Roche v. Adkins, 92-3321

• Decision Date: 12 May 1993
• Docket Number: No. 92-3321,92-3321
• Citation: 998 F.2d 1016
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Charles Edward ROCHE, Jr., Plaintiff/Appellant, v. Charles F. ADKINS, Defendant/Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1016

998 F.2d 1016

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Charles Edward ROCHE, Jr., Plaintiff/Appellant, v. Charles F. ADKINS, Defendant/Appellee.

No. 92-3321.

United States Court of Appeals, Seventh Circuit.

Submitted May 12, 1993. ^*

Decided May 14, 1993.

Before BAUER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

ORDER

Charles Edward Roche, Jr., an inmate at Stateville Correctional Center, appeals the district court's Fed.R.Civ.P. 12(b)(6) dismissal of his pro se complaint filed pursuant to 42 U.S.C. § 1983, as well as the denial of his motion for reconsideration and the imposition of $200 in attorneys' fees to the prevailing defendant pursuant to 42 U.S.C. § 1988. Upon consideration of the parties' briefs and the record in this case, we AFFIRM the district court's dismissal of plaintiff's complaint and the denial of the motion to reconsider for the reasons stated in the attached district court orders.

Roche alleges that the district court's decision to grant him in forma pauperis status precluded the district court from awarding defendant $200 in attorney fees under 42 U.S.C. § 1988 that were incurred defending against Roche's frivolous civil rights action. First, we note that the district court did not make an unqualified finding that Roche was entitled to pauper status under 28 U.S.C. § 1915. After examining Roche's inmate trust fund ledger, the court required Roche to pay a partial filing fee of $8.00 or to show cause why he was nonetheless entitled to proceed in forma pauperis. Roche did not dispute the district court's finding, and he paid the required amount.

Second, even if the district court had given Roche the unqualified right to proceed in forma pauperis, his status would not have been a bar to an award of attorneys fees for defending against specious claims. Courts have held that in forma pauperis plaintiffs may be required (1) to pay a defendant's costs and attorneys fees as a discovery sanction pursuant to Fed.R.Civ.P. 37, Moon v. Newsome, 863 F.2d 835, 837-38 (11th Cir.), cert. denied, 493 F.2d 821 (1989); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986); Toner v. Wilson, 102 F.R.D. 275, 276 (M.D.Pa.1984); (2) to pay damages pursuant to Fed.R.App. 38 for pursuing a frivolous appeal, Freeze v. Griffith, 849 F.2d 172, 176 (5th Cir.1988) (per curiam); Reis v. Morrison, 807 F.2d 112, 113 (7th Cir.1986) (per curiam); Galvan v. Cameron Mut. Ins. Co., 831 F.2d 804, 805-06 (11th Cir.1984) (per curiam); (3) to pay a defendant's costs of litigation pursuant 28 U.S.C. § 1915(e), Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir.1988) (per curiam); Flint v. Haynes, 651 F.2d 970, 972-74 (4th Cir.1981), cert. denied, 454 U.S. 1151 (1982); and (4) to pay damages for delay caused by an appeal pursuant to 28 U.S.C. § 1912, Carter v. United States, 733 F.2d 735, 737 (10th Cir.1984), cert. denied, 469 U.S. 1161 (1985). The purpose of fee and costs awards under the statutes relied upon in the foregoing cases is twofold: to discourage frivolous litigation and unburden defendants of expenses they should never have had to bear. The same bases apply to awards of attorneys fees under 42 U.S.C. § 1988, the basis of the district court's award in this case. See Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2 (1983); Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir.1987). The district court therefore had the power to award defendant attorneys fees, the sole question is whether the decision was proper in this case.

We will only reverse an award of attorneys fees if the district court abused its discretion. Leffler v. Meer, 936 F.2d 981, 984-85 (7th Cir.1991); Nanetti v. University of Illinois, 867 F.2d 990, 995 (7th Cir.1989). An award of attorneys' fees to the prevailing defendant does not require that the plaintiff display subjective bad faith: objective frivolousness is a sufficient ground. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). We have held that a district court may take into account a plaintiff's ability to pay a § 1988 award when considering whether to award attorneys fees. Munson v. Friske, 754 F.2d 683, 697 (7th Cir.1985). Nonetheless, when a plaintiff from whom fees are sought neglects to respond to a defendant's fee request, the district court is deprived of a factual basis for tempering the amount to be awarded based upon ability to pay. Roche failed to respond to the defendant's request for attorney's fees. Given the modest size of the fee request, the frivolous nature of Roche's claim, and Roche's failure to respond to the defendant's motion with evidentiary matter justifying a departure from the amount sought, we find that the district court did not abuse its discretion.

