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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wassserman v. Bartholomew (01/11/2002) sp-5524

Wassserman v. Bartholomew (01/11/2002) sp-5524

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


KEITH WASSERMAN and           )
KRISTI WASSERMAN,             )    Supreme Court No. S-9604
             Appellants,      )    Superior Court No.
                              )    4FA-91-151 CI
     v.                       )
                              )    O P I N I O N
KEN STEINNERD, CITY OF        )    [No. 5524 - January 11, 2002]
and STATE OF ALASKA,          )
             Appellees.       )

          Appeal from the Superior Court of the State of
Alaska,  Fourth Judicial District, Fairbanks, Ralph R. Beistline,

          Appearances:  Keith Wasserman, pro se,
Fairbanks, and Kristi Wasserman, pro se, Dallas, Texas, Appellants. 
Aimee Anderson Oravec, Winfree Law Office, Fairbanks, for Appellees
Hayden Bartholomew, Ken Steinnerd, and City of Fairbanks.  Randy M.
Olsen, Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellees John Roberts and State of

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, and Bryner, Justices.  [Carpeneti,
Justice, not participating.]  

          FABE, Chief Justice.

          Alaska state troopers and Fairbanks police officers
mistook Keith Wasserman for a potentially dangerous fugitive,
wrestled him to the floor, and handcuffed him.  Wasserman and his
wife sued the State, the City of Fairbanks, and the involved police
officers for injuries allegedly sustained during the incident. 
After a bench trial, the trial court ruled in favor of the
defendants and awarded them attorney's fees.  Wasserman appeals the
trial court's factual findings, its application of the legal rule
to determine excessive force, its denial of a motion to disqualify,
and its award of attorney's fees.  We affirm on all four issues.
          On the evening of October 19, 1990, Fairbanks police and
state troopers assisted the United States Marshal in an attempt to
apprehend John Palmer, a convicted felon.  Palmer had been
convicted of federal firearms violations and had failed to appear
for sentencing.  A taxi driver's tip led the police to the
University Center Safeway store.
          As the police entered the store, Keith Wasserman was
standing near a check-out stand with his son.  Wasserman asked the
cashier where the sale-priced flashlights were located, and the
cashier directed him to the photo-sound department.  Wasserman then
asked the cashier to total his purchases, including one of the
sale-priced flashlights, while he ran to add one to his purchases. 
Wasserman began to jog to the photo-sound department to get a
flashlight, coincidentally in a direction away from the police. 
Wasserman had the misfortune of matching a rough description of the
fugitive Palmer: each was a Caucasian male in his early thirties,
stood approximately six feet one inch tall, weighed about 180
pounds, and was wearing jeans, a sweatshirt, and tennis shoes.
          Thinking him to be the fugitive Palmer trying to escape,
the police ran after Wasserman.  Wasserman and the police had an
excited exchange of words, and the police attempted to physically
restrain him.  Fairbanks Police Officer Hayden Bartholomew grabbed
one arm, Fairbanks Police Sergeant Ken Steinnerd grabbed the other,
and State Trooper John Roberts grabbed Wasserman from behind. 
After a brief struggle, the group fell to the floor.  Wasserman was
handcuffed and brought to his feet.  Shortly thereafter, the police
realized their mistake and released him.
          The parties dispute the details of this encounter. 
Wasserman claims that he did not recognize the uniformed men as
police, that the police did not identify themselves, that they did
not ask him for identification, that he responded reasonably under
the circumstances, and that Trooper Roberts grabbed him around the
neck.  The defendants claim that they were wearing standard police
uniforms, that they asked Wasserman for identification several
times,  that he responded aggressively to their requests, and that
Trooper Roberts grabbed Wasserman around the shoulders.
          The Wassermans filed suit in February 1991 for injuries
that the Wasserman family allegedly sustained as a result of the
incident.  Superior Court Judge Ralph R. Beistline presided over
the bench trial.  At trial, the Wassermans sought to call Delores
Delacruz-Washington as a witness to the incident, but the trial
court denied this request. At the close of the Wassermans' case,
Judge Beistline granted a directed verdict in favor of the State on
the only remaining issue against it. [Fn. 1]  After the trial, he
entered judgment in favor of the other defendants.  The Wassermans
moved for a new trial, claiming that Judge Beistline should be
disqualified.  Judge Beistline denied the motion, and Judge Jay
Hodges affirmed.
