United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION (Mtn for Atty Fees - Dkt. #35)
PEGGY A. LEEN, Magistrate Judge.
This matter is before the court on Defendants Nicole Gonzales', Phillip Glover's, Jeffrey Goodwin's, and Byron Gray's Motion for Attorneys' Fees (Dkt. #35), which was referred to the undersigned for a report of findings and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. The court has considered the Motion, Plaintiff Veronica Gutierrez-Howerton's Response (Dkt. #39), and Defendants' Reply (Dkt. #39).
This case arises out of a traffic stop on November 25, 2012. On that day, Plaintiff was the passenger on a moped driving in Las Vegas Nevada. The driver of the moped was pulled over by Defendant Gonzalez, a Las Vegas Metropolitan Police Department ("LVMPD") officer. Once stopped, the encounter escalated to a physical confrontation, and multiple officers responded to the scene. Plaintiff was ultimately arrested and taken to Clark County Detention Center. On July 17, 2013, Plaintiff filed a pro se civil rights Complaint (Dkt. #1) against Defendants, alleging she was subjected to excessive force and was unlawfully arrested in violation of the Fourth Amendment.
Defendants filed an Answer (Dkt. #9), and later, a Motion for Partial Judgment on the Pleadings (Dkt. #13), a Motion for Partial Summary Judgment (Dkt. #16), and a Motion for Summary Judgment. Plaintiff did not oppose any of these Motions. Defendants also filed a Motion to Compel (Dkt. #17), seeking to compel Plaintiff's responses to their written discovery requests. The court held a hearing on the Motion to Compel, but Plaintiff did not appear. See Minutes of Proceedings (Dkt. #27). The court granted the Motion and directed Plaintiff to respond to the written discovery requests. Id. The court warned Plaintiff that failure to comply would result in additional sanctions, which could include case-dispositive sanctions. Id.; Order (Dkt. #28). Plaintiff did not respond as directed. See Notice of Non-Compliance (Dkt. #29). The court entered a Report of Findings and Recommendation ("R&R") (Dkt. #30), recommending Plaintiff's Complaint be dismissed with prejudice. Plaintiff filed an Objection (Dkt. #31) to the R&R, and the district judge entered an Order (Dkt. #33) adopting the R&R and dismissing the Complaint with prejudice. The Clerk entered Judgment (Dkt. #34) in favor of Defendants.
I. The Parties' Positions.
Defendants seek an order pursuant to 42 U.S.C. § 1988 and Local Rule 54-16 awarding them attorney fees in the amount of $11, 335.00, asserting Plaintiff's Complaint was frivolous. Defendants argue that the factual basis for Plaintiff's Complaint was undermined by her failure to respond to requests for admission, which were deemed admitted by operation of law. Plaintiff's failure to respond established the following facts: Officer Gonzalez pulled over the moped on which Plaintiff was a passenger because the driver was not wearing a helmet. Plaintiff refused to comply with Officer Gonzalez's instructions to step in front of his patrol car and argued with him. Gonzalez attempted to make a lawful arrest for obstructing an officer during an investigation after Plaintiff ignored him and walked to her vehicle. Plaintiff verbally and physically resisted arrest and attempted to hit Gonzalez in the face, prompting a physical struggle. Plaintiff continued to physically resist arrest, and she was eventually arrested for resisting arrest and battery on a police officer. Another police officer lawfully searched Plaintiff's pocketbook and the moped. Officers Glover, Goodwin, and Gray had no personal involvement in using physical force on Plaintiff or arresting her. The officers did not discriminate against Plaintiff because of her membership in any protected class, and Plaintiff was arrested because of her conduct, not her speech. Defendants were not deliberately indifferent and did not engage in any outrageous conduct. Because Plaintiff's Complaint is not supported by the facts, it is frivolous and warrants an award of fees.
Plaintiff opposes the Motion, arguing that the Nevada state court determined that Defendant Gonzalez infringed her Fourth Amendment Rights when the court dismissed the state court charge(s) against her. Plaintiff appears to argue that the dismissal of criminal charges was a judgment which has preclusive effect in this federal civil action. Plaintiff claims this court is required to accord the state court's dismissal of criminal charge(s) against her "full faith and credit." Here, Plaintiff filed this action only after a state judge found her Fourth Amendment Rights were violated and her complaint is therefore not frivolous. The fact that she was "unable to participate" in her case does not support an award of fees. Plaintiff's claims were not speculative and were pursued in good faith.
Defendants reply that any orders in Plaintiff's criminal case in Las Vegas Justice Court have no preclusive effect in this case and do not demonstrate a lack of frivolousness. Defendants acknowledge offensive issue preclusion applies to § 1983 actions, but Plaintiff has not established the elements, nor can she, because LVMPD is not in privity with the State of Nevada in a criminal prosecution. The prosecutor does not represent LVMPD or its officers, and the police have no control over the proceedings. Other federal circuit courts have held that there is no privity to assert issue preclusion against the police in a case like this. In other words, the defendants are not bound by any orders entered in the criminal case, and this court may not apply those orders against the Defendants in this case.
B. Applicable Law & Analysis.
As an initial matter, the docket in this case reflects that Plaintiff has appealed the Clerk's Judgment to the Ninth Circuit, which set a briefing schedule. See Notice of Appeal (Dkt. #36); Order for Time Schedule (Dkt. #38). Nevertheless, the court has jurisdiction to decide this Motion for Attorneys' Fees because the Ninth Circuit has held that district courts retain jurisdiction to decide issues concerning attorney's fees after an appeal is filed but before an order on mandate is entered. See Cazares v. Barber, 959 F.2d 753, 756 (9th Cir. 1992) (the "rule of exclusive appellate jurisdiction is a creature of judicial prudence, however, and is not absolute") (citing Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956-57 (9th Cir. 1983)).
Turning to the merits, 28 U.S.C. § 1988 allows for a prevailing party in a civil rights case to recover an award of reasonable attorney fees. A prevailing defendant in a civil rights action is not entitled to attorney fees under § 1988 merely because he prevails on the merits of the suit. See Hughes v. Rowe, 449 U.S. 5, 14 (1980) ("The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees"); Allen v. City of Los Angeles, 66 F.3d 1052, 1058 n.2 (9th Cir. 1995) (citing Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir. 1994). Rather, a prevailing defendant may only recover attorney fees "in exceptional circumstances" for a plaintiff's claims that are "unreasonable, frivolous, meritless, or vexatious." Harris v. Maricopa Cty. Sup.Ct., 631 F.3d 963, 968 (9th Cir. 2011); Allen, 66 F.3d at 1058 n.2 (citing Roberts v. Spalding, 783 F.2d 867, 874 (9th Cir. 1986). A case is frivolous where "the result is obvious, " or the claims are "wholly without merit." See Legal Svs. of Northern Cal., Inc. v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997); see also Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (stating "the same standard is applied when analyzing requests for attorneys' fees at both the trial and appellate levels")
The court finds that Defendant has not met its burden of establishing this is an exceptional case which warrants the award of attorney's fees for an unreasonable, frivolous, meritless or vexatious lawsuit. Defendants do not dispute that a state court judge in the underlying criminal action found that Plaintiff's Fourth Amendment Rights were violated in connection with the stop and arrest in dispute in this case. The Defendants are correct that ...