Davidson v. Deschutes County et al

Filing 46

ORDER: Adopting Magistrate Coffin's Findings and Recommendation 41 allowing defendants John and Caren Burton's motion for attorney's fees 38 in the amount of $4,185. Plaintiff's request of this Court to deny defendants' petition for attorney's fees is DENIED. See formal ORDER. Signed on 12/10/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARTIE DAVIDSON,

Case No. 6:15-cv-00052-TC
ORDER

Plaintiff,
v.
DESCHUTES COUNTY, JOHN AND
CAREN BURTON, CHRIS KABER,
and JENNIFER GASPARD,
Defendants.
Mikel R. Miller
Law Office of Mikel R. Miller, P.C.
26 N.W. Hawthorne Avenue
Bend, Oregon 97703
Attorney for Plaintiff
Geordie Duckler
The Animal Law Practice
9397 S.W. Locust Street
Tigard, Oregon 97223
Attorney for Defendants John and Caren Burton
Page 1 - ORDER

AIKEN, Chief Judge:
Magistrate Judge Coffin filed his Findings and Recommendation
on February 13, 2013. The matter is now before me pursuant to 28
U.S.C.

§

objects

636(b) (1) (B)
to

any

Recommendation,

and Fed.

portion
the

of

district

R.

Civ.

a

P.

72 (b).

Magistrate's

court

must

When a party
Findings

make

a

de

and
novo

determination of that portion of the Magistrate's report. 28 U.S.C.
§

636(b) (1) (B); McDonnell Douglas Corp. v. Commodore Bus. Mach.,

656 F.2d 1309, 1313 (9th Cir. 1981).
Plaintiff brought this action asserting state law claims of
malicious prosecution and defamation against defendants John and
Caren

Burton

claims

("the

against

Burtons") .

defendants

Plaintiff

Deschutes

also

County,

asserted
Chris

various

Kaber,

and

Jennifer Gaspard, including a claim for false arrest pursuant to 42
U.S.C.

§

1983. Compl.

~~

37-72. On June 24, 2014, Magistrate Coffin

dismissed plaintiff's defamation claim against the

Burtons and

granted summary judgment for the Burtons on plaintiff's malicious
prosecution claim.

(doc. 31 at 7, 12)

(doc. 33, adopting Findings

and Recommendation) . The court also dismissed all claims against
the other defendants.

(doc. 31 at 1). Plaintiff declined to amend

the complaint.
Plaintiff now objects

to Magistrate Coffin's

Findings

and

Recommendation awarding $4,185 in attorney's fees to the Burtons
for time billed regarding plaintiff's malicious prosecution claim.

Page 2 - ORDER

Obj. to Findings and Recommendation 1. Because plaintiff asserted
no federal claims against the Burtons,
attorney's fees under 42 U.S.C.
plaintiff's federal

§

the Burtons can recover

1988 only if they demonstrate

false arrest claim and her state malicious

prosecution claim share a common core of facts. See, e.g., Maher v.
Gagne,

448 U.S.

122, 132

(1980)

(awarding attorney's fees for a

state law claim pendent to a substantial constitutional claim);
Carreras v. City of Anaheim,
(where

a

common

nucleus

of

768 F.2d 1039, 1050 (9th Cir. 1985)
operative

facts

exists

substantial federal claim and a pendent state claim,

between

a

attorney's

fees may be awarded pursuant to Section 1988).
Plaintiff asserts Magistrate Coffin erred in holding a common
core

of

facts

exists

prosecution claims.

between

Obj .

to

her

false

Findings

and

arrest

and

malicious

Recommendation

2.

In

support of her malicious prosecution claim, plaintiff alleged the
Burtons "pushed the Deschutes County District Attorney to charge
someone" and "pushed for prosecution of [plaintiff] with no reason
to believe she had done anything to deserve prosecution." Compl.
55,

57.

'J['J[

In support of her false arrest claim, plaintiff alleged

defendants Kaber and Gaspard "refused to investigate whether the
facts admitted to by [p]laintiff could have caused the injuries
they sought to blame on [p]laintiff" and were "more interested in
pacifying the Burton[s than] they were interested in pursuing the
truth." Id.

at

Page 3 - ORDER

'J[

63.

The complaint confirms Magistrate Coffin's

conclusion:

plaintiff's

claims

for

false

arrest

and malicious

prosecution arise out of a common core of facts because both claims
involve

facts

leading up to

and motivating the prosecution of

plaintiff.
Plaintiff

further

objects

to

Magistrate

Coffin's

award

because, though plaintiff "could have amended her claim," she was
unable

to

do

so

due

to

"the

emotional

[p] laintiff, and her own personality,

damage

[which]

inflicted

on

prevented her from

being able to see the matter through to the end." Obj. to Findings
and

Recommendation

deciding

not

to

2.

amend

Plaintiff's
her

subjective

defamation

claim

motivation

is

irrelevant

for
to

determining whether the Burtons are entitled to attorney's fees in
connection with the malicious prosecution claim.
I have given the file of this case a de novo review. I ADOPT
Magistrate Coffin's Findings and Recommendation (doc. 41) allowing
defendants John and Caren Burton's motion for attorney's fees (doc.
38) in the amount of $4,185. Plaintiff's request of this Court to
deny defendants' petition for attorney's fees is DENIED.
IT IS SO ORDERED.
Dated this

December 2015.

Ann Aiken
United States District Judge

Page 4 - ORDER