          The Wassermans appealed to this court.  Their issues on
appeal included whether the trial court erred by excluding
Delacruz's testimony, by denying the motion for disqualification,
and by ruling against the substantial weight of the evidence.  We
reversed the exclusion of Delacruz's testimony, affirmed on all of
the remaining issues, and remanded. [Fn. 2] 
          On remand, the trial court heard the testimony of
Delacruz and allowed rebuttal testimony from another witness, Roger
Hanson, a Safeway employee.  The Wassermans sought to call Officer
Bartholomew and Trooper Jeffrey Manns to support portions of
Delacruz's testimony, but the trial court denied this request. 
After the supplemental hearing, Judge Beistline reaffirmed his
earlier findings.  The Wassermans again appealed.  We reversed the
trial court's exclusion of Officer Bartholomew's and Trooper
Manns's testimony. [Fn. 3]
          On the second remand, the Wassermans again moved to
disqualify Judge Beistline.  Judge Beistline denied the motion. 
Judge Mary E. Greene reviewed the order denying disqualification
and found no abuse of discretion.  The trial court held a second
supplemental hearing to receive the additional testimony.  After
hearing all the testimony, the trial court made detailed factual
findings, concluded that the police acted reasonably and did not
use excessive force, and awarded attorney's fees to the defendants
in its final judgment. [Fn. 4]
          The Wassermans, now pro se, appeal four issues: (1)
whether the trial court's factual findings were clearly erroneous;
(2) whether the trial court erred in applying the test for
excessive force; (3) whether the trial court abused its discretion
by denying the motion for disqualification; and (4) whether the
trial court abused its discretion by awarding attorney's fees to
the defendants.
     A.   The Trial Court's Factual Findings Are Not Clearly
          The Wassermans argue that "[t]he trial court was clearly
in error in deciding against the weight of [the] evidence."  The
State argues that the evidence supports the trial court's findings
and that they are not clearly erroneous.  The City joins the
State's arguments on this issue.
          This court reviews a trial court's factual findings under
the clearly erroneous standard. [Fn. 5]  In a bench trial, the
judge is the trier of fact, determining the credibility of
witnesses and deciding how to weigh the evidence presented. [Fn. 6] 
Making a finding based on conflicting evidence is rarely clearly
erroneous. [Fn. 7]  Here, the trial court made detailed findings,
indicated the evidentiary support, evaluated the credibility of the
witnesses, and explained its weighing of the evidence.  Because the
trial court's findings on the disputed factual issues are supported
by the record, we hold that its findings are not clearly erroneous. 
The contested findings and their supporting evidence are discussed
in turn below.
          1.   Credibility of Officer Hayden Bartholomew
          The Wassermans appear to argue that the trial court erred
by finding that Officer Bartholomew was a credible witness.  They
argue that the court's rationale was flawed and that Officer
Bartholomew's testimony was inconsistent with two of the court's
factual findings.
           Under Alaska Civil Rule 52(a), "[f]indings of fact shall
not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses."  Because of the unique ability of
the trial court to assess credibility, this court consistently
grants deference to trial courts where credibility is at issue.
[Fn. 8]  
          The Wassermans highlight two inconsistencies between
Officer Bartholomew's testimony and the court's findings on the
issues of where Wasserman was standing when Officer Bartholomew
entered the store and where Wasserman exited the check-out stands. 
However, the trial court did not adopt these portions of
Bartholomew's testimony.  It determined only that Trooper Roberts
did not apply a choke hold to Wasserman    a finding that was
corroborated by Hanson, Trooper Roberts, and Trooper Manns.  The
trial court's evaluation of Officer Bartholomew's credibility,
therefore, is not clearly erroneous.
          2.   Credibility of Delores Delacruz-Washington
          The Wassermans dispute the trial court's finding that
Delacruz's testimony was not credible.  The trial court found that
Delacruz's testimony was inconsistent in significant ways with the
consensus of the other witnesses, that Delacruz felt that the
police had previously harassed her and her family, and that
Delacruz had been employed as a legal secretary by the Wassermans'
counsel.  Accordingly, the trial court gave her testimony little
          The trial court expressly stated the reasons that it
questioned Delacruz's credibility.  It listed six portions of
Delacruz's testimony that were inconsistent with almost every other
witnesses' account.  For example, Delacruz testified that the
police grabbed Wasserman after he walked down an aisle towards the
