Clemons v. Hayes et al

Filing 40

ORDER Denying 38 Motion for Attorney Fees. Signed by Judge Kent J. Dawson on 12/9/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DE’MARIAN CLEMONS,

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Plaintiff,

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v.

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Case No. 2:10-CV-01163-KJD-GWF

ROBERT CLINTON HAYES, M.D., et al.,

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ORDER

Defendants.

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Before the Court is Defendant Elizabeth Acevedo’s Motion for Attorney’s Fees (#38). No
opposition has been filed.
On July 26, 2011, the Court issued an Order (#37) granting Defendant’s Motion to Dismiss.

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Defendant seeks attorney’s fees of $8,690.00 pursuant to 42 U.S.C §1988 which provides in relevant

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part, that the Court “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as

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part of the costs...”

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Courts should be cautious in awarding fees against pro se litigants because they lack the

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ability to recognize when a claim has merit. Miller v. Los Angeles County Bd. of Educ., 827 F.2d

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617, 620 (9th Cir. 1987). Further, Courts should consider the financial resources of a plaintiff before

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awarding fees under §1988. Id.; see also Horn v. Carter, 360 Fed.Appx. 851, 852 (9th Cir. 2009)

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(reversing award of attorney's fees against pro se prisoner).

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Defendant argues that she should be awarded attorney’s fees, because the Court found that

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Plaintiff’s claims had no merit. Plaintiff is a prisoner representing himself pro se. There is no

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indication that Plaintiff was capable of accurately evaluating his chances of success on his claim.

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Further, it is highly unlikely that Plaintiff would have the ability to pay the $8,690.00 fee award

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requested by Defendant. Defendant has not cited any cases where a court has awarded fees under

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facts like those present here. Accordingly, the Court declines to exercise its discretion to award

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Defendant fees.

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IT IS HEREBY ORDERED that Defendant’s Motion for Attorney’s Fees (#38) is
DENIED.
DATED this 9th day of December 2011.

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_____________________________
Kent J. Dawson
United States District Judge