Petition for Writ of Certiorari — Simeon v. Hardin

(1) Supreme Court,

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OFFICE

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

DAVID SIMEON and PETER ZEGLER,

Petitioners,

Vv.

JAMES E. HARDIN, JR., District Attorney

for the Fourteenth Judicial District,

Respondent.

On Petition for Writ of Certiorari

to the North Carolina Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Marvin Ray Sparrow

Counsel of Record

for Petitioners

Box 388

Durham, North Carolina 27702

(919) 956-7924

asi

A PLE ED a ame

Questions Presented:

1. Must a state court which exercises jurisdiction over

a claim under federal civil rights statutes provide the full

measure of relief which would be available in the federal

courts, including an award of fees to a prevailing party?

2. Where individual litigant had sufficient stake in the

outcome to give him standing to challenge state statute giving

district attorney control of the criminal court calendar, did he

also, by virtue of that stake in the outcome, obtain a benefit

from the settlement limiting the prosecution's calendaring

power, so as to make him a "prevailing party" for the purpose

of an award of naa fees?

3. Whether a class representative’s interest in

obtaining relief for a class of persons similarly situated

survives the mootness of the individual’s claim, so as to

render the individual plaintiff a “prevailing party” when relief

is obtained for the class?

Table of Contents

Questions Presented.................::cccscccesessreeesteesreens i

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Reasons the Writ Should be Granted....................... 1]

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Appendix

(Opinion of N.C.Court of Appeals)

Table of Authorities

Crowe v. Citicorp Acceptance Co., 319 N.C. 274,

Pe ee I MTN iia vied oxciednicsdasksns doeicssnnsancicerseesicnanens 6

Gerstein v. Pugh, 420 U.S. 103 (1975)........cccccccccccceseeeseene. 19

Hewitt v. Helms, 482 U.S. 755 (1987)........ccccccccsscsecesseeeeees 14

Howlett v. Rose, 496 U.S. 356 (1990)..........ccccccccesceeeeseeees 12

Human Development of Erie, Inc. v. Zoning Hearing Board

of Millcreek Township, 143 Pa. Commw. 675, 600 A.2d 658

CRD ic ha RA LIL dies ddA RENCE IG ses sesnesesessoasorsne 15

Logan v. Zimmerman Brush Company,

ERP BFW ae Mi abisatai asks sidbtsdnssrvsbeceassarcsonisenencecactsa 21

Maine v. Thiboutot, 448 U.S. 1 (1980).........ccccccccccecceeeeeee 13

Mondou v. New York, N.H. & H. Railroad,

Pe I AU hcclsdinceas prac cadre os 12

Pennhurst State School & Hospital v. Halderman, 465 U.S.

OF (IPO LLL ih HM WL AE CRRA RE vo onssceies 1]

Simeon v. Hardin, 339 N.C. 358,

ED Ee ee dean snisthesscvasvdnadroinucdsscossarseondaanesnns 7

Stensvad v. Rowe, 232 Mont. 378, 759 P.2d 138 (1988)....15

Seata Vv. Katt, FIO UG. FOG CRIT isk ek iiisishis ccc vcnne 12

Texas Teachers v. Garland School Dist.,

SP EE Fe Co ai ck RRA AL cen viovccvsseee 15, 20

United States Parole Commission v. Geraghty,

Re as I Sirs sciedis hah hcsitan da desedeha Gilamcadecerstccvesne 18

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

DAVID SIMEON and PETER ZEGLER,

Petitioners,

v.

JAMES E. HARDIN, JR.., District Attorney

for the Fourteenth Judicial District,

Respondent.

On Petition for Writ of Certiorari

to the North Carolina Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Marvin Ray Sparrow

Counsel of Record

for Petitioners

Box 388

Durham, North Carolina 27702

(919) 956-7924

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257. The decision of the North Carolina Court of

Appeals affirming the superior court’s denial of an award of

attorneys’ fees was filed July 15, 1997. Petitioners sought

detainees review by the North Carolina Supreme Court,

which was denied by an order dated October 2, 1997. By

operation of Rule 32 of the North Carolina Rules of Appellate

Procedure, entry of judgment occurred on October 22, 1997.

