Garcia v. Tansy

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 30, 2000
• Docket: 99-2268
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 30 2000 TENTH CIRCUIT PATRICK FISHER Clerk

JESSE L. GARCIA,

Petitioner-Appellant, v.

ROBERT J. TANSY, Warden, his No. 99-2268 agents, servants, employees and others (D.C. No. CIV 89-1086 JB/JHG) acting in aid and/or concert therewith, (Dist. N.M.) individually and in their official capacities; DEPARTMENT OF CORRECTIONS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

Petitioner-Appellant Jesse L. Garcia appeals the district court’s denial of

fees in connection with a civil rights action previously brought by Mr. Garcia.

* After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Because Tenth Circuit and Supreme Court authority clearly require this result, we

AFFIRM the district court’s denial of fees.

In 1989, Mr. Garcia filed a pro se civil rights action pursuant to 42 U.S.C.

§ 1983, alleging that he had been impermissibly denied access to the law library

while an inmate in a New Mexico state penitentiary. The district court dismissed

the claim in 1990, but the next year the Tenth Circuit reversed in part and

remanded the case to the district court for further proceedings. In 1992, the

district court dismissed Mr. Garcia’s claim for lack of prosecution, and Mr.

Garcia later filed an untimely notice of appeal to this court. We remanded to the

district court to determine whether the time for filing a notice of appeal should be

reopened under Fed. R. App. P. 4(a)(6). In 1993, the district court entered an

order concluding that the time for filing a notice of appeal should not be

reopened.

Mr. Garcia alleges that the prison installed a law library to which inmates

now have access in response to his lawsuit. In 1999, Mr. Garcia filed an action in

the district court contending that he is a “prevailing party” within the meaning of

42 U.S.C. § 1988 and is therefore entitled to fees for his litigation. More

specifically, Mr. Garcia claims that he is owed paralegal fees because, he alleges,

he holds a diploma as a paralegal.

-2- 42 U.S.C. § 1988(b) provides: “In any action or proceeding to enforce a

provision of section[] . . . 1983, the court, in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee as part of the costs.” Assuming

without deciding that Mr. Garcia is the prevailing party, that paralegal fees are

recoverable, and that his lengthy delay in seeking fees does not bar his claim, Mr.

Garcia is nevertheless not entitled to recover fees for his civil rights litigation.

Pro se civil rights plaintiffs are not entitled to recover fees under 42 U.S.C.

§ 1988. See Turman v. Tuttle, 711 F.2d 148, 149 (10th Cir. 1983). The fact that

Mr. Garcia appears to be a paralegal does not affect the result in this case. The

Supreme Court has explicitly held that even pro se parties who are themselves

attorneys are not entitled to recover fees under 42 U.S.C. § 1988. See Kay v.

Ehrler, 499 U.S. 432 (1991). We can conceive of no principled reason to treat

paralegal fees differently in this regard.

Accordingly, Mr. Garcia is not entitled to recover fees in this action. The

judgment of the district court is therefore AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

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