Rios v. Blackwelder
MEMORANDUM AND ORDER denying 100 Motion for Attorney Fees.(Signed by Judge Nancy F Atlas) Parties notified.(TDR, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JACQUELINE RIOS, Individually and
As Personal Representative of the
Estate of Russell Rios,
BLACKWELDER, et al.,
February 03, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-13-3457
MEMORANDUM AND ORDER
This civil rights case is before the Court on the Motion for Attorneys’ Fees
(“Motion”) [Doc. # 100] filed by Defendant City of Conroe (the “City”), seeking to
recover $53,044.50 in attorneys’ fees from Plaintiff Jacqueline Rios.1 Plaintiff filed
a Response [Doc. # 104], the City filed a Reply [Doc. # 105], Plaintiff filed a SurResponse [Doc. # 106], and the City filed a Rejoinder [Doc. # 107]. Having reviewed
the record, the parties’ arguments, and applicable legal authorities, the Court exercises
its discretion to deny the City’s Motion for Attorneys’ Fees.
The Motion does not address the City’s taxable costs in the amount of $4,337.20 in
this court and $82.35 on appeal. These costs have been assessed and remain taxed
FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2013, Plaintiff’s 19-year-old son Russell Rios was at a Wal-Mart
Super Store in Conroe, Texas. Wal-Mart employees observed him shoplift, and they
followed him when he left the store. Defendant Jason Blackwelder, an off-duty
sergeant with the City of Conroe Police Department, was with his wife in the WalMart parking lot.
Plaintiff alleged that Blackwelder chased her son into the
surrounding woods and shot him.
The City of Conroe placed Blackwelder on administrative leave. On September
27, 2013, a Montgomery County Grand Jury indicted Blackwelder for manslaughter,
tampering with evidence, and making a false police report. On June 11, 2014,
Blackwelder was convicted of manslaughter.
Thereafter, Blackwelder’s law
enforcement license was revoked and his employment with the City of Conroe was
On November 21, 2013, Plaintiff filed this lawsuit against Blackwelder as the
sole defendant. At that time, she was represented by David Bernsen and Christine
Stetson. In the Original Complaint, Plaintiff alleged that what happened to her son
“was an execution and a clear constitutional violation of the use of deadly force.”
Complaint [Doc. # 1], ¶ 11. Plaintiff alleged that “Blackwelder was acting as a City
of Conroe police officer pursuant to Conroe Police Department Rules & Procedures
27 [sic], which require Conroe police officers to take police action even when offduty.”2 Id., ¶ 19.
On December 5, 2013, the Court granted Plaintiff’s motion to add a third
attorney, Clement Aldridge, Jr., as her counsel in this case.
On February 10, 2014, Plaintiff filed her First Amended Complaint [Doc. # 17],
again naming Blackwelder as the only defendant. Plaintiff again alleged that what
happened to her son “was an execution and a clear constitutional violation of the use
of deadly force.” First Amended Complaint [Doc. # 17], ¶ 11.
On October 30, 2014, Plaintiff filed her Second Amended Complaint [Doc.
# 34], continuing to allege that what happened to her son “was an execution and a
clear constitutional violation of the use of deadly force.” See Second Amended
Complaint [Doc. # 34], ¶ 13. In the Second Amended Complaint, Plaintiff added the
City of Conroe as a defendant. Plaintiff alleged that the City of Conroe had a policy
of “requiring officers to apprehend misdemeanor theft suspects through all means
necessary, including deadly force.” Id., ¶ 24. Plaintiff alleged additionally that the
City of Conroe “has allowed its officers to use excessive force without repercussions”
and it is “well-known within the department that the use of deadly force even with
Conroe Police Department Rules & Regulations provide in section 2.7 that “Officers
shall at all times respond to the lawful orders of supervisors, and to the call of citizens
in need of police assistance.” This requirement applies even if the officer is off-duty.
unarmed suspects will not be disciplined, therefore allowing Sergeant Blackwelder to
feel confident in his use of excessive force” against Plaintiff’s son. Id., ¶ 25. Plaintiff
alleged also that the City of Conroe ratified Blackwelder’s conduct by failing to
discipline him adequately. See id., ¶ 29.
On July 8, 2015, Bernsen and Stetson moved to withdraw as counsel for
Plaintiff. At a hearing on July 17, 2015, the Court allowed Bernsen, Stetson, and
Aldridge to withdraw as Plaintiff’s counsel based on the representation that “Mr.
McCotter” would soon make an appearance as counsel for Plaintiff. See Hearing
Minutes and Order [Doc. # 53]. No appearance by “Mr. McCotter” was ever filed.
Instead, on July 31, 2015, Patrick D. Hagerty filed a Motion for Admission Pro
Hac Vice [Doc. # 54], seeking to represent Plaintiff in this lawsuit. By Order [Doc.
# 55] entered August 3, 2015, the Court conditionally granted Hagerty’s motion, but
required him to apply for admission to practice in the Southern District of Texas. By
Order [Doc. # 57] entered August 31, 2015, the Court noted that Hagerty had failed
to comply with the Court’s August 3, 2015 Order and, therefore, ordered that Hagerty
was no longer permitted to appear as counsel for Plaintiff.
