Michael Fitzharris v. Charles L. Wolff, Warden, & William Lattin, Warden, 702 F.2d 836 (9th Cir. 1983). · Go Syfert
Michael Fitzharris v. Charles L. Wolff, Warden, & William Lattin, Warden, 702 F.2d 836 (9th Cir. 1983). Cases Citing This Book View Copy Cite
G Cite
cited 4× by 3 distinct cases, last quoted 1992 · …frivolous, unreasonable or groundless. at p. 838
57 citation events (1 in the last 25 years) across 9 distinct courts.
Strongest positive: Butler v. National Collegiate Athletic Ass'n (ca9, 2001-01-19) · Strongest negative: Tanya Libby, by Her Father and Next Friend, Charles F. Libby v. Illinois High School Association (ca7, 1990-12-13)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited "but see" Tanya Libby, by Her Father and Next Friend, Charles F. Libby v. Illinois High School Association
7th Cir. · 1990 · signal: but see · confidence high
Paragould Music Co. v. City of Paragould, 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass’n, 708 F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball not a prevailing party because finding on the merits was not required for the issuance of an injunction pending appeal); Coalition for Basic Human Needs v. King, 691 F.2d 597, 601 (1st Cir.1982) (preliminary relief, although substantive, may not determine the merits of the plaintiff’s claim and provide relief, but only maintain the status quo without purp…
discussed Cited "but see" Coalition for Economic Survival v. Deukmejian
Cal. Ct. App. · 1985 · signal: but see · confidence high
For instance, when a plaintiff has obtained judicial relief on some but not all of his claims, that plaintiff is said to be a prevailing party if he has succeeded ‘“on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’” (Hensley v. Eckerhart (1983) 461 U.S. 424, 433 [ 76 L.Ed.2d 40, 50 , 103 S.Ct. 1933 ], quoting Nadeau v. Helgemoe (1st Cir. 1978) 581 F.2d 275, 278-279 .) When a plaintiff’s suit has not resulted in a formal judgment in his favor but has brought about action outside of the courtroom which affords the party the …
discussed Cited as authority (rule) Butler v. National Collegiate Athletic Ass'n
9th Cir. · 2001 · signal: cf. · confidence medium
Cf. Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983) (noting, in concluding that plaintiff was a “prevailing party” on the basis of the award of a TRO, that defendants did not seek to dissolve the TRO, which had been in effect for ten months).
cited Cited as authority (rule) Lozeau v. Lake County, Mont.
D. Mont. · 2000 · confidence medium
Id. (citing California Ass’n of the Physically Handicapped, Inc. v. FCC, 721 F.2d 667, 671 (9th Cir.1983); Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983)).
discussed Cited as authority (rule) Jacobs v. Angelone (2×)
9th Cir. · 1997 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983).
discussed Cited as authority (rule) Stivers v. Pierce
9th Cir. · 1995 · confidence medium
For the purposes of determining entitlement to fees, a claim has a basis in law so long as it is not “frivolous, unreasonable, or groundless.” Sablan, 856 F.2d at 1327 (quoting Fitzharris v. Wolff, 702 F.2d 836, 836 (9th Cir.1983)). 9 Thus, even if the district court had been correct in granting summary judgment to the defendants on the merits, the plaintiffs would not necessarily have been foreclosed from obtaining attorney’s fees for time spent pursuing injunctive relief.
discussed Cited as authority (rule) 95 Cal. Daily Op. Serv. 9034, 95 Daily Journal D.A.R. 15,866 Martin Stivers Mary Chase Ernsberger Chamar, Inc. v. Richard Pierce George D. Wendell Denise Conrad Gary T. Robey Brian McKay Carol Widmer-Hanna Robert J. Rodefer Bill Bertram Individually and as Members of the Nevada State Private Investigators Licensing Board the Nevada State Private Investigators Licensing Board and Does 1-10
9th Cir. · 1995 · confidence medium
For the purposes of determining entitlement to fees, a claim has a basis in law so long as it is not "frivolous, unreasonable, or groundless." Sablan, 856 F.2d at 1327 (quoting Fitzharris v. Wolff, 702 F.2d 836, 836 (9th Cir.1983)). 9 Thus, even if the district court had been correct in granting summary judgment to the defendants on the merits, the plaintiffs would not necessarily have been foreclosed from obtaining attorney's fees for time spent pursuing injunctive relief. 90 Here, the plaintiffs have raised substantial legal and factual questions.
discussed Cited as authority (rule) Cabrera v. Martin
9th Cir. · 1992 · confidence medium
Appellees argue that, under this Circuit's established precedent, the district court’s opinion should be affirmed so long as there is “some legal basis” for the plaintiffs’ claim — that is, so long as the district court’s decision is not “frivolous, unreasonable or groundless.” Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983) (citations omitted).
cited Cited as authority (rule) Ramon v. Soto
9th Cir. · 1990 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983).
