                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              August 27, 2004
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 03-10887


          consolidated with No. 04-10140 & No. 04-10295

     CELESTINA DELEON

                                Plaintiff - Appellant

     v.

     CITY OF HALTOM CITY; ET AL

                                Defendants

     JACK BYNO, Individually and in his Official Capacity

                                Defendant - Appellee



          Appeals from the United States District Court
                for the Northern District of Texas
                        No. 4:02-CV-1045-A


Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

     Celestina DeLeon sued former municipal judge Jack Byno under

42 U.S.C. § 1983 for incarcerating her for misdemeanor violations

without first conducting an indigency hearing, informing her of



     *
          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that this opinion should not be published and is not precedent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.

                                  1
her right to counsel, or appointing counsel for her.    After

concluding that Byno was protected from liability by absolute

judicial immunity, the district court dismissed the suit.    Byno

moved for attorneys’ fees under 42 U.S.C. § 1988, which the

district court granted upon determining that DeLeon’s suit

against Byno was frivolous.   DeLeon appeals the district court’s

attorneys’ fees award in No. 03-10887.   After DeLeon appealed

from the attorneys’ fees award, she filed a motion under Federal

Rule of Civil Procedure 60(b), requesting that the district court

reconsider the award.   The district court denied DeLeon’s motion

and DeLeon appeals that decision in No. 04-10140.    On Byno’s

motion, the district court awarded attorneys’ fees in connection

with DeLeon’s Rule 60(b) motion; DeLeon appeals this second

attorneys’ fees award in No. 04-10295.   Because the three appeals

present similar issues, we have consolidated them.

                         I.   No. 03-10887

     DeLeon contends that the district court abused its

discretion by awarding attorneys’ fees to Byno in connection with

her § 1983 suit because (1) her suit was not frivolous, (2) the

award is contrary to the purpose of § 1988, and (3) she is unable

to pay the award.

     Under § 1988, a district court has discretion to award

reasonable attorneys’ fees to the prevailing party in a suit

brought under § 1983.   Before the district court, Byno



                                 2
successfully invoked absolute judicial immunity to obtain

dismissal of DeLeon’s suit; he is therefore the prevailing party

for purposes of § 1988.    See 2 SHELDON H. NAHMOD, CIVIL RIGHTS   AND

CIVIL LIBERTIES LITIGATION § 10:4 (4th ed. 2003) (“[A] defendant who

successfully asserts an immunity or affirmative defense in an

action for damages is the prevailing party under § 1988.”).

     Still, attorneys’ fees are not automatically awarded to a

prevailing defendant; an award is proper only upon a finding that

the plaintiff’s suit is “frivolous, unreasonable, or groundless.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).

Here, Byno’s judicial immunity was clear on the facts alleged by

DeLeon.   See Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir.

1985); Sparks v. Duval County Ranch Co., 604 F.2d 976, 979-80

(5th Cir. 1979) (en banc), aff’d sub nom. Dennis v. Sparks, 449

U.S. 24 (1980).   Furthermore, in light of our prior cases,

DeLeon’s arguments fail to set forth a reasonable basis for an

extension or modification of immunity law.      See Holloway, 765

F.2d at 522-23.   Because Byno was unequivocally protected from

liability by absolute judicial immunity, the district court did

not clearly err in finding that DeLeon’s suit against Byno was

frivolous.    See Franceschi v. Schwartz, 57 F.3d 828, 832 (9th

Cir. 1995).

     Moreover, an award of attorneys’ fees does not defeat the

purpose of § 1988.   DeLeon’s suit against Byno could not have

effected the beneficial changes in Haltom City that she claims it

                                   3
did because most of the relevant changes (including Byno’s

resignation) occurred before she named Byno as a defendant.     In

any event, the purpose of § 1988 is not only to encourage

potentially meritorious civil-rights suits, but also to

discourage frivolous suits.   See Jones v. Texas Tech Univ., 656

F.2d 1137, 1144 (5th Cir. 1981).       Consequently, awarding

attorneys’ fees in this case was consistent with the purposes of

§ 1988.

     We also conclude that the district court properly refused to

consider DeLeon’s indigency in deciding whether to award

attorneys’ fees, in light of our holding in Alizadeh v. Safeway

Stores, Inc., 910 F.2d 234, 238 (5th Cir. 1990), that a

plaintiff’s ability to pay should not be considered by the

district judge when deciding whether to award attorneys’ fees.1

     In the alternative, DeLeon claims that the district court

abused its discretion by including in the award fees incurred by

Byno’s counsel for attending depositions in related cases.

Although DeLeon argues that these depositions had “little or

     1
           The Alizedah court did note that a party’s indigency
should be taken into account when setting the amount of
attorneys’ fees. But “the party against whom the attorneys’ fees
are to be assessed will bear the burden of going forward and of
persuasion” and the party should “support[ its] request with
adequately detailed and comprehensive affidavits or similar
‘evidence.’” Alizedeh, 910 F.2d at 239 n.7. According to the
district court, DeLeon failed to submit an affidavit or
declaration in support of her indigency allegations. Therefore,
DeLeon did not meet her burden of showing that the attorneys’
fees award should be reduced on account of her financial
condition.

                                   4
nothing to do with the claims against Byno,” she also admits that

these related lawsuits “implicated Byno.”     DeLeon Br. at 7, 9.

Importantly, the parties had agreed that these depositions could

be used in any of the related cases.   Based on this fact, the

district court reasonably determined that attendance at these

depositions was necessary in order for Byno’s counsel to fully

represent him.   Including these fees in the award, therefore, was

not an abuse of discretion.