Statement of the Case

North Carolina is unique among the states of the

Union in granting, by statute, to the district attorney of its

judicial districts, the power and authority to set the calendar

for the criminal courts. Although the judges of those courts

retain some residual authority to modify the calendar

A

established by the district attorney, generally all criminal

proceedings from initial appearance through trial and

sentencing are held on a schedule set by the prosecuting arm

of the state. See Simeon v. Hardin, 339 N.C. 358, 451

S.E.2d 858 (1994), for the North Carolina Supreme Court’s

discussion of the practice and the merits of the claims in

petitioners’ underlying lawsuit.

Petitioners Simeon and Zegler filed a lawsuit in the

Durham County Superior Court in November, 1992, alleging,

on behalf of themselves and the class of criminal defendants

facing prosecution in that county, both that the grant of

calendaring power to the district attorney was unlawful on its

face and that the district attorney used the calendaring power

to obtain unfair advantages in the prosecution of crimes, thus

rendering the power unlawful as applied. Petitioners’

complaint cited the separation of powers, open courts, and

law of the land provisions of the North Carolina Constitution

and the due process clause of the Fourteenth Amendment of

2.

the United States Constitution as grounds for their claims.

The federal constitutional claims were raised pursuant to 42

U.S.C. Section 1983.

Petitioners alleged that the district attorney regularly

and consistently abused the calendar power by holding pre-

trial detainees in jail for extended periods, either for the

purpose of coercing guilty pleas or, in cases of inadequate

evidence, to ensure that the accused served some time as a

detainee before charges were dismissed, by requiring

defendants released on bond to show up numerous times in

court, often with witnesses, and sometimes to wait all week in

court without the case being called for trial, by placing many

more cases on the calender than could be tried, without

regard to whether the state was actually ready to try the

cases, and then to select from among those, in no particular

order, the cases to be tried, thus depriving defense counsel of

any effective notice or eiiiiie to prepare for trial, and by

using the calendar power to demonstrate to criminal

a

defendants the powerlessness of their attorneys to affect the

court's schedule, thus undermining confidence in defense

counsel.

In opposing summary judgment, petitioners supported

their allegations with extensive detailed affidavits from

criminal defendants, former district attorneys and assistant

district attorneys, former judges, and defense attorneys.

Petitioners also made a factual showing that calendar control

by the district attorney was inefficient and contrary to

standards adopted by various organizations of court

professionals.

The Superior Court of Durham County granted

summary judgment in favor of the district attorney, and

dismissed all claims. The superior court held that it had no

jurisdiction to entertain the claims, that the plaintiffs had no

standing to raise the claims, that the matters raised were not

justiciable in a civil action, but were only "raisable" in

individual criminal cases, and that the court had no authority

a

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to review the legislature’s grant of power to the district

attorney. Petitioners appealed from the dismissal and

eventually obtained review in the North Carolina Supreme

Court, which reversed and remanded.

Soon after the lawsuit was filed, the Durham County

District Attorney had moved to modify his handling of the

criminal charges against the two named plaintiffs, in an

attempt to manufacture mootness. Simeon was offered a plea

to a lessor charge, and a “prayer for judgment continued” on

condition that he leave North Carolina and not return. Zegler

had his charges dismissed.. Each proposal was a bargain too

good to refuse, and petitioners accepted the state’s offers.

Plaintiffs’ counsel scrambled to preserve standing by seeking

to amend the complaint to add other plaintiffs and to

intervene for other parties plaintiffs. In addition, plaintiffs

asked the court to recognize the class action nature of the

lawsuit. North Carolina civil procedure has no mechanism for

"certification" of a class action. Rather, the class action

‘.

allegations of a complaint, like the other allegations, are

presumed to be true until there is a court ruling on the matter,

and a case filed as a class action is presumed to proceed as

one unless and until the court rules otherwise. Crowe v.

Citicorp Acceptance Co., 319 N.C. 274, 354 S.E.2d 459

(1987). Despite filing motions and making specific requests

for rulings, petitioners were unable to obtain rulings from the

Superior Court on those procedural matters.

In a unanimous opinion, the North Carolina Supreme

Court held that all requirements of standing and jurisdiction

were met, and the claims could be raised by a civil action.

