* Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 96-30012

(Summary Calendar)

_______________

MARY LEE DUDLEY,

Plaintiff-Appellant-Cross-Appellee,

versus

JAMES JOHNSON,

Defendant-Appellee-Cross-Appellant,

GORDON ANDERSON,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

For the Eastern District of Louisiana

(95-CV-1755"R”)

_______________________________________________

September 17, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff Mary Lee Dudley appeals the district court's

dismissal of her civil rights suit, brought pursuant to 42 U.S.C.

§ 1983. Defendants Gordon Anderson and James Johnson appeal the

district court's order denying their motion to recover attorney's

fees, brought pursuant to 42 U.S.C. § 1988. We affirm.
 

1 Although Dudley filed a general notice of appeal, in her brief she

states, "No appeal is taken with respect to the court's order concerning

defendant Anderson." Accordingly, this Court granted Anderson's motion to

dismiss the appeal as it pertained to him.

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I

Dudley filed a § 1983 suit against Johnson, a Deputy Marshal

at the City Court of Hammond, and Anderson, the 7th Ward Marshal.

Dudley alleged that Johnson had violated her civil rights by using

excessive force in restraining her during an altercation which

erupted in the courtroom. Dudley also alleged that Anderson had

violated her civil rights by refusing to accept charges against

Johnson after the incident. Johnson moved for summary judgment on

grounds of qualified immunity, and Anderson moved for a Rule

12(b)(6) dismissal. In addition, both Defendants sought to recover

attorney's fees pursuant to § 1988(b). The district court granted

both motions, but denied Defendants’ request for attorney's fees.

Dudley and the two Defendants filed timely notices of appeal.1

II

Dudley argues that the district court erred in dismissing her

complaint. On appeal from an order granting a motion for summary

judgment based upon qualified immunity, we review the record de

novo, examining the evidence in the light most favorable to the

non-movant. Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th

Cir. 1990). “Summary judgment is appropriate if the record

discloses ‘that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of
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law.’” Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir.

1994) (quoting FED. R. CIV. P. 56(c)).

A government official is entitled to summary judgment on

qualified immunity grounds in a § 1983 suit if he can establish as

a matter of law that it was objectively legally reasonable for him

to believe that his actions did not violate a clearly established

legal right. Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.

Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987). "If reasonable public

officials could differ on the lawfulness of the defendant's

actions, the defendant is entitled to qualified immunity."

Pfannstiel, 918 F.2d at 1183. Therefore, even if a defendant's

actions violate a plaintiff’s Constitutional rights, the defendant

is still entitled to qualified immunity if his actions were

objectively reasonable. Id.

Whether the defendant's actions were objectively reasonable is

essentially a question of law to be determined by the court.

Lampkin v. City of Nacogdoches, 7 F.3d 430, 434 (5th Cir. 1993),

cert. denied, __ U.S __, 114 S. Ct. 1400, 128 L. Ed. 2d 73 (1994).

To defeat a motion for summary judgment on grounds of qualified

immunity, Dudley must have presented summary judgment evidence

sufficient to create a genuine issue as to whether defendant's

conduct was objectively reasonable under the circumstances. Id.

Having carefully reviewed the record, we find that Dudley has

failed to carry her burden. Dudley presented evidence which
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establishes that an altercation took place in the courthouse, and

that she, while not a participant, was in close proximity to the

altercation when it occurred. Her evidence also establishes that

four police officers were in the process of restraining the two

primary combatants when Deputy Marshal Johnson reentered the

courtroom and proceeded to remove Dudley from the scene of the

altercation. When Dudley refused to hand over a purse she was

holding, Johnson grabbed her by the neck and arm and threw her to

the floor. Even when viewing the summary judgment evidence in the

light most favorable to Dudley, reasonable officials could differ

as to whether force was necessary to neutralize the situation.

Thus, even if Johnson was mistaken about the need to restrain

Dudley, because his conduct was objectively legally reasonable, he

is entitled to qualified immunity. Anderson, 483 U.S. at 644, 107

S. Ct. at 3041. Accordingly, the district court properly granted

his motion for summary judgment.

III

On cross-appeal, Anderson and Johnson contend that the

district court erred in denying their motion for attorney's fees

under 42 U.S.C. § 1988(b). We review a denial of defendant’s

request for attorney's fees pursuant to § 1988(b) for abuse of

discretion. Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 1986).

A court may award a prevailing defendant his attorney's fees under

§ 1988(b) only if it specifically finds that the plaintiff's suit
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was frivolous, without merit, unfounded, or vexatiously brought.

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct.

694, 700, 45 L. Ed. 2d 648 (1978). The Supreme Court has rejected

the notion that merely because a plaintiff does not ultimately

prevail, his claim must have been unfounded or without merit. Id.

This Court has held that to be without merit, a claim must be

"devoid of arguable legal merit or factual support." Jones v.

Texas Tech Univ., 656 F.2d 1137, 1146 (5th Cir. 1981). Having

carefully reviewed the record, we conclude that Dudley's civil

rights claim, while weak, was not without arguable legal merit or

factual support. The record reflects that Dudley was forcibly

restrained by Johnson and that she possibly suffered injury as a

result. Accordingly, we conclude that the district court did not

abuse its discretion in denying Defendants' request for attorney's

fees.

IV

For the foregoing reasons, we AFFIRM.