AFFIRMED.

ATTACHMENTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

INDIANA SOUTH BEND DIVISION

CHARLES EDWARD ROCHE, Plaintiff,

v.

CHARLES ADKINS, Defendant.

CAUSE NO. S92-121 (RDP)

MEMORANDUM AND ORDER

The plaintiff, Charles Edward Roche, Jr., is an inmate at the Indiana State Prison ("ISP") in Michigan City, Indiana. On April 30, 1992, he filed a pro se complaint, pursuant to 42 U.S.C. § 1983, alleging that ISP superintendent Charles F. Adkins, the sole named defendant, violated his constitutional rights under the Eighth Amendment by "forcing [him] to drink out of a toxic wax coated two and a half (2 1/2) ounce cup." This case is now before the court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons which follow, defendant's motion will be granted.

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of complaints that state no actionable claim. When reviewing pro se complaints, the court must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jones v. Morris, 777 F.2d 1277 (7th Cir.1985). The court must accept as true all well-pleaded factual allegations and inferences which may reasonably be drawn from those facts. Scheuer v. Rhodes, 416 U.S. 232 (1974); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir.1989); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Vaden v. Village of Maywood, Ill., 809 F.2d 361, 363 (7th Cir.), cert. denied, 107 S.Ct. 2489 (1987); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973), cert. denied, 415 U.S. 917 (1974). At the same time, the court is not required to " 'ignore any facts set forth in the complaint that undermine the plaintiff's claim....' " Martin v. Davies, 917 F.2d 336, 341 (7th Cir.1990), quoting Gray v. Dane County, 854 F.2d 179, 182 (7th Cir.1988). A motion to dismiss will not be granted under these circumstances unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69 (1984); Conley v. Gibson, 355 U.S. 41 (1957); Illinois Health Care Ass'n v. Illinois Dept. of Public Health, 879 F.2d 286, 288 (7th Cir.1989); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047 (1986); French v. Heyne, 547 F.2d 994 (7th Cir.1976). A plaintiff may not avoid dismissal, however, merely by attaching bare legal conclusions to narrated facts which fail to outline the basis of his claims. Perkins v. Silverstein, No. 90-1482, slip op. at 7, 16 (7th Cir. Aug. 7, 1991); Strauss v. City of Chicago, 760 F.2d 765, 767-68 (7th Cir.1985); Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984).

Even under the notice pleading of the Federal Rules of Civil Procedure and the liberal interpretation given to pro se pleadings, a complaint must include allegations respecting all material elements of all claims asserted. Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir.1986); Powe v. City of Chicago, 664 F.2d 639 (7th Cir.1981); Cannon v. Univ. of Chicago, 648 F.2d 1104 (7th Cir.), cert. denied, 545 U.S. 1128 (1981). Bare legal conclusions attached to narrated facts will not suffice. Strauss, 760 F.2d at 768; Sutliff, 727 F.2d at 654.

Mr. Roche's complaint alleges that he has been housed in the NSB disciplinary segregation unit at the ISP since June 10, 1991, and that throughout his stay in the NSB he has been forced to use a 2 1/2 ounce wax coated Dixie medicine cup as a regular drinking utensil for all beverages, both hot and cold. On one occasion, according to the complaint, Mr. Roche "had to gulp down three (3) Dixie cups of milk in order to get the allotted 8 ounces allowed by the prison's dietitian," then "had to gulp down three (3) cups of grapefruit juice," and noted the presence of a "waxy substance" in both the milk and juice. The complaint also alleges that "gulping of the beverages as well as mixing the milk and juice in such a quick fashion caused [him] to vomit;" that "[w]hen coffee was served the wax literally melted and the cup fell apart before [he] could finish one cup;" that he "had to use the melted cup for water until the next meal;" and that "[t]his situation has occurred repeatedly. The complaint further alleges that Mr. Roche has filed five grievances; that he has sent letters to the warden, the unit team and the Board of Health, and that he has not received a response from anyone. In October, 1991, according the complaint, Mr. Roche was informed by a nurse at the ISP that "the consumption of this wax from these cups is hazardous and causes gall stones, stomach and intestinal problems;" that "since [his] incarceration on NSB [he has] had continual stomach problems and difficulty urinating;" and...