               Case: 12-11819       Date Filed: 07/03/2013      Page: 1 of 31


                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                          _____________________________

                                   No. 12-11819
                          _____________________________

                         D.C. Docket No. 7:03-cv-02989-UWC


LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko
L. Alexander,

                                                                  Plaintiff-Appellee,

                                            versus

ANTONIO BOSTIC,

                                                                  Defendant-Appellant.


                           ____________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                         _____________________________

                                    (July 3, 2013)

Before WILSON and COX, Circuit Judges, and BOWEN,* District Judge.

BOWEN, District Judge:

       *
         Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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       This is the fifth appeal involving the detention and handcuffing of a nine-

year-old student, Laquarius Gray,1 during her physical education class. Now,

Antonio Bostic, a Deputy Sheriff for Tuscaloosa County, Alabama, appeals from

the district court’s grant of attorney’s fees. After careful review and oral

argument, we reverse and remand for the entry of judgment in favor of Defendant

Antonio Bostic.



                                     I. BACKGROUND

A. Factual Background

       At this point in the case, the factual background is undisputed. Gray was a

nine-year old female African-American student at Holt Elementary School in

Tuscaloosa, Alabama, at the time of the incident. Bostic was a Deputy Sheriff for

Tuscaloosa County, in Alabama.

       On March 7, 2003, while attending her physical education class, Gray had a

disagreement with her instructor as to whether she properly completed the

“jumping jack” exercises she was ordered to perform. Gray ex rel. Alexander v.



       1
         Laquarius Gray was a minor when the litigation commenced. Thus, any reference to
Gray is intended to reflect and include the fact that this action was brought on her behalf by and
through her mother and next friend, Toniko L. Alexander.

                                                 2
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Bostic, 458 F.3d 1295, 1300 (11th Cir. 2006) (“Gray II”). Gray’s instructor

ordered her to sit against the wall behind the class. Id. During the course of the

disagreement, Gray made a disrespectful and physically threatening comment to

the instructor. Id. At that time, Bostic was stationed as a school resource officer,

and he was present when Gray made the threatening remarks to her instructor. Id.

at 1301. Despite another female teacher being present and offering to handle the

situation, Bostic immediately intervened and ordered Gray to exit the gymnasium.

Bostic then took Gray into an adjacent lobby area, where he pulled her arms

behind her back and handcuffed her. Id. “Bostic testified that Gray was

handcuffed for less than 60 seconds.”2 (Appellant Br. 5.) Simply put, Bostic

applied the handcuffs to an arguably compliant nine-year-old child for purely

punitive purposes.

B. Procedural Background

       1. Initial District Court Proceedings

       Gray brought suit against Bostic and Tuscaloosa County Sheriff Edmund

Sexton in their official and individual capacities on November 4, 2003. Nine other

defendants were also named in the complaint in both their individual and official



       2
         On appeal, Appellee-Plaintiff Laquarius Gray adopts Appellant-Defendant Antonio
Bostic’s version of the facts. (Appellee Br. viii.)

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capacities: Joyce Harris, the Principal of Holt Elementary School; Joyce Sellers,

the Superintendent of Tuscaloosa County, Alabama; and Frankie Thomas, James

Barnnet, James Junkin, Morris Acker, Don Presley, Dot Smith, and Pam Garner,

all Board Members of the Tuscaloosa County Board of Education. Gray’s initial

complaint against these eleven defendants listed eight counts, including claims:

(1) under 42 U.S.C. § 1983 for violations of Gray’s First, Fourth, Fifth, Eighth,

and Fourteenth Amendment rights (Count 1); (2) under 42 U.S.C. § 1981 (Count

2); and (3) under state law for invasion of privacy, assault and battery, false

imprisonment, defamation, and intentional infliction of emotional distress (Counts

4 through 8). Gray also requested declaratory and injunctive relief (Count 3). As

to each count, Gray sought an unspecified amount of compensatory and punitive

damages; attorney’s fees, expenses, and costs of litigation; and any other equitable

relief to which she may have been entitled.

      Defendants Joyce Harris, Sellers, Thomas, Barnnet, Junkin, Acker, Presley,

Smith, and Garner then filed a motion to dismiss under Federal Rule 12(b)(6).

Approximately one month later, before the district court ruled on the motion, Gray

dismissed her claims against those defendants, thus leaving only Bostic and

Sexton as the remaining two defendants.

      On November 25, 2003, Bostic and Sexton, in their official and individual

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capacities, moved to dismiss Gray's complaint based on absolute, statutory, and

qualified immunity, which the district court granted. On February 12, 2004, Gray

moved to alter, amend, or vacate the judgment, or in the alternative, to amend her

complaint. The district court denied that motion.

