UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL WADE, a/k/a Mark A.
Mlawer, by and through his next
friend; TIMOTHY WADE, a/k/a Paul
Marchand, by and through his next
friend; JOHN MCCLELLAND, a/k/a
Christine E. Boswell, by and
through his next friend,
Plaintiffs-Appellants,

and

MARY HUNT, a/k/a Christine E.
Boswell, by and through her next
friend; MATROY FOSTER, a/k/a
Barbara Nelson, by and through her
next friend; SARAH HOWVITZ, by and
through her guardian, All of the
                                     No. 99-1560
above on Behalf of Themselves and
All Other Similarly Situated,
Plaintiffs,

v.

DIANE COUGHLIN, Director,
Developmental Disabilities
Administration; ALLAN RADINSKY,
Administrator, Great Oaks Center;
GEORGES C. BENJAMIN, Secretary,
Department of Health and Mental
Hygiene; THE STATE OF MARYLAND;
GREAT OAKS ASSOCIATION,
INCORPORATED, a Maryland nonstock
corporation,
Defendants-Appellees
VIRGINIA SOCIETY FOR HUMAN LIFE;
AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION,
INCORPORATED; AMERICAN CIVIL

LIBERTIES UNION OF WEST VIRGINIA;
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-91-2564-CCB)

Argued: March 1, 2000

Decided: May 24, 2000

Before MICHAEL, Circuit Judge, and
G. Ross ANDERSON, Jr., United States District Judge
for the District of South Carolina, sitting by designation,
and James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Steven Ney, MARYLAND DISABILITY LAW CEN-
TER, Largo, Maryland, for Appellants. Kathleen A. Morse, Assistant
Attorney General, Baltimore, Maryland, for Appellees. ON BRIEF:
Susan Goering, AMERICAN CIVIL LIBERTIES UNION OF
MARYLAND, Baltimore, Maryland; Ira Burnim, BAZELON CEN-

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TER FOR MENTAL HEALTH LAW, Washington, D.C.; Arthur B.
Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE
NATIONAL CAPITAL AREA, Washington, D.C., for Appellants. J.
Joseph Curran, Jr., Attorney General of Maryland, Maureen A. Dove,
Assistant Attorney General, Baltimore, Maryland, for Appellees.
Roger E. Warin, Tracy L. Hilmer, STEPTOE & JOHNSON, L.L.P.,
Washington, D.C., for Amici Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The State of Maryland voluntarily provided the relief sought by
§ 1983 plaintiffs who were residents of a large State facility for the
developmentally disabled. There was no settlement agreement, how-
ever, and the lawsuit was dismissed by stipulation pursuant to Fed. R.
Civ. P. 41(a)(1). Thereafter, the plaintiffs invoked the "catalyst the-
ory" of "prevailing party" status to seek attorneys' fees under 42
U.S.C. § 1988. The district court denied the fee petitions on the
ground that our court had rejected the catalyst theory in S-1 and S-2
v. State Board of Education, 

 (4th Cir. 1994) (en banc).
Because we agree that S-1 and S-2 governs, we affirm.

I.

The Great Oaks Center (the Center) in Silver Spring, Maryland,
was a residential institution for the developmentally disabled that was
operated by the State of Maryland through its Developmental Disabil-
ities Administration (DDA), a division of the State Department of
Health and Mental Hygiene (DHMH). The Center opened in 1970 and
its number of residents grew to a peak of about 500 in 1978. Many
of the Center's residents, including several of the plaintiffs in this
case, were diagnosed with "profound mental retardation." The Center

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proved to be exceedingly difficult to run, and allegations of problems
led the U.S. Department of Justice (DOJ) in 1986 to commence an
investigation into conditions there, pursuant to the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997 et seq.

