Patricia Clarice Ellis v. Chief of Police ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11822 June 24, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-22407-CV-WMH
PATRICIA CLARICE ELLIS,
Plaintiff-Appellee,
versus
JAMES B. WRIGHT,
individually,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 24, 2008)
Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.
PER CURIAM:
*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
After a thorough review of the record, taking the evidence in the light most
favorable to Patricia Ellis, and with the benefit of oral argument, we affirm the
district court’s finding that Chief Wright was not entitled to qualified immunity.
Quite simply, we do not believe any objectively reasonable officer in the same
circumstances and possessing the same knowledge as Chief Wright could have
believed that even arguable probable cause existed for arresting Ellis for violating
Florida Statute Section 810.09 or 877.03. Having determined Chief Wright is not
entitled to qualified immunity against Ellis’s claim of unlawful arrest under 42
U.S.C. § 1983, we, therefore, also conclude he is not entitled to qualified
immunity against Ellis’s claim of excessive force.
AFFIRMED.1
1
Ellis’s motion for attorney’s fees under 42 U.S.C. § 1988 is denied. Section 1988 only
authorizes fee awards to “prevailing parties.” 42 U.S.C. § 1988. A party is not a prevailing party
until they have prevailed on the merits of at least one of their claims. Hanrahan v. Hampton, 446
U.S. 754, 758 (1980). Ellis has only succeeded on an interlocutory appeal, which will allow her
suit to proceed to an adjudication of the merits; therefore, she is not a prevailing party.
2