      2. Gray I3

      Gray appealed the district court's orders dismissing her claims against

Bostic and Sexton and denying her leave to amend her complaint. On December

27, 2004, in an unpublished, per curiam opinion, this court reversed the judgment

of the district court with respect to the claims against Bostic and Sexton in their

individual capacities and remanded the case for further proceedings. This court

concluded that, as to Bostic, Gray's allegations sufficiently alleged a constitutional

violation that was clearly established on that date. Further, as to Sexton, this court

noted that Gray’s amended complaint remedied any problems with her original

pleading. Thus, her amended complaint sufficiently alleged a constitutional

violation against Sexton. This court instructed that Gray would be able to pursue

her Fourth Amendment handcuffing claims against Bostic and Sexton only in their

individual capacities under her amended complaint.

      On remand, Gray filed an amended complaint asserting claims of excessive


      3
          Gray ex rel. Alexander v. Bostic, 127 F. App’x 472 (11th Cir. 2004) (“Gray I”).

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use of force and unreasonable seizure against Bostic and Sexton individually.

Discovery ensued. Sexton and Bostic then moved for summary judgment on

September 8 and 9, 2005, respectively, on the bases of, inter alia, qualified

immunity. The district court denied their motions for summary judgment on

December 12, 2005.

      3. Gray II4

      Bostic and Sexton appealed that decision on December 19, 2005. This court

(Hull, J.) reversed the district court's order denying Sexton qualified immunity but

upheld the decision as to Bostic. Specifically, as to Bostic, this court held that the

handcuffing was excessively intrusive and was an “obvious violation of Gray’s

Fourth Amendment rights.” Gray II, 458 F.3d at 1306-07. The case was

remanded and was ordered to proceed only against Bostic on Gray’s illegal seizure

claim and for declaratory and injunctive relief. Bostic's petition for rehearing en

banc with this court was denied.

      4. Trial

      The district court conducted a jury trial on January 16, 2007. At the close of

Gray's evidence, based upon Bostic’s proffer, the district court declined to allow

any defense witnesses or exhibits to be offered into evidence. It then granted


      4
          Gray ex rel. Alexander v. Bostic, 458 F.3d 1295 (11th Cir. 2006) (“Gray II”).

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Gray's oral motion for judgment as a matter of law on the issue of liability. The

issue of damages was submitted to the jury, and after brief deliberations,5 one

dollar in nominal damages was awarded to Gray. Judgment was entered on even

date.

        5. Gray III6

        Gray filed two motions for attorney's fees. On February 14, 2007, Bostic

appealed the district court's judgment against him to this court. The district court

denied Gray's two pending motions for attorney’s fees, allowing Gray to re-file

after this court ruled on Bostic's appeal. This court heard oral argument on

February 6, 2008, and in a per curiam opinion, affirmed the decision of the district

court granting judgment as a matter of law against Bostic.




        5
          Forty-five minutes after receiving the case, the jury returned to the courtroom with a
question regarding compensatory damages and whether they have to be proven. After the
response was sent to the jury, deliberations ensued for sixteen minutes. At that time, the jury
asked the court: “What is the allowable amount that can be awarded? Is there a minimum and a
maximum; and if so, what are they?” The district judge answered that “[t]here is, technically, no
minimum and no maximum. But as a practical matter, in terms of the maximum, I would
consider any award of more than $30,000 to be unreasonable.” The judge then explained that if
the jury finds that Gray has not suffered any mental anguish damages, then she is only entitled to
nominal damages ranging from one dollar to one hundred dollars. Deliberations then continued
for a mere four minutes until the jury reached a verdict of one dollar.
        6
            Gray ex rel. Alexander v. Bostic, 264 F. App’x 856 (11th Cir. 2008) (“Gray III”).

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      6. Gray IV7

      Again, Gray filed two motions for attorney’s fees. On July 29, 2008,

without hearing, the district court granted Gray's motions for attorney's fees,

expenses of litigation, and costs in a total amount over $70,000. Bostic appealed

this decision on August 20, 2008. On June 12, 2009, this court (Carnes, J.)

vacated the district court's July 29, 2008, order and remanded the case for further

proceedings.

      On August 2, 2010, this court (Carnes, J.) rescinded its earlier opinion of

June 12, 2009, and supplanted it with a new opinion, which also vacated the

district court's previous award of attorney's fees. This court clarified that the

"issue [was] whether the district court abused its discretion under 42 U.S.C. §

1988 by awarding Gray attorney's fees even though the jury awarded her only

$1.00 in nominal damages for Bostic's violation of her Fourth Amendment right to

be free from illegal seizure." Gray IV, 613 F.3d at 1038. This Gray IV court

noted that the district court, in deciding that an award of fees and expenses was

warranted notwithstanding the nominal amount of damages, had relied on the fact

that the one published opinion to have previously come out of the litigation, Gray

II, had been cited in more than fifty other cases. In measuring the "public purpose


      7
          Gray ex rel. Alexander v. Bostic, 570 F.3d 1321 (11th Cir. 2010) (“Gray IV”).

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served" of the legal issue, see Farrar v. Hobby, 506 U.S. 103 (1992), the district

court had relied on this significant number of citations. In Gray IV, this court held

that the district court had misapplied the law and had overstated the impact of that

decision because the substantive law Gray II established had only been cited twice

by other courts.

