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THOMPSON v. PENNA. PAROLE BD.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 4, 1982

LEROY THOMPSON
v.
PENNA. PAROLE BOARD MEMBER JEFFERSON

The opinion of the court was delivered by: LUONGO

MEMORANDUM

 LUONGO, Ch.J.

 Jane D. Elliott, Esquire, who was appointed by the court of appeals to represent plaintiff, Leroy Thompson, in appellate proceedings in this § 1983 action, has moved on behalf of Thompson, pursuant to 42 U.S.C. § 1988, for an award of attorney's fees and costs. Elliott contends that Thompson is entitled to an award of fees because the court of appeals remanded this case for further proceedings as to one of the several defendants. Because his unexplained failure to appear for the retrial has resulted in dismissal of this action, Thompson has failed to establish that he is a prevailing party under § 1988 and the motion for attorney's fees and costs will be denied.

 Thompson brought this action pro se in 1973 seeking damages from defendants for detaining him as a parole violator without a hearing in violation of his rights to procedural due process as set forth in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Thompson named as defendants: Parole Supervisor Burke, Parole Agent Strickler and Parole Board Member Jefferson. *fn1" The case was tried to a jury on February 25-26, 1975. *fn2" At the close of the evidence, I granted defendants' motions for directed verdict and entered judgment in favor of all defendants.

 Thompson filed a notice of appeal and the court of appeals appointed Elliott to represent Thompson. On June 1, 1977, the court of appeals filed an opinion affirming the directed verdict as to defendants Burke and Strickler, but reversing as to defendant Jefferson. Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977). The case was remanded to this court for further factual development to determine whether Jefferson was entitled to absolute or qualified immunity and, if Jefferson was entitled to qualified immunity, whether he could satisfy the burden of proof on that issue. See id. at 240. The court of appeals pointed out that, if Thompson did prevail, he would likely be entitled to nominal damages only. Id. at 240.

 Elliott then filed a petition for attorney's fees and costs in the court of appeals. That court denied the motion without prejudice on December 28, 1977, stating:

 

Inasmuch as we reversed the judgment of the district court . . . and remanded the case to it . . . for the disposition of certain factual and legal issues . . . the motion for legal fees is hereby denied without prejudice to any application which may be made hereafter to the district court or to this court after resolution of the issues remanded.

 

(Document No. 42) (Emphasis supplied).

 After the petition for attorney's fees was denied by the court of appeals, the parties engaged in discovery on the issues that were to be retried. The trial on the remanded issues, however, never occurred. Thompson disappeared and Elliott was unable to ascertain his whereabouts. In September of 1980, Elliott filed a motion to withdraw as Thompson's counsel, asserting 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. *fn3" 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. *fn4" 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. *fn5" 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. *fn6"

 ORDER

 This 4 day of August, 1982, it is

 ORDERED that Plaintiff's Motion for Award of Costs, Including Attorney's Fees is DENIED.


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