cited Cited as authority (rule) Ramon ex rel. Ramon v. Soto
9th Cir. · 1989 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983).
discussed Cited as authority (rule) Sablan v. Department of Finance of Northern Mariana Islands
9th Cir. · 1988 · confidence medium
See California Association of the Physically Handicapped, Inc. v. FCC, 721 F.2d 667, 671 (9th Cir.1983) (CAPH), cert. denied, 469 U.S. 832 , 105 S.Ct. 121 , 83 L.Ed.2d 63 (1984); Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983) (Fitzharris); accord Operating Engineers Local Union No. 3 v. Bohn, 737 F.2d 860, 863 (10th Cir.1984) (Bohn).
discussed Cited as authority (rule) Sablan v. Department Of Finance Of The Commonwealth Of The Northern Mariana Islands
9th Cir. · 1988 · confidence medium
See California Association of the Physically Handicapped, Inc. v. FCC, 721 F.2d 667, 671 (9th Cir.1983) (CAPH ), cert. denied, 469 U.S. 832 , 105 S.Ct. 121 , 83 L.Ed.2d 63 (1984); Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983) (Fitzharris ); accord Operating Engineers Local Union No. 3 v. Bohn, 737 F.2d 860, 863 (10th Cir.1984) (Bohn ).
discussed Cited as authority (rule) Lear Siegler, Inc., Energy Products Division, Plaintiff-Appellee/cross v. John Lehman, Secretary of the Navy, Defendants-Appellants/cross- Lear Siegler Inc., and United States Senate United States House of Representatives, Plaintiffs- Intervenors-Appellees v. John Lehman, Secretary of the Navy William Stevenson, Contracting Officer
9th Cir. · 1988 · confidence medium
McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir.1983); see Hensley v. Eckerhart, 461 U.S. at 433 n. 7, 103 S.Ct. at 1939 n. 7 ("The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.' ") The Ninth Circuit has consistently held that a litigant "need only have received some of the benefits [he] sought in the suit" to be a "prevailing party." Greater Los Angeles Council on Deafness v. Community Television of Southern California, 813 F.2d 217, 220 (9th Cir.1987) (emphasis added); accord McQuiston v. M…
discussed Cited as authority (rule) Lear Siegler, Inc. v. Lehman
9th Cir. · 1988 · confidence medium
McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir.1983); see Hensley v. Eckerhart, 461 U.S. at 433 n. 7, 103 S.Ct. at 1939 n. 7 (“The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’ ”) The Ninth Circuit has consistently held that a litigant “need only have received some of the benefits [he] sought in the suit” to be a “prevailing party.” Greater Los Angeles Council on Deafness v. Community Television of Southern California, 813 F.2d 217, 220 (9th Cir.1987) (emphasis added); accor…
discussed Cited as authority (rule) Greater Los Angeles Council on Deafness v. Community Television
9th Cir. · 1987 · confidence medium
First, in a factual inquiry, “the District Court must determine what the lawsuit sought to accomplish and then determine whether it was accomplished by means of the suit.” Id. (citing Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983)).
discussed Cited as authority (rule) Jensen v. City of San Jose
9th Cir. · 1986 · confidence medium
See Mantolete v. Bolger, 791 F.2d 784, 785 (9th Cir.1986) (not judgment on the merits but “direct benefits”); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983) (not judgment on the merits but favorable settlement); Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983) (not judgment on the merits but temporary restraining order).
discussed Cited as authority (rule) Paul Jensen v. City Of San Jose
9th Cir. · 1986 · confidence medium
See Mantolete v. Bolger, 791 F.2d 784, 785 (9th Cir.1986) (not judgment on the merits but "direct benefits"); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983) (not judgment on the merits but favorable settlement); Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983) (not judgment on the merits but temporary restraining order).
discussed Cited as authority (rule) Corine Proctor v. Consolidated Freightways Corporation of Delaware, a Delaware Corporation
9th Cir. · 1986 · confidence medium
Cf. All American Distributing Co. v. Miller Brewing Co., 736 F.2d 530, 532-33 (9th Cir.1984) (distinguishing Hanrahan because dismissal of preliminary injunction cláim is achievement of major goal in litigation); Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983) (distinguishing Hanrahan because Fitzharris obtained relief that he sought — he obtained a temporary restraining order against his transfer to a state prison which was never dissolved).
cited Cited as authority (rule) Paoli v. Lally
D. Maryland · 1986 · confidence medium
Arguably, *1268 to send him to the State Prison under these circumstances would amount to cruel and unusual punishment in violation of the Eighth Amendment.” Id. at 839 (emphasis added).
discussed Cited as authority (rule) Lads Trucking Company v. Board of Trustees of the Western Conference of Teamsters Pension Trust Fund, Board of Trustees of the Western Conference of Teamsters Pension Trust Fund v. Lads Trucking Co.
