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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 DE’MARIAN CLEMONS, 11 Plaintiff, 12 v. 13 Case No. 2:10-CV-01163-KJD-GWF ROBERT CLINTON HAYES, M.D., et al., 14 ORDER Defendants. 15 16 17 18 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. 19 Defendant seeks attorney’s fees of $8,690.00 pursuant to 42 U.S.C §1988 which provides in relevant 20 part, that the Court “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as 21 part of the costs...” 22 Courts should be cautious in awarding fees against pro se litigants because they lack the 23 ability to recognize when a claim has merit. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 24 617, 620 (9th Cir. 1987). Further, Courts should consider the financial resources of a plaintiff before 25 awarding fees under §1988. Id.; see also Horn v. Carter, 360 Fed.Appx. 851, 852 (9th Cir. 2009) 26 (reversing award of attorney's fees against pro se prisoner). 1 Defendant argues that she should be awarded attorney’s fees, because the Court found that 2 Plaintiff’s claims had no merit. Plaintiff is a prisoner representing himself pro se. There is no 3 indication that Plaintiff was capable of accurately evaluating his chances of success on his claim. 4 Further, it is highly unlikely that Plaintiff would have the ability to pay the $8,690.00 fee award 5 requested by Defendant. Defendant has not cited any cases where a court has awarded fees under 6 facts like those present here. Accordingly, the Court declines to exercise its discretion to award 7 Defendant fees. 8 9 10 IT IS HEREBY ORDERED that Defendant’s Motion for Attorney’s Fees (#38) is DENIED. DATED this 9th day of December 2011. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 _____________________________ Kent J. Dawson United States District Judge

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