Todd v. Lake County Sheriff's Department et al
OPINION AND ORDER. The Court hereby GRANTS in part and DENIES in partDefendants Town of Schererville, Indiana and Officer Hunters Motion for Award of Attorneys Fees 91 , granting § 1988 attorney fees to Defendant Town of Schererville, Indiana for those costs incurred after the close of discovery related only to the defense of the Monell claim but not for any costs incurred as a result of Plaintiffs suit against Officer Hunter. Defendant Town ofSchererville, Indiana shall file a fee petition identifying these costs on or before October 25, 2013. Signed by Magistrate Judge Paul R Cherry on 10/9/2013. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PAUL L. TODD,
LAKE COUNTY SHERIFF’S
DEPARTMENT; TOWN OF
SCHERERVILLE, INDIANA; Officer
D. HUNTER; and Officers JOHN DOE,
Yet Unidentified Police and/or
Correctional Officers, in their
individual and Official Capacities
as Public Employees,
CAUSE NO.: 2:08-CV-314-JTM-PRC
OPINION AND ORDER
This matter is before the Court on Defendants Town of Schererville, Indiana and Officer
Hunter’s Motion for Award of Attorneys’ Fees [DE 91], filed by Defendants Town of Schererville,
Indiana and Officer D. Hunter on April 12, 2013. Plaintiff Paul L. Todd filed his response on April
26, 2013, and Defendants filed their reply on May 3, 2013.
On October 30, 2006, Plaintiff Paul Todd and Mike Todd (Plaintiff’s brother), entered the
National City Bank in Schererville, Indiana. Mike Todd attempted to cash a cashier’s check. A bank
employee, Kathryn Jezuit, stated that the check would have to clear before she could exchange cash
for the check. Plaintiff argued with Ms. Jezuit, asserting that the bank was required to immediately
provide cash upon presentment of the check. The argument led to both Ms. Jezuit and Plaintiff
calling the police. Ms. Jezuit reported an unruly customer, and Plaintiff reported that the bank was
attempting to steal his brother’s check. Plaintiff exited the bank and waited in his car in the bank’s
parking lot. Officers Hunter and Doe were dispatched to the bank. After arriving at the bank, bank
employees, including Ms. Jezuit, identified Plaintiff, who was sitting in his car outside the bank, as
the unruly customer.
While Officers Hunter and Doe were still inside the bank, Plaintiff decided to get something
to eat at a restaurant next door. Plaintiff drove from the bank parking lot to the restaurant parking
lot. After Plaintiff exited his vehicle, Officer Hunter approached him and asked to speak with him.
Plaintiff refused. Officer Hunter then ordered Plaintiff to get on the ground, and Plaintiff again
refused. Officers Hunter and Doe then forced Plaintiff to the ground, handcuffed him, and arrested
On October 29, 2008, Plaintiff filed a Complaint alleging various federal and state law
causes of action against Defendants and other parties. Plaintiff alleged false arrest and excessive
force in violation of 42 U.S.C. § 1983 and state law battery and intentional infliction of emotional
distress against Officers Hunter and Doe. He also brought a Monell claim against the Town of
Schererville, Indiana. On December 17, 2008, Defendants Town of Schererville, Indiana and Officer
Hunter filed an Answer.
On July 13, 2012, Defendants filed a joint motion for summary judgment. On September 14,
2012, Plaintiff filed his response. On October 1, 2012, Defendants filed their reply. On March 12,
2013, this Court granted Defendants’ motion. On April 12, 2013, Defendants then filed the instant
motion seeking attorney’s fees pursuant to 42 U.S.C. § 1988.
42 U.S.C. § 1988 provides that “[i]n any action or proceeding to enforce . . . [42 U.S.C.
§1983] . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee
as part of the costs.” Although § 1988 does not expressly authorize prevailing defendants to recover
attorney’s fees incurred defending against state law claims, the Seventh Circuit Court of Appeals
has stated that such a recovery may be appropriate when the state law claims are brought
concurrently with a § 1983 claim and arise out of the same facts. See Munson v. Milwaukee Bd. of
School Dirs., 969 F.2d 266, 272 (7th Cir. 1992) (“When . . . federal and pendent claims are factually
or legally related, they should be treated as one action for purposes of § 1988 fee awards.”).
Defendants, having prevailed at summary judgment on Plaintiff’s § 1983 and state law claims, argue
that they are entitled to attorney’s fees under § 1988.
Although § 1988 gives courts discretion when deciding whether to award attorney’s fees,
“[a]ny defendant who seeks fees under § 1988 for the cost of defense in the district court has a tough
row to hoe.” Redwood v. Dobson, 476 F.3d 462, 470 (7th Cir. 2007); see also Roger Whitmore’s
Auto. Servs., Inc. v. Lake County, Ill., 424 F.3d 659, 675 (7th Cir. 2005) (“Although [§ 1988]
specifies the award of [attorney’s] fees is within the court’s discretion, it is clear that prevailing
defendants have a much harder row to hoe than do prevailing plaintiffs.”). While “prevailing
plaintiffs receive attorney’s fees as a matter of course,” Khan v. Galitano, 180 F.3d 829, 837 (7th
Cir. 1999), prevailing defendants may be awarded attorney’s fees only upon a finding that the
plaintiff’s claim is “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, 422 (1978). The
Seventh Circuit Court of Appeals has cautioned that “[t]here is a significant difference between
making a weak argument with little chance of success . . . and making a frivolous argument with no
chance of success.” Khan, 180 F.3d at 837. A suit is frivolous only when “it has no reasonable basis,
whether in fact or in law.” Roger Whitmore’s Auto. Servs., 424 F.3d at 675 (citation and internal
quotation marks omitted).
