DeNardo v. Johnstone
| Decision Date | 06 September 1991 |
| Docket Number | No. A90-0101 Civ.,A90-0101 Civ. |
| Citation | 772 F. Supp. 462 |
| Parties | Daniel DeNARDO, Plaintiff, v. Karl JOHNSTONE, Alaska Public Employees Association, and Patrick Murphy, Defendants. |
| Court | U.S. District Court — District of Alaska |
Daniel DeNardo, pro se.
Stephanie E. Joannides, Asst. Atty. Gen., Juneau, Alaska, for Johnstone.
William K. Jermain and Robert A. Royce, Jermain, Dunnagan and Owens, Anchorage, Alaska, for ASEA and Murphy.
Daniel DeNardo ("DeNardo") sued Patrick Murphy and the Alaska Public Employees Association ("APEA"). DeNardo charged that Murphy and APEA fraudulently caused DeNardo to lose his employment with the State of Alaska and contended that Murphy's and the APEA's reckless and intentional conduct deprived DeNardo of his job, which DeNardo contends is property, in violation of the Fourteenth Amendment. DeNardo predicated his claim on 42 U.S.C. § 1983. This court has jurisdiction pursuant to 28 U.S.C. § 1343. See Docket No. 18 This court granted Murphy and the APEA summary judgment dismissing DeNardo's claim after briefing and a magistrate's recommendation. See Docket No. 31 Murphy and the APEA thereafter filed a motion seeking attorneys' fees pursuant to 42 U.S.C. § 1988. For reasons set out hereafter, I grant the motion and award Murphy and APEA the fees reasonably incurred in defending this action.1
The facts in this case are set out in DeNardo v. Murphy, 781 F.2d 1345 (9th Cir.1986) and DeNardo v. State, 740 P.2d 453 (Alaska 1987). I will summarize those facts adding, where necessary, additional information developed in the course of this case and derived from the files in DeNardo v. Murphy, A85-3745 and A85-3773. In April 1978, DeNardo, an employee of the State of Alaska, was discharged by the state, at Murphy's request, for not paying union dues and assessments. The collective bargaining agreement then in effect between the state and (APEA) established an "Agency Shop" and required the state to terminate any employee who failed to comply with the agency shop agreement upon APEA's request for termination. APEA requested DeNardo's termination because of alleged failure to pay the APEA dues or agency fees DeNardo owed under the terms of the agreement.
In July 1978, DeNardo contested his firing and sought administrative review of his termination by filing unfair labor charges against his employer, Murphy, and the APEA with the Alaska Labor Relations Agency, which rendered a decision against him. The agency held a hearing in October of 1978, and issued a written decision on January 8, 1979. It found that DeNardo was delinquent in his payment of agency shop fees at the time of his termination and concluded that the state had discharged him for just cause. DeNardo did not seek judicial review of that decision, although review was available under AS 44.62.520.560. I will refer to the agency proceeding hereafter as DeNardo I.
In April of 1980, DeNardo sued Murphy, APEA, and the State of Alaska in state superior court for "taking and conversion" of his fourteenth amendment interest in employment. The case was assigned to Superior Court Judge Karl Johnstone. On September 2, 1980, Judge Johnstone entered summary judgment against DeNardo, dismissing his action with prejudice based on DeNardo's failure to appeal the agency decision. Essentially, Johnstone found that DeNardo's failure to appeal the agency decision or seek reconsideration in conformity with the Alaska Administrative Procedure Act resulted in the agency decision becoming final and entitled to res judicata effect against DeNardo. DeNardo appealed and the State Supreme Court affirmed in an unpublished decision. See DeNardo v. Murphy, Memorandum Opinion and Judgment No. 93 (Alaska, July 28, 1981). (DeNardo II). DeNardo sought certiorari in the United States Supreme Court which was denied. DeNardo v. Murphy, 454 U.S. 1096, 102 S.Ct. 667, 70 L.Ed.2d 636 (1981), rehearing denied, 455 U.S. 1038, 102 S.Ct. 1743, 72 L.Ed.2d 156 (1982).
