Spear v. Town of West Hartford

• Decision Date: 16 April 1992
• Docket Number: No. H-90-682 (AHN).,H-90-682 (AHN).
• Citation: 789 F. Supp. 80
• Parties: John M. SPEAR and Spear Printing Company, Inc. v. TOWN OF WEST HARTFORD, et al.
• Court: U.S. District Court — District of Connecticut

789 F. Supp. 80

John M. SPEAR and Spear Printing Company, Inc. v. TOWN OF WEST HARTFORD, et al.

No. H-90-682 (AHN).

United States District Court, D. Connecticut.

April 16, 1992.

J.P. Secola and V.P. McCarthy, New Milford, Conn., George Mercer, Groton, Conn., for plaintiffs.

James J. Szerejko, Halloran & Sage, David Thomas Ryan and Charles Gill, Robinson

& Cole, Jon L. Schoenhorn, Hartford, Conn., Scott Karsten, Sack Spector & Barrett, West Hartford, Conn., for defendants.

RULING ON DEFENDANTS' MOTIONS FOR ATTORNEY'S FEES

NEVAS, District Judge.

This civil rights action under 42 U.S.C. § 1983 ("Section 1983") was commenced by a newspaper editor, John M. Spear ("Spear"), and its publisher, Spear Printing Company ("Spear Printing") (collectively "the plaintiffs"), against the Town of West Hartford ("the Town"), corporation counsel Marjorie S. Wilder ("Wilder"), police chief and acting town manager Robert R. McCue ("McCue") and Summit Women's Center West, Inc. ("Summit") (collectively "the defendants"). On April 17, 1991, the court dismissed the complaint in its entirety. Spear v. Town of West Hartford, 771 F.Supp. 521 (D.Conn.1991), aff'd, 954 F.2d 63 (2d Cir.1992). Now before the court are four motions for attorney's fees, all made pursuant to 42 U.S.C. § 1988 ("Section 1988"); (1) Summit's petition for attorney's fees (document # 74); (2) the Town, Wilder and McCue's motion for attorney's fees (document # 75); (3) Summit's petition for attorney's fees incurred on appeal (document # 90); and (4) the Town, Wilder and McCue's motion for attorney's fees incurred on appeal (document # 85). For the reasons that follow, the court grants both of Summit's petitions for attorney's fees and denies the remainder of the motions.

Standard for the Award of Attorney's Fees

In Section 1983 actions, the court has the discretion to award attorney's fees to a prevailing defendant under Section 1988 if the plaintiff's claim "was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (standard for award of attorney's fees to prevailing defendant in Title VII action); accord Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (Section 1983 action) ("the plaintiff's action must be meritless in the sense that it is groundless or without foundation"). See also Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984) ("the proper test for that award is whether the claim itself is clearly meritless"). Of course, the fact that a plaintiff ultimately loses his or her case is not a sufficient justification to award fees. Hughes, 449 U.S. at 14, 101 S.Ct. at 178.

Concerning fees incurred on appeal, in Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893, 896-97 (2d Cir. 1982), the Second Circuit interpreted Section 1988 "to authorize an award of fees to a party who has prevailed by means of a dismissal of the appeal as well as to one who has prevailed by affirmance." See also Cohen v. West Haven Bd. of Police Comm'rs, 638 F.2d 496 (2d Cir.1980). Thus, the court has the authority to award the defendant fees incurred on appeal if the plaintiff's unsuccessful appeal was "frivolous." Davidson, 740 F.2d at 133.

Discussion

The court has carefully considered the arguments made by the defendants. With the three exceptions examined more closely below, the court concludes that, although lacking in merit, the plaintiffs' claims were not so unfounded or patently frivolous to justify the award of fees. The court evaluated the same arguments when it considered the defendants' motions to dismiss and found that the legal issues were reasonable but simply lacked merit. Furthermore, the appellate opinion lacks any indication that the court of appeals viewed the plaintiffs' claims as "frivolous, unreasonable or groundless." Accordingly, the court sees no reason to encourage the "second litigation" for attorney's fees warned against by the Supreme Court, Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941-42, 76 L.Ed.2d 40 (1983); see also Smiley v. Sincoff, 958 F.2d 498, 501 (2d Cir.1992) (Timbers, J.), and concludes that the plaintiffs' claims were not frivolous, unreasonable or groundless.

A. Malicious Prosecution

Three of the defendants' arguments merit discussion. First, the Town contends that the plaintiffs' malicious prosecution claim was groundless and without merit because it is "patently obvious that malicious prosecution only applies to criminal actions." (Mem.Supp.Mot.Attorneys' Fees at 5). In the court's opinion dismissing the complaint, the court observed that the plaintiffs "confused two distinct causes of action": malicious prosecution relates only to criminal actions while a claim for malicious abuse of process concerns civil actions. Spear, 771 F.Supp. at 528 (citing 54 Corpus Juris Secundum, Malicious Prosecution § 3 at 524).¹ Thus, the plaintiffs' claim was more appropriately one for malicious abuse of process, since they were subject to civil liability by the suit initiated by the defendants.

