Brown v. Borough of Chambersburg

Citation903 F.2d 274
Decision Date29 May 1990
Docket NumberNo. 89-5884,89-5884
PartiesBROWN, Richard W. v. BOROUGH OF CHAMBERSBURG, Pryor, Richard; Grabowski, Matthew; North, Richard; County of Franklin; Seep, Michael; Rauser, Russell and Burns, David. Appeal of Richard W. BROWN, and his attorney, Robert W. Henderson, Esquire.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Robert W. Henderson (argued), Frederick, Md., for appellants.

Richard G. Fine, Fine & Wyatt, P.C., Scranton, Pa., for Borough of Chambersburg, Matthew Grabowski, Richard Pryor and Richard North.

Stephen L. Grose (argued), Keefer, Wood, Allen & Rahal, Harrisburg, Pa., for County of Franklin, Michael Seep, Russell Rauser and David Burns, appellees.

Before MANSMANN, SCIRICA and SEITZ, Circuit Judges.


SEITZ, Circuit Judge.

Richard Brown (plaintiff) and his attorney, Robert Henderson (attorney), appeal separate awards of attorneys' fees against each of them and in favor of defendants. The district court allowed such fees pursuant to 42 U.S.C. Sec. 1988 (1982). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

Plaintiff brought this Sec. 1983 action against six individual defendants, the Borough of Chambersburg and the County of Franklin, alleging violations of his civil rights under the fourth and fourteenth amendments to the Constitution. See 42 U.S.C. Sec. 1983 (1982). Prior to trial, plaintiff voluntarily dismissed the Borough of Chambersburg. The district court then conducted a two-day jury trial. After the parties had rested, the district court granted a directed verdict in favor of the County of Franklin. However, it denied the motions of the individual defendants for directed verdicts on the ground that there was "direct conflict in the oral testimony at trial." Subsequently, the jury returned a verdict in favor of the individual defendants.

The attorneys' fee awards here appealed were based on the district court's determination that plaintiff's Sec. 1983 action, alleging defendants' mistreatment of plaintiff during and after his arrest for public drunkenness, was frivolous.

As a preliminary matter, we note that while the district court's memorandum opinion stated that it was appropriate to sanction appellants under Fed.R.Civ.P. 11, the court did not rely on that rule as authority for imposing sanctions. Rather, the order appealed from awarded attorneys' fees pursuant to Sec. 1988 only. Therefore, we will address only that statutory ground for sanctions.


We turn first to the attorney's contention that Sec. 1988 applies only to parties and does not authorize the award of attorneys' fees against him. Since the contention is a legal one our review is plenary.

Interpretation of Sec. 1988 must begin with its language, which provides in pertinent part:

In any action or proceeding to enforce a provision of section[ ] ... 1983 ... 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.

The Supreme Court has commented on the fact that Sec. 1988 makes no "mention of attorney liability for costs and fees." Roadway Express, Inc. v. Piper, 447 U.S. 752, 761, 100 S.Ct. 2455, 2461, 65 L.Ed.2d 488 (1980). In Roadway, the Court found convincing support in the legislative history for the view that the statute permits recovery only from a party, not from his counsel. 447 U.S. at 761 n. 9, 100 S.Ct. at 2461 n. 9.

The Court focused on the Senate Report accompanying the statute which states that "a party [who brings an action to vindicate fundamental rights], if unsuccessful, could be assessed his opponent's fee.... This bill thus deters frivolous suits by authorizing an award of attorneys' fees against a party...." S.Rep. No. 94-1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Admin.News 5908, 5912 (emphasis added).

The law in other circuits is consistent with the statements made by the Supreme Court. See Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1374 n. 1 (6th Cir.1987); Hamer v. County of Lake, 819 F.2d 1362 (7th Cir.1987) (remanded to allow district court to consider other theories of liability); Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.1986) (dictum), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94 L.Ed.2d 689 (1987); Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 915 (11th Cir.1982) (while reversing district court's failure to assess fees against counsel under court's inherent power, court observed that district court correctly determined that 42 U.S.C. Sec. 2000e-5(k) of Title VII of the Civil Rights Act of 1964 did not authorize fees against counsel); see also Davidson v. Allis-Chalmers Corp., 567 F.Supp. 1532, 1537-38 (W.D.Mo.1983).

