Jefferson v. Save Mart Supermarket et al

Filing 64

MEMORANDUM and ORDER denying 53 Motion for Attorney Fees in its entirety signed by Judge Frank C. Damrell, Jr on 8/15/11. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JAMES EDWARD JEFFERSON Civ. No. S-09-2562 FCD/GGH 13 14 15 Plaintiff, v. MEMORANDUM AND ORDER SAVE MART SUPERMARKET, a Ca. Corp., dba FOODMAXX, et al., 16 17 Defendants. ____________________________ 18 ----oo0oo---- 19 This matter is before the court on Save Mart Supermarket and 20 Glenn Ostergard’s (collectively, “defendants”) motion for 21 attorneys’ fees pursuant to Federal Rule of Civil Procedure 22 54(d)(2) and 42 U.S.C. § 1988(b). Plaintiff James Edward 23 Jefferson (“plaintiff”) opposes the motion. For the reasons set 24 forth below,1 defendants’ motion is DENIED. 25 26 27 28 1 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 230(g). 1 1 BACKGROUND 2 This matter arises out of plaintiff’s allegations that 3 defendants violated plaintiff’s First Amendment Rights and his 4 civil rights under 42 U.S.C. § 1983 by prohibiting him from 5 setting up a table in the common area outside defendants’ grocery 6 door to collect signatures for ballot petitions and register 7 people to vote. 8 specifically, plaintiff claimed that weeks prior to September 14, 9 2007, he set up a stand outside the store in order to obtain (Compl., filed Sept. 14, 2009, ¶ 5.2.) More 10 voter registration and signatures for petitions to be placed on 11 the ballot. 12 informed by defendant Ostergard, a Save Mart employee, that the 13 store had a new policy regarding use of the store’s common area, 14 and that plaintiff would have to leave the area. 15 4.4.) 16 leave, defendants “caused him” to be arrested by a Butte County 17 police officer. 18 claim is that defendants’ refusal to permit him to solicit ballot 19 signatures and register voters on defendants’ property violated 20 his First Amendment rights and constituted a deprivation of his 21 civil rights pursuant to 42 U.S.C. § 1983. 22 (Id. at ¶ 4.1.) Plaintiff alleges that he was (Id. at ¶¶ 4.2, According to the complaint, when plaintiff refused to (Id. at ¶ 5.2.) The gravamen of plaintiff’s (Id. at ¶¶ 5.2, 6.2.) On June 28, 2010, defendants moved to dismiss plaintiff’s 23 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 24 (See Defs.’ Mot to Dismiss [“MTD”], filed Jun. 28, 2011 [Docket 25 #10].) 26 issued his Findings and Recommendations on defendants’ motion to 27 dismiss. 28 [Docket #29].) On January 26, 2011, Magistrate Judge Gregory Hollows (Findings and Recommendations, filed Jan. 26, 2011, Judge Hollows appropriately recommended the 2 1 complaint be dismissed for the following reasons: (1) plaintiff 2 could not make the required showing that defendants acted under 3 the color of state law because defendants are either private 4 persons or a private entity; (2) there is no First Amendment 5 right to gather signatures for initiatives or petitions, or to 6 register voters on a shopping center’s property; (3) even if 7 defendants did cause plaintiff to be arrested, merely complaining 8 to the police is not sufficient to constitute state action; and 9 (4) to the extent plaintiff may have raised a legitimate state 10 civil rights claim, supplemental jurisdiction should be denied 11 because plaintiff had no viable federal claim under Section 1983 12 or the First Amendment. 13 (Id. at 4:12-5:22; 7:1-7; 8:8-9.) On February 24, 2011, the court adopted Judge Hollows’ 14 Findings and Recommendations in full, thereby dismissing 15 plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 16 12(b)(6). 