Mary Thomas v. Early County, Ga , 360 F. App'x 71 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 7, 2010
No. 09-12232
JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
D.C. Docket No. 04-00030-CV-WLS-1
MARY THOMAS, in her individual capacity
as spouse of FERNANDEZ THOMAS and
as next friend of FERNANDEZ THOMAS, JR., and
DEONTE' THOMAS,
Plaintiff-Appellee,
versus
EARLY COUNTY, GA,
JIMMIE MURKERSON,
individually and in his official capacity
as Sheriff of Early County, Georgia,
TIMOTHY HARDRICK,
DONALD SKIPPER,
WILLIAM PRICE,
RONALD SUGGS,
TERREL COLLINS,
LYNN WEBB,
JACKIE LASH,
Individually and in their official capacity
as law enforcement officers,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 7, 2010)
Before BARKETT, HULL and COX, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Plaintiffs are the widow and children of Fernandez Thomas. Thomas died in
the Early County jail as a result of what the Georgia Bureau of Investigation
concluded was a suicide. Plaintiffs filed this 42 U.S.C. § 1983 action on March 10,
2004, two years after Thomas’s death. The original complaint named Early County
itself as a Defendant and named each of the other Defendants in their individual and
official capacities. That complaint and all subsequent complaints alleged that
Defendants caused Thomas to become emotionally distraught, then deliberately failed
to prevent Thomas’s suicide or, alternatively, that Defendants taunted Thomas and
“physically and brutally attacked” him in the jail causing his death, and that
Defendants conspired to lie and cover up the attack. (See, e.g., R.1-1 ¶ 17.)
On September 10, 2004, Defendants moved to dismiss the complaint on
numerous grounds, including that, as a matter of law, Early County and the Sheriff
and deputies in their official capacities were immune from suit, were not “persons”
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under 42 U.S.C. § 1983, and were not subject to respondeat superior liability. (R.1-
13.) Rather than opposing Defendants’ motion to dismiss the original complaint,
Plaintiffs “acknowledg[ed] the validity of certain arguments which [were] raised by
Defendants’ Motion” and sought leave to amend their complaint. (R.1-23 at 2.) The
First Amended Complaint, filed October 14, 2004, alleged five counts. The First
Amended Complaint removed Early County from the style of the case and most of the
allegations, but named Early County in Count IV and the prayer for relief. The First
Amended Complaint specifically named the other Defendants in their individual
capacities only. (R.1-22.)
Defendants moved to dismiss the First Amended Complaint and were partially
successful. The court dismissed Count IV, finding that Early County was not
intended to be a Defendant, and Count V which sought only attorney’s fees under 42
U.S.C. § 1988, finding that the claim was not ripe. (R.1-38 at 3.) Plaintiffs had
conceded both of these points in their response to Defendants’ motion to dismiss.
The court also ordered Plaintiffs to file a more definite statement as to Counts I, II,
and III within 20 days. (R.1-38 at 5.)
Plaintiffs did not file a timely response to the order for a more definite
statement. Two months later, Defendants moved to dismiss or strike Counts I, II, and
III of the First Amended Complaint. Plaintiffs responded to that motion with a
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request for more time to produce the more definite statement, based on the ill health
of Plaintiffs’ attorney.
On December 6, 2005, Plaintiffs filed a Second Amended Complaint. (R.1-45.)
Count I of that complaint alleged that Defendants Skipper and Price caused Thomas
to become emotionally distraught and suicidal and that Defendants Suggs, Hardrick,
Collins, Webb, and Lash knew Thomas was suicidal and deliberately failed to prevent
his suicide. (R.1-45 ¶¶13-17.) Count II alleged that all the individual Defendants
“physically and brutally attacked” Thomas. (R.1-45 ¶¶23, 24.) And, Count III
alleged that all the individual Defendants “physically and brutally attacked” Thomas
and caused his wrongful death. (R.1-45 ¶¶30-31.) The Second Amended Complaint
sought $2.5 million against all of the individual Defendants, jointly and severally, on
each claim and $2.0 million against all of the individual Defendants, jointly and
severally, as punitive damages on Counts II and III. (R.1-45 at 11-12.)
The individual Defendants answered the Second Amended Complaint.
Eighteen months later, they moved for summary judgment. In addition to asserting
legal defenses to the claims, Defendants presented the undisputed facts that all but
two of the Defendants were not in the jail when Thomas died and that there was no
evidence that any Defendant taunted or physically assaulted Thomas. Defendants
also pointed to the lack of evidence that any of them were on notice that Thomas was
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suicidal. In support of their motion, Defendants presented affidavits of each of the
individual Defendants and cited the Georgia Bureau of Investigation autopsy and
investigation report that concluded Thomas committed suicide. Plaintiffs did not
oppose the motion for summary judgment. Instead, they moved for voluntary
dismissal of the Second Amended Complaint without prejudice. Defendants
stipulated to the dismissal.
