Burgess v. Williams

Filing 45

MEMORANDUM AND ORDER denying 37 Motion for Attorney Fees. Although Williams easily prevailed in this action, the court is unable to find that the plaintiff's claims were frivolous, unreasonable, or groundless, or that the plaintiff unreasonably continued to litigate. The defendants motion for attorney fees (filing 37 ) is denied. Ordered by Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF NEBRASKA

G E O R G E BURGESS, P la intiff, v. W ILLIA M WILLIAMS, individually a nd in his capacity as Veterans Service O ffic e r of Buffalo County, D e fe n d a n t .

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M EM ORANDUM A N D ORDER

T he defendant, William Williams, individually and in his official capacity as the ve te ra ns service officer for Buffalo County, Nebraska, has filed a motion for an award o f attorney's fees pursuant to 42 U.S.C. § 1988. 1 On October 20, 2008, the court gra nte d in part a Rule 12(b)(6) motion filed by Williams and dismissed the plaintiff's c la ims that Williams violated his First Amendment rights and deprived him of a c o ns titutio na lly protected interest under the Fourteenth Amendment by making false a nd stigmatizing comments about him, without notice and without due process of law, a nd by publishing information about his wife. (Filing 16.) On January 8, 2009, the c o urt granted Williams' motion for summary judgment and dismissed the plaintiff's re ma ining Fourteenth Amendment claim that Williams violated his right to privacy by d is c lo s ing confidential medical information. (Filing 35.)

Section 1988 provides, in part: "In any action or proceeding to enforce a p ro vis io n of . . . [42 U.S.C.§ 1983], the court, in its discretion, may allow the prevailing p a rty, other than the United States, a reasonable attorney's fee as part of the costs, . . ." 42 U.S.C.A. § 1988(b) (West 2003). Williams seeks to recover $6,912.00 for the s e rvic e s of his attorney, $2,898.00 for the services of a paralegal in his attorney's o ffic e , and $380.64 for out-of-pocket expenses.

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A s recently set forth by the Eighth Circuit: P urs ua nt to § 1988, a district court may award attorney fees to a p re va iling party in a lawsuit brought to enforce a provision of § 1983. A p re va iling defendant, however, is entitled to attorney's fees only in very na rro w circumstances. A plaintiff should not be assessed his opponent's a tto rne y' s fees unless the district court finds that his claim was frivolous, unre a s o na b le , or groundless, or that the plaintiff continued to litigate after it clearly became so. Even allegations that, upon careful examination, p ro ve legally insufficient to require a trial are not, for that reason alone, " gro und le s s " or "without foundation . . .." Rather, so long as the plaintiff h a s some basis for his claim, a prevailing defendant may not recover a tto rne ys ' fees. Finally, we are mindful of the Supreme Court's a d m o n it io n to avoid post hoc reasoning by concluding that, because a p la intiff did not ultimately prevail, his action must have been unreasonable o r without foundation. W illia m s v. City of Carl Junction, 523 F.3d 841, 843 (8th Cir. 2008) (citations and q uo ta tio ns omitted) (reversing district court's award of attorney fees to defendants w he re plaintiff's claims, while not meritorious, were not frivolous or unreasonable). A ltho ugh Williams easily prevailed in this action, the court is unable to find that the plaintiff's claims were frivolous, unreasonable, or groundless, or that the plaintiff unre a s o na b ly continued to litigate. Accordingly, IT IS ORDERED that the defendant's motion for attorney fees (filing 37) is d e nie d . Fe b rua ry 11, 2009. B Y THE COURT: s / Richard G. Kopf U nite d States District Judge

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