Merchant v. Corizon Health, Inc. et al
Filing
82
MEMORANDUM DECISION AND ORDER - IT IS ORDERED that Defendants Motion for Attorneys Fees (Dkt. 74 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GARY L. MERCHANT,
Case No. 1:17-cv-524-BLW
Plaintiff,
MEMORANDUM DECISION
AND ORDER
v.
CORIZON, L.L.C., JOHN
MIGLIORI, M.D., DAVID AGLER,
M.D., IDAHO DEPARTMENT OF
CORRECTIONS, WARDEN KEITH
YORDY, and JOHN/JANE DOES IX, whose true identities are presently
unknown,
Defendants.
Before the Court is Defendant Dr. David Agler’s Motion for Attorney’s Fees
Under Rule 54(d)(2) (Dkt. 74). Plaintiff opposes the motion (Dkt. 79). The Motion
is fully briefed and at issue. For the reasons that follow the Court will deny the
motion.
BACKGROUND
Plaintiff, Gary Merchant brought the above captioned action against Corizon
L.L.C. and two of its doctors, including Dr. Agler. Merchant alleged violation of
his civil rights, medical malpractice, and negligent hiring and supervision in
MEMORANDUM DECISION AND ORDER - 1
relation to treatment surrounding the amputation of his leg. Amended Compl., Dkt.
4.
The Court heard arguments on Defendants’ motion to strike Plaintiff’s
expert witnesses (Dkt. 58) and motion for summary judgment (Dkt. 57), and
granted both motions from the bench. See Dkt. 71.
ANALYSIS
Dr. Agler now requests an award of the attorney fees incurred in preparing
for his deposition, as well as his motion for attorney’s fees, under 42 U.S.C. §1988
and Idaho Code § 12-121. Agler argues that Merchant’s claims were frivolous or
without foundation. Def.’s Mem. at 4, Dkt. 74-1.
Section 1988 authorizes “the court, in its discretion, [to] allow the prevailing
party ... a reasonable attorney's fee as part of the costs.” § 1988(b). A district court
may award attorney fees to a prevailing defendant only where the action brought is
found to be unreasonable, frivolous, meritless or vexatious. Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). In determining whether this
standard has been met, the district court must assess the claim at the time the
complaint was filed, and avoid post hoc reasoning by concluding that, because a
plaintiff did not prevail his action must have been unreasonable or without
foundation. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir.
2006) (citations omitted).
MEMORANDUM DECISION AND ORDER - 2
At the hearing on Defendants’ motions the Court struck Plaintiff’s expert
report because it was not timely filed. Therefore, there was no dispute of any
material fact with regard to the local standard of care. Further the Court found that
Merchant had not exhausted his administrative remedies so his § 1983 claim was
barred. At the hearing, the Court noted that, even had Plaintiff’s expert report not
been struck, there was no dispute of material fact as to Dr. Agler’s treatment of
Merchant.
However, analyzing Merchant’s claims at the time his complaint was filed,
the Court finds that they were not frivolous or without foundation. Dr. Agler was
the medical site director at the Idaho State Correctional Institute, where Merchant
was treated by Corizon staff and ultimately had his leg amputated. See Agler Depo.
at 64, 78-79, Dkt. 74-6. And, by his own admission, Dr. Agler saw Merchant while
working for Corizon. Id. at 6. Even if Dr. Agler did not directly treat Merchant in
relation to his leg amputation, he may have been deposed in relation to Merchant’s
negligent retention, training, and supervision claim.
Further, as Defendants acknowledge, Dr. Agler treated Merchant after he
returned from having his leg removed. See Def.’s Mem. at 5 n.2, Dkt. 74-1.
Merchant alleged that the delay in receiving his prosthetic leg led to preventable
complications which constituted a breach of the local standard of care. Amended
MEMORANDUM DECISION AND ORDER - 3
Compl. ¶ 23, Dkt. 4. Although Merchant did not develop this point on summary
judgment, it further supports the need to depose Dr. Agler.
Finally, Merchant was prescribed Humira which may have made an
infection of his leg more likely. See Pl.’s Resp. at 3, Dkt. 79. While it is not clear
from Dr. Agler’s deposition transcript, there is some indication he may have
prescribed Humira to Merchant. Agler Depo. at 55, Dkt. 74-6.
At the motion hearing, the Court did not hold that Merchant’s claims were
meritless or frivolous, only that there was no genuine issue of material fact as to
Dr. Agler. Upon review of the record it is clear that Merchant’s claims against Dr.
Agler were not frivolous or without foundation, especially at the time he filed his
amended complaint. Accordingly, the Court will deny Dr. Agler’s motion for
attorney fees.
ORDER
IT IS ORDERED that Defendant’s Motion for Attorney’s Fees (Dkt.
74) is DENIED.
DATED: February 3, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 4
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