McFadden

1. Introduction

A jury found that defendant Patrick Villa, a San Bernardino County deputy sheriff, committed battery on plaintiff Mark McFadden, for which the jury awarded McFadden $25,000. The jury also found Villa did not violate plaintiff’s civil rights under title 42, United States Code, section 1983 , by use of excessive force or otherwise. 1 After plaintiff’s motion for new trial or for additur, Villa agreed to accept an additur of $35,000. The court then granted plaintiffs motion for attorney’s fees in the amount of $47,257.50 under section 1988.

On appeal, Villa argues that plaintiff could not be awarded attorney’s fees under section 1988 because the jury rejected plaintiffs civil rights claims *237 under section 1983. Plaintiff counters his battery claim and civil rights claim are identical, thus entitling him as the prevailing party to an award of fees under section 1988.

We hold that a plaintiff who wins his state claim but loses his federal claim cannot obtain an award of attorney’s fees under section 1988.

2. Factual and Procedural Background

The witnesses for the county testified that four deputy sheriffs, including Villa, attempted to serve a search…