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Brown v. Borough of Chambersburg

filed: May 21, 1990; As Amended May 29, 1990.

BROWN, RICHARD W.
v.
BOROUGH OF CHAMBERSBURG, PRYOR, RICHARD GRABOWSKI, MATTHEW; NORTH, RICHARD; COUNTY OF FRANKLIN; SEEP, MICHAEL; RAUSER, RUSSELL AND BURNS, DAVID. RICHARD W. BROWN, AND HIS ATTORNEY, ROBERT W. HENDERSON, ESQUIRE, APPELLANTS



Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 88-00152.

Mansmann, Scirica, and Seitz, Circuit Judges.

Author: Seitz

Mansmann, Scirica, and Seitz, Circuit Judges.

Opinion OF THE COURT

SEITZ, Circuit Judge

Richard Brown (plaintiff) and his attorney, Robert Henderson (attorney), appeal separate awards of attorneys' fees against each of them and in favor of defendants. The district court allowed such fees pursuant to 42 U.S.C. § 1988 (1982). We have jurisdiction under 28 U.S.C. § 1291 (1982).

Plaintiff brought this § 1983 action against six individual defendants, the Borough of Chambersburg and the County of Franklin, alleging violations of his civil rights under the fourth and fourteenth amendments to the Constitution. See 42 U.S.C. § 1983 (1982). Prior to trial, plaintiff voluntarily dismissed the Borough of Chambersburg. The district court then conducted a two-day jury trial. After the parties had rested, the district court granted a directed verdict in favor of the County of Franklin. However, it denied the motions of the individual defendants for directed verdicts on the ground that there was "direct conflict in the oral testimony at trial." Subsequently, the jury returned a verdict in favor of the individual defendants.

The attorneys' fee awards here appealed were based on the district court's determination that plaintiff's § 1983 action, alleging his defendants' mistreatment of plaintiff during and after his arrest for public drunkenness, was frivolous.

As a preliminary matter, we note that while the district court's memorandum opinion stated that it was appropriate to sanction appellants under Fed.R.Civ.P. 11, the court did not rely on that rule as authority for imposing sanctions. Rather, the order appealed from awarded attorneys' fees pursuant to § 1988 only. Therefore, we will address only that statutory ground for sanctions.

I

We turn first to the attorney's contention that § 1988 applies only to parties and does not authorize the award of attorneys' fees against him. Since the contention is a legal one our review is plenary.

Interpretation of § 1988 must begin with its language, which provides in pertinent part:

In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title . . . 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.

The Supreme Court has commented on the fact that § 1988 makes no "mention of attorney liability for costs and fees." Roadway Express, Inc. v. Piper, 447 U.S. 752, 761, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980). In Roadway, the Court found convincing support in the legislative history for the view that the statute ...


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