     Case: 14-40631       Document: 00513117496         Page: 1   Date Filed: 07/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 14-40631                                  FILED
                                  Summary Calendar                            July 16, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
WILLIAM E. CHANCE, JR.,

                                                 Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; BRAD LIVINGSTON, in
his official capacity as Executive Director of the Texas Department of Criminal
Justice; CYNTHIA LOWERY, in her individual capacity; BILL PIERCE, in his
individual capacity; EDGAR BAKER, in his individual capacity; WARDEN
JOHN RUPERT; WARDEN TODD FOXWORTH,

                                                 Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:11-CV-435


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant William E. Chance, Jr., appeals the district court’s
denial of his motion for attorneys fees under 42 U.S.C. § 1988(b), following the
settlement     of   his   complaint      under    the    Religious     Land        Use        and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40631     Document: 00513117496     Page: 2   Date Filed: 07/16/2015


                                  No. 14-40631

Institutionalized Persons Act, 42 U.S.C. § 2000cc. Chance contends that the
district court misinterpreted the settlement agreement and erred in concluding
that he was not the prevailing party and not entitled to attorneys fees under
§ 1988. Even under de novo review, Chance’s claims are unavailing. See Davis
v. Abbott, 781 F.3d 207, 213 (5th Cir. 2015). Particularly in the absence of the
legal term of art “prevailing party” in its fees provision, the plain language and
the parties’ Rule 11 agreement left to the district court the resolution of the
issue of entitlement to attorneys fees. See Davis, 781 F.3d at 213.
      In determining whether a party is the prevailing party, courts use a
tripartite test, traceable to the Supreme Court’s decision in Buckhannon Bd.
& Care Home, Inc. v. W. Virginia Dep’t Of Health & Human Res., 532 U.S. 598
(2001). Davis, 781 F.3d at 214. First, a “plaintiff must achieve judicially-
sanctioned relief”; second, “the relief must materially alter the legal
relationship between the parties”; and, third, “the relief must modify the
defendant’s behavior in a way that directly benefits the plaintiff at the time
the relief is entered.” Davis, 781 F.3d at 214, quoting Petteway v. Henry, 738
F.3d 132, 137 (5th Cir. 2013).
      Chance does not contest the district court’s construction of the parties’
agreement as a private settlement, and he fails to establish that the settlement
was anything other than a voluntary agreement by the defendants to alter
their future conduct regarding particular religious items required for his
practice of a Native American ceremony. See Davis, 781 F.3d at 214. As such,
the settlement lacked the required judicial imprimatur on the change to the
parties’ relationship to constitute Chance as the prevailing party. See Davis,
781 F.3d at 214.
      The judgment of the district court is AFFIRMED.




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