In January 1991 the DOJ issued written findings and advised then-
Governor Schaefer of Maryland that "the State subjects its residents
of Great Oaks to conditions that violate their constitutional rights,
including conditions that generally threaten the[ir] health and safety."
Although the DOJ concluded that the "administration and staff at
Great Oaks appear[ed] committed to providing residents with appro-
priate care in a safe environment," the DOJ discovered five conditions
that posed significant dangers to residents. First, according to the
DOJ, the Center failed to provide sufficient training for residents to
help them avoid undue risks to their personal safety. This lack of
training led the Center's staff to make unreasonable use of physical
and chemical restraints. Second, there was a general failure to provide
residents adequate protection from physical injuries. Third, the Cen-
ter's staff was not appropriately trained. As a result, residents were
not properly supervised, which "contribute[d] to [the] alarmingly high
frequency of resident injuries." Fourth, physical therapy services for
residents were woefully inadequate. This deficiency, the DOJ
believed, had caused a number of residents to lose the "ability to feed
themselves, walk, or propel their wheelchairs." Fifth, recordkeeping
at the Center was deficient. For example, the Center did not keep
behavioral records for residents, and data about each resident's prog-
ress (or lack of it) were not collected in a consistent manner. Because
of poor recordkeeping, the staff was unable "to render [informed] pro-
fessional judgments regarding care, treatment, and training of resi-
dents." The State contends that it took appropriate remedial measures
in response to the DOJ report.

Nevertheless, in September 1991, about eight months after the DOJ
issued it findings, six residents of the Center (by their next friends)
brought this § 1983 class action against the State of Maryland and
various officials (collectively, the "State"), alleging deficiencies in the
care provided at the Center. By the agreement of counsel, a represen-
tative sample of sixteen residents (ten percent of the population) was
selected for purposes of pretrial discovery. The Center produced the

                     4
complete institutional file for each of these residents, and discovery
began.

It appears that the Center continued to run into difficulty after the
DOJ report was issued and this lawsuit was filed. For example, in the
summer of 1994 the Center lost its status as a Medicaid provider
because it did not meet certification requirements. By the end of 1994
the plaintiffs' lawyers believed that a more comprehensive complaint
was warranted, and an amended complaint was filed on December 22,
1994. The theme of the amended complaint was that"Great Oaks
Center is a dangerous place to live." The plaintiffs alleged (1) that
they had been "subjected to injury, abuse, neglect, and unnecessary
physical restraints" and (2) that they had been denied "necessary med-
ical care, as well as habilitative services needed to prevent their dete-
rioration," in violation of the Due Process and Equal Protection
Clauses, the Social Security Act, the Rehabilitation Act of 1973, and
the Americans with Disabilities Act. Among other things, the plain-
tiffs took aim at the Center's policy of allowing parents (or close rela-
tives) to override professional staff recommendations to transfer
residents into community-based care facilities. Injunctive relief was
requested. The plaintiffs asked that the State be (1) enjoined from
admitting any new residents to the Center and (2) ordered to transfer
current residents to community living arrangements in accordance
with the recommendations of their treating professionals.

The State filed its answer to the amended complaint on January 11,
1995. In addition to denying the charging allegations of the amended
complaint, the State defended the Center's policies and alleged that
each resident was receiving individualized care appropriately tailored
to his or her circumstances. Among other things, the State alleged that
(1) successful community placement efforts had reduced the Center's
population to 160 residents, (2) the staff-to-resident ratio had
improved, (3) training programs for both staff and residents had been
instituted, (4) professional staff assessed each resident's needs on an
ongoing basis, (5) restraints were used infrequently and only in
behavioral emergencies, (6) a new incident tracking system had
helped to reduce the number of resident injuries, and (7) the physical
appearance of the Center had been improved.

On February 21, 1995, the district court consolidated this case with
three other (similar) cases and set a date for trial. In the meantime, the

                     5
State decided to close the Center. Dr. Georges Benjamin, Deputy to
the Secretary of the DHMH, and Diane Ebberts, Acting Director of
the DDA, told the Center's staff at a meeting in August 1995 that the
Center was being closed because of the pending lawsuit, high
employee turnover, high costs, and building repair needs. DHMH
Secretary Martin Wasserman mentioned the lawsuit when he reported
on plans to close the Center to committees of the Maryland General
Assembly in June 1995:

           The closure of Great Oaks Center is based on costs which
          are escalating beyond any other Developmental Disabilities
          Administration (DDA) facility, and upon employee recruit-
          ment and retention problems which have made it problem-
          atic for Great Oaks Center to maintain its license and
          certification for federal Medicaid funding, to meet U.S.
          Department of Justice requirements, and to prepare for a
          successful trial in the case of Hunt v. Meszaros [the caption
          of this case in district court].

