The opinion
LEAVY, Circuit Judge,
dissenting in part:
I dissent from the award of attorneys’ fees. I cannot characterize this action as frivolous, unreasonable, and without foundation. The Supreme Court has explained that attorneys’ fees are not normally awarded to prevailing defendants in § 1983 actions:
it is important that a ... court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.... Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing a suit.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 , 98 S.Ct. 694, 700-01 , 54 L.Ed.2d 648 (1978); see also Hughes v. Rowe, 449 U.S. 5, 14 , 101 S.Ct. 173, 178 , 66 L.Ed.2d 163 (1980) (“The fact that a plaintiff may ultimately lose his ease is not in itself a sufficient justification for the assessment of fees.”).
The district court denied the defendants’ motion for summary judgment. As our precedent demonstrates, a district court’s denial of a defendant’s motion for summary judgment suggests that a plaintiff’s claims are not without merit for purposes of attorneys’ fees. See Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir.1985); see also Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir.1987) (“A court should be particularly chary about awarding attorney’s fees where the court is unable to conclude that the action may be dismissed without proceeding to trial”); Soderbeck v. Burnett County, 752 F.2d 285, 295 (7th Cir.), cert. denied, 471 U.S. 1117 , 105 S.Ct. 2360 , 86 L.Ed.2d 261 (1985) (If the plaintiff succeeded in making out a case strong enough to withstand a motion for directed verdict, the case was not frivolous).
Most recently, we have held that it is an abuse of discretion to award fees to defendants where we have reversed a district court on a directed verdict, because a section 1983 plaintiff “may have seen the reversal as an indication that he potentially had a case.” Brooks v. Cook, 938 F.2d at 1055. Likewise, Maag no doubt viewed the district court’s denial of summary judgment as an indication that he had a case. As an appellee he simply tried to persuade us to agree with the district court, which ruled in his favor.