      This Gray IV court clarified that Gray II's substantive point of law was

narrow: that a law enforcement officer, acting as a school resource officer, who

handcuffs a compliant nine-year-old child for purely punitive purposes has

unreasonably seized the child in violation of the Fourth Amendment. The district

court had erred by counting decisions that cited Gray II for general principles of

law that were already well established or for holdings on issues and claims upon

which plaintiff had failed to prevail. This court provided direction that if the

district court chose to count citations to Gray II to determine the "public purpose

served," it should only count those that cite Gray II for its Fourth Amendment

holding.

      Further, this court pointed out in Gray IV another troubling aspect of the

district court's order: the district court considered the "fact" that civil rights cases

are unattractive to attorneys in the Northern District of Alabama because those

attorneys have to advance expenses and take the cases on a contingency basis with

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delayed payment. This court reasoned that if those reasons justified an award of

fees and expenses in nominal damages cases in one district, they would justify

such an award in every district. However, the Supreme Court had stated that

usually the only reasonable fee in nominal damage cases is no fee at all. Farrar,

506 U.S. at 115. Thus, the district court's reasoning was the inverse of that

statement, effectively turning Farrar around so that in a nominal damages case

there would usually be a fee award. This court then directed the district court to

apply the Farrar principles in granting a reasonable award of attorney's fees.

      Lastly, this court noted that the district court may have employed its

decision on the expenses and fee issue as an “end-run around the jury's nominal

damages award.” Gray IV, 613 F.3d at 1043. In the district court's order, it

referred to the jury's verdict as "abundantly unsupported by the evidence" and later

noted that the jury’s decision not to award any actual damages was "considerably

unsupported by the evidence." This court acknowledged that it was uncertain that

Farrar permits a judge to factor into his attorney's fees decision his doubts about

the validity of the jury's still-standing nominal damages verdict. This court

declined to explore that issue because it was pretermitted by the decision to vacate

the district court's order on other grounds. Moreover, the presiding district judge

had retired. This court had no reason to believe that the new judge would use

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similar reasoning. This court also denied the suggestion of rehearing en banc.

Gray ex rel. Alexander v. Bostic, 625 F.3d 692 (11th Cir. 2010).

      7. Background of this Appeal (Gray V)

      This court remanded this matter, leaving the district court to decide

“whether the plaintiff is entitled to an award of attorney’s fees and expenses under

42 U.S.C. § 1988 even though she recovered only nominal damages.” Gray IV,

613 F.3d at 1046. The district court ordered the parties to re-brief the attorney's

fee issue in light of this court’s recent guidance. On March 5, 2012, the district

court entered an order granting in part Gray’s motion for attorney's fees, and on

March 30, 2012, the district court entered an order granting attorney’s fees for the

previous appeal. Altogether, the court awarded Gray a total sum of over $39,900.

It is from these orders that Bostic now appeals.



                          II. STANDARD OF REVIEW

      "We review a district court's order awarding attorney fees for an abuse of

discretion," which occurs if the court "fails to apply the proper legal standard or to

follow proper procedures in making the determination, or bases an award upon

findings of fact that are clearly erroneous." ACLU v. Barnes, 168 F.3d 423, 427

(11th Cir. 1999) (internal quotations omitted). An abuse of discretion also occurs

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when a district court commits a clear error of judgment. See United States v.

Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). “The abuse of discretion

standard usually implies a range of choices, instead of only one right choice, and

often we will affirm even though we would have decided the other way if it had

been our choice.” Gray IV, 613 F.3d at 1039. Even though determining a

reasonable attorney's fee is a matter committed to the sound discretion of a trial

judge, the judge's discretion is not unlimited. Id. (internal quotations omitted).



                                  III. DISCUSSION

      A plaintiff who wins nominal damages is a prevailing party under 42 U.S.C.

§ 1988. Farrar, 506 U.S. at 112; see 42 U.S.C. § 1988 (“[T]he court, in its

discretion, may allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs . . . .”). “Although the ‘technical’

nature of a nominal damages award or any other judgment does not affect the

prevailing party inquiry, it does bear on the propriety of fees awarded under §

1988.” Farrar, 506 U.S. at 114.

      “In some circumstances, even a plaintiff who formally ‘prevails’ under §

1988 should receive no attorney’s fees at all. A plaintiff who seeks compensatory

damages but receives no more than nominal damages is often such a prevailing

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party.” Id. at 115. This is because, inter alia, “the awarding of nominal damages

also highlights the plaintiff’s failure to prove actual, compensable injury.” Id.