back of the store and stopped to look at a product on the shelf. 
This conflicts with the consensus of the other witnesses, including
Wasserman, who agreed that the police grabbed Wasserman while he
was jogging across the front of the store toward the photo-sound
department.  Because the trial court is in a unique position to
assess the credibility of any witness, and because its findings on
the credibility of Delacruz are not internally contradictory, the
trial court did not commit a clear error.
          3.   Whether Wasserman recognized the police
          The Wassermans argue that the trial court erred in
finding that Wasserman recognized the men involved in the
altercation as police officers.  They contest the finding that
Officer Bartholomew made eye contact with Wasserman when Wasserman
was near the check-out counter.  However, the trial court did not
find that Officer Bartholomew and Wasserman actually made eye
contact.  Rather, the court found only that Officer Bartholomew
"reported" that he thought he made eye contact.  In addition, the
trial court accurately found that Wasserman contended that he did
not recognize the police at the time.  Because these findings are
supported by the evidence, they are not clearly erroneous.
          The Wassermans also dispute the trial court's finding
that "Wasserman knew, or should have known, that the individuals
stopping him were law enforcement officers" and that there was "no
doubt that Wasserman understood these men to be police officers." 
Wasserman testified that he heard someone yell "Stop!" and saw
several dark-clad men with gun belts running after him.  He claimed
that he did not recognize the uniformed men as police and that they
did not identify themselves as police.  Delacruz stated that she
thought the uniformed men were store security "rent-a-cops," not
police officers.
          The court supported its finding by the testimony of
Arlene Abalahin, a cashier standing near Wasserman, who recognized
the uniformed men as police when they entered the store.  The
involved police officers testified that they were wearing regular
police uniforms.  Several other witnesses also testified that they
recognized the uniformed men as police.  Given this evidence, the
trial court's findings that the police were in uniform, and that
Wasserman knew or should have known that the men were police, are
not clearly erroneous.
          4.   Whether the police asked Wasserman for
identification and the reasonableness of Wasserman's reaction to
the police
          The Wassermans argue that, contrary to the trial court's
finding, the police did not ask Wasserman for identification or
explain why they were stopping him.  Wasserman testified that the
police did not ask him for identification up to this point.
Delacruz testified that she did not hear the officers ask for
identification.  The Wassermans argue that if the police actually
believed him to be the dangerous fugitive, they would not have
paused to ask for identification.
          The trial court found that "Bartholomew yelled for
Wasserman to stop and asked for identification, and Steinnerd
advised Wasserman that he resembled a federal fugitive they were
seeking."  The evidence supports this finding.  Sergeant Steinnerd
testified in his deposition that he and Officer Bartholomew asked
Wasserman to produce identification.  According to the Wassermans,
Officer Bartholomew testified in his deposition that he asked
Wasserman for identification.  Trooper Roberts and Hanson testified
that they heard the officers asking Wasserman to identify himself. 
Wasserman himself admitted that one officer said that he looked
like a criminal, and Trooper Manns corroborated this fact. 
Evidence supports the trial court's finding that the police asked
Wasserman for identification and explained why they were stopping
him; it is not clearly erroneous.
          The Wassermans concede that "Keith Wasserman resisted the
unknown assailants," but argue that his resistance was reasonable. 
In response to Officer Bartholomew's request to put his hands
behind his back and attempt to grab his arm, Wasserman testified
that he asked why, put his hands up in a "surrender position," and
pulled away.  When the police commanded Wasserman to put his hands
behind his back twice more, Wasserman refused, exclaiming, "Wait a
minute, I've got rights."
          The trial court found that "Wasserman resisted the
officers' efforts to control him in a vocal and violent manner[ ]"
and that "Wasserman's reaction to the initial police contact was
highly unusual and unreasonable under the circumstances."  Trooper
Manns, Officer Bartholomew, and Sergeant Steinnerd stated that
Wasserman struggled to get free.  Trooper Roberts testified that
Wasserman appeared to be combative.  Two bystanders testified that
Wasserman was yelling and appeared to be resisting arrest.  Based
on this evidence, the finding that Wasserman reacted unreasonably
