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May 14, 1981

Charles MERIWETHER, Joseph Harris, and Victor Jackson, Plaintiffs,
Wilbur K. SHERWOOD, Individually and as Sheriff of Orange County, New York, Charles Conklin, Individually, and formerly as Under Sheriff of Orange County, New York, Kenneth Davis, Individually and as Captain in the Orange County Sheriff's Department, William P. Powers, Individually, and as Under Sheriff of the Orange County Sheriff's Department, Robert Vosburgh, Individually and as Physician to the Orange County Jail, Eduard Liebel, as Nurse to the Orange County Jail, and the County of Orange, New York, Defendants

The opinion of the court was delivered by: SOFAER


Plaintiffs brought this suit to recover $ 340,000 in damages for injuries allegedly suffered while they were pretrial detainees at the Orange County Jail in Goshen, New York. Plaintiffs sued under 42 U.S.C. § 1983, claiming that their constitutional rights had been violated because defendants were deliberately indifferent to their serious medical needs. They also sued for negligence and malpractice under New York state law. Plaintiff Charles Meriwether claimed that he received inadequate treatment of a gunshot wound suffered prior to his imprisonment. Plaintiff Victor Jackson claimed that he received inadequate treatment of his diabetic condition. Plaintiff Joseph Harris claimed that he received inadequate treatment of severe head pains and of a fractured finger. Named as defendants in the case were Orange County Sheriff Wilbur K. Sherwood, Orange County, Dr. Robert Vosburgh, Nurse Eduard Liebel, and three prison guards. One of the four original plaintiffs, Richard Babcock, discontinued his suit.

 The claims asserted in this action were expressly preserved in the settlement of a prior class action, Meriwether v. Sherwood, 77 Civ. 3421 (EW) (hereinafter "Meriwether I "). In Meriwether I, the plaintiff class and defendants entered into a consent judgment pursuant to which conditions at the Orange County Jail were substantially improved. Defendant in that action made no concession of liability, however, and "in consideration" of the agreement "all parties" waived "attorneys fees, costs and disbursements." Consent Judgment, P IV. The individual actions were filed in December 1978, Meriwether v. Sherwood, 78 Civ. 6128 (ADS) (hereinafter "Meriwether II ").

 Meriwether II ultimately went to the jury on three grounds: violation of civil rights under 42 U.S.C. § 1983 by all defendants; negligence under state law by all defendants except Dr. Vosburgh in the delivery of medical care to the plaintiffs; and medical malpractice by Dr. Vosburgh. At the conclusion of their case, plaintiffs consented to the dismissal of all claims against the three prison guards. After eleven days of trial and two days of deliberation, the jury found none of the defendants liable for violating the plaintiffs' civil rights; found Sheriff Sherwood and Orange County liable to plaintiffs Meriwether and Jackson in negligence, awarding them $ 4,000 and $ 2,500 respectively; and found none of the other defendants liable to any plaintiff on any theory.

 Plaintiffs seek an attorney's fee under 42 U.S.C. § 1988, claiming that Meriwether and Jackson are prevailing parties in the litigation. They seek a total of $ 140,134.65, based upon hourly fees ranging from $ 55.00 to $ 125.00 an hour. In addition, they seek $ 6,340 for work performed by a paralegal, and $ 11,579.82 in costs. The attorney's fee requested is unreasonable in light of both the outcome and the amount of work that was actually necessary in this litigation. But no further analysis of the specific amount requested is necessary, because the plaintiffs are not prevailing parties.

 Congress intended to encourage non-frivolous suits under the civil rights laws when, in 1976, it provided for the discretionary award of attorney's fees to prevailing parties in civil rights cases. Pub.L. No. 94-559 § 2, 90 Stat. 2641 (codified at 42 U.S.C. § 1988). See generally, Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act, 80 Colum.L.Rev. 346 (1980). A plaintiff is clearly a prevailing party when he secures a judgment on a claim covered by section 1988. But several courts have deemed certain plaintiffs to have prevailed even when they have not obtained judgment on any claim for which a fee recovery is specifically authorized by the statute. For example, awards of fees have been deemed proper under section 1988: when the suit is settled by entry of a consent decree, see Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980), aff'g 594 F.2d 336 (2d Cir. 1979); Nadeau v. Helgemoe, 581 F.2d 275 (2d Cir. 1978); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977); when plaintiff's success on a pendant statutory claim for which fees are not expressly authorized makes it unnecessary for the court to reach the constitutional issues, see Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978); Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161 (1978); when plaintiff has prevailed on a state law claim and the court has reserved decision on the constitutional claim, see Seals v. Quarterly County Court, 562 F.2d 390 (6th Cir. 1977); and when plaintiff's claim has become moot or the action is otherwise terminated, where the litigation has somehow caused the defendant to remedy the alleged civil rights violation, see Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), cert. denied, 448 U.S. 906, 100 S. Ct. 3048, 65 L. Ed. 2d 1136 (1980); Inmates of Nebraska Penal & Correctional Complex v. Greenholtz, 567 F.2d 1381 (8th Cir. 1977).