17 23, 2011, defendants filed a motion for attorneys’ fees pursuant 18 to 42 U.S.C. § 1988; plaintiff filed opposition to the same on 19 July 22, 2011. 20 2011, [Docket #53; Pl.’s Opp’n to Mot. for Att’y Fees, filed July 21 22, 2011, [Docket #59].) 22 (See Order, filed Feb 24, 2011, [Docket #31].) On May (See Defs.’ Mot. for Att’y Fees, filed May 23, ANALYSIS 23 Defendants contend that an award of attorneys’ fees in their 24 favor is appropriate in this case because plaintiff’s claim was 25 “frivolous, unreasonable and without foundation.” 26 14.) 27 claims were frivolous because “[p]laintiff did not allege, and 28 could not allege, that Save Mart and its employees are state (MTD at 4:13- More specifically, defendants assert that plaintiff’s 3 1 actors,” a required element of plaintiff’s Section 1983 claim. 2 (Id. at 4:8-9.) 3 frivolous because, “although the mall is private property,” it is 4 “subject to an easement in favor of a governmental entity, and 5 thus is a public place.” 6 2.) 7 constituted state action” pursuant to California law. 8 (Id. at 12: 3-5.) 9 Plaintiff contends that his claim was not (Pl.’s Opp’n to Mot. to Dismiss at 9:1- Thus, plaintiff suggests that “[d]efendants’ conduct Section 1988 of the Civil Rights Act permits the prevailing 10 party in an action brought under Section 1983 to recoup 11 reasonable attorneys’ fees. 12 prevailing defendant is treated differently from a prevailing 13 plaintiff, and fees are not awarded routinely or simply because 14 defendant succeeds. 15 1379, 1381 (9th Cir. 1988). 16 demonstrate “plaintiff’s action was frivolous, unreasonable or 17 without foundation, even though not brought in subjective bad 18 faith.” 19 434 U.S. 412, 421 (1978). 20 Under Section 1988 jurisprudence, a See Patton v. County of Kings, 857 F.2d Instead, a prevailing defendant must Christiansburg Garment Co. v. Equal Empl. Opp. Comm’n, This standard is “stringent,” Hughes v. Rowe, 449 U.S. 5, 14 21 (1980), and the Ninth Circuit repeatedly has recognized that 22 attorneys’ fees in civil rights cases “‘should only be awarded to 23 a defendant in exceptional circumstances.’” 24 173 F.3d 1150, 1157 (9th Cir. 1999) (quoting Barry v. Fowler, 902 25 F.2d 770, 773 (9th Cir. 1990)); see also Herb Hallman Chevrolet, 26 Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Brooks v. 27 Cook, 938 F.2d 1048, 1055 (9th Cir. 1991). 28 of the standard reflects Congress’ policy of promoting fervent 4 Saman v. Robbins, The vigorous nature 1 prosecutions of civil rights violations. 2 14-15. 3 rights litigation should be awarded only in extraordinary 4 circumstances so as not to unduly chill civil rights litigation. See Hughes 449 U.S. at Thus, attorneys’ fees to a prevailing defendant in civil 5 In addition to considering the legitimacy of plaintiff’s 6 claim in assessing whether to award attorneys’ fees, the Ninth 7 Circuit instructs courts to “consider the financial resources of 8 the plaintiff in awarding fees to a prevailing defendant” because 9 “the award should not subject the plaintiff to financial ruin.” 10 Miller, 827 F.2d at 621; see also Patton, 857 F.2d at 1381 11 (applying the Miller standard to a case in which plaintiff was 12 represented by counsel). 13 Importantly, courts sitting in the Ninth Circuit have held 14 that the standard is applied with particular vigor when the 15 plaintiff proceeds pro se. 16 Brandon v. NWO Corp., No. CV 07-00334 SPK-KSC, 2008 WL 2437736 17 (D.Hawaii, June 17, 2008); Page v. Jefferson Transit Authority, 18 No. C08-5456RJB, 2009 WL 2884754 (W.D. Wash., Sept. 8, 2009). 19 The heightened standard reflects the fact that “pro se plaintiffs 20 cannot simply be assumed to have the same ability as a plaintiff 21 represented by counsel to recognize the objective merit (or lack 22 of merit) of a claim.” 