*

 The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0286p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GEOFFREY M. RADVANSKY,

Plaintiff-Appellant,

v.

CITY OF OLMSTED FALLS, et al.,

Defendants-Appellees.

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No. 06-3357

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 02-00634—John R. Adams, District Judge.

Argued: June 1, 2007

Decided and Filed: July 27, 2007 

Before: GIBBONS and COOK, Circuit Judges; and CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: L. Bryan Carr, CARR LAW FIRM, Mayfield Heights, Ohio, for Appellant. John T.

McLandrich, MAZANEC, RASKIN, RYDER & KELLER CO., Cleveland, Ohio, for Appellees.

ON BRIEF: L. Bryan Carr, Leonard F. Carr, CARR LAW FIRM, Mayfield Heights, Ohio, for

Appellant. John T. McLandrich, James A. Climer, Robert F. Cathcart, MAZANEC, RASKIN,

RYDER & KELLER CO., Cleveland, Ohio, for Appellees.

_________________

OPINION _________________

COOK, Circuit Judge. Plaintiff Geoffrey Radvansky appeals from a jury verdict rendered

for Defendant police officers Ralph Saxer and Thomas Telegdy in his 42 U.S.C. § 1983 action

against them. Radvansky appeals to the Sixth Circuit for the second time in this case, as he

successfully sought a reversal of the district court’s grant of summary judgment to the defendants

on this claim in Radvansky v. City of Olmsted Falls (Radvansky I), 395 F.3d 291 (6th Cir. 2005).

He now seeks a reversal of the district court’s denial of his motions made pursuant to Fed. R. Civ.

P. 49, 50, and 59; challenges the court’s jury instructions as prejudicially erroneous; and requests

a grant of fees due to his previous success in this court. Because the jury’s verdict was reasonable,

the instructions not prejudicial, and Radvansky not a “prevailing party,” we affirm. 

1
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 2

I

Geoffrey Radvansky was arrested for burglary on the night of May 15, 2001, by Olmsted

Falls, Ohio, police officers Ralph Saxer and Thomas Telegdy (“the officers”). A grand jury indicted

him, but the prosecutor eventually dismissed the charges, apparently after Radvansky agreed to pay

the owner of the burgled home $400 in restitution. Radvansky then sued officers Saxer and Telegdy,

along with the City of Olmsted Falls, the Olmsted Falls Police Department, and several other police

personnel involved in the incident. Radvanksy asserted myriad claims, including a Fourth

Amendment false arrest claim under 42 U.S.C. § 1983. The district court granted summary

judgment to the defendants on all claims. This court reversed the district court’s judgment on the

Fourth Amendment claim but affirmed in all other respects in Radvansky I, concluding that a

material issue of fact remained whether the officers had probable cause to arrest Radvansky.

A jury then heard the case and rendered a general verdict for the defendants, with

interrogatory answers confirming that the officers arrested Radvansky with probable cause.

Radvansky moved for a directed verdict or a new trial and also for relief under Fed. R. Civ. P. 49,

complaining that the jury’s answers to the interrogatories were “incorrect and inconsistent.” He

failed, however, to raise the interrogatories issue before the court discharged the jury. The district

court denied each motion. Radvansky now appeals.

For at least some of the time between June 2000 and May 2001, Radvansky lived at 26060

Redwood Drive in Olmsted Falls under an oral agreement with Derrick Rosemark, the home’s

owner, who apparently lived there as well. Around the end of April or the beginning of May 2001,

Rosemark called the Olmsted Falls Police Department and spoke with Detective Caine about

problems he was experiencing with Radvansky, who, he told Caine, had left for Florida without

paying him all the rent he was due. Depending on one’s view of Radvansky’s status at the

time—whether he had abandoned the premises or remained a tenant—Caine may have given

Rosemark erroneous legal advice, telling him that he could lock Radvansky out of the house. The

extent to which Caine told other officers in the department about this conversation remained in

dispute at trial; both Saxer and Telegdy testified that they did not know about this conversation prior

to arresting Radvansky.

On May 14, 2001, Radvansky sought to reenter the house. Finding the locks changed, he

walked across the street and asked neighbor Ken Winland for “a butter knife or something [he] could

use to break in,” because he had “some guns in there,” and he wanted to get his “personal stuff.”

Winland testified that he gave Radvanksy nothing and instead told him to call the police. Radvansky

testified that Winland gave him “an implement.” Either way, Radvansky departed and Winland told

his wife to call the police, which she did. Officer Telegedy and Officer Dan Gilles responded to the

call, canvassed the area for a “suspicious person” and, finding no one, left. 

