Civil Rights: Civil Rights Plaintiff Not Entitled To Attorney’s Fees For Just Defeating A Defense Qualified Immunity Motion Were The Case Was Proceeding To Trial

Prevailing Party Can Only Be Determined After A Trial On The Merits.

            In Senn v. Smith, Case No. 21-35293 (9^th Cir. June 8, 2022) (published), plaintiff brought an excessive force 42 U.S.C. § 1983 claim against certain defendants, obtaining a denial of the defense motion for qualified immunity—a determination affirmed on appeal.  Plaintiff moved for recovery of attorney’s fees under the § 1988(b) civil rights statute based upon being a “prevailing party” after the Ninth Circuit affirmed the denial of qualified immunity and remanded for trial in an unpublished disposition.  The Ninth Circuit denied the fee request as premature because no trial had yet been held so that a prevailing party determination could not be made.  Although plaintiff lived for another day, a merits determination needed to be made for purposes of determining prevailing party status.