Piatt v. Eisenhauer et al
Filing
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OPINION entered by Chief Judge Michael P. McCuskey on 7/5/2011. Defendant's Petition to Assess Attorney's Fees is GRANTED. Defendants are allowed fourteen days to file an affidavit setting out the amount of attorney's fees they incurred. Plaintiff is allowed fourteen days from the date Defendants' affidavit is filed to file objections to the amount of attorney's fees sought. See written opinion. (JMW, ilcd)
E-FILED
Tuesday, 05 July, 2011 04:25:54 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
_____________________________________________________________________________
TONY PIATT,
)
)
Plaintiff,
)
v.
)
Case No. 10-CV-2051
)
JOSEPH S. EISENHAUER, LARRY
)
THOMASON, DOUG MILLER and
)
BOB RICHARD,
)
)
Defendants.
)
OPINION
This case is before the court for ruling on the Petition to Assess Attorney’s Fees (#19) filed
by Defendants Joseph S. Eisenhauer, Larry Thomason, Doug Miller and Bob Richard. Plaintiff,
Tony Piatt, has filed a Memorandum of Law in Opposition to Petition to Assess Attorney’s Fees
(#21). This court has carefully considered the arguments of the parties. Following this careful and
thorough review, Defendants’ Petition to Assess Attorney’s Fees (#19) is GRANTED.
BACKGROUND
Plaintiff filed a Complaint (#1) in this court under 42 U.S.C. §§ 1981 and 1983 alleging that
he was denied equal protection under the Fourteenth Amendment because of his race. Plaintiff, who
is Caucasian, alleged that he was discriminated against and fired to placate the concerns of African
American citizens in Danville, Illinois.
On May 2, 2011, this court entered an Opinion (#16) and granted Defendants’ Motion for
Summary Judgment. The undisputed facts showed that Plaintiff had been a police officer since
1995. On March 8, 2008, Plaintiff was off duty and, at approximately 2:00 a.m., argued with Willie
Thomas and Benny Rhodes, who are African American, at a Steak and Shake restaurant in Danville.
Plaintiff then pulled his off duty weapon and pointed it at Rhodes. Plaintiff’s off duty weapon was
a Smith and Wesson .38 revolver which was loaded and had no safety. Plaintiff testified at his
deposition that the muzzle of his gun was pointed at Rhodes’ head from about 18 inches away.
Following this incident, Plaintiff was placed on administrative leave while the Vermilion County
Sheriff’s Office conducted an investigation of the incident. When that investigation was completed
about two weeks later, Plaintiff briefly returned to work and an internal affairs investigation was
commenced on March 26, 2008.
Following this investigation, Plaintiff’s employment was
terminated.
This court concluded that the facts of this case showed that Plaintiff engaged in extremely
inappropriate, dangerous conduct on March 8, 2008. This court noted that, following an arbitration
hearing, the arbitrator concluded that there was just cause for the termination of Plaintiff’s
employment. The arbitrator stated, “[n]o police department can afford to employ a sworn officer
who behaves in this manner. Police officers are employed to protect the public, not threaten to kill
them over petty slights.” This court then concluded that Plaintiff had provided no evidence to
support his argument that the decision to terminate his employment was made because of the outcry
from the African American community. This court stated:
First of all, Plaintiff did not dispute that his employment was
terminated as a result of the internal affairs investigation. In addition,
the fact that there was a public reaction to this incident is
understandable and does not mean that Defendants could not make
the decision to impose appropriate discipline. Stated simply, the
record firmly supports the conclusion that the decision to terminate
Plaintiff’s employment was justified based upon Plaintiff’s conduct.
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Plaintiff has produced nothing but speculation to support his
argument that he would not have been terminated if he was African
American.
This court also rejected Plaintiff’s argument that Defendants’ failure to thoroughly
investigate the incident “could lead a jury to conclude that the Defendants were trying to quickly
push through [Plaintiff’s] termination to appease the African American community.” This court
concluded that Plaintiff could not complain that Defendants did not conduct an adequate inquiry into
his actions when there was no real dispute regarding those actions. Plaintiff testified at his
deposition that he pulled out his loaded .38 revolver and pointed it at Rhodes’ head, with the muzzle
about 18 inches away. This court again pointed out that the evidence showed that Plaintiff was
disciplined for conduct in which he admittedly engaged.
This court concluded that Plaintiff made no showing that there was any genuine dispute of
material fact and provided no evidence, circumstantial or otherwise, that any of the Defendants
engaged in discrimination based upon his race. This court therefore granted summary judgment to
all Defendants on Plaintiff’s claim.
COSTS AND ATTORNEY’S FEES
1. BILL OF COSTS
On May 5, 2011, Defendants filed their Bill of Costs (#18). Defendants sought costs in the
amount of $818.63 and attached documentation detailing the recoverable costs they incurred in
successfully defending this action. Plaintiff did not file an objection to the Bill of Costs, so costs
were taxed against Plaintiff in the amount of $818.63.
2. ATTORNEY’S FEES
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On May 12, 2011, Defendants filed a Petition to Assess Attorney’s Fees and Memorandum
in Support Thereof (#19). Defendants argued that “Plaintiff’s claim was so utterly without merit that
it should not have been filed.” Defendants also argued that they incurred unnecessary attorney’s
fees in defending themselves. Defendants pointed out that Plaintiff did not dispute any of the six
pages of Undisputed Material Facts contained in Defendants’ Motion for Summary Judgment,
agreed that summary judgment should be granted as to Defendant Miller, admitted that his
employment was terminated because of the incident at Steak and Shake and submitted only
inadmissible exhibits in opposition to the Motion for Summary Judgment.
