United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATE MAGISTRATE JUDGE
the Court is a “Motion for § 1988 Attorney's
Fees” [ECF No. 289], filed by the City of Dallas (the
“City”), John McKinney, Dwaine Helton, Michael
Milam, and Jessica Merrell (together “Movants”).
For the reasons stated, the Motion should be
more than three years of litigating this civil action
alleging various state and federal claims against multiple
governmental and private entities, all of Plaintiff's
claims against the several defendants have been dismissed.
See Orders [ECF Nos. 146, 151, 152, 153, 157, 170,
203, 204, 269, 283, 285, 286]. The sole remaining issue for
determination in this action is Movants' counterclaim for
attorneys' fees under 42 U.S.C. § 1988. See
Counterclaim [ECF No. 69].
response to a Court Order, Movants have briefed the issues
pertaining to their claim for attorneys' fees under
Section 1988. Succinctly stated, Movants contend they are
entitled to an award of attorneys' fees because all of
Plaintiff's claims against them were frivolous,
unreasonable, or groundless from their inception, and because
Plaintiff vexatiously litigated those claims even after it
should have been clear to Plaintiff that his claims were
without merit. Plaintiff opposes Movants' fee request on
grounds that attorneys' fees are not available to
defendants under 42 U.S.C. § 1988 and because he
prosecuted non-frivolous claims in this lawsuit in good
faith. Movants object that Plaintiff's opposition merely
perpetuates a narrative that the Court has rejected, and
that, despite his post-hoc rationalizations for his conduct,
Plaintiff has failed to refute that his claims against
Movants were frivolous from their inception. By their Motion,
Movants seek $93, 590 in attorneys' fees and costs. The
Motion is ripe for determination.
court, in its discretion, may allow the prevailing party,
other than the United States, reasonable attorney's fee
as part of the costs” in cases brought under Section
1983. 42 U.S.C. § 1988(b). “Prevailing
parties” under Section 1988 are those parties that
“succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (Nadeau v. Helgemoe, 581 F.2d 275, 278-79
(1st Cir. 1978)). “Although attorney's fees for
prevailing plaintiffs are almost always awarded,
attorney's fees for defendants are only awarded
‘upon a finding that that the plaintiff's action
was frivolous, unreasonable, or without
foundation.'” DeRamus v. City of
Alexandria, 675 Fed.Appx. 408, 412 (5th Cir. 2017)
(quoting Fox v. Vice, 563 U.S. 826, 833 (2011);
Christiansburg Garment Co. v. E.E.O.C., 434 U.S.
412, 421 (1978)). Indeed, “attorneys' fees for
prevailing defendants are presumptively unavailable unless a
showing is made that the underlying civil rights suit was
vexatious, frivolous, or otherwise without merit.”
Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001);
see also Tutton v. Garland Indep. Sch. Dist., 733
F.Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.).
“The ‘stringent standard applicable to defendants
is intended to ensure that plaintiffs with uncertain but
arguably meritorious claims are not altogether deterred from
initiating litigation by the threat of incurring onerous
legal fees should their claims fail.'” Myers v.
City of West Monroe, 211 F.3d 289, 292 n. 1 (5th Cir.
2000) (quoting Aller v. New York Bd. of Elections,
586 F.Supp. 603, 605 (S.D.N.Y. 1984)).
determining whether an action was frivolous, the Court must
determine “whether the case was so lacking in merit
that it was groundless, rather than whether the claim was
ultimately successful.” United States v.
Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). The fact
that claims are dismissed before trial is not sufficient by
itself to support a finding of frivolity. Myers v. City
of West Monroe, 211 F.3d 289, 293 (5th Cir. 2000).
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.” Pisharodi v. Valley
Baptist Med. Ctr., 393 F.Supp.2d 561, 577-78 (S.D. Tex.
