Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

Charles MILADIN, Plaintiff-Appellee,v.CITY OF WESTMINSTER, et al., Defendant,andDwight E. MOORE, Defendant-Appellant.

No. 89-56297.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 4, 1991.^* Decided Feb. 15, 1991.

Before BEEZER, KOZINSKI and RYMER, Circuit Judges.

MEMORANDUM^** 

We review the district court's award of attorney's fees pursuant to 42 USC Sec. 1988 for abuse of discretion. Cabrales v County of Los Angeles, 864 F2d 1454, 1464 (9th Cir1988). The district court abused its discretion in assessing fees against "defendants"; the plaintiff only prevailed against defendant Moore and cannot obtain attorney's fees from the other defendants. Kentucky v Graham, 473 US 159, 165 (1985) (" [W]here a defendant has not been prevailed against, either because of legal immunity or on the merits, Sec. 1988 does not authorize a fee award against that defendant.").

We cannot determine whether the district court intended part of the fee award to be paid by city, even though it was dismissed from the case, or whether it intended for Moore to pay fees attributable to plaintiff's pursuit of unsuccessful claims against other defendants--both of which would have been improper. We remand so that the district court can issue a new fee order against Moore alone for the fees attributable to plaintiff's pursuit of the successful claim against him. In determining whether the fees can be allocated to different claims, the district court should consider whether the successful and unsuccessful claims "involve a common core of facts or [are] based on related legal theories," Hensley v. Eckerhart, 461 US 424, 435 (1983).

REMANDED.