as the reason for her inability to locate her client. At the same time she filed a motion for attorney's fees and costs. On November 10, 1980, I entered an order deferring, until June 15, 1981, ruling on the motions filed by Elliott in order to afford Thompson the opportunity to appear and to prosecute his claim. Thompson failed to do so and, on June 23, 1981, I entered an order dismissing this action with prejudice for Thompson's failure to appear to prosecute his claim. I retained jurisdiction to determine whether an award of counsel fees was warranted under the circumstances. Elliott has since renewed her application for fees and costs. She and opposing counsel have filed supplemental memoranda.
By its terms, 42 U.S.C. § 1988 authorizes an award of attorney's fees only to prevailing parties. Hanrahan v. Hampton, 446 U.S. 754, 756, 64 L. Ed. 2d 670, 100 S. Ct. 1987 (1980). To be a prevailing party, however, it is not necessary to be the beneficiary of a formal final judgment. All that is necessary is that the party seeking an award of attorney's fees "'essentially succeed[s] in obtaining the relief he seeks on his claims on the merits.'" Morrison v. Ayoob, 627 F.2d 699, 671 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1102, 66 L. Ed. 2d 828, 101 S. Ct. 898 (1981), quoting Bagby v. Beal, 606 F.2d 411, 415 (3d Cir.). Applying this standard to the instant case, Thompson cannot be considered a prevailing party. Review of the complaint reveals that Thompson's sole purpose in bringing this action was to secure an award of damages for the alleged deprivation of his rights to due process of law. He sought $250,000 in compensatory damages, and $700,000 in punitive damages. The complaint contains no claim for injunctive or declaratory relief. Thompson did not request release from custody nor did he seek to be afforded the Morrissey hearing which he alleged was denied him.
The court of appeals, in reversing the grant of a directed verdict in favor of defendant Jefferson and remanding the case for further factual development, simply afforded Thompson the opportunity to prove that he was entitled to the relief he sought on the merits, i.e., damages. There is no suggestion in the court of appeals' opinion that it considered Jefferson's liability to have been established.
Indeed, the thrust of the court of appeals' discussion was that further factual development was essential to determine whether Jefferson, the only remaining defendant, was entitled to the defense of absolute or qualified immunity.
The law is clear that where a party's success on appeal consists of obtaining a trial on the merits of his claim, he is not a prevailing party under § 1988. See, e.g., Hanrahan v. Hampton, supra, 446 U.S. at 758-759; Swietlowich v. County of Bucks, 620 F.2d 33, 34 (3d Cir. 1980) (per curiam). To become a prevailing party Thompson would have had to establish Jefferson's liability for damages, even if only nominal damages. Clearly, had Jefferson prevailed at trial, Thompson would have accomplished absolutely nothing from filing this action.
Thompson's disappearance, however, resulting in dismissal of his claim, made it impossible to establish Jefferson's liability and, therefore, impossible to confer prevailing party status on Thompson. This determination that Thompson could not be considered a prevailing party on the basis of his appellate success is consistent with the court of appeals' direction that application for attorney's fees must await resolution of the issues remanded.
It is unfortunate indeed that Thompson has repaid his attorney's industry and dedication by disappearing and denying her the opportunity to establish her right to a fee. While I sympathize with the attorney's unfortunate predicament, I must conclude that, through no fault of her own, she has not established that Thompson was a prevailing party and the motion for attorney's fees and costs will be denied.
This 4 day of August, 1982, it is
ORDERED that Plaintiff's Motion for Award of Costs, Including Attorney's Fees is DENIED.