defendant incarcerated him without charges having been lodged against him. The defendant admitted having arrested the plaintiff, denied having struck him and denied incarcerating him without lodging charges. At trial the plaintiff and four of his friends, all about eighteen years of age at the time of the incident, testified that on December 6, 1976 at about 11:30 p.m. they drove into a Jack-in-the-Box restaurant, and they pulled into the lane provided for customers who wanted to order and pick up their food without going into the restaurant. After having received their food and having paid for it, the driver of the car pulled into a spot on the parking lot. At that point, according to the plaintiff and his witnesses, the defendant drove his police car next to their car and began to berate them for littering. They told the officer that they just arrived, had not unwrapped their food, and therefore had not littered. After an exchange of words the police officer arrested the plaintiff, who had been sitting in the back seat.
The plaintiff testified that after his arrest he was taken to the police station, where the defendant struck him twice on the head with a blackjack, put him into a cell, and then released him a few hours later. Plaintiff stated that upon release he was taken to the hospital where he was treated for a concussion.
The defendant testified that he drove into the Jack-in-the-Box restaurant on the night in question and saw the plaintiff standing by himself in the middle of the parking lot shouting obscenities at someone who was getting into a car. The defendant stated that he went over to the plaintiff, warned him to be quiet, and then arrested him. The defendant testified that the plaintiff was staggering, that his speech was slurred, and that he fell and bumped his head getting into the police van. The defendant denied striking the plaintiff, and claimed that he locked him in a cell for a few hours to dry out.
Other police officers who were on duty at the police station on the night in question testified that they did not observe the plaintiff being struck.
The motion for attorney's fees filed by the defendant is made pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. The defendant argues that the Act permits the Court to award the prevailing party a reasonable attorney's fee, that he was the prevailing party in this lawsuit, and that this Court should therefore award him $4,040.00 in attorney fees. It is contended that since the jury apparently believed the officer's testimony and did not believe the plaintiff and his witnesses, the plaintiff's case was frivolous, unreasonable and groundless. The plaintiff contends that defendant's attorney's fees are discretionary with the Court, that such fees should be awarded only in the event the Court finds that the case presented by the plaintiff was frivolous, unreasonable and groundless, and that the testimony was such that a jury could have justifiably rendered a verdict for either party.
Title 42, U.S.C. § 1988 provides in pertinent part:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title . . . or title VII of the Civil Rights Act of 1964, the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.