23 Circuit has provided three additional factors to consider in 24 assessing whether attorneys’ fees should be levied upon a non- 25 prevailing pro se plaintiff pursuant to Section 1988: (1) whether 26 the court was able to conclude that the action should be 27 dismissed prior to trial; (2) whether the plaintiff was able to 28 recognize the merits of his claim; and (3) whether the plaintiff See e.g., Miller, 827 F.2d at 620; Miller, 827 F.2d at 620. 5 The Ninth 1 2 acted in bad faith. Miller, 827 F.2d at 620. While the court dismissed plaintiff’s claim, the other 3 factors militate strongly in favor of denying defendants 4 attorneys’ fees. 5 filed the complaint in bad faith. 6 to, and reliance upon, California case law analyzing facts nearly 7 identical to those of this case is demonstrative of plaintiff’s 8 good faith, even if his reliance on that law was procedurally 9 misplaced. 10 First, the court cannot find that plaintiff Indeed, plaintiff’s citation Moreover, it is clear from plaintiff’s opposition that he 11 was, and remains, unaware of the defect in his claim. 12 determining whether plaintiff recognized the merits of his claim, 13 the court considers whether plaintiff has repeatedly attempted to 14 bring a claim previously found to be frivolous. 15 case, there is no indication that plaintiff has previously 16 attempted to bring this claim, nor that he had any knowledge that 17 his claim lacked merit. 18 papers that he believes that he has — and legitimately may have — 19 a claim under the California Constitution; that claim, however, 20 does not invoke federal jurisdiction. 21 Id. In In this Indeed, it is clear from plaintiff’s Specifically, plaintiff cites to Robbins v. Pruneyard, 23 22 Cal.3d 899, 902 (1979), which held that “soliciting at a shopping 23 center of signatures for a petition to the government is an 24 activity protected by the California Constitution.” 25 to Mot. for Att’y Fees, filed July 22, 2011, [Docket #59] at 26 10:2-6.) 27 Section 1983 claim, plaintiff “simply cannot be assumed to have 28 the same ability as a plaintiff represented by counsel to (Pl.’s Opp’n While Robbins is inapplicable to plaintiff’s federal 6 1 recognize” the nuances of federalism. 2 To this end, this factor militates strongly in favor of denying 3 defendants attorneys’ fees. Miller, 827 F.2d at 620. 4 Based upon the record as a whole, and considering the 5 aforementioned factors, the court cannot hold that plaintiff’s 6 action against defendants was “unreasonable, frivolous, 7 meritless, or vexatious.” 8 9 Christiansburg, 434 U.S. at 421. Furthermore, awarding attorney fees in this case is improper because it would subject plaintiff to financial ruin. See 10 Miller, 827 F.2d at 621. 11 proceed in forma pauperis, plaintiff receives $830 a month in 12 disability, which is completely exhausted by his monthly expenses 13 (rent, car, food, etcetera). 14 In Forma Pauperis, filed Jun. 29, 2009, [Docket #57].) 15 plaintiff does not currently have a checking or savings account, 16 does not own any real estate, stock, bonds or securities. 17 Under these facts, the court can easily find that an award of 18 more than $14,000.00 in fees to defendants would unduly burden 19 plaintiff. According to plaintiff’s application to (See Pl.’s Amended Req. to Proceed Moreover, (Id.) 20 CONCLUSION 21 For the foregoing reasons, the court DENIES defendants’ 22 23 24 motion for attorneys’ fees in its entirety. IT IS SO ORDERED. DATED: August 15, 2011 25 26 27 FRANK C. DAMRELL, Jr. UNITED STATES DISTRICT JUDGE 28 7

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