Despite the changes in the status of their criminal charges, the

court found that both petitioners had standing to raise the

claims set out in the lawsuit. The court held that Simeon had

standing because the charges against him were not fully

resolved and the state could at any time “pray for judgment”

in his suspended case. The court further held that although

Zegler’s individual claims were moot due to the charges being

Ain

dismissed, he could qualify as a class representative because

the claims of the class members were “capable of repetition

yet evading review.” Simeon v. Hardin, 339 N.C. at 371, 451

S.E.2d at 867.

Reaching the substance cf the asserted claims, the

North Carolina Supreme Court held that the statute granting

docket power to the district attorney was not unconstitutional

on its face, but that the allegations regarding abuse of that

power stated a claim regarding the statute "as applied." The

matter was remanded to the Superior Court of Durham

County for trial on the merits of the claims. Simeon v.

Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).

On remand, after extended negotiations under the

auspices of the senior resident judge, the dispute was resolved

by a compromise agreement. The core provision of the

agreement was the promulgation by the district attorney and

the court of a "case management plan" by which the district

attorney agreed to certain regular scheduling procedures and

7.

to limitations on the exercise of the broad powers granted by

the calendaring statute. Petitioners agreed to dismiss their

lawsuit in exchange for promulgation of the plan. That

agreement was reflected in a one page “Settlement

Agreement” filed with the court.

After institution of the case management plan and

dismissal of the lawsuit, petitioners filed an application for

attorneys fees pursuant to 42 U.S.C. §1988. The decision of

the North Carolina Supreme Court had rejected all claims

based solely on state constitutional grounds, and held that the

complaint stated a cognizable claim under the overlapping and

similar "due process" provisions of state and federal

constitutions, without distinguishing between the two sources.

In their fee application petitioners asserted that they were

prevailing parties because the bargained-for case management

plan provided some of the relief they sought by limiting the

absolute calendar power of the district attorney and

preventing some of the previous abuses of that power. The

és.

protracted and bitter litigation had consumed many lawyer

hours. Petitioners sought an award of about $180,000.

Although the state did not challenge the records of

attorney hours or the requested rate, it opposed the fee

application on several legal grounds, asserting that there had

been no compromise settlement of the lawsuit (merely a

dismissal by plaintiffs), that petitioners were not prevailing

parties, that the named plaintiffs had obtained no benefit from

the resolution, that the various legal grounds stated separate

and distinct claims and that petitioners had failed to keep

separate time records for the claims, and that the application

was a "blanket" fee request which should be rejected in toto.

The Superior Court of Durham County agreed and denied any

award of fees.

The North Carolina Court of Appeals affirmed that

decision, restricting its rationale to a holding that the named

plaintiffs were not prevailing parties. Although the Court of

Appeals issued a printed opinion, which is reprinted in the

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appendix, it authorized the publication only of a notation of

its decision, found at 488 S.E.2d 854.

In affirming the denial of attorneys’ fees, the Court of

Appeals held that the two individual plaintiffs had obtained no

benefit from the new case management plan which led to the

settlement agreement, because they were no longer being

prosecuted in the Durham County courts. The court held that

in the absence of a ruling recognizing the class nature of the

lawsuit, relief obtained for the class of criminal defendants did

not establish prevailing party status. Denial of a fee award

was based on the lack of any identifiable benefit which inured

to the two individual plaintiffs as a result of the settlement

agreement.

The North Carolina Supreme Court denied

discretionary review of the Court of Appeals decision, by

Order of October 2, 1997.

Throughout the fee proceedings, in their application to

the superior court, in their brief to the court of appeals, and in

-10-

their petition for discretionary review by the supreme court,

petitioners asserted a federal constitutional basis for their

claims, namely, that a state court exercising jurisdiction of a

claim under the federal civil rights statutes must provide the

full relief that would be available to litigants if the claims had

been brought in federal court, including an award of fees on

the same grounds and in the same manner as they would be

awarded in the federal courts. None of the courts addressed

those assertions.

Reasons the Writ Should be Granted

Petitioners asserted i their state court lawsuit certain

claims grounded in the North Carolina Constitution which are

not cognizable in the federal courts. See Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89 (1984) (state

law injunctive relief not available in federal courts). They

also contended that they were subjected to violations of due

process of law under the Fourteenth Amendment of the

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United States Constitution. Rather than split their claims,

they included the federal claims in their state action, with the

full expectation that the state courts would be required to

provide relief commensurate with that available in the federal

courts. Indeed, it is possible that their federal claims might be

held barred if not raised in an action based on the same set of

facts. Petitioners thus had compelling reasons for bringing

their lawsuit in the state courts.

