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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES EDWARD JEFFERSON
Civ. No. S-09-2562 FCD/GGH

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Plaintiff,
v.

MEMORANDUM AND ORDER

SAVE MART SUPERMARKET, a Ca.
Corp., dba FOODMAXX, et al.,

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Defendants.
____________________________

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This matter is before the court on Save Mart Supermarket and

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Glenn Ostergard’s (collectively, “defendants”) motion for

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attorneys’ fees pursuant to Federal Rule of Civil Procedure

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54(d)(2) and 42 U.S.C. § 1988(b).

Plaintiff James Edward

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Jefferson (“plaintiff”) opposes the motion. For the reasons set

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forth below,1 defendants’ motion is DENIED.

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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).
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BACKGROUND

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This matter arises out of plaintiff’s allegations that

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defendants violated plaintiff’s First Amendment Rights and his

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civil rights under 42 U.S.C. § 1983 by prohibiting him from

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setting up a table in the common area outside defendants’ grocery

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door to collect signatures for ballot petitions and register

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people to vote.

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specifically, plaintiff claimed that weeks prior to September 14,

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2007, he set up a stand outside the store in order to obtain

(Compl., filed Sept. 14, 2009, ¶ 5.2.) More

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voter registration and signatures for petitions to be placed on

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the ballot.

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informed by defendant Ostergard, a Save Mart employee, that the

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store had a new policy regarding use of the store’s common area,

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and that plaintiff would have to leave the area.

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4.4.)

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leave, defendants “caused him” to be arrested by a Butte County

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police officer.

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claim is that defendants’ refusal to permit him to solicit ballot

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signatures and register voters on defendants’ property violated

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his First Amendment rights and constituted a deprivation of his

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civil rights pursuant to 42 U.S.C. § 1983.

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(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

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complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

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(See Defs.’ Mot to Dismiss [“MTD”], filed Jun. 28, 2011 [Docket

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#10].)

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issued his Findings and Recommendations on defendants’ motion to

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dismiss.

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[Docket #29].)

On January 26, 2011, Magistrate Judge Gregory Hollows

(Findings and Recommendations, filed Jan. 26, 2011,
Judge Hollows appropriately recommended the
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complaint be dismissed for the following reasons: (1) plaintiff

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could not make the required showing that defendants acted under

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the color of state law because defendants are either private

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persons or a private entity; (2) there is no First Amendment

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right to gather signatures for initiatives or petitions, or to

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register voters on a shopping center’s property; (3) even if

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defendants did cause plaintiff to be arrested, merely complaining

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to the police is not sufficient to constitute state action; and

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(4) to the extent plaintiff may have raised a legitimate state

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civil rights claim, supplemental jurisdiction should be denied

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because plaintiff had no viable federal claim under Section 1983

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or the First Amendment.

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(Id. at 4:12-5:22; 7:1-7; 8:8-9.)

On February 24, 2011, the court adopted Judge Hollows’

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Findings and Recommendations in full, thereby dismissing

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plaintiff’s complaint pursuant to Federal Rule of Civil Procedure

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12(b)(6).

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23, 2011, defendants filed a motion for attorneys’ fees pursuant

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to 42 U.S.C. § 1988; plaintiff filed opposition to the same on

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July 22, 2011.

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2011, [Docket #53; Pl.’s Opp’n to Mot. for Att’y Fees, filed July

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22, 2011, [Docket #59].)

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(See Order, filed Feb 24, 2011, [Docket #31].)

On May

(See Defs.’ Mot. for Att’y Fees, filed May 23,

ANALYSIS

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Defendants contend that an award of attorneys’ fees in their

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favor is appropriate in this case because plaintiff’s claim was

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“frivolous, unreasonable and without foundation.”

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14.)

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claims were frivolous because “[p]laintiff did not allege, and

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could not allege, that Save Mart and its employees are state

(MTD at 4:13-

More specifically, defendants assert that plaintiff’s

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actors,” a required element of plaintiff’s Section 1983 claim.

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(Id. at 4:8-9.)

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frivolous because, “although the mall is private property,” it is

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“subject to an easement in favor of a governmental entity, and

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thus is a public place.”

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2.)

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constituted state action” pursuant to California law.

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(Id. at 12: 3-5.)

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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

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party in an action brought under Section 1983 to recoup

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reasonable attorneys’ fees.

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prevailing defendant is treated differently from a prevailing

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plaintiff, and fees are not awarded routinely or simply because

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defendant succeeds.

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1379, 1381 (9th Cir. 1988).

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demonstrate “plaintiff’s action was frivolous, unreasonable or

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without foundation, even though not brought in subjective bad

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faith.”

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434 U.S. 412, 421 (1978).

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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

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(1980), and the Ninth Circuit repeatedly has recognized that

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attorneys’ fees in civil rights cases “‘should only be awarded to

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a defendant in exceptional circumstances.’”