is not clearly erroneous.
          5.   Trooper Roberts's use of force
          The Wassermans challenge the trial court's finding that
Trooper Roberts did not use a choke hold.  Wasserman testified that
someone wrapped an arm around his neck and pulled him backwards
while another person knocked his feet out from beneath him. 
Wasserman further testified that they all fell to the floor and
that he could not breathe.  Delacruz testified that Trooper Roberts
"grabbed [Wasserman] around the neck" and lifted him into the air.
          The trial court found that "Roberts grasped Wasserman
around the upper body to obtain control.  He did not apply a 'choke
hold,' although Wasserman's neck was likely impacted by Roberts'
arm in the scuffle."  The court described in detail the testimony
of various witnesses and explained how it arrived at its finding.
          Substantial testimony supports the court's findings. 
Trooper Roberts testified that his department did not use choke
holds, that he had never been taught to use a choke hold, and that
he did not use a choke hold on Wasserman.  He testified that he
grabbed Wasserman around the shoulders, not by the throat or neck. 
Trooper Roberts further testified that soon after he grabbed
Wasserman, he lost his balance and fell down, taking Wasserman with
him.  Officer Bartholomew and Hanson corroborated that Trooper
Roberts grabbed Wasserman around the chest area.  Trooper Manns
stated in his deposition that Roberts grabbed Wasserman "between
the chin and shoulders," but at the supplemental hearing he
demonstrated that Roberts grabbed Wasserman around the shoulders. 
Based on this evidence, the trial court did not commit clear error
in finding that Trooper Roberts did not use a choke hold on
     B.   The Trial Court Did Not Misapply the Test to Determine
Whether the Police Used Excessive Force.
          The Wassermans contend that the trial court failed to
consider four factors in determining whether the police used
excessive force [Fn. 9] and failed to identify Wasserman's
constitutional right that was allegedly infringed.  Whether the
trial court erred in determining and applying the legal test for
excessive force is a question of law and is reviewed de novo. [Fn.
          Citing Graham v. Connor, [Fn. 11] the trial court
concluded that "[t]he test to be used in determining whether a
police officer acted appropriately with respect to a suspect is
whether the officer(s)' actions were objectively reasonable in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation."  This language is
precisely the rule stated by the United States Supreme Court in
Graham for judging "all claims that law enforcement officers have
used excessive force    deadly or not    in the course of an
arrest, investigatory stop, or other seizure of a free citizen."
[Fn. 12]  Although the trial court did not expressly identify it as
such, the incident here is "an arrest, investigatory stop, or other
seizure of a free citizen."  In addition, both the Wassermans and
appellee John Roberts cite Graham as the controlling case for
analyzing whether the officers' use of force against Wasserman was
excessive.  Therefore, the trial court properly adopted the
"objective reasonableness" standard in analyzing the Wassermans'
state tort law claims.
          The Graham court specifically disapproved of the four-
factor substantive due process test advanced by the Wassermans for
analysis of Fourth Amendment investigatory stop excessive force
claims. [Fn. 13]  The Graham court reasoned that the fourth factor,
"whether the force was applied in good faith to maintain and
restore discipline or maliciously and sadistically for the purpose
of causing harm," relies on the subjective motivations of the
police that have no bearing on the objective reasonableness
standard. [Fn. 14]  Instead, the court stated that the objective
reasonableness test
          requires careful attention to the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.[ [Fn. 15]]
          Although this case was brought under state law rather
than under the Fourth Amendment, the trial court did not err in
adopting by analogy the constitutional framework.  The trial court
correctly stated the objective reasonableness test and made
detailed findings of fact, including findings that the police
justifiably believed that the fugitive was armed and dangerous,
that the police reasonably believed that Wasserman was Palmer, and
that Wasserman resisted the efforts of the officers to control him. 
Based on the findings, the court concluded that the actions of the
police were objectively reasonable.  We affirm the trial court's
analysis and conclusion.
          The Wassermans further argue that the trial court erred
by not identifying the "specific constitutional right allegedly
infringed by the challenged application of force and then judg[ing]
the claim by reference to the specific constitutional standard
