March 26, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________

SAMUEL LEE DARTEZ, II,

Plaintiff - Appellee/ Cross-Appellant,

v. Nos. 22-3155 & 22-3164

RICK PETERS; ALEX R. TAYLOR; JASON S. BAILEY; CHRISTOPHER BEAS; DANIEL W. DILORETO; CHRISTOPHER P. MAI, COLBY J. MARKHAM; DAVID RUBLE; BRIAN S. HEDGECOCK; HERMAN JONES; PERRY FREY; CHRISTOPHER BOWLING; ROBERT KEENER; JASON DEVORE; ROBERT WARE,

Defendants - Appellants/ Cross-Appellees,

and

MARK FRENCH; BRIAN JOHNSON; ROBERT W. DIERKS; JOSEPH EHRLICH,

Defendants. __________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 5:15-CV-03255-EFM) _________________________________ Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 2

Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for the Defendants-Appellants.

David G. Seely (Lyndon W. Vix and Ryan K. Meyer, with him on the briefs) of Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, Kansas, for Appellee/Cross- Appellant.

Before MATHESON, BACHARACH, and EID , Circuit Judges.

BACHARACH, Circuit Judge.

This appeal involves a fee award to the attorneys representing a

prisoner who obtained a favorable judgment. Parties must ordinarily pay

their own attorneys’ fees in the absence of a contrary agreement or statute.

Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 257

(1975). In this case, attorneys’ fees are awardable to the prevailing

plaintiff under both an offer of judgment and a statute. See 42 U.S.C.

§ 1988(b). But because the plaintiff was a prisoner, federal law would

ordinarily limit the amount of attorneys’ fees that can be recouped from

the defendants and require the plaintiff to contribute to any fee award.

42 U.S.C. § 1997e(d).

To resolve the appeal, we must decide how the offer of judgment

affects the applicability of the statutes allowing and limiting a fee award.

The district court assumed that an offer of judgment could trump the

2 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 3

statutes, and the defendants don’t develop a contrary argument. 1 So the

appeal turns on how a court interprets the offer of judgment.

The offer of judgment included payment of $60,000 to the plaintiff

“plus reasonable attorneys’ fees and costs allowed by law, if any.”

Appellants App’x vol. 3, at 275. This language is ambiguous on whether

the parties waived a potential statutory limit on the amount of a fee award.

Because the district court resolved this ambiguity by using extrinsic

evidence, we defer to the district court’s finding on the parties’ intent.

The parties also disagree on whether the language waived the

plaintiff’s statutory obligation to contribute to his attorneys’ fee award.

Interpretation of this language didn’t involve any extrinsic evidence. So we

conduct de novo review when interpreting this part of the offer of

judgment. Through de novo review, we conclude that the parties agreed to

waive the statutory requirement for the plaintiff to contribute to his

attorneys’ award of fees.

Finally, we consider the plaintiff’s cross-appeal, which addresses a

statutory cap on hourly rates for an award of attorneys’ fees. The parties

agree that the cross-appeal turns on our disposition of the other challenges

1 The defendants point out tha

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