an itemized list

of fees and costs.           The order did not indicate if or when Wells


      2
          The court did not make further inquiry about federal jurisdiction.

                                            4
should oppose the filing.

      Hamernick submitted his list on September 27 and Alwell and

the City submitted theirs on September 30.            On October 8, without

a response from Wells, the court granted defendants all that they

asked for:     $109,540.86 in fees and $3,306.45 in costs.               Wells

appeals from this order, arguing essentially the same points as he

did in front of the district court and, additionally, that the

district court erred in calculating the amount of fees and costs

and   erred   in   not   allowing   him    an   opportunity   to   respond   to

defendants’ submission regarding that amount.

                                      II

      Although we have concerns about the timeliness of defendants’

motion for fees, we do not decide that issue because we conclude,

reviewing de novo,3 that Wells did not claim under the ADA or §

1983, the only statutes under which defendants did (or could have)

asked for fees.

      The allegations in Wells’s complaint control here.4               And in

that complaint Wells never mentioned the ADA, § 1983, or any of

their respective requisite allegations - such as action under color

of law, the denial of a constitutional or statutory right, that he



      3
        Bejil v. Ethicon, Inc., 269 F.3d 477, 481 (5th Cir. 2001) (holding that
under what law a plaintiff claims in a complaint is a question of law).
      4
        See Podell v. Citicorp Diners Club, Inc., 914 F. Supp. 1025, 1028 n.1
(S.D.N.Y. 1996) (holding that the complaint “frames and limits the issues”); cf.
John Corp. V. City of Houston, 214 F.3d 573, 576 (5th Cir. 2000) (holding that
the first step in a § 1983 is case is to determine what the complaint alleges).

                                       5
was a member of a suspect class, that he received a right to sue

letter from the EEOC, or that he was disabled or “substantially

limited”   in   an   activity.5      Although    the   complaint    is   vague,

requiring some divination to determine what it alleges,6 it is more

reasonable to construe it as claiming violations of state law,

especially Louisiana retaliation law.7

      Furthermore, in construing the complaint we can look to the

parties’ course of conduct.        Wells explicitly disavowed making any

ADA or § 1983 claims in his response to defendants’ motion for

summary judgment - before the district court ruled on whether Wells

had any viable claims.8        Defendants argue that they stated their

      5
        While he alleged “discrimination,” that could easily mean that he was
discriminated against because he reported his supervisors’ conduct, for which he
was retaliated against - not because he was disabled or a member of any other
identifiable group. That one word is insufficient to turn a complaint into a §
1983 complaint.   And, while he mentioned his “disability” and the lack of
“accommodation” for it, that could easily refer to the means by which he was
retaliated against - that his supervisors allegedly exacerbated his injuries.
Bare mention of the words “disability” and “accommodation” is insufficient to
turn a complaint into an ADA complaint.
      6
        There is tension in the district court’s decision.      The court, in
concluding that Wells’s claims were “frivolous, unreasonable, or without
foundation,” such that fees could be awarded, Dean v. Riser, 240 F.3d 505 508
(5th Cir. 2001); Buckhannon Bd. & Care Home, Inc. V. Va. Dep’t of Health and
Human Res., 532 U.S. 598, 602-03 (2001) (applying the § 1983 standard to ADA
cases), focused on the complaint’s lack of specific allegations sufficient to
state an ADA or § 1983 claim, not just the lack of actual factual basis. But,
in concluding that the complaint stated an ADA or § 1983 claim, the court held
that such specific allegations were unnecessary. In the end, we conclude that
Wells’s alleged ADA or § 1983 claims were clearly “without foundation” because
he never made them.
      7
        The district court, in granting summary judgment on any possible state
law disability claim, noted Wells’s focus on retaliation.
      8
        While acknowledging that Wells disavowed such claims, defendants contend
that Wells “cited” federal law in the same response. But Wells’s citation to
federal cases related to his constructive discharge claim - a state claim - not
any alleged ADA or § 1983 claim. And the federal cases he cited were construing
Louisiana constructive discharge law, not federal law. We also note that Wells

                                       6
intention to file for fees under the ADA and § 1988 in their

answers and that Wells “abandoned” his federal claims in his

response to their motion for summary judgment because he realized

they were fruitless.          But the plaintiff is the master of his

complaint,9 and defendants cannot restate his claims, consistently

recasting      the   claims     against     the    plaintiff’s      consistent

opposition.10

      Defendants’ best argument, and it is flimsy,11 is that Wells

himself, in requesting fees in his complaint, must have claimed

under the ADA or § 1983 since his other claims did not provide for

fees.      This is too large a leap in logic, and we decline to take

it.



never conceded federal question jurisdiction by failing to contest removal
because it was clear that diversity jurisdiction existed over his state law
claims: Wells acknowledged the existence of diversity jurisdiction in his brief
to this court on the first appeal, and this court found that diversity
jurisdiction existed.
      9
        See BP Chemicals, Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir.
2002) (holding that plaintiff controls what the complaint contains, even where
jurisdiction is not at issue).
      10
        We note, for example, that Wells argued on first appeal that he made no
federal claims, but defendants still devoted part of their brief to contesting
alleged ADA and § 1983 claims.
      11
         Defendants also contend that the district court, in ruling on summary
judgment, found that Wells made ADA and § 1983 claims. Although this would not
be controlling even if true, it is not. In ruling on the motion for summary
judgment, the district court stated that, “[a]lthough some of the allegations in
Well’s petition for damages could be construed as stating a claim under the ADA,
Well’s rejection of the notion that he is bringing an ADA claim provides
sufficient basis for granting the defendants’ motion for summary judgment on this
particular issue” (emphasis added). It did not mention § 1983. That court, like
this one on the first appeal, held that even if Wells had made federal claims,
he had abandoned them; it did not decide the issue.        The district court’s
contrary construction of its prior holding in its order granting fees and costs
is incorrect.

                                       7
     We conclude that Wells claimed only under state law, not the

ADA or § 1983.     As a result, we reverse that portion of the

district court’s order awarding fees to defendants.

                                III

     We must still address the issue of costs.   Under Federal Rule

of Civil Procedure 54(d), the prevailing party usually is awarded

costs. Here, the district court, concerned that defendants had not

substantiated their amount of costs, sua sponte gave defendants ten

business days to clarify their costs and awarded costs eight days

after the last defendant submitted his list. Wells complains about

the lack of opportunity to respond to defendants’ submission,

stating that he would have argued that defendants were not entitled

to the cost of depositions not filed in court and taken solely for

“investigative” purposes.

     The record is not clear about the events leading to the

decision on the bill of costs.       It does not reflect that Wells

received notice.   Without attempting to resolve that question, we

vacate the award and remand the case to the district court to

consider Wells’s objection.

     For the foregoing reasons, we REVERSE the award of attorneys

fees to defendants, VACATE the award of costs, and REMAND for

reconsideration of costs upon plaintiff’s filing his opposition.




                                 8
9