The next evening, May 15, 2001, Radvansky returned to try again. Armed with a curtain rod

or shower pole and a towel, Radvansky was again spotted by Winland, who again told his wife to

call the police. Shortly thereafter, Winland heard the sound of breaking glass coming from the back

of the house. According to Radvansky, he was at the back of the house trying to “tilt the screen—or

the glass door sideways, but [he] couldn’t get the rod in there to lift up the wooden piece,” so he

“started panicking.” He was nervous about “getting those guns,” because “he did not want them to

fall in the wrong hands.” So, he “panicked and . . . kicked the window that goes into the lower

living room.” He crawled through the window and retrieved a “stun gun” that he had hidden “up

in the rafters” in “the utility room.” He apparently went to his bedroom to find his lock destroyed

and his belongings strewn about. He claims he cut his hand while attempting to unlock the door.
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 3

When Officers Saxer and Telegdy arrived, they approached the house cautiously, moving

towards the rear of the house with weapons drawn. The officers noticed that the window was broken

and the window screen was cut. Radvansky then emerged quickly from the building. They noticed

that his hand was bleeding and ordered him to the ground. The officers asked if he was armed, and

he responded that he had a stun gun. The stun gun was later found inside the house near the broken

window. He protested to the officers that he lived at the house, and when the officers removed his

wallet, his driver’s license and several paychecks listed 26060 Redwood as his address. He offered

a note from Rosemark, which the Radvansky I court interpreted to read as follows:

Geoff, I have locked the door for my own security. I am informing you not [sic]

break in. [A]lso there is a matter of partial rent you owe of $100 partial rent. None

of these belongings until this is settler [sic]. Otherwise I am kicking you out of this

house. [D]o not attempt to enter the premises. You can call me at work to settle this.

I also informed the [O]lmsted [F]alls police department of you leaving the property

and not to enter the house. 

395 F.3d at 298 n.2. He also told the police that he had merely “lost his keys.” The officers called

in his social security number to the police dispatcher to run a LEADS report, which collects the

individual’s address and his traffic offense history. The LEADS indicated the same address as the

driver’s license, though the officers were unsurprised because the LEADS information comes from

the Bureau of Motor Vehicles. 

The officers handcuffed him and arrested him. They then took him to the hospital in an

ambulance, where doctors treated his hand wound. Other officers showed up to investigate the

scene, and, during this investigation, Sergeant Gilles called the Olmsted Falls prosecutor to discuss

whether to charge Radvansky with burglary. Radvansky was later booked and spent the night in jail.

II

Fed. R. Civ. P. 50 & 59 Challenges

Standard of Review

Radvansky seeks reversal of the district court’s denial of his Fed. R. Civ. P. 50(b) and 59

motions for judgment as a matter of law or, in the alternative, a new trial. For Radvansky to

succeed, he must overcome the substantial deference owed a jury verdict. We review a district

court’s denial of a Rule 50(b) motion de novo, applying the same deferential standard as the district

court: “The motion may be granted only if in viewing the evidence in the light most favorable to

the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds

could come to but one conclusion, in favor of the moving party.” Gray v. Toshiba Am. Consumer

Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001) (citing K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d

171, 174-76 (6th Cir. 1996)). Neither the district court nor the reviewing court may reweigh the

evidence or assess the credibility of witnesses. Id. at 600 (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000)). We review a district court’s denial of a new-trial motion

for abuse of discretion, reversing only if we have a “definite and firm conviction that the trial court

committed a clear error of judgment.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815,

820 (6th Cir. 2000) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)).

Merits

Radvansky’s challenge turns on the legitimacy of the jury’s finding that the officers had

probable cause to arrest him. If no reasonable jury could so conclude, we must reverse. Thus, we
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 4

1

 Radvansky devotes much of his brief to the project of pointing out the failings of the police to shore up their

investigation after placing him in custody; none of this is relevant to our inquiry, which examines only the facts available

to the officers as they made their decision to arrest him.

must examine the facts presented to the jury to assess whether a reasonable juror could conclude that

they satisfy the well-known probable cause standard. Briefly, the Fourth Amendment requires that

“a law enforcement officer may not seize an individual except after establishing probable cause that

the individual has committed, or is about to commit, a crime.” Williams ex rel. Allen v. Cambridge

Bd. of Educ., 370 F.3d 630, 636 (6th Cir. 2004) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Probable cause is defined by asking “whether at that moment the facts and circumstances within [the

officers’] knowledge and of which they had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the petitioner had committed or was committing an offense.”

