265 F.3d 399 (6th Cir. 2001), 99-4490, Berger v. City of Mayfield Heights

Docket Nº:99-4490
Citation:265 F.3d 399
Case Date:September 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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265 F.3d 399 (6th Cir. 2001)




No. 99-4490

United States Court of Appeals, Sixth Circuit

September 7, 2001

Argued: March 14, 2001

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 94-02036--David A. Katz, District Judge.

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Bruce B. Elfvin, Barbara Kaye Besser, Amy S. Glesius, Elfvin & Besser, Cleveland, Ohio, for Appellant.

Leonard F. Carr, L. Bryan Carr, Carr, Feneli & Carbone, Mayfield Heights, Ohio, for Appellees.

Before: Norris and Daughtrey, Circuit Judges; Zatkoff, District Judge[*].


Martha Craig Daughtrey, Circuit Judge

This case is before us on appeal for the second time. The plaintiff, Sanford J. Berger, sued the City of Mayfield Heights, Ohio, and several individual defendants for violation of his constitutional rights in a dispute with the City concerning the maintenance of property that he owned in Mayfield Heights. The district court granted summary judgment in favor of the defendants and dismissed the plaintiff's action. On appeal, we reversed the district court's judgment, holding that the municipal ordinance

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under which Berger had been cited violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On remand, Berger moved for attorneys' fees pursuant to 42 U.S.C. § 1988. The district court denied Berger's motion, holding that he had prevailed on "a simple constitutional challenge to the City's ordinance," not a 42 U.S.C. § 1983 claim. Berger now appeals the denial of attorneys' fees, insisting that he is a "prevailing party" under § 1988. We agree, and we therefore conclude that the matter must be remanded for a determination of reasonable attorneys' fees.


A detailed history of this case can be found in our previous opinion. See Berger v. City of Mayfield Heights, 154 F.3d 621 (6th Cir. 1998). In relevant part, the facts reflected there indicate that plaintiff Berger and one of his neighbors got into a dispute concerning the maintenance of Berger's intervening vacant lot, which -- to the dismay of his neighbor -- he kept in a "natural state." The neighbor succeeded in soliciting the Mayfield Heights City Council to amend an ordinance to require owners of vacant lots with 100 feet or less of street frontage to "totally cut" their lots to a height of no more than eight inches. Not surprisingly, Berger's vacant lot contravened the ordinance, but he refused to comply with the City's demand to clear-cut his lot, resulting in his citation for a criminal violation.

In response to the citation, Berger sued the City and certain other defendants in a 12-count complaint. The first two counts alleged constitutional violations, as follows:

Count I: That the amended ordinance is not substantially related to the public health, safety, and welfare of the City, violates Ohio Rev. Code § 731.30, and is unreasonable and arbitrary, constituting a substantive due process violation under the Fourteenth Amendment.

Count II: That the amended ordinance is unconstitutional on equal protection grounds, because it treats similarly situated landowners differently, based solely on the square footage of their properties.

In the jurisdictional statement of his complaint, Berger predicated jurisdiction on the basis of "42 U.S.C. §§ 1982, 1983 and 1985 as well as 28 U.S.C. §§ 1343(3) and (4) and 2201 et seq." Berger sought relief, among other remedies, in the form of compensatory damages against the City; compensatory and punitive damages against the other defendants; an injunction against criminal prosecution for violation of the ordinance; a declaratory judgment that the ordinance violated the federal and Ohio constitutional Equal Protection and Due Process Clauses; and attorney's fees and costs. The district court granted a temporary restraining order against criminal prosecution, and the City consented to hold in abeyance the criminal prosecution and its manicure of Berger's vacant lot pending final resolution of the litigation. After the other defendants were either dismissed by Berger or found immune from liability, the district court granted summary judgment in favor of the City on all counts of Berger's complaint.

On appeal, we reversed the grant of summary judgment to the City on Counts 1 and 2, finding, under a literal interpretation, that the ordinance violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, under a less-constrained interpretation, that it violates the Equal Protection Clause. Berger, 154 F.3d at 625-26. Following remand to the district court, Berger petitioned for an award of attorneys' fees pursuant

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to 42 U.S.C. § 1988, and the City filed a cross-motion for an award of attorneys' fees pursuant to § 1988 and 28 U.S.C. § 1927 and for sanctions against Berger pursuant to Federal Rule of Civil Procedure 11. The district court denied both petitions.


A. § 1983 Claim

Berger argues that the district court erred when it denied him an award of attorneys' fees. Undergirding Berger's claim for fees is 42 U.S.C. § 1988, which provides: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

We review the denial of attorneys' fees for abuse of discretion. Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993) (citing Perotti v. Seiter, 935 F.2d 761, 763 (6th Cir. 1991)). "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989) (citing Balani v. Immigration and Naturalization Service, 669 F.2d 1157 (6th Cir. 1982)). "An abuse of discretion exists when the district court applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." First Technology Safety Systems v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993).

Although the district court acknowledged that Berger successfully challenged the constitutionality of the City's ordinance, it denied Berger an award of attorneys' fees with the following explication:

A constitutional challenge to a statute or ordinance is not, however, confined to an action under § 1983. Clearly, a district court has jurisdiction under 28 U.S.C. § 1331 to entertain such constitutional challenges. Neither the parties' briefs, this Courts's Memorandum Opinions nor the Sixth Circuit's decision characterize this case as a 'civil rights' action. It is quite simply a constitutional challenge to a city ordinance. 42 U.S.C. § 1983 is merely a vehicle whereby a litigant may assert a constitutional violation. Even assuming Plaintiff pled a cause of action under § 1983, he did not prevail on his constitutional challenge through § 1983. See Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (§ 1983 'creates a right of action for the vindication of constitutional guarantees found elsewhere'). The basis upon which judgment was granted (to Defendant) and then ultimately reversed by the Sixth Circuit was based upon a constitutional analysis and there is no mention of 42 U.S.C. § 1983 in either of those decisions. Thus, Plaintiff's success in challenging the ordinance's constitutionality was not based upon § 1983 and Plaintiff cannot be considered a 'prevailing party' for purposes of attorneys fees under 42 U.S.C. § 1988(b).

We cannot endorse the district court's reasoning, which appears to turn on the notion that Berger's case was not a "civil rights" action, and thus it was not a § 1983 action entitling the plaintiff to an award of attorneys' fees under § 1988. This distinction, however, has been expressly rejected by the Supreme Court in Maine v. Thiboutot, 448 U.S. 1 (1980).

There, the Court was asked to decide whether § 1983's proscription against the violation of federal "laws" should be limited to a subset of laws. The respondents in

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Thiboutot brought a § 1983 action in state court claiming that the State of Maine had violated the Social Security Act. They prevailed upon their § 1983 claim, but the state court denied an award of attorney's fees sought by the respondents pursuant to § 1988. Upon review, the Supreme Judicial Court of Maine concluded that the respondents were eligible for attorney's fees pursuant to § 1988. Thiboutot, 448 U.S. at 3-4. On certiorari to the United States Supreme Court, the state argued that the Social Security Act did not constitute a § 1983 'law' whose violation entitles an aggrieved litigant to the award of attorney's fees under § 1988. Id. at 6.

The Supreme Court, after recognizing that the plain language of § 1983 "undoubtedly embraces" a claim for violation of the Social Security Act, referred to prior cases to illustrate the resolution that the § 1983 remedy "broadly encompasses violations of federal statutory as well as constitutional law." Id. at 4-5 (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658,...

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