“When a plaintiff recovers only nominal damages because of his failure to prove

an essential element of his claim for monetary relief, the only reasonable fee is

usually no fee at all.” Id.8

       The majority opinion in Farrar provides one consideration, and little other

guidance, for district courts considering granting attorney’s fees after a nominal

damages award. Justice O’Connor’s concurrence articulates two additional

factors. As discussed in the majority opinion, the most critical factor in

determining the reasonableness of an attorney’s fee award is the degree of success



       8
          The touchstone of the attorney’s fee inquiry is reasonableness. See Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (explaining that a prevailing party status merely brings the
plaintiff across the statutory threshold and that the district court must then determine what fee is
reasonable); see also Trezevant v. Tampa, 741 F.2d 336, 341 (11th Cir. 1984) (“But where the
plaintiff achieved only limited success, the district court should award only that amount of fees
that is reasonable in relation to the results obtained.”). However, in this jumble of litigation
including eleven original defendants, eight separate claims, capacities both official and
individual, five appeals, many depositions, motions, and over one hundred forty docket entries,
we are left with one defendant, one incident of obvious liability, and one dollar in nominal
damages. It is axiomatic that a prevailing party must demonstrate that there is a genuine
relationship or connection between the efforts expended and the result obtained. See Hensley,
461 U.S. at 434-35 (noting that a plaintiff may present various claims for relief based on different
facts or legal theories and that, in such cases, “work on an unsuccessful claim cannot be deemed
to have been expended in pursuit of the ultimate result achieved”) (internal quotations omitted);
Trezevant, 741 F.2d at 341 (“The trial court correctly recognized that the fee award should
exclude the time spent on unsuccessful claims except to the extent that such time overlapped
with related successful claims.”). Here, even the most attentive court would struggle to discern
the nature and extent of the time, talent, and expense which contributed to the one dollar verdict.

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obtained. Id. at 114. “Other factors, including the significance of the legal issue

on which the plaintiff prevailed and the public purpose served, go into

determining whether a plaintiff’s victory is substantial enough to make it one of

those unusual nominal damages cases where the defendant is required to pay the

plaintiff’s attorney’s fees.” Gray IV, 613 F.3d at 1040 (internal quotations

omitted) (emphasis added); see Farrar, 506 U.S. at 121-22 (O’Connor, J.,

concurring). After considering the above mentioned factors in the context of this

litigation, the de minimis nature of Gray’s victory is apparent; her victory is not

substantial enough to justify an award of attorney’s fees. Our opinion discusses

the three Farrar factors seriatim.

A. Degree of Success Obtained

      The most critical factor is the degree of success obtained. Farrar, 506 U.S.

at 114. When considering this factor, we must compare the amount of damages

sought to the amount awarded. See id. (explaining that the district court is

“obligated to give primary consideration to the amount of damages awarded as

compared to the amount sought”) (internal quotation marks omitted). “[A]

substantial difference between the judgment recovered and the recovery sought

suggests that the victory is in fact purely technical.” Id. at 121 (O’ Connor, J.,

concurring). Here, this factor weighs against the award of attorney’s fees.

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      Certain facets of the litigation in our case bear a strong resemblance to

Farrar. In Farrar, the plaintiffs operated a school for delinquent, disabled, and

disturbed teens. The state indicted one of the plaintiffs for murder after a student

died due to an alleged willful failure to administer proper medical treatment and

failure to provide timely hospitalization. After the state shut down the plaintiffs'

school, the plaintiffs filed suit against the state officials responsible for the

closing. In the complaint, the plaintiffs alleged "deprivation of liberty and

property without due process by means of conspiracy and malicious prosecution"

and sought $17 million in damages and injunctive relief under 42 U.S.C. §§ 1983

and 1985. Farrar, 506 U.S. at 106 (majority opinion). The jury concluded that

Defendant Hobby, the then Lieutenant Governor of Texas, had deprived Plaintiff

Joseph Farrar of a "civil right" and awarded him nominal damages. However, the

jury refused to award any other damages for this violation because it found that

Hobby's conduct was not a proximate cause of any injury suffered by Farrar.

      Despite the nominal award, the Supreme Court determined that the plaintiffs

were "prevailing parties" under 42 U.S.C. § 1988, because they nonetheless

succeeded on a significant issue in litigation which achieved some of the benefit

the parties sought in bringing suit. Id. at 109. The Court noted, however, that the

technical nature of nominal damages can affect the propriety of awarding fees

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under § 1988. "Once civil rights litigation materially alters the legal relationship

between the parties, the degree of the plaintiff's overall success goes to the

reasonableness of a fee award . . . ." Id. at 114 (internal quotation marks omitted).

As noted above, the Court held that the "most critical factor" in determining the

reasonableness of a fee award is the “degree of success obtained." Id.

      The Court then described when no fees are appropriate. "[D]amages

awarded in a § 1983 action must always be designed to compensate injuries caused

by the [constitutional] deprivation." Id. at 115 (alteration in original) (internal

quotation marks omitted). “When a plaintiff recovers only nominal damages

because of his failure to prove an essential element of his claim for monetary

relief, the only reasonable fee is usually no fee at all." Id. (citation omitted).