Beck, 379 U.S. at 91. “Probable cause is assessed ‘from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.’”1 Klein v. Long, 275 F.3d 544, 550 (6th

Cir. 2001) (quoting Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001)). Ohio’s burglary

statute prohibits a “person, by force, stealth, or deception . . . [to] [t]respass in a permanent or

temporary habitation of any person when any person other than an accomplice of the offender is

present or likely to be present.” Ohio Rev. Code Ann. § 2911.12(A)(4). The Code also prohibits

such a trespass with “purpose to commit . . . any criminal offense” therein. Id. § 2911.12(A)(1).

Our inquiry, then, is whether a reasonable jury could conclude that the officers had probable cause

to arrest Radvansky for burglary.

The district court denied Radvansky’s Fed. R. Civ. P. 50(b) and 59 motions because it

concluded that the jury reasonably found that the officers arrested Radvansky with probable cause.

The court pointed to several facts: 

[1] There was evidence presented at trial that Plaintiff forcibly entered the residence

at night, was carrying a weapon at the time, and that a neighbor identified Plaintiff

as the person who had attempted to gain access to the home on the evening prior.

[2] There was also evidence presented that Plaintiff was dishonest about why he had

broken into the home. [The court explained in a footnote that] Plaintiff told police

officers that he broke into the residence because he had lost his keys. 

[3] Regardless of Plaintiff’s protests and documentary evidence that he lived at the

residence, it would have been reasonable for the jury to infer that he was not being

truthful with the officers and that the officers were reasonable in discrediting his

statements and documents. 

[4] It would also be reasonable for the jury to find that there was a fair probability

that Plaintiff had committed, or was about to commit a crime. 

[5] It is also noted that because Plaintiff testified at trial, the jury had the opportunity

to listen to his testimony and observe his behavior on the stand. The jury could have

found Plaintiff lacked credibility and discredited his entire testimony and the

evidence he presented. 

Our review confirms that the district court correctly identified key facts heard by the jury supporting

its conclusion that the officers acted with probable cause. 

 The jury’s answers to interrogatories also address and allay the concerns articulated by this

court in Radvansky I. Viewing the evidence in the light most favorable to Radvansky, the earlier

panel was troubled by the possibility that the police arrested Radvansky based solely on Rosemark’s
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 5

2

 Counsel impeached him on this point and several others with references, some relatively vague, to his

deposition testimony, which is not in the record but relied upon by the Radvansky I panel, see, e.g., 395 F.3d at 304, but

Telegedy maintained his position. He later testified that he had heard Radvansky’s name prior to the incident on May

15, but there was no additional explanation. In any event, discrepancies between the deposition testimony relied on by

the Radvansky I panel and the trial testimony are irrelevant given the standard of review, which limits our review to the

reasonableness of the jury’s conclusions given the evidence actually presented to the jury. See, e.g., Gray, 263 F.3d at

599.

statement to Detective Caine that Radvansky had abandoned the property. Citing a Seventh Circuit

case and a Ninth Circuit case for the proposition that “[i]n the criminal context [courts] have held

that statements made by landlords and tenants about domestic disputes are by themselves insufficient

to establish probable cause,” the court opined that a reasonable jury could find that the officers had

done just that. Radvansky I, 395 F.3d at 305 (citing Seminara v. City of Long Beach, Nos. 93-56395,

93-56512, 1995 WL 598097 (9th Cir. Oct. 6, 1995), and Hebron v. Touhy, 18 F.3d 421 (7th Cir.

1994)). The court also reasoned that a jury could conclude that the officers “ignored substantial

exculpatory evidence” by disregarding Radvansky’s repeated protestations that he lived at the

residence, the note to him from the landlord, and the documents in his wallet, including his driver’s

license, which indicated the Redwood address as his residence. Id. at 305-07. 

The jury that heard the evidence at trial, however, came to contrary conclusions about each

of the Radvansky I court’s concerns. Although the court viewed the evidence as suggesting that the

officers had “pre-existing knowledge about the dispute between Radvansky and Rosemark,” id. at

307, the jury concluded otherwise, answering “No” to interrogatories that asked whether they found

by a preponderance of the evidence that the defendants “had prior knowledge of the existence of a

dispute between Plaintiff Radvansky and Mr. Rosemark concerning Plaintiff Radvansky’s privilege

to live at the Redwood Dr. residence.” Underscoring this finding, the jury answered “No” to

interrogatories that asked whether the defendants were “aware of Derrick Rosemark’s statement to

Detective Caine that Plaintiff Radvansky no longer lived at the Redwood Dr. residence.”