which governs that right." [Fn. 16]  Although it is true that the
trial court never specifically identified the Wassermans' claim as
a potential violation of the Fourth Amendment, the trial court
correctly judged the claim under the Fourth Amendment investigatory
stop standard. Therefore, any error resulting from the lower
court's ambiguity in identifying the constitutional right allegedly
infringed is harmless.
     C.   The Trial Court Did Not Abuse Its Discretion by Denying
the Motion to Disqualify.
          The Wassermans argue that Judge Beistline was biased and
should have disqualified himself.  The basis of their position is
that Judge Beistline made findings that were contradictory and
unsupported by the record and that this court has twice reversed
his evidentiary exclusions.  The City responds that Judge Beistline
did not abuse his discretion in denying the motion to disqualify
because neither his formation of an opinion during the proceedings
nor his reversal on appeal automatically indicates bias.  The State
adopts the City's argument. We review the rejection of a motion to
disqualify for abuse of discretion. [Fn. 17] 
          Alaska Statute 22.20.020 provides the rule for
disqualification of a judicial officer for cause. [Fn. 18]  We have
interpreted AS 22.20.020(a)(9) to require a judge to consider not
only a showing of actual bias, but also the appearance of
partiality. [Fn. 19]  When only the appearance of partiality is
involved, a greater showing is required for reversal. [Fn. 20]
          The Wassermans argue that the trial court's findings show
bias because the trial court's view of the evidence is
"inconsistent with both justice and common sense." In support of
this contention, the Wassermans again fault the trial court for its
credibility findings as to Delacruz and Officer Bartholomew.  As
discussed above, the trial court did not abuse its discretion in
its findings regarding the credibility of Delacruz and Officer
Bartholomew.  We have stated that "[m]ere evidence that a judge has
exercised his judicial discretion in a particular way is not
sufficient to require disqualification." [Fn. 21]  We further
          Every member of this court, every member of
any court, every judge, when he hears a case or writes an opinion
must form an opinion on the merits and ofttimes no doubt an opinion
relative to the parties involved.  But this does not mean that the
judge has a "personal bias or prejudice."[ [Fn. 22]]
Furthermore, the policy behind disqualification would not be served
by holding that Judge Beistline should have recused himself. 
Disqualification "was never intended to enable a discontented
litigant to oust a judge because of adverse rulings made." [Fn. 23] 
The trial court's findings are amply supported by the evidence. 
The court ruled against the Wassermans, but noted that "[t]he
events of October 19, 1990, were an unfortunate combination of
mistaken identities and misunderstandings" and that "Wasserman was
not doing anything wrong leading up to this incident"    "[he was]
a law-abiding citizen shopping at a grocery store."  These findings
evidence no bias against the Wassermans.
          The Wassermans further argue that the trial court appears
to be biased because this court twice reversed the trial court in
their favor.  We have noted that a trial court's error alone is not
sufficient to support a presumption of actual bias. [Fn. 24] 
Although we twice reversed the trial court for excluding the
testimony of three witnesses, we affirmed the trial court's rulings
on all other appealed issues.  In addition, in reviewing Judge
Beistline's order refusing to disqualify himself, Judge Greene
found no abuse of discretion.  We hold that denying the motion for
disqualification was not an abuse of the trial court's discretion.
     D.   Attorney's Fees
          The Wassermans list the issue of attorney's fees in their
amended statement of points on appeal and in the "statement of
issues presented" in their brief by asking, "Did the trial court err
in granting the State of Alaska and John Roberts a financial
judgment against Mr. Wasserman?"  They have not, however, briefed
this issue.  We presume that the basis of the Wassermans' argument
is that the attorney's fees award should be reversed because they
should have prevailed in the lower court.  In light of our holding
today that the trial court did not err in ruling against the
Wassermans, we conclude that the trial court did not abuse its
discretion by awarding attorney's fees against them.  Because this
issue was not briefed by the Wassermans, they have waived
consideration of any additional arguments related to the attorney's
fees issue. [Fn. 25]
          For the foregoing reasons, we AFFIRM the trial court's
findings of fact, its application of the objective reasonableness
standard in judging whether the police used excessive force, its
denial of the motion to disqualify, and its award of attorney's
fees against the Wassermans.