However, a prevailing defendant need not demonstrate bad faith on the part of a plaintiff in
establishing the frivolity of a suit. See Coates v. Bechtel, 811 F.2d 1045, 1049 (7th Cir. 1987) (“An
award of attorney’s fees to a prevailing defendant is not dependent upon a showing that the plaintiff
commenced the action in bad faith.”). This standard has been consistently applied to those cases
arising under § 1983. See Hughes v. Rowe, 449 U.S. 5, 14-15 (1980); Roger Whitmore’s Auto.
Servs., 424 F.3d at 675. In the event a plaintiff has asserted both frivolous and non-frivolous claims,
“a court may grant reasonable fees to the defendant . . . , but only for costs that the defendant would
not have incurred but for the frivolous claims.” Fox v. Vice, 131 S. Ct. 2205, 2211 (2011).
Plaintiff does not dispute that Defendants are prevailing parties under § 1988. The only issue
before the Court is whether Plaintiff’s claims were frivolous under § 1988. The Court will address
the § 1983 Monell claim against Defendant Town of Schererville before turning to the claims
brought against Defendant Officer Hunter.
1. Town of Schererville
Plaintiff’s §1983 Monell claim alleged that Defendant Town of Schererville, Indiana had a
policy that caused Plaintiff to be the victim of excessive force on the part of Officers Hunter and
Doe. Schererville contends that the claim was frivolous at the outset of the litigation, or, in the
alternative, became so during the course of litigation. Generously read, Plaintiff’s response brief
argues that the Monell claim was abandoned early in the litigation once it was determined that
Plaintiff could not prevail on the claim.
As an initial matter, the Court concludes that Plaintiff did not signal to Schererville that the
claim was abandoned during the course of litigation. While Plaintiff’s deposition testimony
suggested that he was no longer bringing an excessive force claim against Officer Hunter, it did not
indicate that Plaintiff had abandoned the claim that Officer Doe’s alleged use of excessive force was
caused by an official policy of Schererville. The Court’s conclusion is further bolstered by the fact
that Plaintiff moved to amend his Complaint after Defendants’ Motion for Summary Judgment was
filed, and the proposed amended complaint included the Monell claim against Schererville. If
Plaintiff had indeed abandoned the Monell claim, it would not have been present in the proposed
The Court concludes that Plaintiff’s Monell claim was not frivolous at the outset of the
litigation. Plaintiff’s Complaint alleged a cognizable theory of municipal liability. The fact that
Plaintiff was eventually unable to bring forth facts in support of the claim does not render the claim
frivolous ab initio. See Leffler v. Meet, 936 F.2d 981, 986 (7th Cir. 1991) (“Even when the law or
the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable
ground for bringing suit.” (citation and internal quotation marks omitted)). Plaintiff’s Complaint
alleged that Officers Hunter and Doe used excessive force in arresting him, and discovery may have
demonstrated that an official policy of Schererville was the motivating force behind this alleged
deprivation of Plaintiff’s civil rights. Plaintiff’s inability to prove the claim does not mandate a
finding that the claim was frivolous from the outset.
However, the Court agrees with the Town of Schererville that the claim became frivolous
during the course of litigation. Plaintiff filed his Complaint against Schererville in October 2008,
discovery closed in April 2012, and Schererville filed its motion for summary judgment in July
2012, at which point Plaintiff failed to even address the Monell claim. Thus, after almost four years
of litigation, Plaintiff abandoned his sole claim against Schererville without bringing forth a single
fact supporting it. In response to the instant motion, Plaintiff again fails to provide the Court with
any basis for Schererville being named as a defendant in his suit. Thus, while Plaintiff may have had
a cognizable claim against Schererville at the outset of this litigation, he has failed to provide the
Court with any basis for concluding that the claim did not become frivolous during the course of
The Court concludes that Plaintiff’s Monell claim against Schererville became frivolous at
the close of discovery, and the Court grants the instant motion for attorney fees to that extent.
