A prevailing party in a civil rights action is entitled to an award of attorney’s fees under 42 U.S.C. § 1988(b). An award can also be made for attorney’s fees incurred in the prosecution of an appeal. To be entitled to an award of attorney’s fees the plaintiff must obtain some relief on merits. In this regard, an award for only nominal damages is sufficient to establish the plaintiff as a prevailing party. Even a complainant who prevails through settlement can claim attorney’s fees as a prevailing party. However, a prevailing defendant can only be awarded attorney’s fees under § 1988 if the plaintiff’s underlying claim was frivolous, unreasonable or groundless. The mere fact that the plaintiff did not prevail on the merits does not entitle the defendant to an attorney’s fee award.
Only a defendant represented by counsel may receive an award of attorney’s fees under § 1988. A pro se defendant is ineligible for such an award even though s/he is a licensed attorney. Where a civil rights plaintiff has entered into a contingent fee agreement with the attorney representing him/her, the amount of the fee provided for in the agreement does not serve as a cap on a fee award. In addition, § 1988 does not invalidate a contingent fee agreement that requires a prevailing plaintiff to pay his/her attorney more than the fee award made by the court under § 1988.