                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3113
                                    ___________

Doris Williams, as Guardian of          *
Donald Williams,                        *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the Eastern
       v.                               * District of Arkansas.
                                        *
State of Arkansas; Department of Health *     [UNPUBLISHED]
and Human Services; Margo Green,        *
Director; John Does, 1-5,               *
                                        *
                   Appellants.          *
                                  ___________

                              Submitted: April 13, 2000

                                   Filed: April 20, 2000
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.

        Doris Williams is the guardian of her brother Donald, who for most of his adult
life resided in a state health care facility in Arkadelphia, Arkansas. Williams filed a
lawsuit against the State of Arkansas, the Arkansas Department of Health and Human
Services and its director, and various state health care providers (collectively, the
State), alleging the State violated the Americans with Disabilities Act (ADA) by
negligently discharging Donald from the Arkadelphia facility, arranging Donald's
transfer to another facility from which he was ultimately discharged because he could
not function there, and then improperly refusing to readmit Donald to the Arkadelphia
facility. Shortly before trial, Williams and the State filed a joint motion for continuance
in which the State agreed to place Donald "in the first appropriate vacancy at either the
Arkadelphia or Alexander [facilities]," that Williams's action was not frivolous, that the
district court could enforce the joint motion's terms, and that Williams's claims for
injunctive relief were thus moot. The district court awarded Williams attorney's fees
and costs as the prevailing party under 42 U.S.C. § 12205 (1994).

       The State now appeals the district court's conclusion that Williams was a
prevailing party entitled to fees and costs. Because the State's voluntary compliance
with Williams's requested relief rendered Williams's action moot, Williams will be
considered a prevailing party if her lawsuit was "a catalyst for the [State's] voluntary
compliance and the [State's] compliance was not gratuitous." Little Rock Sch. Dist. v.
Pulaski County Special Sch. Dist., 17 F.3d 260, 262 (8th Cir. 1994). We agree with
the district court's conclusion that:

      [Williams's] lawsuit was a 'catalyst' for [Donald's] readmission . . . . After
      a thorough review of the record, it appears that [the State] took few
      significant steps toward re-admitting [Donald] prior to the filing of this
      lawsuit[,] . . . that [the State] only became serious about [Donald's] re-
      admission after the Court 'encouraged' the parties to do so and the trial
      date loomed near[,] . . . [and that] [Donald] was not guaranteed placement
      in an 'appropriate facility' by [the State] until . . . approximately ten (10)
      days before the scheduled trial.

Likewise, because the State conceded in the joint motion for continuance that
Williams's suit was not frivolous, the district court properly concluded Williams's action
was not gratuitous. See Little Rock Sch. Dist., 17 F.3d at 262 (lawsuit is not gratuitous
if action is not frivolous, unreasonable, or groundless). We decline to address the
State's argument raised for the first time on appeal that Williams's lawsuit is gratuitous

                                           -2-
because Williams failed to exhaust available administrative remedies before filing her
action. See Blankenship v. Gunter, 898 F.2d 625, 626 n.2 (8th Cir. 1990).

       We affirm the district court's award of attorney's fees and costs to Williams as
the prevailing party in her ADA action against the State.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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