Fees Award to Movants as Defendants Having obtained
dismissal of all of Plaintiff's claims against them,
Movants are deemed to be prevailing parties in this
litigation. As defendants in the litigation, Movants are
entitled to recover reasonable attorneys' fees only if
they show Plaintiff's claims against them were frivolous,
unreasonable, or without foundation. 42 U.S.C. § 1988;
Christiansburg Garment Co., 434 U.S. at 421. To the
extent Plaintiff argues Movants' request for fees is
without merit because Section 1988 does not create an
independent cause of action, the Court has already
considered, and rejected that argument. See Order
Accepting [ECF No. 151] (accepting, over Plaintiff's
objection, the Findings, Conclusions, and Recommendation of
the Magistrate Judge to deny Plaintiff's Motion to
Dismiss Defendants' Counterclaim under Section 1988). As
the Court previously held, Movants' counterclaim is a
proper procedural vehicle for asserting Movants' claim
for attorneys' fees. See Findings, Conclusions,
and Recommendation of the Magistrate Judge [ECF No. 117].
of Motion Plaintiff objects that Movants' fee
request is untimely because it was filed almost eight months
after the Court entered judgment in favor of Defendants
Helton, Milam, and Merrell, on April 3, 2017. See
Judgment [ECF No. 270]. That judgment, however, was not a
final judgment, as it did not dispose of all the
claims-including Movants' counterclaim under Section
1988. Indeed, Plaintiff tacitly acknowledged the April 3,
2017, judgment was not final when he filed his motion seeking
“an express order of this Court authorizing and/or
confirming Plaintiff's rights to immediately file an
appeal of all dispositive orders and related discovery
rulings issued (or not issued) in this matter.”
See Mot. [ECF No. 271]. Movants filed their motion
in accordance with the deadline established by the Court, as
extended with permission of the Court.
Nature of Plaintiff's Claims The Court has
considered the full record in this case and the entire
history of this litigation. Plaintiff's claims against
Movants were disposed of by various procedural vehicles-some
much earlier in the litigation than others. Although Movants
ultimately prevailed against Plaintiff's claims, the
Court does not find that Plaintiff “refused to
acknowledge clear precedent or asserted a claim which was
based knowingly on a nonexistent interest.” Movants
argue that Plaintiff's claims against the
City-specifically the Dallas Police Department
(“DPD”) and the Dallas Fire-Rescue Department
(“DFR”) -were legally frivolous, and that
Plaintiff abandoned these frivolous claims only after the
City was forced to expend resources to respond to
Plaintiff's Complaint. See Mot. for Fees 2-3.
According to Movants, had Plaintiff performed even minimal
pre-suit legal research, he would have known that neither the
DPD nor DFR are jural entities that can be sued. Id.
Instead, the City was forced to file a motion to dismiss [ECF
No. 12] with respect to Plaintiff's claims against the
DPD and DFR. Plaintiff filed an Amended Complaint omitting
the DPD and DFR as defendants, after the City filed its
motion to dismiss. See Am. Compl. 1-2 [ECF No. 16].
it is well-established that police departments and other
agencies of Texas municipalities are not jural entities
subject to suit, see, e.g., Darby v. Pasadena Police
Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991),
Plaintiff's voluntary dismissal of his claims against the
DPD and DFR does not automatically subject him to
attorneys' fees. Anderson v. Harrison Cty.,
Miss., 639 Fed.Appx. 1010, 1017 (5th Cir. 2016).
Plaintiff has represented himself in this matter since the
inception of the case. Even licensed attorneys sometimes make
the mistake of naming the police department as a defendant.
Plaintiff's conduct in initially bringing claims against
the DPD and DFR and then dismissing those entities after the
City filed its motion to dismiss does not establish that his
claims against Movants were frivolous or wholly without
merit. See Dean, 240 F.3d at 511.
Plaintiff's conduct in naming the DPD and DFR as
defendants was not vexatious-especially in view of the fact
that Plaintiff promptly amended his complaint when the legal
deficiency of his claims against those entities was brought
to his attention. See Rios v. Blackwelder, 2017 WL
467072, at * (S.D. Tex. Feb. 3, 2017) (declining to award
fees to prevailing defendant under Section 1988 where