14-4611-cv
Garcia v. Hebert

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17th day of November, two thousand and fifteen.

Present:
                   PIERRE N. LEVAL,
                   PETER W. HALL,
                   GERARD E. LYNCH,

                        Circuit Judges.
____________________________________________________

FORTUNATO GARCIA,1

                          Plaintiff–Appellant,

                   v.                                                                     No. 14-4611-cv

ROBERT HEBERT, I/O, LISA KILLIANY, I/O, MAGDALENA
CAMPOS, I/O, ANDREW WITTSTEIN, I/O, JANE SERAFINI, in her
individual and official capacity, and JOHN GUERRERA, in his
individual and official capacity,

                  Defendants–Appellees.
____________________________________________________

For Appellant:                     GABRIEL NORTH SEYMOUR, Gabriel North Seymour P.C., Falls
                                   Village, Connecticut; and Whitney North Seymour, Jr. (on the
                                   brief), Law Office of Whitney North Seymour, Jr., New York, NY.


1
        The Clerk of Court is respectfully requested to amend the official caption as set forth above.

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For Appellee Killiany
(in her individual capacity): EDWARD R. GIACCI, Edward R. Giacci, P.C., Shelton, CT.

For Appellees Campos,
Killiany (in her official
capacity), Serafini, and
Wittstein:                         THOMAS J. DAVIS, JR., Assistant Attorney General, Hartford,
                                   Connecticut, for George Jepsen, Attorney General of the State of
                                   Connecticut.

For Appellees Hebert
and Guerrera:           NICOLE D. DORMAN, Law Office of Nicole D. Dorman, LLC,
                        Glastonbury, Connecticut.
____________________________________________________

        Appeal from a judgment of the United States District Court for the District of

Connecticut (Martinez, Mag. J.).2

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        This case comes before us following the magistrate judge’s denial of Plaintiff-Appellant

Fortunato Garcia’s motion for attorney’s fees pursuant to 42 U.S.C. § 1988. We assume the

parties’ familiarity with the underlying facts and the procedural history of the case. On appeal,

Garcia argues that he is entitled to attorney’s fees as the “prevailing party” because, although he

received no judicially sanctioned relief, his 42 U.S.C. § 1983 action resulted in “important

statewide civil rights reform” in Connecticut.

        We review the denial of section 1988 fee awards for abuse of discretion. Raishevich v.

Foster, 247 F.3d 337, 343 (2d Cir. 2001). “Where, as here, an appellant contends that the district

court committed an error of law in ruling on an award of attorney’s fees, we review that ruling de




2
         The parties in this case consented to the authority of United States Magistrate Judge Donna F. Martinez for
much of the proceedings below, including the section 1988 ruling, pursuant to 28 U.S.C. § 636(c) and Rule 73 of the
Federal Rules of Civil Procedure.

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novo.” Roberson v. Giuliani, 346 F.3d 75, 78 (2d Cir. 2003) (citing Baker v. Health Mgmt. Sys.,

Inc., 264 F.3d 144, 149 (2d Cir. 2001)).

       A “prevailing party” in a section 1983 action may receive “reasonable attorney’s fees.”

42 U.S.C. § 1988(b). A “prevailing party” is “one who has favorably effected a ‘material

alteration of the legal relationship of the parties’ by court order.” Garcia v. Yonkers Sch. Dist.,

561 F.3d 97, 102 (2d Cir. 2009) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Health & Human Res., 532 U.S. 598, 604 (2001)); see also Tex. State Teachers Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (“[R]espect for ordinary language requires that a

plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.”);

Hewitt v. Helms, 482 U.S. 755, 760 (1987) (holding that where a plaintiff received no damages

award, injunction or declaratory judgment, or formal judgment in plaintiff’s favor, but the

defendant unilaterally altered the policies of which he complained, the plaintiff could not be said

to be a prevailing party).

       Garcia’s first amended complaint alleged, inter alia, that: he was not arraigned at the

Connecticut Superior Court in Bantam, CT; a not guilty plea was entered on his behalf without

his presence or the presence of counsel; and court records falsely indicated that he had personally

appeared, had entered a guilty plea, and was instructed to appear at a subsequent hearing. A

prior panel of this Court affirmed the magistrate judge’s dismissal of Garcia’s first amended

complaint on prosecutorial immunity grounds. Garcia v. Hebert, 352 F.App'x 602, 603 (2d Cir.

2009). The Court’s summary order, however, noted that Garcia’s allegations of prosecutorial

misconduct were “disturb[ing]” and “order[ed] the Attorney General of the State of Connecticut

. . . to provide this Court with a detailed report discussing what steps have been taken to address

the practice of the State’s Attorney at the Connecticut Superior Court in Bantam, CT, and what



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steps are being taken to ensure that they will not continue in the future.” The Connecticut

Attorney General’s Office responded “that the previous practice in Bantam of entering not guilty

pleas in some instances without the presence of the defendant ceased at least eighteen months

ago, and that the cessation of the practice was not related to this or any other litigation.”

         Garcia’s argument that he is a prevailing party because his lawsuit caused the

Connecticut Superior Court in Bantam to cease its practice of entering guilty pleas without the

presence of the defendant essentially asks us to adopt the “catalyst theory” whereby a party

“prevails” if its intended result is achieved. See Hewitt, 482 U.S. at 763. We need not resolve

the potential factual discrepancies between the timing of Garcia’s case in the district court and

the discontinuance of the offending practice in the Bantam Court because the Supreme Court has

expressly rejected the notion embodied in the catalyst theory. See Buckhannon, 532 U.S. at 605

(rejecting “the ‘catalyst theory’” because it “allows an award where there is no judicially

sanctioned change in the relationship of the parties [and] . . . [t]his is not the type of legal merit

that our prior decisions, based upon plain language and congressional intent, have found

necessary”); accord Roberson, 346 F.3d at 79 (noting that “after Buckhannon, a plaintiff must

not only achieve some ‘material alteration of the legal relationship of the parties,’ but that change

must also be judicially sanctioned”). For this reason, Garcia is not entitled to a section 1988 fee

award.

         We have considered all of Garcia’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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