      Applying its legal conclusions, the Farrar Court recognized that the

plaintiffs had sought $17 million in compensatory damages but only received $1 in

nominal damages. The Court described the litigation as having accomplished little

beyond giving the plaintiffs the "moral satisfaction of knowing that a federal court

concluded that [their] rights had been violated in some unspecified way.” Id. at

114 (alteration in original) (internal quotation marks omitted). The plaintiffs’

victory was a technicality and was not the kind of legal change that Congress

sought to promote in the fee statute. Id. at 119 (O'Connor, J., concurring). Thus,

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even though the Fifth Circuit erred in failing to recognize that petitioners were

prevailing parties, the Supreme Court affirmed the Fifth Circuit's reversal of the

district court's fee award. Id. at 116 (majority opinion).

       Like the plaintiffs in Farrar, Gray achieved very limited success in this case;

she asked for a large amount of money and received a nominal award. True, she

did not seek $17 million. But the difference remains substantial between the

$25,000 that she sought and the nominal award she received.9 For the purposes of

measuring the degree of success Gray obtained, the “substantial difference

between the judgment recovered and the recovery sought suggests that the victory

is in fact purely technical,” id. at 121 (O’ Connor, J., concurring). As the district

court concluded, this first factor—the most important of the three—weighs heavily

against Gray.

B. Significance of the Legal Issue

       Even though we conclude that the first and most important factor weighs

against an attorney’s fee award, Justice O’Connor’s concurring opinion in Farrar

reminds us that not all nominal damages awards are de minimis. Id. at 121

(“Nominal relief does not necessarily a nominal victory make.”). This is because

“an award of nominal damages can represent a victory in the sense of vindicating
       9
         The difference is substantial particularly in light of the appearance that the jury did not
consider Gray’s mental anguish damages proven. See supra n.5.

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rights even though no actual damages are proved.” Id. Thus, Farrar allows us to

also consider the significance of the legal issue on which the plaintiff claims to

have prevailed.

      This second Farrar factor “is concerned with the general legal importance of

the issue on which the plaintiff prevailed.” Mercer v. Duke Univ., 401 F.3d 199,

206 (4th Cir. 2005); accord Mahach-Watkins v. Depee, 593 F.3d 1054, 1062 (9th

Cir. 2010) (noting the importance of the legality of state-sanctioned force resulting

in death); Piper v. Oliver, 69 F.3d 875, 877 (8th Cir. 1995) (noting the

significance of the plaintiff’s right to be free from illegal detention); Milton v.

City of Des Moines, 47 F.3d 944, 946 (8th Cir. 1995) (noting that the civil right

the plaintiff sought to vindicate in his excessive force claim was a significant

issue). The district court concluded that this factor weighs in favor of granting

attorney’s fees because Gray changed the law and announced a rule that has

benefitted other students. We disagree and conclude that the second factor, like

the first, weighs against a fee award.

      In the entirety of these proceedings, Gray was able to demonstrate that

Bostic violated the Fourth Amendment and that he was not entitled to qualified

immunity. See Gray II, 458 F.3d at 1306-07. More pointedly, we held that

Bostic’s “conduct in handcuffing Gray, a compliant, nine-year-old girl for the sole

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purpose of punishing her was an obvious violation of Gray’s Fourth Amendment

rights.” Id. at 1307 (emphasis added). As Bostic’s appellate brief correctly

pointed out, it is axiomatic that government actors are not immune from obvious

violations of one’s constitutional rights. This is a long-standing principle of civil

rights law, and nothing in Gray’s litigation deviates from this principle. Simply

put, Gray’s litigation did not “change the law.”

      Nor will Gray’s litigation aid qualified immunity litigation in future cases.

The “obvious clarity” reasoning upon which the Gray II court relied applies to

make certain egregious conduct unconstitutional notwithstanding the lack of

precedential, fact-specific case law. See Lee v. Ferraro, 284 F.3d 1188, 1199

(11th Cir. 2002). The Gray II court concluded that Bostic’s conduct far surpassed

the “hazy border” of action teetering on the edge of unconstitutionality. See Gray

II, 458 F.3d at 1307 (noting that Bostic’s conduct went “well beyond the hazy

border that sometimes separates lawful conduct from unlawful conduct, such that

every objectively reasonable officer would have known that the conduct was

unlawful”) (emphasis added) (internal quotation mark omitted). The district court

reasoned that Gray’s litigation offers a precedential example of such “obvious”

conduct. However, since every objectively reasonable officer would have known




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that Bostic’s conduct violated the Constitution, then the significance of the case as

a precedential example is greatly diminished.

      It is true that Gray prevailed on the issue of whether her civil right was

violated. But her victory did not alter the landscape of civil rights law in the

public schools. Nor could it have. As we concluded, her victory was wholly

determined by the legal landscape Gray now claims it altered. The cases that have

cited to Gray II prove the point. In only three cases is Gray II cited for anything

more than a general legal proposition that could be supported by numerous other

legal authorities. See El-Ghazzawy v. Berthiaume, 636 F.3d 452, 458 (8th Cir.