In June 1982, DeNardo brought the same complaint against the same parties in Alaska Federal District Court and Judge Fitzgerald granted summary judgment to Murphy on res judicata grounds. The state counterclaimed for an injunction precluding DeNardo from bringing further suits against it. Murphy and the APEA did not join in the counterclaim. Judge Fitzgerald did not decide the counterclaim. This part of the case was reassigned to Judge Holland. Chief Judge Holland granted the state summary judgment on its counterclaim and entered an injunction barring DeNardo from filing any further actions regarding the 1978 termination of his employment with the State of Alaska. DeNardo appealed to the Ninth Circuit and the court affirmed. DeNardo v. Murphy, 781 F.2d 1345 (9th Cir.1986). (DeNardo III), cert. den. 476 U.S. 1111, 106 S.Ct. 1962, 90 L.Ed.2d 648 (1986). The court did not reach the res judicata issue. The court decided that any claim DeNardo had under 42 U.S.C. § 1983, against anyone as a result of his termination in 1978, was barred by the applicable Alaska State statute of limitations. The court affirmed the injunction finding also:
In view of the number of times DeNardo has forced these defendants to defend themselves on the same claim, the age of the underlying claim, and the resolution of the same issue in both federal and state courts, the district court did not abuse its discretion by enjoining future litigation over DeNardo's 1978 discharge.
In April of 1984, before the district court had rendered judgment, DeNardo brought a third claim in Alaska State Superior Court. That case was assigned to Superior Court Judge Brian Shortell. DeNardo alleged essentially the same facts as in his earlier cases. Judge Shortell dismissed DeNardo's complaint with prejudice on the basis of res judicata on January 24, 1985. DeNardo appealed to the Alaska Supreme Court which affirmed in a published decision. DeNardo v. State, 740 P.2d 453 (Alaska 1987). (DeNardo IV), cert. den. 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987).
DeNardo commenced this action in Federal District Court on March 23, 1990, alleging the same cause of action against Murphy and the APEA that he had alleged in his previous cases. In addition, DeNardo claims that Judge Karl Johnstone, who presided over DeNardo II, had not signed a written oath prior to taking office. DeNardo claims this violates the Alaska State Constitution and in DeNardo's view, prevented Johnstone from being a judge. DeNardo makes other claims against Johnstone, but they are not relevant to his claims against Murphy and APEA. This case was initially assigned to Judge Kleinfeld who referred it to Magistrate John Roberts for a report and recommendation pursuant to Local Rule 4. Thereafter, this case, and a number of others, was assigned to me when I assumed office in August of 1990. Magistrate Judge Roberts filed a recommendation that this court grant Murphy's motion for summary judgment. After considering objections, I granted the motion for summary judgment. Murphy's motion for attorney's fees is now ripe for decision.
DeNardo sued Murphy under 42 U.S.C. § 1983. This court granted Murphy summary judgment. Murphy is therefore the prevailing party. An award of attorneys' fees to a prevailing defendant is authorized under 42 U.S.C. § 1988 when the action is groundless, without foundation, frivolous or unreasonable. It need not be brought in subjective bad faith. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980); Christiansburg Garment Co. v. Equal Employment Opportunity Comm., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Nevertheless, before awarding fees to a defendant, the court should be able to find that the plaintiff, if he appears pro se, knew or should have known that his case was without merit. Miller v. L.A. Board of Education, 827 F.2d 617 (9th Cir.1987). It is not enough that the court is able to summarily dispose of the case without trial. Bearing in mind, Congress's desire to encourage those whose rights have been infringed, to pursue those rights in the courts, a district court should be particularly hesitant to award fees against an unrepresented plaintiff. Id. at 620. In such a case, the court must consider the pro se plaintiff's ability to recognize the merits or demerits of his or her case. Id. In practice, the court should refrain from awarding fees against a pro se plaintiff unless it can find that a reasonable lay person, having knowledge of the facts known to the plaintiff, would have recognized that his or her claim was without merit. Such a finding is most appropriate where the court finds that the plaintiff is proceeding in bad faith or for an improper motive.
DeNardo has conceded all along that his claim against Murphy and the APEA is identical to claims previously brought and rejected in the state and federal courts and that both state and federal courts have held that his claims against Murphy and the APEA are barred by res judicata and collateral estoppel. DeNardo argues, however, that all of those cases should, in effect, be viewed as an array of dominoes in which DeNardo II is the central domino.
In DeNardo's view, if he can somehow avoid the preclusive effect of DeNardo II, it will fall down, dislodging all the other cases, which will disappear, and DeNardo will be free to pursue his action against Murphy and the APEA.
Judge Johnstone presided, at the trial level, over DeNardo II and, consequently, DeNardo has tried to show that Judge Johnstone was not qualified to preside over the trial in order to argue that the superior court lacked subject-matter jurisdiction to enter judgment against him. DeNardo apparently relies on the dicta in Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966), setting out the circumstances under which a prior judgment is subject to a collateral attack. In Holt, the supreme court cited, with approval, the then current version of...
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