     Case: 16-50164      Document: 00513655696         Page: 1    Date Filed: 08/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 16-50164
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          August 29, 2016
                                                                             Lyle W. Cayce
JOHN DEUTSH,                                                                      Clerk


              Plaintiff - Appellant

v.

JESUS BECERRA, INCORPORATED,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-708


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant seeks an award of attorney’s fees and costs following
an entry of default judgment in his favor by the district court. For the following
reasons, we remand the matter to the district court for the purpose of
calculating an award of attorney’s fees and costs.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 16-50164
                                              I.
      Plaintiff-Appellant John Deutsh 1 is a paraplegic who primarily relies on
the use of a wheelchair for mobility. In August 2015, Deutsh filed suit in
federal court against Defendant-Appellee Jesus Becerra, Inc., (“Becerra”), the
owner of La Mexicana Bakery (“the Bakery”) in Austin, Texas, for violations of
Title III of the Americans with Disabilities Act (“ADA”). See 42 U.S.C. §§
12181, et seq. Deutsh’s original complaint included claims that Becerra failed
to provide ADA-compliant parking and signage in the parking lot of the
Bakery, the step at the entrance of the Bakery exceeded a half an inch, and
there was no access ramp to bypass the step. Deutsh sought declaratory
judgment, injunctive relief, and attorney’s fees, costs, and litigation expenses.
      The record reflects that Becerra was served with notice of the complaint
but failed to file an answer or other defense and did not appear in court during
the proceedings below. Consequently, the district court entered default
judgment against Becerra. In its judgment against Becerra, the district court
imposed a permanent injunction preventing further discrimination under 42
U.S.C. § 12181. The judgment mandated that Becerra make the La Mexicana
Bakery facilities accessible and useable by disabled individuals and provide a
list of remediations completed in compliance with the court’s order. Id. In its
final judgment, the district court ordered that each of the “parties bear their
own costs of court and attorney’s fees.” The record reflects that, following the
final judgment, Deutsh filed a “Plaintiff’s Proposed Bill of Costs and Motion for
Attorney’s Fees” but the district court never ruled on the motion. 2 Deutsh then
filed this appeal, asserting that the district court erred in failing to grant his
request for attorney’s fees and costs of litigation.



      1   The record indicates that Plaintiff-Appellant also spells his name “Jon Deutsch.”
      2   Deutsh’s motion requests $6,200 in attorney’s fees and costs.
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                                  No. 16-50164
                                        II.
      This court reviews a district court’s determination of attorney’s fees for
abuse of discretion. See No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 262
F.3d 496, 498 (5th Cir. 2001) (reviewing award of attorney’s fees for abuse of
discretion); Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001) (reviewing denial
of attorney’s fees for abuse of discretion).
                                        III.
      The ADA authorizes the court, in its discretion, to award attorney’s fees
to the prevailing party but does not specify when such an award is appropriate.
See 42 U.S.C. § 12205 (“[T]he court or agency, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee,
including litigation expenses, and costs . . .). This court has observed, however,
that “[e]ach circuit that has addressed the issue has concluded that the
considerations that govern fee-shifting under . . . 42 U.S.C. § 1988 apply to the
ADA’s fee-shifting provision, because the almost identical language in each
indicates Congress’s intent to enforce them similarly.” No Barriers, 262 F.3d
at 498; see also 42 U.S.C. § 1988(b) (“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 . . .”). In the context of an action for attorney’s fees under
Section 1988, the Supreme Court has explained that a plaintiff prevails “when
actual relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.” Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012)
(per curiam) (citation omitted); see also 42 U.S.C. § 1988. “[A]n injunction or
declaratory judgment, like a damages award, will usually satisfy that test.” Id.
(citation omitted). Further, this court has consistently acknowledged in civil
rights cases “that a prevailing plaintiff ordinarily is to be awarded attorney’s
fees in all but special circumstances.”        Dean, 240 F.3d at 508 (quoting
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                                  No. 16-50164
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978)). “Thus, a
prevailing plaintiff in a civil rights action is presumptively entitled to
reasonable attorney’s fees, unless a showing of ‘special circumstances’ is made
that would deem such an award unjust.” Dean, 240 F.3d at 508 (citation
omitted).
      In his original complaint before the district court, Deutsh requested
attorney’s fees and costs in conjunction with his ADA claims for relief. The
district court issued a permanent injunction and other relief on Deutsh’s ADA
claims, thus resulting in his status as a prevailing party. See Lefemine, 133 S.
Ct. at 11. Nevertheless, in its final judgment, the district court ordered the
parties to bear their own costs and attorney’s fees and made no finding of
special circumstances precluding an award of attorney’s fees to the plaintiff.
Moreover, the district court failed to address Deutsh’s bill of costs and motion
for attorney’s fees that was filed after the final judgment was rendered.
Because Deutsh prevailed in his claims against Becerra, however, he is
presumptively entitled as a prevailing civil rights plaintiff to attorney’s fees
and costs absent “a showing of special circumstances” that “would deem such
an award unjust.” Dean, 240 F.3d at 508. Accordingly, we remand the matter
to the district court for calculation of an award of attorney’s fees and costs. Id.
                                         IV.
      For the aforementioned reasons, the matter is REMANDED to the
district court for the purpose of calculating an award of attorney’s fees and
costs incurred by Plaintiff-Appellant.




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