The federal and state courts have concurrent

jurisdiction over claims brought under the federal civil rights

statutes. Howlett v. Rose, 496 U.S. 356 (1990). State courts

have an affirmative duty to exercise jurisdiction over federal

actions, Mondou v. New York, N.H. & H. Railroad, 223 U.S.

1 (1912), and may not discriminate against federal actions in

their exercise of jurisdiction, Testa v. Katt, 330 U.S. 386

(1947). The attorneys’ fees provisions are an integral part of

the civil rights statutes remedies, and state courts are

authorized and required to award fees in appropriate cases.

~12-

Maine v. Thiboutot, 448 U.S. 1, at 11 n.12 (1980). The

denial of a fee award in this action is contrary to the case law

interpreting § 1988 and fails to provide full relief to

petitioners. It undermines the effectiveness of state court

enforcement of federal rights, and thus threatens the balance

of comity which is essential to our federal system.

I. The Decision of the North Carolina Court of Appeals is

Erroneous.

The rationale employed by the North Carolina Court

of Appeals to justify the denial of a fee award is thin and

unpersuasive. In spite of the previous ruling that Simeon and

Zegler had standing, “a stake in the outcome,” the court held

that they did not obtain any benefit from the agreement

placing written limitations on the power of the district

attorney to set the calendar of criminal cases. The court of

appeals appears to recognize that the class of criminal

defendants (presumed to be viable pending any fact-finding to

-]3-

the contrary) obtained a benefit from settlement of the

lawsuit, but rejects the suggestion that any of that benefit

inured to Simeon and Zegler individually.

The court of appeals’ reliance on Hewitt v. Helms, 482

U.S. 755 (1987), is entirely misplaced. The plaintiff in

Hewitt v. Helms had achieved only a hollow technical victory,

a court ruling validating his cause of action. On remand, he

obtained no relief at all. If the present case had been

concluded at the time of the North Carolina Supreme Court

decision, it would be similar to Hewitt v. Helms. Instead, on

remand, plaintiffs used the favorable ruling and the threat of

trial on the facts to negotiate a compromise agreement which

gave them many of the things they sought in the lawsuit. The

“case management plan” promulgated by the court and the

district attorney provided for an orderly movement of cases

through the court system, advance notice of cases which

would be called for trial, a requirement that the state file

written motions in order to seek continuance of a case, and

-14-

various other restrictions on the district attorney’s docketing

power. The relief obtained fully satisfied the requirements set

forth in Texas Teachers v. Garland School Dist., 489 U.S.

782 (1989) for conveying prevailing party status -- to the

individual plaintiffs and to the class of persons similarly

situated.

Il. The failure of the state courts to provide full relief,

>

attorneys’ fees awards, in federal civil rig

rinciples of fe ism mi

Even though the law governing fee awards seems

settled and clear-cut, various state courts have refused to

follow it, either brazenly, Stensvad v. Rowe, 232 Mont. 378,

759 P.2d 138 (1988), or under the guise of some dubious

distinction between the extant case law and the particular case

under review, Human Development of Erie, Inc. v. Zoning

at.

Hearing Board of Millcreek Township, 143 Pa. Commw.

675, 600 A.2d 658 (1991). The refusal of state courts to fully

enforce the fee provisions creates a “watered down” version

of federal civil rights in the state courts, and influences

litigants to choose the federal courts as a preferred forum for

more complete vindication of their rights. The principle

of comity is most often invoked as a reason for federal courts

to give due weight to state court decisions, but the very

meaning of the term indicates its dual nature. State courts

also have a duty to give due deference and authority to federal -

court rulings on federal issues, a duty also reflected in the

supremacy clause of the Constitution.