In White v. Frank, 855 F.2d 956, 961 n. 5 (2d Cir.1988), the Second Circuit held that liability under Section 1983 may be predicated on a claim for malicious prosecution. However, this action presented the "first impression" issue in this circuit of whether liability under Section 1983 may be predicated on a claim for malicious abuse of process. Cf. Coogan v. City of Wixom, 820 F.2d 170, 174-75 (6th Cir.1987); Havas v. Thornton, 609 F.2d 372, 376 (9th Cir. 1979). Here, the Second Circuit announced new law for this circuit and held that Section 1983 liability "may not be predicated on a claim for malicious abuse of process." Spear, 954 F.2d at 68. Under these circumstances, it hardly can be "patently obvious" that plaintiffs' claim was without merit.

B. Absolute Immunity

Second, Wilder and McCue contend that it "has been long well-established in the law that government officials are absolutely immune from suit in regard to their initiation of legal proceedings." (Mem.Supp.Mot.Attorneys' Fees at 3-4). The court disagrees with this broad characterization of the law. While it is clear that the doctrine of absolute immunity protects government officials from personal liability for the performance of certain discretionary acts, Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2332, 73 L.Ed.2d 396 (1982), executive officers initiating administrative proceedings, Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), and government attorneys who defend civil suits, Barrett v. United States, 798 F.2d 565, 572 (2d Cir.1986), it has not been "long well-established" in this circuit that government attorneys who initiate civil actions are protected by the doctrine.

In Spear, the court cited three cases in support of the proposition that absolute immunity has been afforded to municipal attorneys who initiate civil actions. Spear, 771 F.Supp. at 526. In Martin Hodas, East Coast Cinematics v. Lindsay, 431 F.Supp. 637, 642-43 (S.D.N.Y.1977), the court held that, in a Section 1983 action, absolute immunity was extended to city corporation counsel who initiated civil proceedings against the plaintiff based on zoning and municipal codes. In Augustyniak v. Koch, 588 F.Supp. 793, 797-98 (S.D.N.Y.), aff'd mem., 794 F.2d 676 (2d Cir.1984), cert. denied, 474 U.S. 840, 106 S.Ct. 123, 88 L.Ed.2d 101 (1985), the court held that city attorneys were absolutely immune from liability under Section 1983 arising from their initiation of civil proceedings to enforce a municipal housing code. Finally, in O'Sullivan v. Saperston, 587 F.Supp. 1041, 1043 (S.D.N.Y.1984), the court held that corporation counsel was absolutely immune from Section 1983 liability arising from his initiation of a civil proceeding to enforce a judgment for child support. Thus, three district courts in this circuit have held that municipal attorneys who initiate civil proceedings to enforce housing and zoning ordinances and child support judgments are shielded from liability under Section 1983.

While the court must follow circuit precedent regardless of its own views concerning the advantages of precedent in sister circuits, Ithaca College v. N.L.R.B., 623 F.2d 224, 228-29 (2d Cir.), cert. denied, 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980), decisions of other district judges within the district and, more broadly, the circuit are not binding or authoritative, although such decisions do have persuasive effect. See e.g., Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir.1987); Jackson v. Johns, 714 F.Supp. 1126, 1129 (D.Colo.1989).² In addition, no authoritative or precedential conclusion can be drawn from a denial of certiorari by the Supreme Court. See United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Flood v. Kuhn, 443 F.2d 264, 268 n. 2 (2d Cir.1971), aff'd, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972). Finally, in the Second Circuit, summary orders "do not constitute formal opinions of the court ... and shall not be cited or otherwise used in unrelated cases before this or any other court." 2nd Cir.R. § 0.23. Thus, summary orders cannot be cited as precedent.³ Accord Bologna v. NMU Pension Trust of NMU Pension & Welfare Plan, 654 F.Supp. 637, 641 (S.D.N.Y.1987).

Prior to Spear, the Second Circuit never had addressed the issue of whether municipal attorneys who initiate civil actions are absolutely immune from liability under Section 1983. Thus it has not "been long well-established" in this circuit that municipal attorneys enjoy absolute immunity from Section 1983 liability for their initiation of civil lawsuits. Accordingly, the court cannot conclude that the plaintiffs' claim against Wilder was meritless. As the Supreme Court noted in Hughes, "Even if the law or the facts are somewhat questionable or unfavorable...