Schererville is granted leave to file with the Court a fee petition identifying those costs incurred after
the close of discovery. However, Schererville may only include those costs that it “would not have
incurred but for the frivolous claim[ ].” Fox v. Vice, 131 S. Ct. 2205, 2211 (2011). Thus, any costs
that were incurred as a result of Plaintiff’s suit against Officer Hunter may not be included in the fee
2. Officer Hunter
Defendants also argue that Plaintiff’s claims against Officer Hunter were frivolous from the
outset, or, in the alternative, became frivolous during the course of litigation. Plaintiff’s Complaint
contained the following claims against Officer Hunter: (1) excessive force under § 1983, (2) false
arrest under § 1983, (3) state law battery, and (4) state law intentional infliction of emotional
Defendants offer no substantive argument that Plaintiff’s excessive force, battery, and
intentional infliction of emotional distress claims were frivolous at the time Plaintiff filed his
Complaint. Indeed, Defendants’ motion does not discuss any of the underlying facts or legal
standards related to these claims. Instead, Defendants’ argument that these claims were frivolous
relies completely on Plaintiff’s statement during his deposition that he has no problem with Officer
Hunter outside of the false arrest. Although Defendants do not explain how this statement rendered
the claims frivolous from the outset of the litigation, the Court understands Defendants to be arguing
that the statement is a concession that there was never any factual basis for the excessive force,
battery, and IIED claims. The Court does not agree with this interpretation. An equally plausible
interpretation of the statement is that Plaintiff was no longer pursuing these claims against Officer
Hunter despite the fact that there was a non-frivolous basis for each claim. A plaintiff is free to
abandon weak, non-frivolous claims during litigation under § 1983 without being subject to a
finding of frivolity. A contrary rule would result in needless litigation that no party is interested in
pursuing. Plaintiff’s response brief indicates that the statement was simply an abandonment of the
claims, and Defendants’ reply brief does not contradict Plaintiff’s interpretation. Thus, the Court
finds that Plaintiff’s statement did not render the claims frivolous from the outset of the litigation.
Defendants argue that even if these claims were not frivolous at the outset of the litigation,
they became frivolous following Plaintiff’s deposition. Even if the Court were to accept that the
claims became frivolous following the deposition, it would not matter because the Court interprets
the statement to be an abandonment of the claims. While it would have been prudent for Plaintiff
to voluntarily dismiss these claims, the Court concludes that the statement provided Defendants with
notice that the claims were no longer live. Because Defendants have offered no evidence that
Plaintiff continued to litigate the claims following the deposition, the Court concludes that Plaintiff
did not litigate these claims after they became frivolous. Accordingly, the Court denies Defendants’
request for an award of attorney’s fees incurred in defending against the excessive force, battery,
and IIED claims against Officer Hunter.
Defendants’ final argument for attorney’s fees relates to Plaintiff’s false arrest claim under
§ 1983. Defendants assert that the claim was frivolous at the time the Complaint was filed, or, in the
alternative, became frivolous when Plaintiff received the affidavit of Ms. Jezuit.
In order “[t]o prevail on a claim of false arrest, [a plaintiff] must show there was no probable
cause for his arrest.” Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012). “Probable cause to
arrest is an absolute defense to any claim under Section 1983 against police officers for wrongful
arrest.” Id. (citation and internal quotation marks omitted). An officer has probable cause “if at the
time of the arrest, the facts and circumstances within the officer’s knowledge . . . are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed . . . an offense.” Id. (citation and internal quotation marks omitted).
Defendants first argument is that Plaintiff’s Complaint was frivolous when filed because
Plaintiff was in possession of the police report concerning Plaintiff’s arrest, which demonstrated that
Officer Hunter had probable cause to arrest Plaintiff. The Court is unable to evaluate Defendants’
argument because the police report was not attached to either the instant motion or to the motion for
summary judgment. As a result, the Court denies Defendants’ request to find that Plaintiff’s false
arrest claim was frivolous from the outset of the litigation.
Defendants’ next argument is that Plaintiff’s false arrest claim became frivolous when
Plaintiff received the affidavit of Ms. Jezuit. Ms. Jezuit testified that she told Officer Hunter that she
was involved in a verbal confrontation with Plaintiff in the bank and that she identified Plaintiff
sitting in his car to Officer Hunter. The Court does not agree that Plaintiff’s receipt of Ms. Jezuit’s
affidavit rendered his claim frivolous going forward. Ms. Jezuit reported a “verbal confrontation”
to Officer Hunter. Verbal confrontation could encompass a wide range of behavior, both criminal
and non-criminal. Plaintiff could credibly argue that even if Officer Hunter considered Ms. Jezuit’s
report to be perfectly credible, the conduct reported by Ms. Jezuit did not constitute a crime. Under
this theory, Officer Hunter received a credible report of non-criminal behavior, which would not
provide probable cause for Plaintiff’s arrest. While this is a weak claim—so weak that the Court
granted Defendants’ motion for summary judgment on it—the claim was not frivolous under § 1988.
Accordingly, the Court denies Defendants’ request for an award of attorney’s fees with respect to
Plaintiff’s false arrest claim against Officer Hunter.
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part
Defendants Town of Schererville, Indiana and Officer Hunter’s Motion for Award of Attorneys’
Fees [DE 91], granting § 1988 attorney fees to Defendant Town of Schererville, Indiana for those
costs incurred after the close of discovery related only to the defense of the Monell claim but not for
any costs incurred as a result of Plaintiff’s suit against Officer Hunter. Defendant Town of
Schererville, Indiana shall file a fee petition identifying these costs on or before October 25, 2013.
SO ORDERED this 9th day of October, 2013.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
All counsel of record
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