Thomason v. Moeller et al

Filing 114

MEMORANDUM DECISION AND ORDER Plaintiff's Motions (Dkts. 104 , 107 ) are DENIED. Defendant's Motion for Fees (Dkt. 106 ) 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARILYNN THOMASON,
Case No. 4:16-cv-00141-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
GREGORY W. MOELLER, et al.,
Defendants.
INTRODUCTION
Pending before the Court is Plaintiff’s Motion for Recusal (Dkt. 104) and
Plaintiff’s “Motions and Objections” (Dkt. 107). Also pending before the Court is
Defendants’ Motion for Attorneys’ Fees (Dkt. 106). For the reasons stated below, the
Court will deny the motions.
BACKGROUND
Plaintiff filed her Complaint on April 5, 2016 alleging that Defendants engaged in
a conspiracy to deprive her of equal protection and due process after judgment was
entered against her in a series of state court lawsuits. In January of 2017, the Court
dismissed plaintiff’s complaint in its entirety. See Jan. 19, 2017 Mem. Decision & Order,
Dkt. 83. The Court allowed plaintiff a chance to amend some of her claims, but stated
that if Plaintiff failed to file an amended complaint within 30 days, her complaint would
be dismissed with prejudice. Id. at 47.

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Plaintiff did not file an amended complaint. Instead, she filed a motion asking the
Court to set aside the January 2017 decision in its entirety. See Motion, Dkt. 84. Within
that motion, Plaintiff also asked the undersigned judge to recuse himself “based upon bias
and errors in facts, errors in law and fabrication of facts within the [the January 19, 2017
decision], under 28 USC 455(a) and (b)(1).” Id. at 3. The Court construed the motion as
one for reconsideration, and denied it on the grounds that the Plaintiff had simply restated
arguments addressed in its January 2017 decision. See August 29, 2017 Mem. Decision
and Order, Dkt. 100. The Court also denied Plaintiff’s motion to disqualify the
undersigned judge on the grounds that Plaintiff failed to demonstrate that the standards
governing recusal in 28 U.S.C. § 455(a) and (b)(1) had been met. Id.
After the Court entered judgment in the case, Plaintiff filed a second Motion for
Recusal of the undersigned judge. (Dkt. 104). Defendants filed a motion for attorneys’
fees on September 12, 2017. On September 25, 2017, Plaintiff filed “Motions and
Objections,” seeking to renew all motions filed during the proceedings in this case,
objecting to Defendants’ motion for fees, and seeking Rule 11 sanctions. (Dkt. 107).
LEGAL STANDARD
1.

Motion for Reconsideration
Federal Rule of Civil Procedure 59 is not intended to provide litigants with a

“second bite at the apple.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). Instead,
reconsideration of a final judgment under Rule 59(e) is an “extraordinary remedy, to be
used sparingly in the interests of finality and conservation of judicial resources.” Carroll

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v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A losing party cannot use a postjudgment motion to reconsider as a means of litigating old matters or presenting
arguments that could have been raised before the entry of judgment. School Dist. No. 1J,
Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
As a result, there are four limited grounds upon which a motion to alter or amend
judgment may be granted: (1) the motion is necessary to correct manifest errors of law or
fact; (2) the moving party presents newly discovered or previously unavailable evidence;
(3) the motion is necessary to prevent manifest injustice; or (4) there is an intervening
change in the law. Turner v. Burlington North. Santa Fe R.R. Co., 338 F.3d 1058, 1063
(9th Cir. 2003) (citation omitted).
Federal Rule of Civil Procedure 60(b) provides that the Court may reconsider a
final judgment or order based on: “(1) mistake, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged
judgment; or (6) extraordinary circumstances which would justify relief.” School Dist.
No. 1J, Multnomah Cnty, Or., 5 F.3d at 1263. This Rule must be used sparingly as an
equitable remedy to prevent manifest injustice and is to be utilized only where
extraordinary circumstances prevented a party from taking timely action to prevent or
correct an erroneous judgment. See Lal v. California, 610 F.3d 518, 524 (9th Cir.
2010). The moving party bears the burden of providing the existence of fraud,
misconduct, or any other ground for relief. Atchison, T & S.F. Ry. Co. v. Barrett, 246
F.2d 846, 849 (9th Cir. 1957).

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2.

Motion for Fees
Pursuant to 42 U.S.C § 1988, a “prevailing plaintiff should ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust.” Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983). Courts do not ordinarily award attorney's fees to
prevailing defendants, since routine awards would have an overly deterrent effect on civil
rights plaintiffs and would discourage the vigorous private enforcement of the civil rights
laws. Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412,
422 (1978). However, “a district court may, in its discretion, award attorney’s fees to a
prevailing defendant . . . upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation.” Id. at 421. “These limitations apply with special
force in actions initiated by uncounseled [litigants].” Hughes, 449 U.S. at 14. Attorney
fees should be awarded against a pro se plaintiff only in rare cases Id.
Under 28 U.S.C. 1927, courts may impose sanctions upon an attorney or other
person who “unreasonably and vexatiously” multiplies the proceedings in any case. 28
U.S.C. § 1927. “[S]ection 1927 sanctions must be supported by a finding of subjective
bad faith.” In re Keegan Management Co., Securities Litigation, 78 F.3d 431, 436 (9th
Cir. 1996). “Bad faith is present when an attorney knowingly or recklessly raises a
frivolous argument, or argues a meritorious claim for the purpose of harassing an
opponent.” West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th
Cir.1990).

