Pouillon v. Little, 01-1619.

• Decision Date: 16 April 2003
• Docket Number: No. 01-1619.,01-1619.
• Citation: 326 F.3d 713
• Parties: James POUILLON, Plaintiff-Appellee, v. Sharon LITTLE and W.G. Blanchett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

326 F.3d 713

James POUILLON, Plaintiff-Appellee, v. Sharon LITTLE and W.G. Blanchett, Defendants-Appellants.

No. 01-1619.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2002.

Decided and Filed: April 16, 2003.

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Jason D. Kolkema, (argued and briefed) Johnson, Rosati, Labarge, Aseltyne & Field, Lansing, Michigan, for Appellants.

Michael J. Gildner (argued and briefed), Simen, Figura & Parker, Flint, Michigan, for Appellee.

Before: BOGGS, SILER, and GIBBONS, Circuit Judges.

GIBBONS, Judge, delivered the opinion of the court, in which SILER, Judge, joined. BOGGS, Judge (p. 719), delivered a separate concurring opinion.

GIBBONS, Circuit Judge.

Plaintiff-appellee James Pouillon is an anti-abortion activist who was arrested by police officers Sharon Little and W.G. Blanchett while he was staging an abortion protest on the steps of the city hall building in Owosso, Michigan. Pouillon sued officers Little and Blanchett seeking compensatory and punitive damages. Pouillon rejected two pre-trial settlement offers pursuant to Federal Rule of Civil Procedure 68, and after two trials punctuated by a previous trip to this court, Pouillon won a jury verdict of $2.00. After the jury verdict, Pouillon moved for attorney's fees pursuant to 42 U.S.C. § 1988 and defendants moved for costs pursuant to Federal Rule of Civil Procedure 68. The district court granted Pouillon's motion for fees and denied defendants' motion for costs.

This appeal presents two issues: (1) whether the jury award in favor of Pouillon for nominal damages supports an award of attorney's fees pursuant to § 1988, and (2) whether an unaccepted Rule 68 offer loses its cost-shifting effect after an appeal and remand. For the reasons set forth below, we hold that the jury award in favor of Pouillon for nominal damages does not support an award of attorney's fees pursuant to § 1988 and that an unaccepted Rule 68 offer does not lose its cost-shifting effect after an appeal and remand. Accordingly, we reverse the district court's judgment and remand for further proceedings consistent with this opinion.

I.

For over ten years, James Pouillon staged abortion protests almost daily on the public sidewalk in front of the city hall building in Owosso, Michigan. On December 22, 1994, Pouillon moved his protest from his customary post on the sidewalk to a position on the steps of city hall. On that day, police officers Sharon Little and W.G. Blanchett arrested James Pouillon after he refused their orders to move back to the sidewalk.

Pouillon filed this action in Michigan state court against the City of Owosso and police officers Little and Blanchett, alleging false arrest and malicious prosecution.¹ Defendants removed the action to federal court, characterizing Pouillon's complaint as a First Amendment claim. In federal court, Pouillon amended his complaint to allege explicitly violations of his First and Fourth Amendment rights. In his amended complaint, Pouillon requested compensatory damages, punitive damages, and attorney's fees.

On December 2, 1997, defendants served Pouillon with a formal offer of judgment, pursuant to Federal Rule of Civil Procedure 68, in the amount of $2,500, inclusive of costs and attorney's fees. Pouillon did not accept this offer. On March 30, 1998, defendants served Pouillon with a second formal offer of judgment, pursuant to Rule 68, in the amount of $10,001, inclusive of costs and attorney's fees. Pouillon did not accept this offer either.

A four-day jury trial commenced on April 14, 1998, and the jury returned a verdict in favor of defendants. Pouillon appealed, and this court affirmed in part, reversed in part, and remanded the case to the district court for further proceedings. Pouillon v. City of Owosso, 206 F.3d 711 (6th Cir.2000). Specifically, this court affirmed the district court's dismissal of Pouillon's claim for punitive damages, but this court found that the district court had instructed the jury incorrectly on the law and had improperly submitted questions of law to the jury. Id.

After this court issued its opinion, Pouillon offered to accept defendants' prior settlement offer of $10,001, but defendants declined to reinstate their prior offer, which had been deemed withdrawn pursuant to Rule 68. A second jury trial commenced, and the second jury returned a verdict in favor of Pouillon in the amount of $2.00. After the verdict, Pouillon moved to recover attorney's fees pursuant to 42 U.S.C. § 1988 and defendants moved to recover costs pursuant to Federal Rule of Civil Procedure 68. The district court granted Pouillon's motion for attorney's fees in the amount of $35,690 and denied defendants' motion for costs. Defendants appeal the district court's order granting Pouillon's motion for attorney's fees and the district court's order denying their motion for costs.