On May 31, 2011, Plaintiff filed a Memorandum of Law in Opposition to Petition to Assess
Attorney’s Fees (#21). Plaintiff argued that Defendants are not entitled to an award of fees based
upon the applicable law. Plaintiff argued that he “certainly presented some evidence in support of
his claim.” Plaintiff also argued that Defendants’ Petition for Attorney’s Fees should be denied
because Defendants did not set out the amount of reimbursement they are seeking or identify the
hours spent. Plaintiff argued that the Petition did not afford him “the opportunity to specifically
address the specifics of the fees being sought.”
In any action proceeding pursuant to 42 U.S.C. § 1981 and § 1983, “the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42
U.S.C. § 1988(b). “Although the statute specifies the award of such fees is within the court’s
discretion, it is clear that prevailing defendants have a much harder row to hoe than do prevailing
plaintiffs.” Roger Whitmore’s Auto. Servs., Inc. v. Lake County, Ill., 424 F.3d 659, 675 (7th Cir.
2005). The United States Supreme Court has held that a prevailing plaintiff “is to be awarded
attorney’s fees in all but special circumstances” but that a prevailing defendant is not entitled to an
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award of attorney’s fees unless a court finds that the plaintiff’s claim “was frivolous, unreasonable,
or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 417, 422 (1978). This standard has been applied to cases
arising under § 1983. Hughes v. Rowe, 449 U.S. 5, 14-15 (1980); Roger Whitmore’s Auto., 424
F.3d at 675. The Seventh Circuit has defined a suit as frivolous “if it has no reasonable basis,
whether in fact or in law.” Roger Whitmore’s Auto., 424 F.3d at 675.
Defendants are not required to show bad faith, either subjective or objective, on the part of
the plaintiff in order to recover § 1988 attorney’s fees. Munson v. Milwaukee Bd. of Sch. Directors,
969 F.2d 266, 269 (7th Cir. 1992). Instead, Defendants are required to demonstrate that Plaintiff’s
action is “meritless in the sense that it is groundless or without foundation.” Hughes, 449 U.S. at
14; Munson, 969 F.2d at 269. “[W]hen a civil rights suit is lacking in any legal or factual basis . .
., an award of fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that
the ability of the courts to remedy civil rights violations is not restricted by dockets crowded with
baseless litigation.” Munson, 969 F.2d at 269, quoting Coates v. Bechtel, 811 F.2d 1045, 1050 (7th
Cir. 1987).
This court notes that the undisputed evidence presented to this court showed that Plaintiff
engaged in extremely inappropriate, dangerous conduct. Based upon the undisputed evidence, the
only rational conclusion was that the termination of Plaintiff’s employment was clearly warranted.
This court concluded in ruling on the Motion for Summary Judgment, and again concludes, that
Plaintiff provided no evidence, circumstantial or otherwise, in support of his claim that he was
discriminated against because of his race, Caucasian. Plaintiff’s claim was based solely on
speculation and conjecture. “Speculation alone is insufficient to support a lawsuit.” Munson, 969
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F.2d at 270. A fee award under § 1988 is appropriate when a suit is found to lack a sufficient basis
in fact. Munson, 969 F.2d at 270. In Munson, the Seventh Circuit upheld an award of attorney’s
fees to the defendants where the undisputed evidence showed that the plaintiff resigned after being
confronted with his violation of the residency requirement and there was no factual basis for his
lawsuit claiming that the actions which led to his resignation were motivated by his union activities.
Munson, 969 F.2d at 270-71. The Seventh Circuit concluded that the suit had no basis in fact so that
the district court did not abuse its discretion in finding that the plaintiff’s § 1983 suit was frivolous
and warranted an award of attorney’s fees to the defendants. Munson, 969 F.2d at 270.
This court recognizes that a weak case does not a frivolous case make. See Roger
Whitmore’s Auto., 424 F.3d at 675-76; see also Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999)
(“There is a significant difference between making a weak argument with little chance of success
. . . and making a frivolous argument with no chance of success.”). However, this court concludes
that, like the suit in Munson, this case was more than just weak, it was frivolous. Plaintiff was
terminated for pointing a loaded gun at a citizen’s head and there was no factual basis for his lawsuit
claiming that he was terminated based upon his race. Therefore, an award of attorney’s fees to
Defendants is warranted. See Munson, 969 F.2d at 270; Hopkins v. State of Ill., 2007 WL 3253329,
at *3 (C.D. Ill. 2007) (court awarded reasonable attorney’s fees where the § 1983 action was
“frivolous, unreasonable or groundless” from the beginning of the litigation); Huettl v. Becker, 2003
WL 23269531, at *7 (W.D. Wis. 2003) (court concluded that the plaintiffs’ § 1983 claim was
frivolous in the sense that it was “groundless or without foundation” and awarded attorney’s fees
to the defendant).
Defendants are allowed fourteen (14) days to file an affidavit setting out the amount of
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attorney’s fees they incurred. The affidavit should clearly set out the hours expended by their
attorney and a basis for the hourly rate charged by their attorney.
This court agrees with Plaintiff that he should be allowed an opportunity to specifically
address the attorney’s fees sought by Defendants. Therefore, Plaintiff is allowed fourteen (14) days
from the date Defendants’ affidavit is filed to file objections to the amount of attorney’s fees sought.
IT IS THEREFORE ORDERED THAT:
(1) Defendants’ Petition to Assess Attorney’s Fees (#19) is GRANTED.
(2) Defendants are allowed fourteen (14) days to file an affidavit setting out the amount of
attorney’s fees they incurred. The affidavit should clearly set out the hours expended by their
attorney and a basis for the hourly rate charged by their attorney.
(3) Plaintiff is allowed fourteen (14) days from the date Defendants’ affidavit is filed to file
objections to the amount of attorney’s fees sought.
ENTERED this 5th day of July, 2011
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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