2011); C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170, 1179–82 (E.D. Cal. 2010);

E.W. v. Wake Cnty. Bd. of Educ., No. 5:09-CV-198-FL, 2010 WL 1286218, at *7

(E.D.N.C. Mar. 30, 2010). Even those cases cannot use Gray II for any

groundbreaking legal point. In El-Ghazzawy, the Eighth Circuit uses Gray II to

support the broad proposition that an officer may violate the Fourth Amendment

by, among other actions, handcuffing someone in the absence of a threat to

anyone’s safety. 636 F.3d at 458. Similarly, E.W. simply cites Gray II as an

example of a Fourth Amendment violation that involved an officer binding a

student. 2010 WL 1286218, at *7. And in C.B., the district court for the Eastern




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District of California only quotes Gray II at length without commenting on it or

applying it in any meaningful way. 691 F. Supp. 2d at 1179–82.

      Gray prevailed, but her victory carries very little legal significance, if any at

all. The second factor therefore weighs against a fee award.

C. Public Purpose Served

      We next address the public purpose served. Gray’s success “might be

considered material if it also accomplished some public goal other than occupying

the time and energy of counsel, court, and client.” Farrar, 506 U.S. at 121-22

(O’Connor, J., concurring). This factor principally relates to whether the victory

vindicates important rights and deters future violations. Cartwright v. Stamper, 7

F.3d 106, 109 (7th Cir. 1993); see Farrar, 506 U.S. at 122 (O’Connor, J.,

concurring).

      Other circuits have had greater opportunity to address the application of this

factor. Some courts appear to analyze it in more generous terms, “concluding that

a public goal is accomplished if the plaintiff’s victory encourages attorneys to

represent civil rights litigants, affirms an important right, puts the defendant on

notice that it needs to improve, and/or provokes a change in the defendant’s

conduct.” Barber, 254 F.3d at 1232; see, e.g., O’Connor v. Huard, 117 F.3d 12, 18

(1st Cir. 1997) (noting that the plaintiff’s victory provided an incentive to

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attorneys to represent civil rights litigants and that it served as a deterrent to future

abuses). On the other hand, other courts appear to read the factor as requiring a

more compelling showing of the public good that is being advanced. Barber, 254

F.3d at 1231 (“Some courts appear to read the [third] factor restrictively.”); see,

e.g., Pino v. Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (noting that “not every

tangential ramification of civil rights litigation ipso facto confers a benefit on

society”).

      We find the reasoning of certain Seventh Circuit opinions to be instructive

and therefore decline the more lenient suggestion of the First Circuit as found in

Huard, 117 F.3d at 18. The Huard Court recognized the importance of providing

an incentive to attorneys to represent civil rights litigants whose claims may not

result in substantial monetary compensation as a factor warranting the grant of

attorney’s fees. Id. Providing an incentive for representing civil rights litigants is

something that every attorney’s fee award accomplishes. Simply stated, such

reasoning would justify an attorney’s fee award in every case. This logic flouts

the Supreme Court’s recommendation that in nominal damages cases “the only

reasonable fee is usually no fee at all.” Farrar, 506 U.S. at 115; see also Gray IV,

613 F.3d at 1042 (noting that the consideration of incentivizing attorneys to take

civil rights cases as a factor for granting an attorney’s fees award would justify an

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award for such fees in every case, thus belying Farrar’s admonition that in nominal

damages cases the only reasonable fee is usually no fee at all). Applying the First

Circuit’s reasoning would thus turn the Supreme Court’s statement around so that

there would usually be a fee award in a nominal damages case. Gray IV, 613 F.3d

at 1042.

      In Cartwright, 7 F.3d 106, the plaintiffs brought a § 1983 action against the

superintendent of the Indiana state police and an officer, alleging, inter alia, that

the defendants violated the plaintiffs’ Fourth Amendment rights by an

unauthorized entry into their apartment. The plaintiffs’ case against the officer

went to trial, where the jury found in favor of the plaintiffs but only awarded them

one dollar in nominal damages on each of their claims. The district court then

awarded attorney’s fees in the amount of $52,875. On appeal, the Seventh Circuit

reversed the award after analyzing the three Farrar factors. As to the public

purpose served, the Seventh Circuit noted that “[t]he more important the right at

stake and the more egregious the violation the more likely it is that the victory

serves a public purpose. An award of punitive damages, therefore, is strong

evidence that the victory served a public purpose.” Id. at 109. Because the district

court granted a directed verdict in favor of the defendant on the claim for punitive

damages, and because the future deterrent effect of the action was limited, the

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court of appeals held that the factor weighed firmly in favor of finding the victory

technical. Id.

