42 USC §1988 | PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS

"Section 1988, however, applies not only to claims against state officers under § 1983, but also to suits under §§ 1981, 1982, and 1985, which do not require state action."

"Section 1988 does not allow attorney's fees to be recovered from a governmental entity when a plaintiff sues governmental employees only in their personal capacities and prevails; accordingly, since this case was necessarily litigated as a personal-capacity and not as an official-capacity action, it was error to award fees against the Commonwealth."

"In Texas State Teachers v. Garland Independent School District, ___ U.S. ___, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Supreme Court clarified the standard for determining whether a litigant may be considered a "prevailing party" deserving of a fee award. A litigant need not prevail on the central issue in the case or obtain the primary relief sought. However, the plaintiff must, "at a minimum, to be considered a prevailing party... be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.""

"We can thus distill from the Supreme Court's prevailing party jurisprudence that there are two requirements for a party to reach prevailing party status. First, the party must be awarded some relief on the merits of its claim by the court. Buckhannon , 532 U.S. at 603, 121 S.Ct. 1835. Second, the party must be able to point to a resolution of the dispute which materially altered the legal relationship between the parties. Garland , 489 U.S. at 792–93, 109 S.Ct. 1486."

Under section 1988, "a prevailing plaintiff should recover reasonable attorneys' fees unless special circumstances render an award unjust." Gaines v. Dougherty County Bd. of Educ, 775 F.2d 1565, 1569 (11th Cir. 1985). "To be a `prevailing party,' it is not necessary for a plaintiff ultimately to prevail on each and every claim asserted or to receive all the relief requested;" he needs to prevail on some of his claims. Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir. 1982). The Supreme Court has explained that an attorney's fee should be reduced when a plaintiff has not prevailed on a distinct claim or has achieved only modest success:

Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.