After the case was dismissed and judgment entered, Defendants moved for an
award of attorney’s fees and expenses. That motion incorporated by reference
Defendants’ earlier-served motion for sanctions pursuant to Federal Rule of Civil
Procedure Rule 11 and also argued for the award on the bases that Defendants were
entitled to an award of fees and expenses as prevailing parties pursuant to 42 U.S.C.
§ 1988 and pursuant to the court’s inherent powers.
The district court denied Defendants’ motion. The court found that Plaintiffs
had sued Early County and the sheriff and his deputies in their official capacities and
that those parties, as a matter of law, were immune from suit. But, the court excused
any error because the Eleventh Circuit en banc opinion that partially established the
immunity had been issued less than nine months before Plaintiffs filed their original
complaint. The court also found that Plaintiffs’ counsel “demonstrated efforts he
undertook to investigate claims and showed that he conducted depositions.” (R.3-89
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at 4.) For those reasons, the court denied Rule 11 sanctions. Denying Defendants’
request pursuant to 42 U.S.C. § 1988, the court noted that Defendants had succeeded
in having two of the five claims in the First Amended Complaint dismissed with
prejudice but that the remaining three claims, restated in the Second Amended
Complaint, were dismissed voluntarily and without prejudice. (R.3-89 at 4.) The
court did not discuss Defendants’ request for sanctions pursuant to the court’s
inherent powers. Defendants appeal the denial of the motion.1
II. STANDARD OF REVIEW
“‘[A]n appellate court should apply an abuse-of-discretion standard in
reviewing all aspects of a district court’s Rule 11 determination. A district court
would necessarily abuse its discretion if it based its ruling on an erroneous view of
the law or on a clearly erroneous assessment of the evidence.’” McGregor v. Bd. of
Com’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir. 1992) (quoting Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S. Ct. 2447, 2461 (1990)).
“Likewise an award of attorney’s fees under 42 U.S.C. § 1988 may be overturned on
appeal only for an abuse of discretion.” Id. (citing Fernandes v. Limmer, 663 F.2d
619, 637 (5th Cir. Unit A 1981)).
III. CONTENTIONS OF THE PARTIES
1
This appeal concerns only the question of attorney’s fees and costs. It does not present for
review any rulings in the underlying case.
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Defendants argue that the court abused its discretion in denying the fees and
sanctions because Defendants were prevailing parties under 42 U.S.C. § 1988, the
case was brought in bad faith and without a colorable basis in law or fact, and the
claims were frivolous, unreasonable, and without foundation. Plaintiffs argue that the
district court had no jurisdiction to award sanctions or attorney’s fees because, at the
time the court considered the question, Plaintiffs had already voluntarily dismissed
their complaint and did not stipulate to continued jurisdiction of the district court for
resolution of the fees and costs question. In the alternative, Plaintiffs argue that the
district court did not abuse its discretion in denying Defendants’ motion.
IV. DISCUSSION
Plaintiffs’ jurisdictional argument is meritless. The Supreme Court has said:
It is well established that a federal court may consider collateral issues
after an action is no longer pending. For example, district courts may
award costs after an action is dismissed for want of jurisdiction. See 28
U.S.C. § 1919. This Court has indicated that motions for costs or
attorney’s fees are “independent proceeding[s] supplemental to the
original proceeding and not a request for a modification of the original
decree.” Sprague v. Ticonic National Bank, 307 U.S. 161, 170, 59 S. Ct.
777, 781, 83 L. Ed. 1184 (1939). Thus, even “years after the entry of a
judgment on the merits” a federal court could consider an award of
counsel fees. White v. New Hampshire Dept. of Employment Security,
455 U.S. 445, 451 n.13, 102 S. Ct. 1162, 1166 n.13, 71 L. Ed. 2d 325
(1982).
Cooter & Gell, 496 U.S. at 395-96, 110 S. Ct. at 2455-56. In Cooter & Gell, the court
concluded that a voluntary dismissal does not divest the district court of jurisdiction
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to consider a Rule 11 motion. Id. at 398, 110 S. Ct. at 2457. For the same reasons,
motions seeking attorney’s fees and costs pursuant to statute or the court’s inherent
powers may be considered by the district court after dismissal. Id. at 396, 110 S. Ct.
at 2456.
We consider Defendants’ arguments under Rule 11 first. Rule 11 prohibits
three types of conduct: filing a pleading that has no reasonable factual basis; filing
a pleading based on a legal theory that has no reasonable chance of success and that
cannot be advanced as a reasonable argument to change the law; and filing a pleading
in bad faith or for an improper purpose. Pelletier v. Zweifel, 921 F.2d 1465, 1514
(11th Cir. 1991) (citing United States v. Milam, 855 F.2d 739, 742 (11th Cir. 1988);
Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en banc)); Fed. R. Civ. P.
11(b).
In this circuit, a court confronted with a motion for Rule 11 sanctions
first determines whether the party’s claims are objectively frivolous–in
view of the facts or law–and then, if they are, whether the person who
signed the pleadings should have been aware that they were frivolous;
that is, whether he would have been aware had he made a reasonable
inquiry. If the attorney failed to make a reasonable inquiry, then the
court must impose sanctions despite the attorney’s good faith belief that
the claims were sound.