II.

A. The District Court's Award of Attorney's Fees to Pouillon

The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988(b), permits a court in its discretion to award the "prevailing party" in a § 1983 action "reasonable" attorney's fees as part of the costs. Even a plaintiff who wins only nominal damages is considered a "prevailing party" for purposes of § 1988. Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Although the technical nature of a nominal damages award does not disqualify a plaintiff from prevailing party status, it does bear on the reasonableness of any attorney's fees award. Id. at 114, 113 S.Ct. 566. The most critical factor in determining the reasonableness of an attorney's fees award is the degree of success obtained. Id. In a civil rights action for compensatory and punitive damages, the awarding of only nominal damages highlights the plaintiff's failure to prove actual injury or any basis for awarding punitive damages. See id. at 115, 113 S.Ct. 566. "When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all." Id. (citations omitted) (affirming the Fifth Circuit's reversal of a district court's award of attorney's fees to a plaintiff who won only nominal damages); see also Cramblit v. Fikse, 33 F.3d 633, 635 (6th Cir.1994) (affirming a district court's denial of attorney's fees to a plaintiff who won only nominal damages).

Despite the Supreme Court's warnings about awarding attorney's fees to a civil rights plaintiff who has won only nominal damages, the district court awarded Pouillon attorney's fees in a brief oral ruling. In support of its decision to award Pouillon attorney's fees, the district court praised the efforts of Pouillon's attorneys on the record and stated, "I'm sure if you ask Mr. Pouillon, he feels that he was vindicated in his First Amendment Rights by the action that they took here." We review a district court's award of attorney's fees pursuant to 18 U.S.C. § 1988 for abuse of discretion. Cramblit, 33 F.3d at 634.

Joseph Farrar, the plaintiff in Farrar v. Hobby, also had his constitutional rights vindicated when the jury found that defendant Hobby had deprived Farrar of a civil right and the Fifth Circuit ruled that Farrar was entitled to nominal damages against Hobby. Farrar, 506 U.S. at 107, 113 S.Ct. 566. The Supreme Court, however, held that the district court had abused its discretion by granting Farrar attorney's fees based on his "technical" victory. Id. 114, 113 S.Ct. 566. With regard to Farrar's lawsuit, the Supreme Court stated, "This litigation accomplished little beyond giving petitioners `the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated' in some unspecified way." Id. at 114, 113 S.Ct. 566 (quoting Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). Therefore, in Farrar, the Supreme Court held that technical vindication of one's constitutional rights alone is not enough to justify an award of attorney's fees pursuant to § 1988.

According to his complaint, Pouillon initiated this lawsuit seeking compensatory and punitive damages against the City of Owosso and police officers Little and Blanchett. In the end, he recovered neither compensatory nor punitive damages against any defendant, and he recovered only $2.00 in nominal damages from officers Little and Blanchett. Pouillon's technical victory does not demonstrate a degree of success sufficient to justify an award of attorney's fees pursuant to § 1988. Pouillon has not demonstrated that his case is distinguishable from the "usual" case where a prevailing civil rights plaintiff is not entitled to attorney's fees when all that he has won is a technical vindication of rights in the form of nominal damages. See Farrar, 506 U.S. at 115, 113 S.Ct. 566 (holding that nominal damages are "usually" not enough to justify an award of attorney's fees); see also Johnson v. City of Aiken, 278 F.3d 333, 338 (4th Cir.2002) (holding that a district court abused its discretion in awarding attorney's fees under § 1988 to a civil rights plaintiff who won only nominal damages). Accordingly, the district court abused its discretion in granting Pouillon's motion for attorney's fees.

Pouillon argues that this court should affirm the district court's grant of attorney's fees because Pouillon was successful in accomplishing his alleged primary goal in this litigation: obtaining a finding of liability against defendants. Pouillon argues that recovering a substantial money judgment was never a primary goal of this litigation. In other words, Pouillon argues that he was primarily seeking only a technical victory in this case. In support of this contention, Pouillon cites his counsel's closing argument to the second jury in which Pouillon's counsel suggested that the jury award nominal damages if the jury found that Pouillon had not suffered any actual injury. Pouillon also points out that...