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Newberry v. City of Newport3/11/2005
tates, a reasonable attorney's fee as part of the costs...."
First, we note that Newberry fails to explain how his civil rights were violated. There is no allegation of discrimination; moreover, there is no proof that the City deprived Newberry of his present "rights, privileges, or immunities."
Second, even if this claim did fall under 42 U.S.C. § 1983, we do not understand how Newberry is the "prevailing party" to whom attorney's fees are owed. To be a prevailing party, one party must, assumedly, "win." Because there was never a full adjudication before the court, it is difficult to assess one party as the clear victor over the other. Even though Newberry's COA application was eventually approved, we do not believe he "prevailed" for purposes of 42 U.S.C. § 1988. Therefore, we agree with the circuit court's decision.
CONCLUSION
For these reasons, the order of the Campbell Circuit Court granting the City's motion to dismiss is affirmed.
ALL CONCUR.
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