Footnote 1:

     Wasserman v. Bartholomew, 923 P.2d 806, 811 n.9 (Alaska 1996)
(Wasserman I).

Footnote 2:

     Id. at 817.

Footnote 3:

     Wasserman v. Bartholomew, 987 P.2d 748, 755 (Alaska 1999) 
(Wasserman II).

Footnote 4:

     See Wasserman v. Bartholomew, No. 4FA-91-151 Ci. (Alaska
Super., March 9 & 16, 2000).

Footnote 5:

     Garrison v. Dixon, 19 P.3d 1229, 1231 (Alaska 2001); Wasserman
I, 923 P.2d at 817 n.29.

Footnote 6:

     Alaska R. Civ. P. 52(a).

Footnote 7:

     In re Friedman, 23 P.3d 620, 625 (Alaska 2001)  ("We
ordinarily will not disturb findings of fact made upon conflicting

Footnote 8:

     See Whitesides v. State, Dep't of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1136 (Alaska 2001); Kohl v. Legoullon, 936
P. 2d 514, 518 n.5 (Alaska 1997). 

Footnote 9:

     Those factors are:  "(1) the need for the application of
force; (2) the relationship between that need and the amount of
force that was used; (3) the extent of the injury inflicted; and
(4) whether the force was applied in a good faith effort to
maintain and restore discipline or maliciously and sadistically for
the very purpose of causing harm."  Graham v. Connor, 490 U.S. 386,
390 (1989).

Footnote 10:

     See N.A. v. State, 19 P.3d 597, 601 (Alaska 2001).

Footnote 11:

     490 U.S. 386 (1989).

Footnote 12:

     Id. at 395.

Footnote 13:

     Id. at 397.

Footnote 14:


Footnote 15:

     Id. at 396.

Footnote 16:

     Id. at 393-94.

Footnote 17:

     Wasserman I, 923 P.2d at 815 n.25; see also Amidon v. State,
604 P.2d 575, 577 (Alaska 1979).

Footnote 18:

     AS 22.20.020(a) provides in relevant part:
          A judicial officer may not act in a matter in
               . . . .
               (9) the judicial officer feels that, for
any reason, a fair and impartial decision cannot be given.   

Footnote 19:

     Amidon, 604 P.2d at 577.

Footnote 20:


Footnote 21:

     State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973),
overruled on other grounds by State v. Alex, 646 P.2d 203, 208 n.4
(Alaska 1982).

Footnote 22:

     Id. at 1113 (quoting Tucker v. Kerner, 186 F.2d 79, 84 (7th
Cir. 1950)).

Footnote 23:

     Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994) (quoting
State v. City of Anchorage, 513 P.2d at 1112).

Footnote 24:

     See Linstad v. Sitka Sch. Dist., 963 P.2d 246, 249 (Alaska
1998); see also Perotti v. State, 806 P.2d 325, 328 (Alaska App.

Footnote 25:

     It should also be noted that the trial court awarded no
attorney's fees over and above the award for fees incurred in the
1993 trial; no fees were awarded for the supplemental hearings
after we twice remanded.  The Wassermans did not challenge the 1993
attorney's fees award in their first appeal.  And although 42
U.S.C. sec. 1988 governs any attorney's fees award to a prevailing
party in a 42 U.S.C. sec. 1983 case, the Wassermans did not raise
a sec.
1983 claim in the trial court.  Neither did the defendants seek
attorney's fees pursuant to 42 U.S.C. sec. 1988.  Thus, the award
not be challenged as improper under that statute.