WARD LUMBER COMPANY, A Corporation, Plaintiff,
v.
John C. BROOKS, Commissioner of Labor of the State of North Carolina, Defendant.
No. 8010SC530.
Court of Appeals of North Carolina.
January 6, 1981.*332 Hugh Joseph Beard, Jr., Charlotte, for plaintiff-appellant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Tiare B. Smiley, Raleigh, for defendant-appellee.
ROBERT M. MARTIN, Judge.
The Civil Rights Attorney's Fees Awards Act of 1976, § 2, 42 U.S.C. § 1988 (1978) provides:
In any action or proceeding to enforce a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981-1983, 1985, 1986], ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
*333 Attorney's fees may be recovered as part of costs in state court proceedings instituted to enforce provisions of 42 U.S.C. § 1983. Ashley v. Curtis, 67 A.D.2d 828, 413 N.Y.S.2d 528 (App.Div., 1979). Our previous opinion in this case at 39 N.C.App. 519, 251 S.E.2d 698 did not address the question of whether plaintiff had established a violation of 42 U.S.C. § 1983. Where a claim is based on both a state statute which does not provide for the recovery of attorney's fees and on 42 U.S.C. § 1983, it is not necessary that the court base its decision on § 1983 in order for the prevailing party to be entitled to attorney's fees under 42 U.S.C. § 1988. If the court does not address the § 1983 claim, but rather decides the case on the basis of the state statute, the test for determining whether the prevailing party is entitled to attorney's fees is two-pronged: (1) was there a substantial claim under § 1983 and (2) was there a common nucleus of operative facts? Kimbrough v. Arkansas Activities Ass'n, 574 F.2d 423 (8th Cir. 1978); Seals v. Quarterly County Court, Etc., 562 F.2d 390 (6th Cir. 1977); Annot., 43 A.L.R.Fed. 243 (1979); see also Southeast Legal Defense Group v. Adams, 436 F. Supp. 891 (D.Or.1977). H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 4, n. 7 (1976) states that where a court decides the case on the non-fee claim,
if the claim for which fees may be awarded meets the "substantiality" test, see Hagans v. Lavine, supra; [415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974)] United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact."
The court below found that 42 U.S.C. § 1988 was inapplicable to the relief obtained by the plaintiff pursuant to the North Carolina Declaratory Judgment Act, N.C. Gen.Stat. § 1-253 et seq. The dispositive issue on this appeal, as plaintiff-appellant concedes in its brief, is "whether there was a substantial claim under Section 1983 and a common nucleus of operative facts between the 1983 claim and the Declaratory Judgment claim."
42 U.S.C. § 1983 (1978) provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The record discloses that although a citation and notification of proposed penalty were issued to plaintiff, plaintiff contested the citation and proposed penalty and subsequently the defendant voluntarily dismissed that portion of the administrative proceeding related to plaintiff's refusal to honor the administrative inspection warrant. In addition, the record discloses that plaintiff's place of business was not inspected during the pendency of this litigation. Plaintiff therefore was not deprived of any constitutional rights as a result of the issuance of the invalid warrant. Simply stated, plaintiff has failed to show any deprivation of rights as required in order to claim relief under 42 U.S.C. § 1983. As plaintiff has failed to meet the first prong of the test referred to above, a substantial claim under 42 U.S.C. § 1983, and thus is not entitled to recover its attorney's fees under 42 U.S.C. § 1988, we will not address the issue of whether plaintiff has met the second prong of that test.
Our decision renders any possible error in the court's order dismissing plaintiff's motion for attorney's fees nonprejudicial.
Affirmed.
VAUGHN and WELLS, JJ., concur.