      The Seventh Circuit addressed a similar situation in Maul v. Constan, 23

F.3d 143 (7th Cir. 1994). In Maul, an inmate brought a § 1983 action against

prison officials, alleging that the forced administration of psychotropic medication

violated his constitutional rights. The district court awarded the plaintiff $22,500

in compensatory damages and granted the plaintiff $18,542.93 in attorney’s fees,

which were paid to his attorney. The Seventh Circuit reversed and remanded. On

remand, one dollar in nominal damages was awarded to the plaintiff, and the

defendants moved pursuant to Federal Rule of Civil Procedure 60(b)(5) for a

refund of the attorney’s fees previously paid to the plaintiff’s attorney. After

applying the three Farrar factors, the Seventh Circuit held that the district court

abused its discretion by awarding attorney’s fees to the plaintiff. As to the public

purpose served, the Court of Appeals reasoned that

      since all § 1983 claims seek to redress the deprivation of rights,
      privileges[,] and immunities secured by the Constitution and laws,
      this factor is not satisfied merely because the plaintiff establishes, as
      he did here, that his constitutional rights have been infringed.
      Instead, this Court must scrutinize plaintiff's complaint to determine
      whether the allegations made and the relief sought evince a public
      purpose rather than merely attempt to redress a private injury.




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Id. at 146. In examining the plaintiff’s complaint, the Maul court concluded that

“his complaint indicate[d] a more limited objective, redressing his private injury.”

Id. Specifically, the Maul plaintiff “failed to establish anything more than that he

had been denied a protected right: he did not establish that he had suffered actual

injury (hence the award of only nominal damages); he did not obtain an injunction

prohibiting future violations; and he did not establish that the defendants' conduct

was sufficiently reprehensible to warrant punitive damages.” Id. at 146-47.

      At oral argument, Gray’s counsel attempted to couch this case as evincing a

public purpose. However, after applying the reasoning found in the above

mentioned Seventh Circuit cases, it is clear that Gray commenced the litigation to

redress private injury, and it does not serve a public purpose. Like the plaintiff in

Maul, Gray failed to establish anything more than that she had been denied a

protected right. Despite her numerous claims, Gray was unable to establish that

she suffered actual injury. Similar to the plaintiffs in Cartwright, Gray specifically

sought, but failed to obtain, punitive damages for those claims. Even though Gray

did allege and seek a declaration that Sexton instituted or engaged in a custom or

policy of failing to train deputies on the detention of students, her prayer for

injunctive relief failed because there was no evidence of such a policy or custom.

Gray II, 458 F.3d at 1309-10. Instead, an examination of Gray’s relief sought and

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obtained makes clear that the primary purpose of her lawsuit was the recovery of

private damages.10 Thus, the third Farrar factor weighs against an award of

attorney’s fees.

       Moreover, the district court applied an improper legal standard when it

misstated the potential deterrent effect of Gray’s litigation. The district court

reasoned that Gray’s litigation accomplishes a public purpose because Gray II

deters unconstitutional behavior “if attorney’s fees are awarded.” (Doc. no. 135, at

17.) It also stated that “[h]ere, the only way to make Gray’s success meaningful,

and substantively benefit the public, is to provide a deterrent against the illegal

conduct.” (Id. at 19) (emphasis added). In essence, the district court

acknowledged that there is no public purpose of deterrence in this litigation absent

an attorney’s fee award.

       Here, the district court actually used attorney’s fees as the deterrent. The

deterrence of civil rights violations, however, is accomplished by a multitude of

other factors, including: the expense and other burden of protracted litigation, the

possibility of compensatory damages for physical and emotional injuries, and the


       10
           For example, in support of Gray’s claims against Sexton, Gray alleged in her amended
complaint that Sexton and the Tuscaloosa County Sheriff’s Department implemented an
unconstitutionally discriminatory policy against African American individuals. At our oral
argument, it was revealed that Gray declined to pursue those allegations upon learning at trial
that Bostic was also African American.

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threat of punitive damages. By choosing to award attorney’s fees as the deterrent,

the district court ignored this court’s admonition in Gray IV not to make the award

of attorney’s fees an “end-run around the jury’s nominal damages award.” Gray

IV, 613 F.3d 1043. Farrar directs district courts to analyze the magnitude of a

plaintiff’s victory, despite a nominal damages award, to decide whether an award

of attorney’s fees is appropriate. It does not direct the inverse–that a court should

award attorney’s fees in order to enhance the magnitude of a plaintiff’s victory.

The district court’s reasoning and use of an inappropriate legal standard

constitutes an abuse of discretion. See ACLU, 168 F.3d at 427 (noting that a

district court abuses its discretion if it fails to apply the proper legal standard or to

follow proper procedures in making the determination to award attorney’s fees).



                                 IV. CONCLUSION

      Having weighed the Farrar factors, we conclude that Gray achieved a de

minimis victory. The district court abused its discretion by awarding attorney’s

fees to Gray. Accordingly, the district court’s order awarding attorney’s fees is

REVERSED, and the action is REMANDED for the entry of judgment in favor

of Defendant Bostic on Plaintiff Gray’s claim for attorney’s fees.