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ANALYSIS
1. Plaintiff’s Motions
The Court will construe Plaintiff’s “Motions and Objections” (Dkt. 107) as a
motion to amend or alter judgment under Rule 59(e), or for relief from judgment under
Rule 60(b). 1 Plaintiff’s Motion alleges that the Court’s previous decisions in this case
have wrought “manifest injustice, through errors, fraudulent documents being enter [sic]
court records, deliberately targeted to prejudice and deny equal protection and due
process to Plaintiff.” See Motions and Objections at 2, Dkt. 107. The bulk of Plaintiff’s
Motion consists of a recital of previous motions filed by Plaintiff in this Court, and
Plaintiff’s notice that she “re-submits, re-pleads and re-motions” those previous filings.
Id. at 2-5. The remainder of Plaintiff’s Motion consists of a notice to the Court that any
additional motions for attorney’s fees are time-barred. Id. at 5-6. Plaintiff’s prayer for
relief includes, among other demands, requests that the Court set aside its January 19,
2017 and August 29, 2017 decisions, deny Defendants’ motion for fees, and impose Rule
11 Sanctions against defense counsel. Id. at 6-7.
Plaintiff’s brief in support similarly restates motions previously filed by Plaintiff
in this case. See Pl.’s Br. at 2-5 (seeking renewal of Plaintiff’s previously filed motions

1

Plaintiff filed her “Motions and Objections” pursuant to Federal Rules of Civil Procedure 50(a)
and (b); 52(a)(5) and (b)(1) [sic]; 59(a)(1)(B), (a)(2), and (d); and 60(b)(6). Rules 50, 52, and 59(a) and
(d) govern procedures available to parties after an action has gone to trial. This action was decided on the
pleadings, thus did not proceed to trial. To the extent Plaintiff seeks to revisit or set aside this Court’s
judgment, a motion to alter or amend judgment under Rule 59(e), or for relief from final judgment under
Rule 60(b) provides the appropriate vehicle for such actions.

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for a jury trial; for service by the United States Marshals; for default judgment against
certain defendants; for recusal of the undersigned; to strike a particular affidavit; for
stipulated discovery, pre-trial, and trial dates; for reconsideration of the January 19, 2017
decision; and for sanctions). Plaintiff alleges no facts or legal arguments supporting the
renewal of these motions. Rather, the next several pages of Plaintiff’s brief serve as a
response to Defendants’ Motion for Fees. Id. at 5-9. Plaintiff then “reasserts each and
every argument and claim made in each and every filings [sic] Plaintiff made within this
action,” and renews her arguments for recusal of the undersigned. Id. at 9-12.
A motion to alter or amend, or for relief from judgment may be granted only in
limited circumstances. Plaintiff has failed to establish that any of those circumstances
apply here. Instead, Plaintiff offers no more than conclusory statements that the Court’s
previous decisions are based on legal or factual error, or have wrought manifest injustice.
Those are issues that should be raised on an appeal of the Court’s decision, rather than in
a Rule 59(e) or 60(b) motion. Thus, the Court will deny Plaintiff’s motion to set aside its
previous judgment.
Plaintiff also moves, for a second time, for the undersigned to recuse himself from
this case. See Motion for Recusal, Dkt. 104. The Court previously considered and
rejected Plaintiff’s arguments in support of recusal in its August 29, 2017 decision, and
finds her arguments here no more convincing. Plaintiff’s personal belief that the
undersigned judge is biased against her is insufficient to establish that recusal is

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appropriate under 28 U.S.C.§ 455. For that reason, the Court will deny Plaintiff’s Motion
for recusal.
2. Defendants’ Motion for Fees
The Court declines to award fees to Defendants or to impose sanctions on Plaintiff
at this time. After finding that many of Plaintiff’s claims were “patently frivolous or
incapable of being cured by amendment,” the Court acknowledged that some claims
might be saved by amendment. See Jan. 19, 2017 Order at 45, Dkt. 83. Although
Plaintiff failed to take the Court up on its decision permitting her to amend her complaint,
the Court finds that Plaintiff’s actions are not so egregious or abusive as to merit an
award of attorney’s fees against a pro se plaintiff under § 1988. See Hughes, 449 S.Ct. at
16 (“An unrepresented litigant should not be punished for his failure to recognize subtle
factual or legal deficiencies in his claims.”). Nor does the Court find that there is
sufficient evidence to show that Plaintiff acted knowingly or recklessly to bring a
frivolous claim, or file frivolous motions, such that sanctions are appropriate under §
1927. Thus, the Court will deny Defendant’s motion.
Even if Plaintiff was not aware of the deficiencies in her claims at the outset of
this litigation, however, the three separate orders issued by this Court are sufficient to put
her on notice going forward that the claims she has asserted are entirely lacking in merit.
Thus, should Plaintiff continue to file motions for this Court to reconsider its judgment in
this matter, the Court will not hesitate to impose sanctions. Further, Defendants are

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hereby instructed not to respond to additional motions filed by the Plaintiff in this Court,
unless directed to do so by further order.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motions (Dkts. 104, 107) are DENIED.

2.

Defendant’s Motion for Fees (Dkt. 106) is DENIED.

DATED: March 9, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

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