9th Cir. · 1985 · confidence medium
See Cal. Ass'n. of Physically Handicapped v. F.C.C., 721 F.2d 667 (9th Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 121 , 83 L.Ed.2d 63 (1984); Beach v. Smith, 743 F.2d 1303, 1306 (9th Cir.1984); Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928 , 100 S.Ct. 1315 , 63 L.Ed.2d 761 (1980)(fees ultimately denied because relief obtained by legislative action and not by litigants' suit). 25 Here Trust was clearly the prevailing party.
discussed Cited as authority (rule) Lads Trucking Co. v. Board of Trustees
9th Cir. · 1985 · confidence medium
See Cal. Ass’n. of Physically Handicapped v. F.C.C., 721 F.2d 667 (9th Cir.1983), ce rt. denied, — U.S. —, 105 S.Ct. 121 , 83 L.Ed.2d 63 (1984); Beach v. Smith, 743 F.2d 1303, 1306 (9th Cir.1984); Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928 , 100 S.Ct. 1315 , 63 L.Ed.2d 761 (1980)(fees ultimately denied because relief obtained by legislative action and not by litigants’ suit).
cited Cited as authority (rule) Beach v. Smith
9th Cir. · 1984 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983).
cited Cited as authority (rule) Beach v. Smith
9th Cir. · 1984 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 838 (9th Cir.1983).
discussed Cited as authority (rule) Lauritzen v. Lehman
9th Cir. · 1984 · confidence medium
See, e.g., White v. City of Richmond, 713 F.2d 458, 460 (9th Cir.1983); Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983) (temporary restraining order that remained in effect until case became moot and served same function as preliminary injunction); Teitelbaum v. Sorenson, 648 F.2d 1248, 1249 (9th Cir.1981) (per curiam).
discussed Cited as authority (rule) Lauritzen v. Lehman
9th Cir. · 1984 · confidence medium
See, e.g., White v. City of Richmond, 713 F.2d 458, 460 (9th Cir.1983); Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983) (temporary restraining order that remained in effect until case became moot and served same function as preliminary injunction); Teitelbaum v. Sorenson, 648 F.2d 1248, 1249 (9th Cir.1981) (per curiam).
cited Cited as authority (rule) J.H. McQuiston v. John O. Marsh, Jr., Secretary of the Army, United States Army Missile Command
9th Cir. · 1983 · confidence medium
Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983); American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir.1981).
discussed Cited "see" Boykin v. Prison Warden, et al.
D.N.H. · 1995 · signal: see · confidence high
See Purvis v. Ponte, 929 F.2d 822, 826 (1st Cir. 1991). 3 While an inmate may have an Eighth Amendment right to avoid a particular prison under certain circumstances, see Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir. 1983), he does not have the right to demand incarceration or treatment in a particular prison, see, e.g., Jackson v. Fair, 846 F.2d 811 , 817- 18 (1st Cir. 1988). 6 II.
discussed Cited "see" Michael D. Jacobs v. Ron Angelone (2×)
9th Cir. · 1993 · signal: see · confidence high
See Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983) (allegation that prison officials transferred prisoner to prison that prison officials knew housed inmates who would kill prisoner states a claim of cruel and unusual punishment in violation of the Eighth Amendment). 9 A district court properly dismisses a complaint that fails to state a claim upon which relief may be granted.
cited Cited "see" Frank Gonzales v. Danny Martinez
9th Cir. · 1990 · signal: see · confidence high
See Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir.1983).
discussed Cited "see, e.g." Dahlem ex rel. Dahlem v. Board of Education of Denver Public Schools
10th Cir. · 1990 · signal: compare · confidence medium
Compare Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir. 1983) with, e.g., Paragould Music Co. v. City of Paragould, Ark., 738 F.2d 973, 975 (8th Cir.1984); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928 , 100 S.Ct. 1315 , 63 L.Ed.2d 761 (1980); Libby by Libby v. South Inter-Conference Ass’n, 728 F.Supp. at 510-12 .
discussed Cited "see, e.g." Dahlem v. Denver Public Schools
10th Cir. · 1990 · signal: compare · confidence medium
Compare Fitzharris v. Wolff, 702 F.2d 836, 838-39 (9th Cir.1983) with, e.g., Paragould Music Co. v. City of Paragould, Ark., 738 F.2d 973, 975 (8th Cir.1984); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928 , 100 S.Ct. 1315 , 63 L.Ed.2d 761 (1980); Libby by Libby v. South Inter-Conference Ass'n, 728 F.Supp. at 510-12 .
Retrieving the full opinion text from the archive…
Michael FITZHARRIS, Plaintiff-Appellee,
v.
Charles L. WOLFF, Warden, and William Lattin, Warden, Defendants-Appellants
81-6004.
Court of Appeals for the Ninth Circuit.
Apr 1, 1983.
702 F.2d 836
1983 U.S. App. LEXIS 29175
Ernest E. Adler, Carson City, Nev., for defendants-appellants., Robert P. Dickerson, Las Vegas, Nev., for plaintiff-appellee.
Duniway, Boochever, Keep.
Cited by 38 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: Ninth Circuit (1)
DUNIWAY, Circuit Judge:

Nevada prison authorities appeal from a judgment granting plaintiff Fitzharris’ motion for attorney’s fees under 42 U.S.C. § 1988 (Supp.1980). We affirm.

I. The Facts.

Fitzharris was serving a ten-year sentence at Southern Nevada Correctional Center. On May 13, 1980, he was accused at a disciplinary hearing of destruction of property and burglary of the prison infirmary. The Correctional Center Classification Committee recommended that he be transferred to Nevada State Prison at Carson City. On May 15, he sent a handwritten letter to the district court, in which he said that, if he were transferred to the State Prison, he would be killed by some of the inmates there.

Upon receiving the letter, the district judge treated it as a complaint under 28 U.S.C. § 1343 or a petition under 28 U.S.C. § 2254, issued a temporary restraining order prohibiting transfer of Fitzharris to State Prison, set a hearing for May 23, and appointed attorney Robert P. Dickerson as counsel for Fitzharris.

Attorney Dickerson filed affidavits and points and authorities in support of the petition and of a motion for a preliminary injunction. He appeared at the hearing on May 23, filed another affidavit, and argued the matter. A deputy attorney general of Nevada also appeared, filed affidavits and points and authorities, and argued. At the conclusion of the hearing, the court continued the restraining order in effect pending disposition of the motion for a preliminary injunction, or until further order of the court. The restraining order remained in effect until final disposition of the case. On May 27, the court ordered further filings by June 13, the matter to then stand submitted. Further voluminous affidavits were filed, and on September 23, a motion for leave to file an amended complaint of 42 pages plus exhibits was filed. No motion to dissolve the temporary restraining order was made.