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WILSON, Circuit Judge, dissenting:

      I find no abuse of discretion on the part of the district judge in awarding

attorney’s fees to Laquarius Gray, the prevailing party in this litigation.

      The majority correctly notes that the Supreme Court’s opinion in Farrar

announced a three-factor calculus for determining attorney’s fees awardable to a

party who prevails under 42 U.S.C. § 1988 despite receiving nominal damages.

See Majority Op. at 13–14. As far as the first factor is concerned—the degree of

success obtained by Gray—I agree with the majority that it weighs in Bostic’s

favor. Gray sought somewhere between $25,000 and $40,000 in damages against

Bostic, and she wound up with $1. Yet while I concede that the first Farrar factor

favors Bostic, an unsuccessful claim for $25,000 cannot possibly sink the scales as

much as an unsuccessful claim for $17 million, the amount sought by the plaintiff

in Farrar. See Farrar v. Hobby, 506 U.S. 103, 106, 113 S. Ct. 566, 570 (1992). A

$24,999 failure is materially different from a $16,999,999 failure, and not all

successes (or failures) are created equal — we should evaluate the degree of

success. So while I agree with the majority that the first Farrar factor favors

Bostic, I cannot say that it “weighs heavily.” Majority Op. at 17.

      The second Farrar factor — the significance of the legal issue — weighs in

favor of Gray in my view. The majority opinion emphasizes that Bostic’s

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handcuffing of Gray was an “obvious violation of Gray’s Fourth Amendment

rights.” Id. at 18 (emphasis in original) (internal quotation marks omitted).

Because it was an “obvious violation,” says the majority opinion, Gray’s litigation

could not possibly be significant, because she did not “change the law.” Id. at

18–19. By this logic, any future decision by this court that denies qualified

immunity to a government actor will be deemed insignificant, because every denial

of qualified immunity stems from “obvious” constitutional violations. See Gray

ex rel. Alexander v. Bostic (Gray II), 458 F.3d 1295, 1307 (11th Cir. 2006). In my

view, Gray’s achievement in defeating Bostic’s qualified immunity in the district

court was quite significant: in November 2003, Bostic successfully moved the

district court to dismiss Gray’s complaint on qualified immunity grounds; Gray

appealed that decision, won, and on remand defeated Bostic’s motion for summary

judgment on qualified immunity grounds; again Bostic appealed, and again Gray

successfully persuaded this court that Bostic should not receive qualified

immunity. See Majority Op. at 4–6. Yet despite all of this, and even though a

federal judge originally granted Bostic qualified immunity, the majority concludes

that Gray’s victory was a foregone, “obvious” conclusion. Again, I cannot agree.

Gray’s victory was protracted, hard fought, and hardly “obvious.” I would hold

that the second factor weighs in her favor.

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      Finally, I turn to the third Farrar factor, whether Gray’s litigation

“accomplished some public goal other than occupying the time and energy of

counsel, court, and client.” Farrar, 506 U.S. at 121–22, 113 S. Ct. at 578

(O’Connor, J., concurring). I disagree with the majority’s conclusion that

incentivizing the vindication of civil rights through attorney’s fees should not bear

on this final factor. If that were the case, the majority warns, “such reasoning

would justify an attorney’s fee award in every case.” Majority Op. at 22. Justice

O’Connor’s concurrence seemed to implicitly accept the private attorney general

theory: “The District Court speculated that the judgment, if accompanied by a

large fee award, might deter future lawless conduct, but did not identify the kind

of lawless conduct that might be prevented.” Id. at 122, 113 S. Ct. 578–79

(O’Connor, J., concurring) (citation omitted). Justice O’Connor rejected that

approach in Farrar, not because incentivizing civil rights attorneys was improper,

but because the district court was unclear as to “the kind of lawless conduct that

might be prevented.” Id. at 122, 113 S. Ct. at 579 (O’Connor, J., concurring).

Here, by contrast, the future conduct that will be prevented because of Gray’s

efforts is entirely clear: grade-schoolchildren may not be handcuffed by

government actors simply because they act disrespectfully towards a teacher. I

would hold that the third factor favors Gray.

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      Twice, a district court has awarded Gray attorney’s fees. And twice, this

court has struck down that award. A district court’s discretion in determining an

award of attorney’s fees to a prevailing party is necessarily broad, because “the

[district court judge] ‘has far better means of knowing what is just and reasonable

than an appellate court can have.’” Copeland v. Marshall, 641 F.2d 880, 901

(D.C. Cir. 1980) (en banc) (quoting Trustees v. Greenough, 105 U.S. 527, 537,

(1882)). Especially where the district court is “intimately familiar with the barrage

of pleadings, memoranda, and documents filed,” it is preferable to have that

decision made “by the court which has been most intimately connected with [the]

case.” Id. (internal quotation marks omitted).

      I would conclude that although the first Farrar factor weighs in favor of

Bostic, the district court did not abuse its discretion in concluding that the second

and third factors weigh in favor of Gray. I dissent.




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