     Consequently, we hold that the district court did not abuse

its discretion in awarding attorneys’ fees to Byno.2

                         II.   No. 04-10140

     DeLeon’s next appeal concerns the district court’s denial of

her Rule 60(b) motion to reconsider the attorneys’ fees award.

She contends that the district court abused its discretion by

denying her motion because the motion met the standards under

Rule 60(b)(2), and, in any case, the district court’s order

failed either to lay out the applicable legal standard or to

address her arguments.   Furthermore, DeLeon asserts that the

district court’s award of fees is unjust in light of her new

evidence of Byno’s culpability.

     A district court’s failure to detail its reasons for denying

a Rule 60(b) motion to reconsider is not per se an abuse of

     2
          DeLeon raises numerous additional arguments for the
first time in her reply brief. We decline to consider these
untimely arguments. See Baris v. Sulpicio Lines, Inc., 932 F.2d
1540, 1546 n.9 (5th Cir. 1991).

                                  5
discretion, and remand is not necessary if the plaintiff has not

presented a colorable claim for relief.     See Provident Life &

Accident Ins. Co. v. Goel, 274 F.3d 984, 998-99 (5th Cir. 2001).

Although it is true that the district court’s opinion here

provided little analysis, we will not remand because DeLeon has

not presented a colorable claim for relief.     DeLeon has not shown

how the new evidence she presented is material or controlling, or

how it would have produced a different result (two of the

requirements for a Rule 60(b)(2) motion), inasmuch as it has no

bearing on whether Byno is protected by judicial immunity.     Cf.

Stump v. Sparkman, 435 U.S. 349, 356 (1978) (holding that a judge

is protected by judicial immunity for his judicial acts even when

the judge acts maliciously).

     Even if DeLeon’s new evidence did establish that Byno

violated defendants’ civil rights, we still would not agree that

an award of attorneys’ fees against DeLeon was unjust or

inconsistent with the purpose of § 1988.3    Quite simply, DeLeon’s


     3
          Contrary to DeLeon’s assertions, the evidence she
presented in her Rule 60(b) motion does not show that Byno
committed civil-rights violations. Byno did not admit to the
charges against him when he entered into the Voluntary Agreement
To Resign From Judicial Office In Lieu of Disciplinary Action.
The agreement reads: “Judge Byno, by his execution of this
voluntary agreement, does not admit guilt, fault or liability to
the allegations contained in the complaint set forth above.”
Furthermore, the agreement specifically provided that “no
Findings of Fact or Conclusions of Law have been made.”
     In any case, Byno never claimed that he had done no wrong;
his defense is that, whether he violated DeLeon’s rights or not,
he is protected from liability by absolute judicial immunity.

                                6
suit against Byno was frivolous, since Byno was undeniably

protected from liability by judicial immunity.        See Franceschi,

57 F.3d at 832.   Moreover, as explained above, Byno resigned

before DeLeon named him as a defendant, so DeLeon’s suit against

Byno was not only frivolous, it was unnecessary to cause Byno’s

resignation.   An award of attorneys’ fees in this case is

therefore consistent § 1988’s purpose of deterring frivolous

litigation.    Consequently, the district court did not abuse its

discretion by denying DeLeon’s motion to reconsider.

                         III.     No. 04-10295

     According to DeLeon, the district court erred by awarding

attorneys’ fees to Byno a second time because attorneys’ fees

under § 1988 are not available for Rule 60(b) motions.

Additionally, she claims that the district court abused its

discretion by awarding attorneys’ fees because her motion was not

frivolous and an award of fees is unjust.        In the alternative,

DeLeon contends that the district court abused its discretion by

awarding Byno his full fees request.

     DeLeon’s argument that § 1988 is inapplicable to her Rule

60(b) motion is meritless.      Her motion was part of her § 1983

suit against Byno.   Since Byno prevailed on the motion, the

district court had discretion to award Byno his attorneys’ fees.

See 42 U.S.C. § 1988(b) (authorizing the district court to award

attorneys’ fees to the prevailing party “[i]n any action or



                                    7
proceeding to enforce a provision of [section 1983] of this

title”).

     DeLeon argues that, even if § 1988 does apply, her motion

was not frivolous (and, consequently, attorneys’ fees were

inappropriate) because the motion merely requested that the

district court consider the purpose of § 1988 in determining

whether an attorneys’ fees award was justified.    Because the

evidence DeLeon presented in her Rule 60(b) motion was irrelevant

to whether her underlying § 1983 suit was frivolous, the district

court did not clearly err in concluding that her Rule 60(b)

motion was likewise frivolous.    Since DeLeon’s motion was

correctly determined to be frivolous, the award does not offend

the purpose of § 1988.

     DeLeon also challenges the amount of attorneys’ fees

awarded, arguing that Byno’s counsel billed an excessive number

of hours.    We see no clear error in the district court’s finding

that 8.5 hours was a reasonable and necessary amount of time for

Byno’s counsel to spend defending against DeLeon’s Rule 60(b)

motion.    Consequently, the amount of attorneys’ fees awarded was

not an abuse of discretion.

                          IV.    CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

award of attorneys’ fees to Byno in appeal No. 03-10887, AFFIRM

the district court’s denial of DeLeon’s motion to reconsider in



                                  8
appeal No. 04-10140, and AFFIRM the district court’s award of

attorneys’ fees in connection with DeLeon’s motion to reconsider

in No. 04-10295.




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