The state courts’ practice of “shortchanging” civil

rights litigants on attorneys’ fees may have survived and

spread due to the difference in the mechanism for seeking

review of such decisions. In the federal courts, the circuit

courts of appeals review such decisions, by direct appeal, and

are able to correct unjust or wrongly decided cases. When

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the §1983 action has been brought in state court, a petition

for writ of certiorari to the United States Supreme Court is

the only method available for review of erroneous decisions of

the state courts. It is unlikely to be an effective method of

review, both because of the limited resources of the Court to

grant certiorari review in such cases and also because of the

limited applicability of any particular ruling. In any particular

case only money is at issue, the underlying principle of law

having been resolved in the case on the merits, and this Court

cannot let its docket be crowded with matters concerning only

the compensation of lawyers. These factors naturally

influence the Court to deny its scare resource of certiorari

review.

However, as the trend of the state courts to discount

or deny fees in civil rights matters continues it has an effect on

the choices lawyers make, both the choice of forum and the

choice of whether to undertake such an action at all. If state

courts are not required to fully enforce and vindicate federal

iF

rights, the federal courts will become the exclusive forum for

the presentation of those claims. The present case provides

an opportunity for declaring that the state courts must provide

the full measure of relief available in federal courts under §

1983, and for clarifying the “standing” as to benefit which

justifies a fee award.

Ill. Even if the tw inti i relief which

su in ining relief for 1 f

In United States Parole Commission v. Geraghty, 445

U.S. 388 (1980), this Court recognized that a representative

of a putative class retained standing to appeal unfavorable

rulings regarding class certification, even following the

extinction of the individual’s case or controversy with the

opposing party. The Geraghty decision identified certain

procedural claims which survived the mootness of individual

claims due to the litigant’s standing as a representative of the

class to which he once belonged. The decision in Geraghty

can be seen as a corollary of the recognition in Gerstein v.

Pugh, 420 U.S. 103 (1975) that standing and class action

status should be allowed for some transitory claims which are

capable of repetition yet evading review. Because any

individual litigant’s stake in the outcome is likely to run its

course before the case or controversy is resolved by the

courts, yet other persons, unknown at the time of the

inception of the litigation, will almost certainly find

themselves in the same situation, the Court devised a rule of

standing with particular application to such claims.

The claims of Simeon and Zegler fit into this category.

It would be remarkable if their criminal charges had not been

disposed of during the two and one half years from filing of

the complaint to reaching the settlement agreement. For the

North Carolina court to focus narrowly on any relief obtained

by Simeon or Zegler personally was to ordain the result by the

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analysis. The court should take this opportunity to clarify or

extend the Gerstein and Geraghty line of cases by declaring

that relief obtained which materially benefits a represented

class is sufficient to satisfy the prevailing party test set forth in

Texas Teachers and other cases.

The failure of the North Carolina courts to rule on

petitioners’ motion for class certification is no barrier to such

afuling. Petitioners stand in no worse position than the

appellant in Geraghty, where the lower court’s denial of ciass

certification did not bar review. It is consistent with North

Carolina case law that an action alleged to be a class action be

treated as one until a court should rule to the contrary. The

state court procedural holding is not an adequate and

independent state ground for decision, as it is not consistently

applied by the North Carolina courts. The state courts did

not hold that treatment as a class action is inappropriate, they

merely refused to rule. Petitioners fulfilled all procedural

prerequisites for a ruling but were powerless to force the

-20-

Acme ES ACORN gent

court to rule on their motion. It would be arbitrary and

irrational to have their claims cadlial by matters beyond

their ability to influence. Logan v. Zimmerman Brush

Company, 455 U.S. 422 (1982). For all these reasons, the

state court procedural ground should not prevent this Court

from demanding full vindication of federal rights.

Conclusion

The petition for writ of certiorari should be granted.

Respectfully submitted, this___ day of January, 1998.

Marvin Ray Sparrow

Box 388

Durham, North Carolina 27702

(919) 956-7924

Counsel for Petitioners

a.

SOE Ree arures ot a et eke rants tron eet

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

DAVID SIMEON and PETER ZEGLER,

Petitioners,

V.

JAMES E. HARDIN, JR., District Attorney

for the Fourteenth Judicial District,

Respondent.

On Petition for Writ of Certiorari

to the North Carolina Court of Appeals

APPENDIX

a ey Smee Te een NNT Pe BE ake plt~ a nie greece! Os

No. COA96-873

North Carolina Court of Appeals

Filed : 15 July 1997

DAVID SIMEON, PETER ZEGLER,

and others similarly situated,

Plaintiff-Appellants

v. Durham County

No. 92 CVS 4318

JAMES E. HARDIN, JR., District Attorney

for the Fourteenth Judicial District,

Defendant-Appellee

Appeal by plaintiffs from order entered 26 April 1996

by Judge Orlando F. Hudson in Durham County Superior

Court. Heard in the Court of Appeals 1 April 1997.