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173 F.3d 1150, 1157 (9th Cir. 1999) (quoting Barry v. Fowler, 902

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F.2d 770, 773 (9th Cir. 1990)); see also Herb Hallman Chevrolet,

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Inc. v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Brooks v.

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Cook, 938 F.2d 1048, 1055 (9th Cir. 1991).

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of the standard reflects Congress’ policy of promoting fervent
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Saman v. Robbins,

The vigorous nature

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prosecutions of civil rights violations.

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rights litigation should be awarded only in extraordinary

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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

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In addition to considering the legitimacy of plaintiff’s

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claim in assessing whether to award attorneys’ fees, the Ninth

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Circuit instructs courts to “consider the financial resources of

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the plaintiff in awarding fees to a prevailing defendant” because

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“the award should not subject the plaintiff to financial ruin.”

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Miller, 827 F.2d at 621; see also Patton, 857 F.2d at 1381

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(applying the Miller standard to a case in which plaintiff was

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represented by counsel).

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Importantly, courts sitting in the Ninth Circuit have held

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that the standard is applied with particular vigor when the

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plaintiff proceeds pro se.

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Brandon v. NWO Corp., No. CV 07-00334 SPK-KSC, 2008 WL 2437736

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(D.Hawaii, June 17, 2008); Page v. Jefferson Transit Authority,

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No. C08-5456RJB, 2009 WL 2884754 (W.D. Wash., Sept. 8, 2009).

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The heightened standard reflects the fact that “pro se plaintiffs

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cannot simply be assumed to have the same ability as a plaintiff

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represented by counsel to recognize the objective merit (or lack

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of merit) of a claim.”

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Circuit has provided three additional factors to consider in

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assessing whether attorneys’ fees should be levied upon a non-

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prevailing pro se plaintiff pursuant to Section 1988: (1) whether

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the court was able to conclude that the action should be

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dismissed prior to trial; (2) whether the plaintiff was able to

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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.

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The Ninth

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acted in bad faith.

Miller, 827 F.2d at 620.

While the court dismissed plaintiff’s claim, the other

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factors militate strongly in favor of denying defendants

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attorneys’ fees.

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filed the complaint in bad faith.

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to, and reliance upon, California case law analyzing facts nearly

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identical to those of this case is demonstrative of plaintiff’s

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good faith, even if his reliance on that law was procedurally

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misplaced.

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First, the court cannot find that plaintiff
Indeed, plaintiff’s citation

Moreover, it is clear from plaintiff’s opposition that he

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was, and remains, unaware of the defect in his claim.

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determining whether plaintiff recognized the merits of his claim,

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the court considers whether plaintiff has repeatedly attempted to

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bring a claim previously found to be frivolous.

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case, there is no indication that plaintiff has previously

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attempted to bring this claim, nor that he had any knowledge that

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his claim lacked merit.

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papers that he believes that he has — and legitimately may have —

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a claim under the California Constitution; that claim, however,

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does not invoke federal jurisdiction.

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Id.

In

In this

Indeed, it is clear from plaintiff’s

Specifically, plaintiff cites to Robbins v. Pruneyard, 23

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Cal.3d 899, 902 (1979), which held that “soliciting at a shopping

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center of signatures for a petition to the government is an

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activity protected by the California Constitution.”

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to Mot. for Att’y Fees, filed July 22, 2011, [Docket #59] at

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10:2-6.)

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Section 1983 claim, plaintiff “simply cannot be assumed to have

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the same ability as a plaintiff represented by counsel to

(Pl.’s Opp’n

While Robbins is inapplicable to plaintiff’s federal

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recognize” the nuances of federalism.

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To this end, this factor militates strongly in favor of denying

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defendants attorneys’ fees.

Miller, 827 F.2d at 620.

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Based upon the record as a whole, and considering the

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aforementioned factors, the court cannot hold that plaintiff’s

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action against defendants was “unreasonable, frivolous,

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meritless, or vexatious.”

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Christiansburg, 434 U.S. at 421.

Furthermore, awarding attorney fees in this case is improper
because it would subject plaintiff to financial ruin.

See

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Miller, 827 F.2d at 621.

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proceed in forma pauperis, plaintiff receives $830 a month in

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disability, which is completely exhausted by his monthly expenses

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(rent, car, food, etcetera).

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In Forma Pauperis, filed Jun. 29, 2009, [Docket #57].)

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plaintiff does not currently have a checking or savings account,

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does not own any real estate, stock, bonds or securities.

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Under these facts, the court can easily find that an award of

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more than $14,000.00 in fees to defendants would unduly burden

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plaintiff.

According to plaintiff’s application to

(See Pl.’s Amended Req. to Proceed
Moreover,

(Id.)

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CONCLUSION

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For the foregoing reasons, the court DENIES defendants’

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motion for attorneys’ fees in its entirety.
IT IS SO ORDERED.
DATED: August 15, 2011

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FRANK C. DAMRELL, Jr.
UNITED STATES DISTRICT JUDGE

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