We conclude that Sec. 1988 does not authorize the award of attorneys' fees against plaintiff's attorney. We will, therefore, reverse that portion of the district court's award that assessed fees against plaintiff's attorney under Sec. 1988.


We next consider the appropriateness of the district court's order assessing fees against plaintiff. A plaintiff may be liable for attorneys' fees under Sec. 1988 when "a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly becomes so." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978); 1 see also Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). A plaintiff's subjective bad faith is not a necessary prerequisite to an award of fees against him. Hughes, 449 U.S. at 14, 101 S.Ct. at 178; Christiansburg, 434 U.S. at 421, 98 S.Ct. at 700. Implicit in this approach is the premise that plaintiff knew or should have known the legal or evidentiary deficiencies of his claim. See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982); cf. Tarter v. Raybuck, 742 F.2d 977 (6th Cir.1984) (no fees assessed where case involved unsettled area of law), cert. denied, 470 U.S. 1051, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); Dooley v. Reiss, 736 F.2d 1392 (9th Cir.) (no fees assessed where losing claims presented difficult issues not previously resolved at appellate level), cert. denied, 469 U.S. 1038, 105 S.Ct. 518, 83 L.Ed.2d 407 (1984).

With the foregoing principles in mind, we review the district court's award of attorneys' fees under Sec. 1988 pursuant to an abuse of discretion standard. Rode v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir.1990); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 909 n. 21 (3d Cir.1985); 42 U.S.C. Sec. 1988 ("the court in its discretion," may award attorneys' fees) (emphasis added). Factual findings are subject to the clearly erroneous standard. Rode, 892 F.2d at 1182-83; Institutionalized Juveniles, 758 F.2d at 909 n. 21.

Plaintiff claimed that the police used excessive force in arresting him for public drunkenness and that the physician and corrections officers of the Franklin County Prison were deliberately indifferent to his serious medical needs. 2 We will consider these two theories of liability separately.


Force used during arrest may be so excessive as to support a cause of action under Sec. 1983 and the fourth and fourteenth amendments. See Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Plaintiff testified at trial that, after a night of celebrating, he was awakened and pulled from his apartment by Borough police officers. He also testified that during the arrest one of the officers pulled his feet out from under him and dragged him down a flight of stairs. This act, plaintiff asserted, fractured his ribs. The parties appear to agree that it might constitute excessive force if police injured plaintiff's ribs by pulling his feet out from under him and dragging him down a flight of stairs. We must therefore turn to the evidence.

In deciding the fee applications, the district court found that during the arrest the "two police officers supported and assisted the plaintiff, and led him down the flight of stairs to the ground floor and the police van." While this factual finding is not clearly erroneous, we must determine whether the court abused its discretion in finding it frivolous to assert that the officers mistreated plaintiff in the manner he claims.

The district court found that only plaintiff's testimony supported his version of the arrest and that this testimony was contradicted by every other witness, including disinterested witnesses. While plaintiff forcefully suggests that civil rights plaintiffs confronted with abusive police officers will often find themselves without corroborating witnesses, the district court noted that plaintiff's testimony was considerably suspect, given his drunken condition and his admitted inability to remember appearing before a district justice for arraignment. The court stated that the absence of any support for plaintiff's version of events was "apparent almost from the beginning" and was certainly knowable as discovery progressed. Thus, we cannot conclude on this record that the district court abused its discretion in finding plaintiff's claim based on the use of excessive force frivolous.


We first consider plaintiff's claim against the prison doctor, alleging his deliberate indifference to plaintiff's serious medical needs in violation of the fourteenth amendment. Deliberate indifference to a prisoner's serious medical needs can give rise to such a constitutional violation; however, mere medical malpractice will not. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).

Although the fourteenth amendment governs, since the events alleged occurred while plaintiff was a pretrial detainee, see Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979), this court has stated that the "deliberate...

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