Marvin Sparrow; and N.C. Prisoner Legal Services,

Inc., by Marcus Jimison, for plaintiff-appellants.

Attorney General Michael F. Easley, by Assistant

Attorney General Debra C. Graves and Special Deputy

Attorney General David Roy Blackwell, for defendant-

appellee.

MARTIN, Mark D., Judge

Plaintiffs David Simeon (Simeon) and Peter Zegler

(Zegler) (collectively plaintiffs) appeal from order of the trial

court concluding plaintiffs were not entitled to attorney’s fees

pursuant to 42 U.S.C. § 1988.

On 2 October 1992 Simeon, on behalf of himself and

others similarly situated, instituted the present action alleging

N.C. Gen. Stat. §§ 7A-49.3, 7A-61, and 15A-931, which

establish the district attorney’s calendaring powers, were

unconstitutional on their face and as applied. On 15 October

1992 the complaint was amended as of right to add Zegler “as

a named representative of the plaintiff class.” On 30

November 1992 District Attorney Ronald Stephens, the

original named defendant, made a motion to dismiss plaintiffs’

action for failure to state a claim.

Judge Robert L. Farmer, by order entered 11 March

1993, granted defendant’s motion to dismiss. Plaintiffs

appealed. By opinion filed 30 December 1994, the Supreme

Court found the challenged statutes constitutional on their

face, but remanded for further proceedings to determine

“whether the statutes authorizing district attorney calendaring

are being applied in an unconstitutional manner by the District

Attorney of the Fourteenth Judicial District (Durham

prevailing parties; and (II) denying attorney’s fees on the

ground plaintiffs’ counsel failed to differentiate between

claims on time records.

At the outset, we note, although plaintiffs filed a

motion for class certification, they failed to obtain a ruling

upon the motion. Consequently, this issue is not properly

preserved for appeal. N.C. R. App. P.10(b)(1). Plaintiffs also

admit they in no way relied on the so-called “catalyst” theory

to support their section 1988 claim. Thus, as this Court “will

not decide questions that have not been presented to the

courts below ...,” White v. Pate, 308 N.C. 759, 765, 304

S.E.2d 199, 203 (1983), we need not consider the viability of

the “catalyst” theory in this jurisdiction nor its applicability

under the present facts and circumstances.

The dispositive issue in the instant case is whether,

within the meaning of sectior 1988, plaintiffs are prevailing

parties entitled to recoup the attorney’s fees they incurred

prosecuting their claim for a violation of section 1983.

Section 1988 provide, “[i]n any action or proceeding

to enforce a provision of [section 1983] ..., the court, in its

discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of costs.”

42 U.S.C. § 1988 (b) (1994). Thus, to qualify for attorney’s

fees under section 1988, plaintiffs must be “prevailing

parties.” Farrar v. Hobby, 506 U.S. 103, 109, 121 L.Ed.2d

494, 502 (1992).

“A typical formulation is that ‘plaintiffs may be

considered “prevailing parties” for attorney’s fees purposes if

they succeed on any significant issue in litigation which

hieves some of in bringing th

suit.”” Texas Teachers v. Garland School Dist., 489 U.S.

782, 789, 103 L.Ed.2d 866, 875 (1989) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 433, 76 L.Ed.2d 40, 50 (1983))

(citation omitted) (emphasis added). The “touchstone” of this

formulation is the benefit achieved must result in a “material

alteration of the legal relationship of the parties ... .” Jd. at

792-793, 103 L.Ed.2d at 878. “Beyond this absolute

limitation, a technical victory may be so insignificant ... as to

be insufficient to support prevailing party status.” /d. at 792,

103 L.Ed.2d at 877. Simply put, even under the “generous

formulation” adopted by the United States Supreme Court,

Farrar, 506 U.S. at 109, 121 L.Ed.2d at 502, a purely

technical or de minimis success on a legal claim does not vest

plaintiffs with “prevailing party” status, Texas Teachers, 489

U.S. at 792, 103 L.Ed.2d at 877.