Jones v. Int’l Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995) (citing McGuire
Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1563 (11th Cir.1992)).
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We conclude that the district court abused its discretion in denying Defendants
attorney’s fees and expenses pursuant to Rule 11 because Plaintiffs’ complaints had
no colorable basis in law or fact and Plaintiffs’ attorney should have known that.
As the district court recognized, the claims brought against Early County and
the other Defendants in their official capacities were not legally cognizable at the
time the original complaint was filed. (See R.3-89 at 3 (citing Manders v. Lee, 338
F.3d 1304, 1319-20 (11th Cir. 2003))). While Plaintiffs conceded error and
responded to Defendants’ first motion to dismiss by removing some of the legally
unsupportable allegations, their First Amended Complaint continued to present a
claim against Early County, based solely upon an allegation that the individual
Defendants were “acting under the direction and control” of the county. (R.1-22
¶28.) These allegations of vicarious liability fail as a matter of long-established law.
See City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989).
Defendant Early County was dismissed with prejudice from the entire lawsuit as a
result of Defendants’ motion to dismiss the First Amended Complaint. Thus,
Defendants incurred attorney’s fees and costs in bringing two motions to dismiss
these claims that were futile when pleaded.2
2
Count V of the First Amended Complaint–which sought only attorney’s fees pursuant to 42
U.S.C. § 1988 against all Defendants except Early County–was also dismissed with prejudice as a
result of Defendants’ second motion to dismiss. While the court found that the claim was not ripe
as a matter of law, we do not suggest that a request for attorney’s fees is frivolous because it is not
ripe.
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Additionally, Defendants incurred fees and costs in continuing to litigate,
through three complaints, almost four years, and the filing of a summary judgment
motion, claims that Plaintiffs have not supported with any evidence. Plaintiffs should
have known at the time they filed the first complaint that there was no support for
many of the factual allegations upon which their claims rested.3 From the outset of
the litigation and through the Second Amended Complaint, Count I alleged that the
individual Defendants knew that Thomas was likely to kill himself but deliberately
did nothing to stop him. Count II of that complaint alleged that the individual
Defendants used excessive force against Thomas. And, Count III alleged that the
individual Defendants caused Thomas’s death through their use of excessive force.
At the summary judgment stage, Defendants presented evidence that: (1) Defendants
Murkerson, Lash, Hardrick, and Suggs were not on duty and not at the jail on the day
of Thomas’s death, had no interaction with him, and thus could not have known his
state of mind or used any force against him; (2) Defendants Skipper and Price (the
patrol officers who arrested Thomas) turned Thomas over to jail officials, were not
involved in any way in Thomas’s stay at the jail, and had no knowledge that Thomas
3
The district court’s finding that Plaintiffs’ attorney investigated and conducted depositions
during the pendency of the litigation is irrelevant. The investigation produced no facts to support
Plaintiffs’ claims. What is important is what the attorney knew or should have known at the time
he filed the complaint. “[T]he court’s inquiry focuses only on the merits of the pleading gleaned
from facts and law known or available to the attorney at the time of filing.” Jones, 49 F.3d at 695
(citing Souran v. Travelers Ins. Co., 982 F.2d 1497, 1508 (11th Cir. 1993)).
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had any intention of hurting himself; (3) Defendant Webb arrived at the jail just
minutes before Thomas’s body was discovered and never saw him alive and thus
could not have known his state of mind or used any force against him; and (4)
Defendant Collins (the jailer and the only Defendant who interacted with Thomas and
was in the jail at the time of Thomas’s death) did not mishandle Thomas, was not
aware that Thomas intended to commit suicide, and, upon finding Thomas hanging
from his own shirt in his cell, cut the shirt and obtained help to attempt to revive
Thomas. (R.2-52 at 12-15 and exhibits.) Most of this information was in the Georgia
Bureau of Investigation report that was available to the public as of May 8, 2002, less
than two months after Thomas died. (R.2-52, Affidavit of Stacy Carson and
attachments.) And, information not explicitly included in that report–for example,
the fact that all but two of the Defendants were either not on duty or not in the jail at
the time of the alleged use of excessive force–could have been obtained by Plaintiffs’
attorney during the two years between Thomas’s death and the filing of the lawsuit.
Instead, Plaintiffs filed three complaints alleging facts without support and waited for
Defendants to move for summary judgment. Then, in the face of the evidence
presented in support of Defendants’ motion, Plaintiffs voluntarily dismissed all of
their claims without ever presenting any facts to support their allegations.
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We hold that Defendants are entitled to recover attorney’s fees and costs
pursuant to Rule 11. Therefore, we do not address Defendants arguments seeking the
same recovery pursuant to 42 U.S.C. § 1988 and the district court’s inherent powers.
V. CONCLUSION
We vacate the district court’s March 31, 2009 order (R.3-89) and remand the
case to the district court for its determination of the amount of attorney’s fees and
expenses to be awarded Defendants as sanctions under Rule 11. We leave to the
district court a determination whether the fees and costs should be assessed against
Plaintiffs, Plaintiffs’ lawyer, or both.
VACATED AND REMANDED.
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