Split Re Attorney's Fees in Civil Rights Cases Noted in Ninth Circuit Case

Per Harris v. Maricopa County Superior Court, --- F.3d ----, 2011 WL 167040 (9th Cir. Jan. 20, 2011):

The majority joins the short side of an existing circuit split that is currently before the Supreme Court. The First, Fifth, Seventh, and Eleventh Circuits have held that defendants in civil rights cases may recover attorney's fees even when the plaintiff's frivolous claims are intertwined with nonfrivolous claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir.1993); Fox v. Vice, 594 F.3d 423 (5th Cir.2010), cert. granted, 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114); Curry v. A.H. Robins Co., 775 F.2d 212 (7th Cir.1985); Quintana v. Jenne, 414 F.3d 1306 (11th Cir.2005); Head v. Medford, 62 F.3d 351 (11th Cir.1995). The one clear outlier is the Sixth Circuit, which has adopted a rule that a prevailing defendant may not recover attorney's fees if the plaintiff has raised even one nonfrivolous claim. See Balmer v. HCA, Inc., 423 F.3d 606, 616-l7 (6th Cir.2005). The majority does not agree outright with any of these circuits-thus enabling the split-but its position is closest to the Sixth Circuit's plainly unreasonable rule. We can anticipate further guidance from the Court when it decides Fox, a case in which it recently granted a writ of certiorari.