Armik Markarian, Plaintiff-appellant, v. Robert G. Borg, Warden; Mr. Fairbourn, Dentist at Folsomstate Prison; Officer Grayson; C/o Mayfield;alan Wing, Defendants-appellees, 70 F.3d 1279 (9th Cir. 1995)

MEMORANDUM^** 

Armik Markarian, a California state prisoner, appeals pro se the district court's summary judgment for defendant prison officials and medical staff members of the New Folsom State Prison in Markarian's 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review the district court's summary judgment de novo, see McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). We affirm for the reasons stated in the magistrate's well-reasoned findings and recommendations dated October 6, 1994, as adopted by the district court in its order dated December 15, 1994.

The defendants also seek attorney's fees pursuant to 42 U.S.C. § 1985. A party that seeks attorney's fees in a civil case is required to identify the authority under which the attorney's fees will be sought. See 9th Cir.R. 28-2.3. Here, the appropriate authority under which appellees should have requested attorney's fees is 42 U.S.C. § 1988(b). We decline to award attorney's fees for this reason, and because a successful defendant in a civil rights case is allowed to recover attorney's fees only upon a finding that plaintiff's action was frivolous, unreasonable or without foundation. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.), cert. denied, 115 S. Ct. 510 (1994). That is not the case here.

AFFIRMED.