Redundantly but sensibly, the jury also answered “No” to interrogatories that asked whether it found

“by a preponderance of the evidence” that the officers “relied solely on Mr. Rosemark’s

representations in making the arrest and ignored substantial exculpatory evidence to the contrary.”

This was also, of course, contrary to the court’s concern that the officers ignored Radvansky’s

protestations and evidence. Id. at 306.

The jury also viewed the evidence establishing Radvansky’s residence at the home

differently than the Radvansky I court, answering “Yes” to an interrogatory that asked whether it

found “by a preponderance of the evidence that Plaintiff Radvansky abandoned the Redwood Dr.

residence prior to the time of arrest,” and “No” to an interrogatory that asked whether “Plaintiff

Radvansky was a tenant at the Redwood Dr. residence at the time of the arrest.” The jury’s

conclusion can be summed up by its affirmative answers to interrogatories 19 and 20, which asked

whether the jury concluded “by a preponderance of the evidence” that the officers “at the time of

the arrest had reasonably reliable information, independent of Mr. Rosemark’s allegations, that there

was a fair probability Plaintiff Radvansky had committed, was committing, or was about to commit

a crime.” In short, the jury concluded the officers acted with probable cause. See Beck, 379 U.S.

at 91. 

 Moreover, examining the Radvansky I court’s main concern in the context of the officers’

trial testimony, the testimony suggests that the officers were not aware of Rosemark’s statements

to Detective Caine, and thus Rosemark’s statements did not motivate their actions. Officer Telegdy

testified at trial that he had never heard anything about Rosemark’s conversation with Detective

Caine prior to arresting Radvansky (or, for that matter, prior to the day of the trial). He also testified

that he had no idea who Radvansky was prior to the arrest, despite the fact that he investigated the

incident on May 14.2

 Officer Saxer had no recollection at trial about what was said to him the night
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 6

of May 15 and gave no indication that he was aware of the conversation between Rosemark and

Caine at the time of the arrest. He provided only a vague recollection that Officer Telegdy

“mentioned something about possibly there might be a problem on Redwood Drive,” and he could

not remember what Officer Gilles told him before he left for patrol the night on May 15. 

In sum, the jury heard testimony sufficient to support its conclusion that the officers arrested

Radvansky with probable cause. Thus, we affirm the district court’s denial of Radvansky’s Fed. R.

Civ. P. 50(b) motion. For the same reasons, the district court did not abuse its discretion in denying

Radvansky’s Fed. R. Civ. P. 59 motion. 

Jury Instructions: State of Mind Charge

Standard of Review

We “review a properly preserved objection to a jury instruction by determining whether the

charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.”

United States v. Blood, 435 F.3d 612, 623 (6th Cir. 2006) (internal quotations omitted). We “will

reverse a judgment where the jury instruction fails accurately to reflect the law.” Id. (internal

quotations omitted). “In addition, we may reverse the trial court based on a faulty charge only if the

instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Id.

Merits

Radvansky complains about the district court’s instruction regarding the officers’ required

state of mind in carrying out the arrest, as reflected in a set of interrogatories that asked the jury

whether it found “by a preponderance of the evidence that [each officer] intentionally or recklessly

committed acts that violated Plaintiff Radvansky’s federal constitutional right not to be arrested or

seized without probable cause?” A separate question asked whether the officers (individually)

“negligently” committed the same acts. 

Putting aside for the moment the issue of state-of-mind requirements and constitutional

violations, the instruction here may have been needless or redundant, but not prejudicial. As

worded, the interrogatories asked if the officers committed an act, with varying states of mind, that

violated Radvansky’s constitutional rights. Because the jury answered that the officers had probable

cause to arrest Radvansky, it appropriately answered “No” to each question. The officers’ states of

mind as they arrested Radvansky were irrelevant given the jury’s conclusion that the arrest with

probable cause did not violate the Constitution. 

Radvansky correctly points out that the appropriate inquiry for a Fourth Amendment claim

such as this is whether the officers acted “reasonabl[y]” in assessing the facts and circumstances

known to them at the time of the arrest or seizure, see Beck, 379 U.S. at 91, but, as discussed above,

the interrogatories correctly queried the jury whether the officers had reasonably reliable information

when they arrested Radvansky. Taken as a whole, the jury instructions do not appear confusing,

misleading, or prejudicial, and the jury’s responses to the interrogatories suggest it understood the

applicable law and entered its conclusions accordingly. 