On February 19, 1981, Fitzharris was paroled, the order requiring that he leave the state of Nevada and not come back during his period of parole. On March 20, the parties stipulated that the case was moot, except for attorney Dickerson’s motion for counsel fees. The court so ordered on June 16. Finally, on November 9, the court en[*838] tered a judgment granting $13,424 in attorney fees, plus $134.05 costs. The balance of the action was dismissed as moot.

II. Prevailing Party.

Section 1988 of 42 U.S.C. provides, in civil rights cases, for an award of a reasonable! attorney’s fee to “the prevailing party.” The appellants argue that Fitzharris is not a prevailing party. The question is by no means free from doubt, but we think that our own precedents support the conclusion that Fitzharris is the prevailing party.

The circuits are not in agreement as to the definition of prevailing party. Compare Bonnes v. Long, (Bonnes I), 4 Cir., 1979, 599 F.2d 1316, 1319, with Nadeau v. Helgemoe, 1 Cir., 1978, 581 F.2d 275, 281. See also, Justice Rehnquist’s dissent, 1982, 455 U.S. 961,102 S.Ct. 1476, 71 L.Ed.2d 681, from denial of certiorari in Long v. Bonnes (Bonnes v. Long, (Bonnes II), 4 Cir., 1981, 651 F.2d 214) and Kenley v. Young (Young v. Kenley, 4 Cir., 1981, 641 F.2d 192).

Bonnes I says that the court should first establish as a benchmark “the precise factual/legal condition that the fee claimant has sought to change or affect,” and then determine “whether as a quite practical matter the outcome, in whatever form it is realized, is one to which the ... fee claimant’s efforts contributed in a significant way, and which does involve an actual conferral of benefit or relief from burden when measured against the benchmark condition.” 599 F.2d at 1319. This is a rather verbose way of saying “first determine what the lawsuit sought to accomplish and then determine whether it was accomplished by means of the suit.” We quoted and applied the Bonnes I test in American Constitutional Party v. Munro, 9 Cir., 1981, 650 F.2d 184, 187. We construed the test as requiring “some sort of clear, causal relationship between the litigation brought and the practical outcome realized,” id. at 188, (emphasis in original), and we held that such a relationship had not been established in that case, which had been mooted by amendment by the legislature of the statute attacked by the plaintiffs.

Nadeau, supra, requires an additional element in establishing that a claimant is a “prevailing party.” There must be, in addition to a causal relationship between the lawsuit and the result obtained, a legal basis for the plaintiff’s claim — it must not be “frivolous, unreasonable or groundless.” (581 F.2d at 281, quoting Christiansburg Garment Co. v. E.E.O.C., 1978, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648.) Justice Rehnquist’s view is that an action brought by a litigant must “contain[ ] some basis in law for the benefits ultimately received by [the] litigant” (455 U.S. at 967, 102 S.Ct. at 1479), and that this is required by Nadeau.

We have more than once cited and followed Nadeau, but without recognizing any difference between it and Bonnes I, or even citing Bonnes I. See Sethy v. Alameda County Water Dist., 9 Cir., 1979, 602 F.2d 894, 898; Williams v. Alioto, 9 Cir., 1980, 625 F.2d 845, 847; Bartholomew v. Watson, 9 Cir., 1982, 665 F.2d 910, 914; Twin City Sportservice, Inc. v. Charles O. Finley & Co., 9 Cir., 1982, 676 F.2d 1291, 1314, 1315. However, in those cases we relied on Na-deau for propositions different from the one at issue in this case.

We need not attempt to reconcile Bonnes I and Nadeau here, because the plaintiff in this case meets both tests. Fitzharris’ letter/eomplaint stated but one claim for relief — a claim that he ought not to be transferred to State Prison. He achieved that relief in full, and it is abundantly clear that it was his action and the judge’s order, and those things only, that prevented the transfer. Thus he meets the Bonnes I test. As we shall see, his claim for relief contained a substantial basis in' law for the result that he sought. Thus he meets the Nadeau test.

