Warnick v. Cooley et al

Filing 89

MEMORANDUM DECISION AND ORDER denying 77 Herboldsheimers Motion for Attorney Fees; finding as moot 85 Plaintiffs motion to stay Herboldsheimers motion for attorney fees pending appeal. Signed by Magistrate Judge Paul M. Warner on 1/4/2018. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SILVAN WARNICK,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
Case No. 2:14-cv-00186-JNP-PMW
BRADFORD COOLEY, ROBIN
WILKINS, DANIEL
HERBOLDSHEIMER, ETHAN
RAMPTON, MARK KNIGHTON, and
JEFFREY HALL,

District Judge Jill N. Parrish

Defendants.

Chief Magistrate Judge Paul M. Warner

This case was referred to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C.
§ 636(b)(1)(B). 1 Before the court are (1) Defendant Daniel Herboldsheimer’s
(“Herboldsheimer”) motion for attorney fees 2 and (2) Plaintiff Silvan Warnick’s (“Plaintiff”)
motion to stay Herboldsheimer’s motion for attorney fees pending appeal. 3 The court has
carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f)
of the Rules of Practice for the United States District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will determine the motions on the basis of the
written memoranda. See DUCivR 7-1(f).

1

See docket nos. 34, 71, 86.

2

See docket no. 77.

3

See docket no. 85.

ANALYSIS
I.

Herboldsheimer’s Motion for Attorney Fees
Herboldsheimer previously brought a motion to dismiss Plaintiff’s claims against him in

this case. 4 Pursuant to a Report and Recommendation issued by this court, 5 and an order issued
by Judge Parrish, 6 that motion was granted, and all of Plaintiff’s claims against Herboldsheimer
were dismissed. Herboldsheimer has now brought a motion for attorney fees, in which he seeks
an award of $15,447.00 in attorney fees under 42 U.S.C. § 1988 based on his assertion that
Plaintiff’s claims against him were “unreasonable, and without foundation, if not outright
frivolous.” 7
A party prevailing in an action brought under 42 U.S.C. § 1983 may be awarded attorney
fees. See 42 U.S.C. § 1988(b). “A prevailing defendant in a civil rights action may recover
attorney’s fees under 42 U.S.C. § 1988 if the suit ‘was vexatious, frivolous, or brought to harass
or embarrass the defendant.’” Utah Women’s Clinic, Inc. v. Leavitt, 136 F.3d 707, 709 (10th Cir.
1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983)). “This is a difficult standard
to meet, to the point that rarely will a case be sufficiently frivolous to justify imposing attorney
fees on the plaintiff.” Mitchell v. City of Moore, 218 F.3d 1190, 1203 (10th Cir. 2000).
The court has determined that Herboldsheimer has failed to meet the high standard for an
award of attorney fees under 42 U.S.C. § 1988. Although both this court and Judge Parrish
4

See docket no. 53.

5

See docket no. 64.

6

See docket no. 75.

7

Docket no. 77 at 4.
2

concluded that Plaintiff’s claims against Herboldsheimer were ripe for dismissal, neither this
court nor Judge Parrish reached the conclusion those claims were “‘vexatious, frivolous, or
brought to harass or embarrass’” Herboldsheimer. Utah Women’s Clinic, Inc., 136 F.3d at 709
(quoting Hensley, 461 U.S. at 429 n.2). Furthermore, the court is unwilling to reach that
conclusion now. Accordingly, Herboldsheimer’s motion for attorney fees is denied.
II.

Plaintiff’s Motion to Stay Herboldsheimer’s Motion for Attorney Fees
In light of the court’s denial of Herboldsheimer’s motion for attorney fees, Plaintiff’s

motion to stay that motion pending appeal is moot.
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Herboldsheimer’s motion for
attorney fees 8 is DENIED, and Plaintiff’s motion to stay Herboldsheimer’s motion for attorney
fees pending appeal 9 is MOOT.
IT IS SO ORDERED.
DATED this 4th day of January, 2018.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

8

See docket no. 77.

9

See docket no. 85.
3