 Several considerations support the proposition that a party may prevail under the Attorney's Fees Act without actually securing a judgment on a claim covered by the act. The fact that a plaintiff does not obtain a favorable judgment on a particular claim may have little or no relationship to the strength of the claim asserted. A plaintiff may be amply justified in filing a civil rights claim, and may even establish a reasonable likelihood of success on the merits, but nevertheless fail to secure a favorable judgment for such reasons as judicial restraint, economy, or mootness. Furthermore, such a plaintiff might, in substance although not formally, succeed in vindicating his civil rights claim through the litigation. When these factors coalesce, the policies that led Congress to authorize the award of fees are served by finding the plaintiffs involved to be prevailing parties. The civil rights claims in such cases may be substantial enough to justify encouraging their assertion, and the plaintiffs involved may have vindicated the civil rights claims as fully as if they had obtained favorable judgments.

 In Hanrahan v. Hampton, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980) (per curiam), the Supreme Court reviewed the legislative history of section 1988 and confirmed that a plaintiff seeking attorney's fees may sometimes be deemed a " "prevailing party' without having obtained a favorable "final judgment following a full trial on the merits,' H.R.Rep. No. 94-1558, 94th Cong., 2d Sess., 7 (1976). See also S.Rep. No. 94-1101, 94th Cong. 2d Sess., 5 (1976)." Id. at 756-57, 100 S. Ct. at 1989. The Court specifically cited as an example the entry of a consent judgment vindicating a plaintiff's rights, and it also recognized that "when a party has prevailed on the merits of at least some of his claims" by establishing liability, an award of fees may be appropriate pendente lite. Id. at 757, 100 S. Ct. at 1989.

 The issue posed in this case differs, however, from the issue in cases in which a plaintiff's civil rights claim has not been adjudicated. Here, plaintiffs' civil rights claims have been resolved: the jury has found defendants not liable for violating plaintiffs' rights. Arguably, therefore, no adequate factual predicate can be found to exist for the proposition that the plaintiffs have prevailed.

 Defendants contend that no plaintiff that loses on his civil rights claim may ever be awarded attorney's fees, because in such cases the defendant, not the plaintiff, is the prevailing party. The recent decision in Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980), lends support to defendants' argument, as it appears to hold that a party that loses on a civil rights claim cannot be found to have prevailed for purposes of section 1988.

 As a general proposition, a rule precluding attorney's fees when the plaintiff has specifically lost on the civil rights claim asserted seems proper. Congress has provided that only prevailing parties may secure attorney's fees, and the statutory standard reflects a policy that would encourage suits only to the extent of rewarding plaintiffs who actually prevail or whose civil rights claims, though not decided, are substantial and have been vindicated. In Hanrahan v. Hampton, supra, the Supreme Court refused to allow an award to parties who succeeded on appeal in obtaining a trial on the merits of their civil rights claim, stating that, unless the jury on remand decided "some or all of the issues" in their favor, "it could not seriously be contended that the respondents had prevailed." 446 U.S. at 759, 100 S. Ct. at 1990. Cf. Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980) (Title VII case).

 Despite these considerations, exceptional circumstances may arise in which a court should have the discretion to deem that a plaintiff has prevailed even though the civil rights claim asserted was decided adversely. Though rare, situations do occur in which a party loses on the civil rights claims asserted, but succeeds on another, closely related claim not covered by the Act. In such cases, the party losing the civil rights claim may nevertheless establish ample justification for bringing the civil rights claim, and may obtain from the jury a verdict on other claims that substantially vindicates his constitutional quest.

 A case that presents these special circumstances is Russo v. State of New York, D.C., 515 F. Supp. 470, 79 Civ. 1650 (ADS), in which a motion for attorney's fees is pending before this Court. The jury in Russo found that one defendant was liable to plaintiff for malicious prosecution under New York State law. The victorious plaintiff was awarded $ 25,000 in compensatory damages and $ 5,000 in punitive damages. At the same time, however, the jury rejected plaintiff's claim that the defendant's conduct constituted intentional infliction of emotional harm under state law, or a deprivation of civil rights cognizable under 42 U.S.C. § 1983.

 The plaintiff in Russo undoubtedly was justified in asserting his civil rights claim. He claimed that the defendant had engaged in a pattern of harassment that included the initiation of prosecutions without probable cause, improper searches, and verbal abuse. While plaintiff was unable to prove all of his allegations, and certain claims and defendants were dropped or dismissed prior to or during trial, ...

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