Bobby Daniels, Plaintiff,frank Scott Moore, Appellant, v. B. Bark; N. Reynolds; M. Romines; M. Tackett, Defendants-appellees, 91 F.3d 151 (9th Cir. 1996)

Here, Daniels sued eight prison officials and sought $120,000 in damages, but won only $1.00 from one defendant. Under the reasoning of Farrar, we find that Daniels demonstrated only minimal success and are not persuaded by appellant's arguments that (1) Daniels sought more than just monetary damages and (2) this judgment has "prospective collateral estoppel" effect.

First, while it is true that Daniels' complaint requested injunctive and declaratory relief, Daniels abandoned those claims at trial because he failed to include them in the pretrial memorandum incorporated into the pretrial order.¹  Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 924 (9th Cir. 1988) (failure to raise issue in pretrial order constitutes waiver). Thus, it would seem the sole purpose of this suit was the recovery of money damages and in such a case, "a failure to obtain a judgment awarding actual damages is a strong indication of a low degree of success, because 'the awarding of nominal damages ... highlights the plaintiff's failure to prove actual, compensable injury.' " Wilcox v. Reno, 42 F.3d 550, 555 (9th Cir. 1994) (quoting Farrar, 113 S. Ct. at 575).

Second, the potential collateral estoppel effect of this judgment is limited. At its core, the verdict is only an assessment of liability for a private injury against one person. Appellant has failed to demonstrate how the verdict changed prison policy or in what context the verdict will have collateral estoppel effect.

Because Appellant has failed on this, the most critical factor in the analysis, we find that the district court did not abuse its discretion in refusing to award attorneys' fees. Furthermore, we note that any non-pecuniary benefit that Daniels obtained occurred prior to the time that counsel commenced representation.

Pursuant to FRAP 39, defendant seeks attorney's fees and costs expended on this appeal. Defendant alleges that the appeal is frivolous and without foundation given the holding in Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir.), cert. denied, 116 S. Ct. 379 (1995). Although there is solid authority militating against the award of attorneys' fees, there is also authority that supports appellant's claims. We believe that this appeal was neither frivolous nor unreasonable and therefore we deny defendant's request.

We AFFIRM.