Jury Instructions: Fed. R. Civ. P. 49 Challenge

Standard of Review

“On appeal, a district court’s interpretation of a verdict rendered pursuant to Fed. R. Civ. P.

49 is reviewed for an abuse of discretion.” Cent. On Line Data Sys., Inc. v. Filenet Corp., Nos. 95-

1016, 95-1054, 1996 WL 483031, at *11 (6th Cir. Aug. 23, 1996) (citing P & L Constr., Inc. v. Am.
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 7

Norit Co., 5 F.3d 133, 138 (5th Cir.1993), and Portage II v. Bryant Petroleum Corp., 899 F.2d 1514,

1524 (6th Cir. 1990)).

Merits

Radvansky challenges the jury’s responses to the interrogatories as “incorrect and

inconsistent” pursuant to Fed. R. Civ. P. 49. The rule provides as follows:

When the general verdict and the answers are harmonious, the appropriate judgment

upon the verdict and answers shall be entered pursuant to Rule 58. When the answers

are consistent with each other but one or more is inconsistent with the general

verdict, judgment may be entered pursuant to Rule 58 in accordance with the

answers, notwithstanding the general verdict, or the court may return the jury for

further consideration of its answers and verdict or may order a new trial. When the

answers are inconsistent with each other and one or more is likewise inconsistent

with the general verdict, judgment shall not be entered, but the court shall return the

jury for further consideration of its answers and verdict or shall order a new trial.

Fed. R. Civ. P. 49(b). 

Radvansky’s brief offers no insight as to how the jury’s answers run afoul of the rule; it

instead makes the general point, addressed above, that “[t]here was no legally sufficient evidentiary

basis for a reasonable jury to find for Appellees.” The district court denied Radvansky’s motion,

concluding that he forfeited the argument by failing to raise the issue prior to the jury’s discharge.

The court addressed the substance of Radvansky’s challenge as well and found no inconsistency in

the jury’s answers. 

Although there exists a dearth of recent authority in this circuit, it appears our court and

others sensibly have held that a party must make its Rule 49(b) objection prior to the district court

discharging the jury. In an unpublished opinion, our court explained, 

It is well-settled that if, after answers to special interrogatories are read, a party does

not object to the discharge of the jury or raise any issue with respect to the jury’s

responses, that party should be deemed to have waived any objection as to

inconsistency, ambiguity, or lack of clarity in the answers.

Filenet Corp., 1996 WL 483031, at *11 (citing Lockard v. Mo. Pac. R.R. Co., 894 F.2d 299, 304 (8th

Cir. 1990), and White v. Celotex Corp., 878 F.2d 144, 146 (4th Cir. 1989)). As the court further

explained, “‘The purpose of the rule is to allow the original jury to eliminate any inconsistencies

without the need to present the evidence to a new jury. This prevents a dissatisfied party from

misusing procedural rules and obtaining a new trial for an asserted inconsistent verdict.’” Id.

(quoting Lockard, 894 F.2d at 304). Our court relied on the same rule in another unpublished

opinion in 1989. Catalina v. City of Columbus, Nos. 88-4187, 88-4089, 1989 WL 123240 (6th Cir.

Oct. 17, 1989). The Catalina court held that the party “waived her objection to any perceived

inconsistency by failing to enter an objection to the special verdict form returned by the jury before

the jury was discharged” and that this “failure to make such an objection in a timely fashion

deprived the trial court of the opportunity to correct discrepancies, if any existed, in the form of the

verdict returned by the jury.” Id. at *1. 

The Federal Circuit recently analyzed a Rule 49(b) waiver issue in a context requiring it to

apply Sixth Circuit precedent. See L & W, Inc. v. Shertech, Inc., 471 F.3d 1311, 1318-19 (Fed. Cir.

2006). The Federal Circuit pointed to Tennessee Consolidated Coal Co. v. United Mine Workers

of America, 416 F.2d 1192, 1200 (6th Cir. 1969), for the proposition that “[u]nder Sixth Circuit law,

a party waives its objection to inconsistency in a jury’s verdict if the party had an adequate
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 8

opportunity to object but failed to do so.” L & W, 471 F.3d at 1318-19. Tennessee Consolidated

comports with this court’s more recent (albeit unpublished) assessments of the issue and controls

the issue here. Radvansky’s counsel failed to object and also declined the court’s offer to allow him

to inspect the verdict forms and poll the jury. We deem the argument waived on this ground as well.