After the State decided to close the Center, the district court, by
order entered October 20, 1995, postponed the trial. Shortly thereaf-
ter, beginning in November 1995, DHMH Secretary Wasserman
wrote individual letters to the residents of the Center and their parents
(or guardians). In each letter the Secretary reported his finding that
the resident "no longer meets [state law] requirements for admission
to a State Residential Center because there is a less restrictive kind
of service that is available which is consistent with [his or her] wel-
fare and safety." The resident was accordingly designated for transfer
to "community placement." The Secretary further acknowledged that
"as a result of discussions with parties to a lawsuit," the State had
adopted a new procedure for resolving any parental objection to the
placement of a resident in a community-based facility. Parents would
no longer have the option to veto a professional recommendation of
community placement. Instead, any parental objection would be
referred (upon request of the parent) to an administrative law judge
for hearing and decision.

In January 1996 the State moved to dismiss the amended complaint
on the ground that the State was "doing precisely" what the plaintiffs
had requested in their prayer for relief: in the State's words, "the dein-

                     6
stitionalization of the residents of the Center and placement of indi-
vidual residents in community centers." In due course, all but two of
the Center's residents were moved to community-based housing, and
the Center was closed.* On September 8, 1998, the parties stipulated
to a dismissal of the lawsuit, agreeing that there was "no further need
for litigation." The stipulation, however, stated that "the dismissal will
have no bearing on the parties' positions for the purposes of attor-
neys' fees and should [not] be construed . . . as a settlement for the
purpose of attorneys' fees."

The several lawyers for the plaintiffs pressed petitions for attor-
neys' fees and expenses, notwithstanding the dismissal. Altogether,
the lawyers sought fees and expenses in the amount of $1,081,588.26.
They were entitled to fees, they said, because their clients were pre-
vailing parties for purposes of 42 U.S.C. § 1988, The Civil Rights
Attorney's Fees Awards Act of 1976. The lawyers argued to the dis-
trict court that their clients had prevailed because their lawsuit caused
the State to change its conduct and provide the relief requested (the
Center's residents were placed in community-based homes and the
Center was closed), even though there was no enforceable judgment
or settlement document. Fees were thus sought under what is known
as the "catalyst theory."

The district court acknowledged that the plaintiffs had "advanced
a strong argument for prevailing party status" under the catalyst the-
ory, "in light of the closing of the Center and the placement of its resi-
dents in the community." The court added that the plaintiffs had
"presented a substantial showing" that their efforts had contributed in
a significant way to this result. However, the court stopped short of
actually finding that the plaintiffs' lawsuit had served as a catalyst for
the change in the State's position. Rather, the district court denied the
petitions for fees on the ground that the catalyst theory for attorneys'
fee recovery is not available to a § 1983 plaintiff in this circuit. See
S-1 and S-2, 21 F.3d at 51 (rejecting the catalyst theory and holding
_________________________________________________________________
*The State contends that the Center was closed because of (1) the
State's commitment to community placement, (2) high costs and prob-
lems with employee recruitment and turnover, (3) capital improvement
needs, and (4) prospects for a very profitable sale of the Center's real
estate due to its prime location near Washington, D.C.

                     7
that an enforceable judgment, consent decree, or settlement is neces-
sary for prevailing party status under § 1988). The plaintiffs appeal.

II.

After carefully considering the briefs, the joint appendix, and the
arguments of counsel, we affirm on the reasoning of the district court.
See Hunt v. Meszaros, Civ. No. CCB-91-2564 (D. Md. Mar. 25,
1999).

AFFIRMED

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