                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-6564


In Re:    DNA EX POST FACTO ISSUES

-------------------------

ANTHONY EUBANKS,

                 Plaintiff - Appellee,

            v.

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; WILLIAM D. CATOE,
Individually and in his official capacity as Director, South
Carolina Department of Corrections; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,

                 Defendants - Appellants.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.      R. Bryan Harwell, District
Judge. (2:99-cv-05555-RBH)


Argued:    December 6, 2011                 Decided:   February 15, 2012


Before TRAXLER,    Chief   Judge,    and   DUNCAN   and   AGEE,   Circuit
Judges.


Reversed by unpublished opinion. Judge Agee wrote the opinion,
in which Chief Judge Traxler and Judge Duncan joined.


Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia,              South
Carolina, for Appellants.       Justin Kahn, KAHN LAW              FIRM,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
AGEE, Circuit Judge:

       The South Carolina Department of Corrections (“the State”)

appeals the district court’s award of attorneys’ fees and costs

to Anthony Eubanks.         For the reasons set forth below, we reverse

the    judgment      of    the    district            court    because    it    erred   in

concluding Eubanks qualified as a “prevailing party” under 42

U.S.C. § 1988.



                                             I.

       In 1999, Eubanks, a South Carolina inmate, brought suit

under 42 U.S.C. § 1983 challenging three requirements of the

State Deoxyribonucleic Acid Identification Record Database Act,

S.C.   Code   Ann.     § 23-3-600       et    seq.      (“the    Act”):   that    certain

prisoners     submit      their   DNA    to       a    state    database;      that   those

prisoners pay a $250 processing fee; and that release or parole

from prison was conditioned upon payment of the fee by those

prisoners required to pay it. 1                   At the time he brought suit,

Eubanks had already paid the $250 processing fee.                           The district


       1
       A total of ninety-one South Carolina inmates filed suits
challenging the Act similar to the proceeding filed by Eubanks.
The magistrate judge consolidated the cases, but appointed
counsel for Eubanks alone.    No class was ever certified, and
Eubanks was the sole appellant to this Court when we decided the
prior appeal In re DNA Ex Post Facto Issues, 561 F.3d 294
(4th Cir. 2009), upon which his § 1988 claim for attorneys’ fees
and costs is based.



                                             3
court granted summary judgment in favor of the State, finding

that the DNA collection and fee provisions of the Act were not

punitive and therefore did not violate the Ex Post Facto Clause

of   the   U.S.    Constitution.        In   addition,    the   district   court

construed    the   statute   not   to    require   deferral     of    release   or

parole of prisoners required to pay the fee who had not done so.

      On appeal, we affirmed the judgment of the district court

with respect to its holding that the collection of DNA and the

fee payment provisions were not punitive, and did not violate

the Ex Post Facto Clause.          In re DNA Ex Post Facto Issues, 561

F.3d 294, 299-300 (4th Cir. 2009).              We reversed, however, the

court’s judgment with respect to its construction of the Act as

to the effect of nonpayment of the fee on a prisoner’s release

or parole.    We reasoned that the language of the Act

      unambiguously prohibits the parole or release of a
      prisoner required to pay the fee until the fee is
      paid.   Since the statute is reasonably susceptible to
      only this reading, the doctrine of constitutional
      avoidance does not apply, and we need not defer to any
      contrary agency construction.       And, because the
      requirement that an inmate not be paroled or released
      until he has paid his $250 fee, that requirement is
      unenforceable against [Eubanks] [sic].

Id. at 301 (citation omitted).

      On   remand,    Eubanks   sought       attorneys’    fees      pursuant   to

section 1988.        With limited analysis, the district court held

that Eubanks “can point to a resolution of the dispute that

altered the legal relationship of the parties” in this Court’s

                                         4
ruling    on   the    release      issue.          J.A.   250.     Accordingly,        the

district court determined that Eubanks was a “prevailing party”

and awarded him $14,865.82 in fees and costs.

      The State took a timely appeal from that judgment, and we

have jurisdiction pursuant to 28 U.S.C. § 1291.



                                             II.

                                             A.

        The State’s sole contention on appeal is that the district

court erred in determining that Eubanks is a prevailing party

for   purposes       of    section    1988. 2        Normally,     our   review       of   a

district court’s award of attorneys’ fees under section 1988 is

for abuse of discretion.             Randall v. Prince George’s Cnty., Md.,

302 F.3d 188, 202 (4th Cir. 2002) (citation omitted).                           However,

whether a litigant qualifies as a “prevailing party” for the

purposes of that statute is a legal question that we review de

novo.      Smyth      ex    rel.     Smyth    v.    Rivero,      282   F.3d   268,     274

(4th Cir. 2002).

                                             B.

        Pursuant to section 1988, “[i]n any action or proceeding to

enforce    [certain        civil     rights       statutes],     the   court,    in    its

      2
        The State does not challenge the district court’s
calculation of attorneys’ fees and costs awarded to Eubanks.
Rather, it argues that Eubanks was not entitled to any award.



                                              5
discretion,    may   allow     the   prevailing        party,   other    than       the

United   States,     a    reasonable    attorney’s       fee    as   part     of    the

costs[.]”      The       Supreme   Court       has   supplied   a    comprehensive

definition of “prevailing party” for section 1988 purposes.

      [A] civil rights plaintiff must obtain at least some
      relief on the merits of his claim. The plaintiff must
      obtain an enforceable judgment against the defendant
      from whom fees are sought, or comparable relief
      through a consent decree or settlement.        Whatever
      relief the plaintiff secures must directly benefit him
      at the time of the judgment or settlement. Otherwise
      the judgment or settlement cannot be said to affect
      the behavior of the defendant toward the plaintiff.
      Only under these circumstances can civil rights
      litigation effect the material alteration of the legal
      relationship of the parties and thereby transform the
      plaintiff into a prevailing party.        In short, 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.

Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (internal citations

and quotation marks omitted) (emphasis added).

      Applying the Supreme Court’s clear directions to this case,

we have little difficulty concluding that Eubanks secured no

relief that directly benefitted him from our decision in In re

DNA Ex Post Facto Issues.          There, we concluded that the $250 fee

and   the     DNA    collection        requirement        of    the     Act        were

constitutional.      Eubanks obviously did not gain relief from that

aspect of our holding, and he does not claim that he did.                           The

only aspect of our decision that Eubanks has asserted granted


                                           6
him relief was our conclusion that “the statutory requirement

that the $250 fee must be paid before a prisoner is paroled or

released from confinement is unenforceable against [Eubanks].”

561 F.3d at 302.

      At the time of our prior decision, however, Eubanks had

already paid the $250 fee.                 He did not seek return of the fee,

and   we    did    not   order     the    fee       remitted         to    Eubanks.           To   the

contrary, we ruled that the fee was lawfully assessed.                                        Because

he paid the fee, the State could not have withheld an otherwise

scheduled parole or release in any event, even if we had not

ruled that such a condition of release was unconstitutional.

Thus,      Eubanks’      legal     relationship               with    the       State        remained

unchanged.

      We agree with the State that this case is controlled by

Rhodes     v.     Stewart,    488    U.S.       1    (1988).              In    that      case,    two

prisoners who challenged prison policies received a declaratory

judgment, finding that the prison policies violated their civil

rights.         Rhodes,      488    U.S.    at       2.         The       ruling       was    merely

declaratory in nature because, by the time of the judgment, one

of the plaintiffs had died and the other had been released from

confinement.         Id. at 4.           The Supreme Court reasoned that the

plaintiffs        received    no    relief          as    a    result          of   the      judgment

purportedly in their favor because “[a] modification of prison



                                                7
policies   .    .   .   could    not    in       any   way    have    benefited   either

plaintiff[.]”       Id.

     Similarly, our decision in In re DNA Ex Post Facto Issues

did not “directly benefit [Eubanks] at the time of the judgment

or settlement.”         Farrar, 506 U.S. at 111.                Eubanks can point to

no   benefit,       direct      or   otherwise,          that    is     sufficient    to

constitute relief for the purpose of attaining prevailing party

status.    Nor can he point to any “material alteration of the

legal relationship of the parties.”                    Id.    Eubanks is simply not

a “prevailing party” 3 within the meaning of section 1988.

     On appeal, Eubanks argues for the first time that there is

“nothing that supports the contention [that] Mr. Eubanks paid

the processing fee long before this Court’s ruling.”                              Br. of

Appellee at 16.           This about-face on appeal flatly contradicts

representations he made to the district court in filings during

his initial challenge to the statute.                         In his Second Amended

Complaint,     Eubanks     stated      that      he    “had   his     prison   financial


     3
       Eubanks claims that this case is distinct from Rhodes
because other inmate plaintiffs in the original litigation were
affected by this Court’s judgment in In re DNA Ex Post Facto
Issues. At bottom his claim is highly speculative, and Eubanks
does not offer any evidence of any inmate who did not pay the
fee (and thus would have benefitted from our ruling). Moreover,
the mere potential that other inmates benefitted from our ruling
has no effect on whether Eubanks himself secured relief that
“directly benefitted him at the time of the judgment or
settlement.” Farrar, 506 U.S. at 111.



                                             8
account debited by [the State] pursuant to [the Act].”                                J.A. 19.

In his motion for summary judgment, Eubanks again stated that

the State “took money from [his] prison account.”                             J.A. 45.        And

most importantly, in our prior opinion, we found that “[i]n 1999

[the State] began the process of obtaining the inmate samples

and collecting the fees from their prison trust funds.                                Pursuant

to this process, Eubanks was required to provide a sample and

[the    State]      deducted       the   full       processing      fee   from      his     trust

account.”          In re DNA Ex Post Facto Issues,                        561 F.3d at 298

(emphasis added).

       It is clear that Eubanks may not now seek to relitigate the

issue of whether he had paid the processing fee.                                   “Under the

‘law       of     the     case’    doctrine,         the     ‘findings        of     fact    and

conclusions of law by an appellate court are generally binding

in all subsequent proceedings in the same case in the trial

court or on a later appeal.”                  Heathcoat v. Potts, 905 F.2d 367,

370 (11th Cir. 1990) (citation omitted). 4                          Eubanks has not come

forth      with    any    new     evidence,     other       than    his   own      unsupported

assertion,         that    would    require     us     to    revisit      a   fact    that     he

actually pled in his initial complaint.                            That Eubanks paid the


       4
       Although the law of the case doctrine is not without
exception, see United States v. Aramony, 166 F.3d 655, 661
(4th Cir. 1999), none of the exceptions apply in this case to
prevent application of the facts of our prior ruling.



                                                9
processing fee is law of the case, and Eubanks may not now seek

to disturb that fact at this late date.

     In short, Eubanks gained nothing from our opinion in In re

DNA Ex Post Facto Issues.        Our ruling did not “alter[] the legal

relationship between [the State and Eubanks] by modifying the

defendant’s   behavior    in   a   way    that   directly     benefitted       the

plaintiff.”     Farrar,    506     U.S.    at    111-12.      He   is    not     a

“prevailing   party”   entitled    to     attorneys’   fees    under     section

1988, and the district court erred in finding otherwise.



                                    III.

     For the foregoing reasons, the judgment of the district

court is reversed.

                                                                        REVERSED




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