Notwithstanding waiver, we discern no inconsistency in the jury’s interrogatory responses,

and the challenge fails on its own merits. Each of the jury’s answers comports with its conclusion

that the officers arrested Radvansky with probable cause; each answer coheres with both the general

verdict and the other specific interrogatory answers. 

Attorney’s Fees

Standard of Review

A district court’s determination of prevailing-party status for awards under attorney-feeshifting statutes—such as 42 U.S.C. § 1988—is a legal question that we review de novo. See

Bridgeport Music, Inc. v. London Music, U.K., No. 05-5045, 2007 WL 930409, at *2 (6th Cir. Mar.

28, 2007) (citing Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005), for the proposition that

after Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598

(2001), “every Circuit to address the issue has determined that the characterization of

prevailing-party status for awards under fee-shifting statutes . . . is a legal question subject to de

novo review”); see also Sole v. Wyner, 127 S. Ct. 2188, 2194-97 (2007) (reviewing de novo

prevailing-party status without explicitly stating the standard of review); Toms v. Taft, 338 F.3d 519,

528-30 (6th Cir. 2003) (same).

Merits

Radvansky believes he is entitled to attorney’s fees under 42 U.S.C. § 1988 because he

obtained a reversal of summary judgment in Radvansky I. Section 1988 provides the district court

with authority to award attorneys fees to a “prevailing party.” He selectively cites Hanrahan v.

Hampton, 446 U.S. 754 (1980), for the proposition that to be considered a “prevailing party” within

the meaning of 42 U.S.C. § 1988, a plaintiff need not have obtained a favorable final judgment. But

he ignores the following proposition: “Congress intended to permit the interim award of counsel

fees only when a party has prevailed on the merits of at least some of his claims.” Hanrahan, 446

U.S. at 758. And he ignores this general principle concerning § 1988: “Our ‘[r]espect for ordinary

language requires that a plaintiff receive at least some relief on the merits of his claim before he can

be said to prevail.” Buckhannon, 532 U.S. at 603-04 (quoting Hewitt v. Helms, 482 U.S. 755, 760

(1987)); see also Sole, 127 S. Ct. at 2192 (“A plaintiff who achieves a transient victory at the

threshold of an action can gain no award under that fee-shifting provision if, at the end of the

litigation, her initial success is undone and she leaves the courthouse emptyhanded.”). 

We have rejected Radvansky’s proposed interpretation of “prevailing party” in the past. E.g., Toms, 338 F.3d at 528 (6th Cir. 2003) (stating that because plaintiffs “obtained neither a judgment

on the merits nor a court-ordered consent decree, they are not eligible for attorney’s fees”). And

Judge Posner likely put it best:

Once a plaintiff obtains substantive relief that is not defeasible by further

proceedings, he can seek interim fees and the district court has the power to award

them. But until there is some relief, there can be no award. A procedural victory that

may be a way station to utter substantive defeat creates no right to fees. It makes no

difference whether the procedural victory is the denial of a motion to dismiss, the

denial of summary judgment, the denial of a motion for a directed verdict, appellate

reversal of the grant of such a motion (as in Hanrahan), or, as in this case, appellate
No. 06-3357 Radvansky v. City of Olmsted Falls, et al. Page 9

reversal of the grant of summary judgment—for that is the equivalent of a denial of

summary judgment and leaves the plaintiff still having to prove his case at trial.

Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir. 1990) (citations omitted).

Radvansky also invokes Fed. R. Civ. P. 54(d) and Fed. R. App. P. 39 as bases for a fee

award. His Rule 54(d) argument fails for the same reason as his § 1988 argument—the rule grants

fees to prevailing parties only, and he was not a prevailing party. Hinchman v. Moore, 312 F.3d

198, 206 (6th Cir. 2002). His Rule 39 argument fails on multiple fronts. Radvansky did not comply

with Fed. R. App. P. 39(d) as he failed to submit his request for costs within fourteen days after this

court filed its first Radvansky judgment. The plain language of the rule obviates his request as well:

because the Rule provides that its framework applies “unless the law provides . . . otherwise,” Fed.

R. App. P. 39(a), and because § 1988 provides for fees and costs, Rule 39 does not apply. Thus, we

affirm the district court’s denial of Radvansky’s various fees and costs requests. 

III

For the foregoing reasons, we affirm.