Bernard Duff, Plaintiff-appellant, v. Charles L. Wolff, Jr., Defendant-appellee, 996 F.2d 1224 (9th Cir. 1993)

MEMORANDUM^** 

BACKGROUND

Bernard Duff's civil rights action, 42 U.S.C. § 1983, alleged that Nevada's Director of Prisons violated his civil rights by revoking his parole without a pre-revocation hearing.¹  He prevailed on a motion for partial summary judgment, but the district court awarded him only nominal damages of $1.00, holding that he had suffered only a technical or de minimis violation of his due process rights. That decision is not appealed.

The court subsequently denied Duff's request for attorney's fees under 42 U.S.C. § 1988. He timely appeals that denial and requests attorney's fees for this appeal.²  We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the court's denial of attorney's fees. Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992). We affirm.³ 

ANALYSIS

Duff argues that, as the prevailing party in his § 1983 action, he is entitled to reasonable attorney's fees. Because he achieved some of the benefit he sought by bringing suit, he insists that he has crossed the "statutory threshold" to a fee award of some kind. See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 791-92 (1989).

To be considered a prevailing party under § 1988, however, Garland requires that a plaintiff achieve a resolution of the dispute that changes the legal relationship between himself and the defendant. It is not enough that the plaintiff achieves a "purely technical or de minimis " victory. Id. at 792-93.

The district court concluded that its order granting partial summary judgment was a technical or de minimis victory for Duff. Because he was released from prison before entry of the order, it would not change his relationship with the defendants. It held that attorney's fees were not justified under § 1988. The court did not say explicitly whether Duff was a prevailing party under § 1988. From its reasoning, however, we may infer that it concluded that he was not.

The resolution of this appeal is controlled by Farrar v. Hobby, 113 S. Ct. 566 (1992). Farrar brought a § 1983 action requesting $17 million in damages. A jury found that the defendant had deprived Farrar of a civil right but had not proximately caused any of the damages Farrar alleged. After remand, the court entered judgment for nominal damages of $1.00 and substantial attorney's fees. The Fifth Circuit reversed the fee award. The Supreme Court affirmed. Id. at 570-71.

Justice Thomas, writing for a plurality, reiterated the Garland test for prevailing party status, adding that " [a] judgment for damages in any amount ... modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay." Id. at 574. A plaintiff who establishes the violation of his right to procedural due process, but who cannot prove actual injury, nevertheless is entitled to nominal damages and is a prevailing party under § 1988. Id. Therefore, under Farrar, Duff qualifies as a prevailing party.

Although the magnitude of relief obtained does not dictate prevailing party status, it does influence the propriety of fees awarded under § 1988:

"Where recovery of private damages is the purpose of ... civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." ...

... When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.

Id. at 575 (citations omitted).⁴ 

Duff's action sought special damages for loss of nearly a year's income plus interest, $50,000 compensatory and $50,000 punitive damages. He prevailed by showing a technical violation of his due process rights, but showed no actual injury. He was on parole when his sentence was recalculated. His own violations of that parole caused his subsequent imprisonment.

CONCLUSION

Because the district court awarded Duff only nominal damages, it did not abuse its discretion in denying him attorney's fees. His request for attorney's fees on appeal is denied.

AFFIRMED.