On August 31, 2015, Paul Gertz filed a Notice of Entry of Appearance and
Designation of Attorney in Charge [Doc. # 58], appearing in this case as counsel for
On October 30, 2015, Plaintiff filed a Motion for Leave to File Third Amended
Complaint (“Motion to Amend”) [Doc. # 64]. In the Motion to Amend, Plaintiff
conceded that “counsel does not believe the allegations in the Second Amended
Complaint are supported by the facts in this case and cannot be proven.” See Motion
to Amend, ¶ 2. Therefore, Plaintiff sought to file a third amended complaint to allege
that her son struggled with Blackwelder, and while attempting to restrain her son,
Blackwelder accidentally shot him. See Proposed Third Amended Complaint [Doc.
# 65], ¶ 15. Based on these dramatically different factual allegations, Plaintiff sought
to change her theory of liability against the City, alleging for the first time that the
City of Conroe violated the constitutional rights of Plaintiff’s son by failing to train
its officers in proper off-duty conduct. See Motion to Amend, ¶ 2. By Memorandum
and Order [Doc. # 68] entered December 1, 2015, the Court denied Plaintiff’s Motion
On December 4, 2015, the City filed its Motion for Summary Judgment. In her
Response, Plaintiff conceded that summary judgment in favor of the City was
appropriate on the Second Amended Complaint because Plaintiff “has no evidence to
support the legal theories set forth in the Second Amended Complaint.” See Response
to Motion for Summary Judgment [Doc. # 73], p. 2. As a result, the Court granted
summary judgment in favor of the City by Memorandum and Order [Doc. # 83]
entered February 1, 2016.
Plaintiff did not appeal the entry of summary judgment in favor of the City, but
appealed the Court’s denial of her motion for leave to file a third amended complaint.
The Court’s ruling on the Motion to Amend was affirmed by the Fifth Circuit in a per
curiam decision entered December 29, 2016 [Doc. # 102]. Thereafter, the City
renewed its Motion for Attorneys’ Fees, which has been fully briefed and is now ripe
MOTION FOR AWARD OF ATTORNEYS’ FEES
Applicable Legal Standard
The Court may, in its discretion, award attorney’s fees to a prevailing party in
a § 1983 action. See 42 U.S.C. § 1988(b); Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 422 (1978); DeRamus v. City of Alexandria, __ F. App’x ___, 2017
WL 89046, *2 (5th Cir. Jan. 9, 2017). The Court may exercise its discretion to award
fees to a prevailing defendant only if the defendant establishes that the plaintiff’s
actions were “frivolous, unreasonable, or without foundation.” See Christiansburg
Garment Co., 434 U.S. at 422; DeRamus, 2017 WL 89046 at *2; Pisharodi v. Valley
Baptist Med. Ctr., 393 F. Supp. 2d 561, 577-78 (S.D. Tex. 2005). “[A]n award of
summary judgment does not, by itself, entitle the defendant to costs and attorney’s
fees.” Pisharodi, 393 F. Supp. 2d at 578. Indeed, courts are generally reluctant to
award fees to a prevailing defendant unless the plaintiff “refused to acknowledge clear
precedent or asserted a claim which was based knowingly on a nonexistent interest.”
Id. (citation omitted).
“When determining whether to award attorney’s fees to defendants, [courts]
consider as factors (1) whether the plaintiffs established a prima facie case; (2)
whether the defendants offered to settle; and (3) whether the court held a trial on the
merits.” DeRamus, 2017 WL 89046 at *2 (citing Myers v. City of West Monroe, 211
F.3d 289, 292 (5th Cir. 2000)). “A party’s financial condition is not properly
considered in determining whether to award fees.”3
Broyles v. Texas, 2009
WL 2215781, *4 (S.D. Tex. July 23, 2009) (citing Alizadeh v. Safeway Stores, Inc.,
910 F.2d 234, 238 (5th Cir. 1990)).
In this case, the Court has considered the full record, the applicable factors
listed above, and other relevant legal principles. The Court exercises its discretion to
deny an award of attorneys’ fees to Defendants. The City filed an Answer [Doc. # 41]
to the Second Amended Complaint, in which the City was first added as a Defendant,
not a Motion to Dismiss. This indicates that the City understood Plaintiff to have
There is no evidence in the record, and the Court has not considered, whether Plaintiff
could pay over $50,000 in attorneys’ fees without significant financial hardship.
adequately alleged a prima facie case. There is no indication in the record that the
City offered to settle, but it is undisputed that Defendant Blackwelder offered to settle,
and in fact settled, the claims against him. There was no trial on the merits of
Plaintiff’s claim against the City because summary judgment was granted in the City’s
favor. Nonetheless, the Court cannot find that Plaintiff refused to acknowledge
applicable legal precedent or asserted interests which Plaintiff personally knew were
nonexistent. Plaintiff, while represented by prior counsel, made factual allegations
and asserted legal theories which admittedly lacked evidentiary support. Yet after
Plaintiff obtained knowledgeable, competent counsel, she promptly abandoned those
allegations and legal theories. After Gertz’s substitution as counsel for Plaintiff, the
only legal theory asserted against the City involved an alleged failure to train its police
officers regarding proper conduct while off duty. This claim, although unlikely to
prove successful, was not frivolous in light of the “single-incident” theory of liability
set forth in City of Canton v. Harris, 489 U.S. 378 (1989). Because the only theory
of liability pursued by Plaintiff after she obtained competent legal counsel was not
“frivolous, unreasonable, or without foundation,” the Court exercises its discretion to
deny the City’s request for attorneys’ fees.
CONCLUSION AND ORDER
The Court exercises its discretion to deny the City’s Motion for Attorneys’
Fees. Accordingly, it is hereby
ORDERED that the City of Conroe’s Motion for Attorneys’ Fees [Doc. # 100]
SIGNED at Houston, Texas, this 3rd day of February, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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