A.

We first consider whether Zegler is a “prevailing

party” within the meaning of section 1988.

Our Supreme Court, in Simeon J, noted all the

criminal charges against Zegler were dismissed thereby

rendering his claims moot. Simeon I, 339 N.C. at 370, 451

S.E.2d at 867. In fact, the Simeon J court expressly stated

Zegler could remain a named plaintiff only if the action was

certified as a class action. /d. At 371, 451 S.E.2d at 867.

Plaintiffs failed to obtain class certification. Therefore, as

Zegler was not a proper party to the present action, id., he

cannot be a “prevailing party.”

Although Simeon remains a viable plaintiff, Simeon /,

339 N.C. at 370, 451 S.E.2d at 867, we likewise conclude he

is not a “prevailing party” because the new case management

system does not materially alter the relationship between the

parties. See Texas Teachers, 489 U.S. at 792, 103 L.Ed.2d at

878.

A consent decree, settlement, or other voluntary

action by a defendant may justify the award of attorney’s fees

under section 1988. See Maher v. Gagne, 448 U.S. 122, 129,

65 L.Ed.2d 653, 661 (1980). The absence of a formal

judgment, however, does not eviscerate the necessity for the

settlement to directly benefit plaintiff by altering its

relationship with defendant. See Texas Teachers, 489 U.S. at

792, 103 L.Ed.2d at 877 (threshold requirement is some

benefit to plaintiff).

In a strikingly similar factual setting the United States

Supreme Court refused to award attorney’s fees to plaintiff

Aaron Helms because, among other things, “[t]he only ‘relief’

he received was the moral satisfaction of knowing that a

federal court concluded that his rights had been violated.”

Hewitt v.Helms, 482 U.S. 755, 762, 96 L.Ed.2d 654, 662

(1987). In Hewitt, Helms was placed on administrative

segregation for his possible involvement in a riot at the

Pennsylvania State Correctional Institution. /d. at 757, 96

L.Ed.2d at 659. Over seven weeks later a prison hearing

committee sentenced Helms to six months of disciplinary

restrictive confinement. Id. While incarcerated, Helms filed a

claim, pursuant to 42 U.S.C. § 1983, alleging the “lack of a

prompt hearing ... [and use of] uncorroborated hearsay

testimony violated his right to due process.” /d@ Prior to any

decision, Helms was paroled. Jd The Pennsylvania Bureau

of Corrections subsequently amended its hearing procedures

to address the use of confidential source information. /d. At

759, 96 L.Ed.2d at 660. Helms subsequently sought

attorney’s fees under section 1988. /d.

In declining to award Helms attorney’s fees, the united

States Supreme Court emphasized that Helms’ release from

prison prevented him from enjoying any benefit from the new

prison hearing procedures and, thus, he could not be

considered a “prevailing party.” Id. At 763-764, 96 L.Ed.2d

at 663. Likewise, in the present case, Simeon pled guilty to

two counts of felonious assault prior to any decision in the

instant action. On one count Simeon was sentenced to time

served, and on the other he received a prayer for judgment

continued (PJC). Although the Simeon I Court found

Simeon’s PJC status sufficient to convey standing, Simeon I,

339 N.C. at 370, 451 S.E.2d at 866-867, mere standing to sue

does not necessarily establish the new case management

system benefitted Simeon and materially altered the parties’

relationship. In addition, the mere possibility of re-

incarceration is not sufficient to establish Simeon benefitted

from Hardin implementing the new case management system.

See Hewitt, 482 U.S. at 764, 96 L.Ed.2d at 663 (actual return

to prison after parole not sufficient to retroactively render

Helms a “prevailing party”). Therefore, Simeon is not a

“prevailing party.”

It naturally follows — as plaintiffs cannot satisfy the

threshold requirement for the award of attorney’s fees

pursuant to section 1988, see Farrar, 506 U.S. at 109, 121

L.Ed.2d at 502 (only “prevailing party” qualifies for fees

under section 1988) — we need not consider their remaining

assignments of error.

Accordingly, the trial court did not err by denying

plaintiffs’ motion for attorney’s fees under section 1988.

Affirmed.

Judges EAGLES and WALKER concur.

Report per Rule 30 (e).