It is argued that all that Fitzharris obtained from the court was a temporary restraining order, which is not a determination on the merits. See Bly v. McLeod, 4 Cir., 1979, 605 F.2d 134, 137. Here, however, the order was in effect from May 15 to May 23, was extended by order of the court on May 27, and remained in effect,[*839] without a motion by the defendants to dissolve it, until the action was finally dismissed as moot on March 20 of the next year. The order of May 27 was not labelled a preliminary injunction, but it served the same function, and is not analogous to the temporary restraining order that was issued in Bly, supra.

Nor is the fact that the action became moot when Fitzharris was paroled a basis for denying him prevailing party status. Analogous is Williams v. Alioto, supra, in which the action became moot after the plaintiffs had obtained a preliminary injunction, which stopped the conduct of which the plaintiffs complained. See 625 F.2d at 847. Also analogous is Maher v. Gagne, 1980, 448 U.S. 122,100 S.Ct. 2570, 65 L.Ed.2d 653, where the plaintiff “prevailed through a settlement rather than through litigation.” (id. at 129, 100 S.Ct. at 2574)

The case of Hanrahan v. Hampton, 1980, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670, is not in point here. There, attorney fees were awarded to a party who had prevailed in an appeal that did not deal with the merits of the claim for relief. The appellate court had held only that plaintiffs were entitled to a new trial and were entitled to certain discovery. The Court held that the statute did not contemplate an award in such a case; the action remained to be tried. The case at bar is different; the action has been finally disposed of and Fitzharris got the relief that he sought — -he was not transferred to State Prison.

III. Deprivation of Constitutional Right.

The district court concluded that Fitzharris’ complaints “more than adequately [alleged] cognizable claims for relief under 42 U.S.C. § 1983, § 1985, and § 1986 [and] also adequately [alleged] a cause of action under at least the Eighth and Fourteenth Amendments to the Constitution of the United States.” This finding, if correct, satisfies the additional requirement of Nadeau, supra, namely, a legal basis for Fitzharris’ claim. We hold that the district judge was right. Fitzharris alleged that if he were transferred to the State Prison, he would be killed, and that the prison authorities knew it. Arguably, to send him -to State Prison under these circumstances would amount to cruel and unusual punishment in violation of the Eighth Amendment. Franklin v. Oregon, 9 Cir., 1981, 662 F.2d 1337, 1346-1347. See, also, Woodhous v. Virginia, 4 Cir., 1973, 487 F.2d 889, 890.

IV. Unreasonable Amount.

Finally, appellants argue that the district court abused its discretion in fixing the amount of the attorney’s fees award.

An abuse of the discretion occurs if the court does not consider the relevant guidelines for determining the amount of a fee award. See Manhart v. City of Los Angeles, 9 Cir., 1981, 652 F.2d 904, vacated on other grounds, 1978, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657; Fountila v. Carter, 9 Cir., 1978, 571 F.2d 487, 496, citing Johnson v. Georgia Highway Express, Inc., 5 Cir., 1974, 488 F.2d 714, 717-718. Here counsel for Fitzharris submitted a detailed itemization of his time spent on the case. The district court specifically considered the Johnson factors, and concluded:

After reviewing the record, and from the Court’s own recollection of counsel’s meticulous preparation at every stage of this litigation, 167.8 hours of service is not an inflated figure. Counsel further represents that during the period of this litigation, his normal billing rate was $80 an hour (not an exhorbitant rate in this community), ...

Were this action resolved on its merits, there is a substantial likelihood that novel and unique issues would have been decided in the area of Eighth Amendment protections. Particularly at the early stage of litigation, Plaintiff’s counsel was required to virtually abandon his daily law practice in preparation for and in response to the hearing on Plaintiff’s Motion for Preliminary Injunction on May 23, 1970.

The award is generous, but we cannot hold that it was an abuse of the district court’s discretion.

[*840] V. Other Contentions.

None of the appellants’ other contentions was raised in the district court. We therefore decline to consider them. Rothman v. Hospital Service of Southern California, 9 Cir., 1975, 510 F.2d 956, 960.

Affirmed.