Alston v. Wake Med Hospital et al

Filing 45

ORDER denying 32 Motion for Attorney Fees; granting 38 Motion for Extension of Time; and granting 39 Motion for Leave to File. Signed by Chief Judge Terrence W. Boyle on 3/18/2019. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:18-CV-118-BO
THELMA MARIE ALSTON,

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Plaintiff,
v.
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J.A. PRIVETTE, et al.,
Defendants.

ORDER

This matter comes before the Court on defendants' motion for an award of attorneys' fees
[DE 32], as well as plaintiffs motions for an extension of time [DE 38] and leave to file a
supplemental response [DE 39]. The motions have been fully briefed and are ripe for disposition.
For the reasons discussed below, defendants' motion for an award of attorneys' fees [DE 32] is
DENIED and plaintiffs motion for an extension of time [DE 38] and motion for leave to file a
supplemental response [DE 39] are GRANTED.
BACKGROUND
The Court dispenses with recitation of the case and adopts, as if fully set forth herein, the
factual and procedural background that the Court provided in its order on September 25, 2018.
[DE 30].
In October 2018, plaintiff appealed this Court's dismissal of her complaint. [DE 34]. The
Fourth Circuit dismissed plaintiffs appeal for failure to prosecute. [DE 43]. Mandate issued on
March 4, 2019. [DE 44]. In October 2018, defendants moved for an award of attorneys' fees in the
amount of $60,062.50 under 42 U.S.C. § 1988. [DE 32]. Plaintiff filed a response in opposition as
well as two other motions, requesting an extension of time to file her response and leave to file a
supplement to her response. [DE 37-39].

DISCUSSION
At the outset, for good cause shown, plaintiffs motion for an extension of time and motion
for leave to file a supplemental response are granted. Plaintiffs response in opposition to
defendant's motion for an award of attorneys' fees is, therefore, treated as timely.
First, defendants argue that an award of attorneys' fees is justified by 42 U.S.C. § 1988.
Section 1988 authorizes the prevailing party in any civil rights action, including an action under
Section 1983, to recover reasonable attorneys' fees. While defendants and plaintiffs alike are
entitled to an award of fees under the statute, the standard for recovery by a defendant differs from
the standard for a plaintiff. Lotz Realty Co. v. US. Dep 't of Housing and Urban Dev., 717 F.2d
929, 931 (4th Cir. 1983). To recover, a defendant must show that the plaintiffs claim was
"frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly
became so." Id.; see also Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). The
defendant need not demonstrate that the plaintiff acted in bad faith, as a showing that the plaintiffs
action was meritless, groundless, or without foundation will suffice. DeBauche v. Trani, 191 F.3d
499, 510 (4th Cir. 1999). As the Fourth Circuit has further explained:
[T]he mere fact that a civil rights plaintiff lost her case does not render her claim
frivolous, unreasonable, or groundless .... The purpose of distinguishing between
a fee award being made to a successful plaintiff, on the one hand, and such an award
being made to a prevailing defendant, on the other, arises out of the legitimate
concern for the "chilling effect" that the latter type of award would have on
potential civil rights plaintiffs-and their lawyers-in deciding whether to initiate
lawsuits. See Lotz, 717 F.2d at 932. We have explained, however, that "[w]hen a
court imposes fees on a plaintiff who has pressed a 'frivolous' claim, it chills
nothing that is worth encouraging." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th
Cir. 1993).
Unus v. Kane, 565 F.3d 103, 127 (4th Cir. 2009). Therefore, in determining whether to award
attorneys' fees to defendants, the Court must decide whether plaintiffs claim was frivolous,

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unreasonable, or groundless, or whether plaintiff continued to litigate after it became clear that his
claim was frivolous, unreasonable, or groundless.
In its discretion, the Court finds that no award of attorneys' fees is justified in this matter.
Plaintiff brought a variety of claims arising from her arrest and termination from her housekeeping
job on the suspicion that she had stolen a hospital patient's Kindle e-reader. In dismissing these
claims, the Court found that plaintiff had either failed to bring her claims within the applicable
statute of limitations or had failed to state claims upon which relief could be granted. Plaintiff
noticed an appeal of the dismissal of her claims but that appeal was dismissed for failure to
prosecute. But plaintiffs claims were not objectively frivolous, unreasonable, or groundless under
Lotz. Indeed, it is possible that but for plaintiffs days-late filing of her complaint, she had alleged
sufficient facts to state civil rights claims upon which relief could have been granted. And even as
to the timeliness issue, plaintiff reasonably-but still erroneously-argued that she had complied
with the applicable statute of limitations. As such, defendants are not entitled to an award of
attorneys' fees under 42 U.S.C. § 1988.
Defendants also argue that they should be awarded reasonable attorneys' fees under N.C.
Gen. Stat. § 6-21.5. The statute provides that "[i]n any civil action ... the court, upon motion of
the prevailing party, may award a reasonable attorney's fee to the prevailing party ifthe court finds
that there was a complete absence of a justiciable issue of either law or fact raised by the losing
party in any pleading." N.C. Gen. Stat. § 6-21.5. A losing party's pleadings reflect "a complete
absence of a justiciable issue" when it "conclusively appear[ s] that such issues are absent even
giving the losing party's pleadings the indulgent treatment which they receive on motions for
summary judgment or to dismiss." Sprouse v. N River Ins. Co., 344 S.E.2d 555, 565 (N.C. Ct.
App. 1986). Additionally, the plaintiff must have been reasonably aware that, at the time the

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complaint was filed, it contained no justiciable issue, or the plaintiff must have continued pursuing
the matter once she discovered that the complaint contained no justiciable issues. Brooks v. Giesey,
432 S.E.2d 339, 342-43 (N.C. 1993).
No award of attorneys' fees is merited underN.C. Gen. Stat.§ 6-21.5. Plaintiffs complaint
did not reflect a "complete absence of a justiciable issue," because, as referenced above, had the
claims been timely asserted it is possible that they would have survived dismissal. Plaintiff had
made a prima facie showing as to at least some of her civil rights claims. Accordingly, in its
discretion, the Court finds that no award of attorneys' fees is justified. Defendants' motion for an
award of attorneys' fees must be denied.
CONCLUSION
For the above reasons, defendants' motion for an award of attorneys' fees [DE 32] is
DENIED and plaintiffs motion for an extension of time [DE 38] and motion for leave to file a
supplemental response [DE 39] are GRANTED.

SO ORDERED, this fiday of March, 2019.

~/j¥
CHIEF UNITED STATES DISTRICT JUDGE

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