                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 97-3320
                                    ___________


John Wray, Timothy Dickenson,             *
                                          *
           Plaintiffs/Appellants,         *
                                          *
Clarence Boppre,                          *
                                          *
           Plaintiff,                     *    Appeal from the United States
                                          *    District Court for the
James Martinez,                           *    District of Nebraska.
                                          *
           Plaintiff/Appellant,           *
                                          *
     v.                                   *
                                          *
Harold W. Clarke,                         *
                                          *
           Defendant/Appellee,            *
                                          *
Frank X. Hopkins,                         *
                                          *
           Defendant.                     *

                                    ___________

                          Submitted: February 13, 1998

                                  Filed: August 4, 1998
                                    ___________
Before McMILLIAN and WOLLMAN, Circuit Judges, and BOGUE,1 District Judge.
                          ___________

WOLLMAN, Circuit Judge.

      This is an appeal from the district court’s2 denial of a request for attorney fees
pursuant to 42 U.S.C. § 1988. We affirm.

                                            I.

       Alleging numerous unconstitutional conditions of confinement at the Nebraska
State Penitentiary, seven inmates commenced a pro se civil rights action under 42 U.S.C.
§ 1983 against Harold W. Clarke, Director of the Nebraska Department of Correctional
Services.3

       As the case proceeded and after the appointment of counsel for the inmates, the
parties began to discuss the possibility of settlement. A settlement conference was
scheduled to be held before a magistrate judge in July of 1996. In anticipation of this
conference, the parties exchanged several letters and proposals in an attempt to reach a
mutually agreeable resolution. No mention of attorney fees was made during the course
of this correspondence. Just prior to the commencement of the settlement conference,
counsel for the inmates made a remark regarding the prospect of seeking attorney fees,
which counsel for Clarke interpreted as having been made in jest and to which she
responded in either a sarcastic or flippant manner. The parties reached a




      1
       The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota, sitting by designation.
      2
       The Honorable David L. Piester, United States Magistrate Judge for the District
of Nebraska, to whom the case was referred by consent of the parties pursuant to 28
U.S.C. § 636(c).
      3
       During the course of the litigation, the number of plaintiffs was reduced to four.
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settlement during the course of the conference. Under the terms of this settlement, one
inmate agreed to dismiss his claims voluntarily, while the other inmates agreed to
nonmonetary resolutions of their claims. The magistrate judge then issued an order
indicating that a settlement had been reached and requiring that the parties file a joint
stipulation for dismissal.

      In the following weeks, the parties attempted to draft a document embodying the
terms of their agreement. Counsel for the inmates drafted a proposed stipulation that
expressly reserved the inmates’ right to apply for attorney fees under 42 U.S.C. § 1988.
Clarke responded by saying that because attorney fees were not a part of the agreement
reached during the settlement and because he had clearly and repeatedly made clear
throughout the course of the negotiations that any settlement would encompass only
purely nonmonetary relief to the inmates, any provision for attorney fees would be
unacceptable.

       Following several months of inconclusive correspondence, the parties reached an
impasse. Counsel for the inmates continued to insist that a clause reserving the right to
seek attorney fees be included in the settlement agreement. Clarke’s response rejected
this demand: “In light of the disagreement regarding the payment of attorney fees, there
has been no settlement in this matter. Therefore, none of the provisions discussed at the
settlement conference will be implemented at this time.”

       Counsel for the inmates responded by filing a motion to enforce the settlement
agreement and by making an application for fees. Following an evidentiary hearing
before a different magistrate judge (Judge Piester), the court held that an enforceable
settlement agreement had been reached and that the inmates had not reserved the right
to seek attorney fees.




                                          -3-
                                             II.

       The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988,
provides that “the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs.” Pursuant to this
provision, a prevailing party in a civil rights action is generally entitled to attorney fees
“unless special circumstances would render such an award unjust.” Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983). The term “prevailing party” includes a civil rights
complainant that prevails through settlement in lieu of litigation. See Maher v. Gagne,
448 U.S. 122, 129 (1980). Attorney fees may be waived as part of the settlement
process. See Evans v. Jeff D., 475 U.S. 717, 737-38 (1986).

       Some circuits have held that parties must specifically agree to exclude a post-
settlement claim for attorney fees and that an intent to do so should not be presumed
from a silent record. See, e.g., Muckleshoot Tribe v. Puget Sound Power & Light Co.,
875 F.2d 695, 698 (9th Cir. 1989); Ashley v. Atlantic Richfield Co., 794 F.2d 128, 138-
39 (3d Cir. 1986). In Young v. Powell, 729 F.2d 563, 566-67 (8th Cir. 1984), however,
we indicated that silence may constitute a waiver of the right to claim fees. In Young,
we held that a party who had filed a comprehensive stipulation for dismissal that advised
the district court that all disputed issues had been resolved and who requested that the
case be dismissed could not thereafter seek attorney fees. See id. at 566. In addition,
we advised prospective litigants that “[i]f a settlement does not resolve all issues in a
case, the parties should not stipulate to a dismissal without reserving the unresolved
issues or in some appropriate way indicating their intent as to such issues.” Id. at 567
n.3.

       Thus, the question before us is whether the parties intended their settlement to
dispose of the entire range of issues between the parties. See Jennings v. Metropolitan
Gov’t of Nashville, 715 F.2d 1111, 1114 (6th Cir. 1983). We agree with the district
court that they did. The settlement was reached only after extensive negotiations



                                            -4-
between the parties. The parties agree that the matter of attorney fees was not discussed
during the settlement conference itself. Statements that are interpreted as having been
made in jest do not bespeak an intention to reserve the right to later make a claim for
attorney fees, especially in a case in which, as here, the defendant has made it
unmistakably clear that the relief provided by the settlement would be purely
nonmonetary in nature. Having manifested an intention during the settlement conference
to settle all of the matters in dispute and having failed to reserve a post-settlement claim
for attorney fees, the inmates will not now be heard to raise such a claim.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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