WORSTER-SIMS et al v. TROPICANA ENTERTAINMENT, INC. et al

Filing 209

OPINION. Signed by Judge Robert B. Kugler on 9/27/2016. (tf, )

NOT FOR PUBLICATION

(Doc. No. 204)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
JAMIE DEE WORSTER SIMS and
:
ASHLEE SIMS,
:
:
Plaintiffs,
:
:
:
:
v.
:
:
TROPICANA ENTERTAINMENT, INC., :
et al.,
:
Defendants. :
___________________________________ :

Civil No. 13-1981 (RBK/JS)
OPINION

Kugler, United States District Judge:
Jamie Worster-Sims and Ashlee Sims (“Plaintiffs”) bring federal and state claims against
the City of Atlantic City (“the City”) and Officer Michael Jones. This matter comes before the
Court on Defendant City of Atlantic City’s Motion for Attorney Fees pursuant to 42 U.S.C.
§ 1988. For the following reasons, Defendant’s motion is DENIED.
I.

BACKGROUND
Plaintiff brought this action against Defendant on or about March 26, 2013, alleging that

the City was liable for Plaintiff’s alleged assault at the hands of an Atlantic City police officer.
See Compl. (Doc. No. 1). Plaintiff brought a variety of state and federal claims, including:
assault and battery, negligence, negligent infliction of emotional distress (“NIED”), intentional
infliction of emotional distress (“IIED”), § 1983 liability (based on Monell liability), and an

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Eighth Amendment deliberate indifference claim. Id. Plaintiff’s wife brought a derivative per
quod claim. Id.
On September 9, 2016, this Court issued an opinion and entered an order granting the
City’s motion for summary judgment as to Plaintiff’s assault and battery, NIED, IIED, and
Eighth Amendment claims. The Court denied the City’s motion for summary judgment as to
Plaintiffs’ negligence, Monell, and per quod claims.
On September 16, 2016, the City filed the instant motion requesting attorney fees for the
claims for which the Court granted summary judgment. Plaintiff filed his response on September
19, 2016.
II.

STANDARD
In a civil rights action filed pursuant to 42 U.S.C. § 1983, “the court, in its discretion,

may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of
the costs.” 42 U.S.C. § 1988. While “it is well settled that a prevailing plaintiff should recover an
award of attorney's fees absent special circumstances,” Cty. of Morris v. Nationalist Movement,
273 F.3d 527, 535 (3d Cir. 2001), when a defendant is the prevailing party, he may recover
attorney's fees “only if the District Court finds ‘that the plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith.’” Hughes
v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978)).
In applying this standard, the Supreme Court has cautioned that “[t]he fact that a plaintiff
may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.”
Hughes, 449 U.S. at 14. When applying this standard in a Title VII case, the Third Circuit noted
that “courts should consider several factors including ‘(1) whether the plaintiff established a

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prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court
dismissed the case prior to trial or held a full-blown trial on the merits.’” EEOC v. L.B. Foster
Co., 123 F.3d 746, 751 (3d Cir.1997) (quoting Sullivan v. Sch. Bd., 773 F.2d 1182, 1189 (11th
Cir. 1985)). The Third Circuit further noted that “[t]hese factors are, however, guideposts, not
hard and fast rules.” L.B. Foster, 123 F.3d at 751.
The Supreme Court has also recently held that when some, but not all, of a plaintiff’s
claims are frivolous, a prevailing defendant can only recover the portion of fees attributable to
defending the worthless claims. Fox v. Vice, 565 U.S. 826, 835-36 (2011). “[A]llowing more
expansive fee-shifting would furnish windfalls to some defendants, making them better off
because they were subject to a suit including frivolous claims.” Id. at 837.
III.

DISCUSSION
As an initial matter, the Court notes that section 1988 specifically lists the federal actions

for which the prevailing party may recover attorney’s fees. New Jersey state law claims for
assault and battery, NIED, and IIED are not among the actions listed there. Therefore, the City
cannot recover attorney’s fees for defending against those state claims. See Christiansburg
Garment Co., 434 U.S. at 415 (“It is the general rule in the United States that in the absence of
legislation providing otherwise, litigants must pay their own attorney’s fees.”).
As for the remaining Eighth Amendment claim, the Defendant argues that Plaintiff’s
claim was frivolous because he was in possession of EMT records that indicated the Plaintiff
refused medical attention. Def. Mot. Br. at 4 (Doc. No. 204-2). Plaintiff counters that his Eighth
Amendment claim was not frivolous in light of an expert medical report opining that Plaintiff
was in no condition to refuse medical attention after his alleged assault. Pl.’s Resp. Br. at 9 (Doc.
No. 205). The Court finds Defendant’s argument unpersuasive. While Plaintiff was ultimately

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unsuccessful on his Eighth Amendment claim, it was not unreasonable for Plaintiff to believe
that a court may have given his expert’s opinion more weight and allowed a jury to decide
whether Plaintiff’s condition made his need for medical care obvious. The Court finds that while
Plaintiff’s Eighth Amendment claim was ultimately unsuccessful, his position was not
completely frivolous. Furthermore, even if Plaintiff’s Eighth Amendment claim was frivolous,
Defendant does not discuss what, if any, portion of its defense is attributable solely to defending
against the Eighth Amendment claim. See Fox, 565 U.S. at 835-36. Therefore, the Court declines
to award fees.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Attorney’s Fees is DENIED.

Dated:

09/27/2016

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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