United States District Court, D. Colorado
ORDER RE: DEFENDANTS’ MOTION SEEKING ATTORNEY FEES AND COSTS
ROBERT E. BLACKBURN, UNITED STATES DISTRICT JUDGE.
The matter before me is Defendants’ Motion Seeking Attorney fees and Costs [#391],  filed September 1, 2015, as supplemented by defendants’ Supplemental Brief in Support of Defendants’ Motion Seeking Attorney Fees and Costs [#399], filed September 30, 2015. (See Order for Supplemental Briefing [#392], filed September 10, 2015.) I deny the motion for costs as moot and grant the motion for attorney fees in part.
I have jurisdiction over the parties to and subject matter of this action. My jurisdiction arises under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
The generally applicable “American Rule” provides that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975); see also Federal Trade Commission v. Kuykendall, 466 F.3d 1149, 1152 (10th Cir. 2006). Nevertheless, Congress has provided limited exceptions to this rule “under selected statutes granting or protecting various federal rights.” Alyeska Pipeline Service Co. , 95 S.Ct. at 1623. In cases brought to enforce civil rights under, inter alia, 42 U.S.C. § 1983, attorney fees are available to a prevailing party (other than the United States) as part of costs and in the court’s discretion. 42 U.S.C. § 1988(b).
Because “[t]he purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances . . . a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103, S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983); see also Fox v. Vice, 563 U.S. 826, ___, 131 S.Ct. 2205, 2213, 180 L.Ed.2d 45 (2011) (“When a plaintiff succeeds in remedying a civil rights violation, . . . he serves as a ‘private attorney general, ’ vindicating a policy that Congress considered of the highest priority.”) (citation and internal quotation marks omitted). On the other hand, due to the “quite different equitable considerations at stake, ” the court is more circumscribed in awarding attorney fees to a prevailing defendant. Fox, 131 S.Ct. at 2213 (citation and internal quotation marks omitted). In that circumstance, attorney fees may be awarded only if the court finds that “the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.” Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1203 (10th Cir. 2000) (citations and internal quotation marks omitted).
“A frivolous suit is one ‘based on an indisputably meritless legal theory, . . . [or] whose factual contentions are clearly baseless.’” Id. at 919 (10th Cir. Feb. 26, 2010) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989)). See also Dill v. City of Edmond, Oklahoma, 1998 WL 740962 at *2 (10thCir. Oct. 23, 1998) (suit frivolous if claims “not warranted in fact or law”). It may include both claims that were meritless at the inception of the case and those that only were revealed to be meritless as the litigation developed. Thorpe v. Ancell, 367 Fed.Appx. 914, 919 (10th Cir. Feb. 26, 2010). Although a finding of bad faith is not necessary in order to support an award of attorney fees to a prevailing defendant, a finding of bad faith can bolster a defendant’s request for such an award. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); Anthony v. Baker, 767 F.2d 657, 667 (10th Cir. 1985).
“In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg Garment Co., 98 S.Ct. at 700. Nevertheless, where “[t]he plaintiff acted wrongly in leveling [frivolous] allegations, . . . the court may shift to him the reasonable costs that those claims imposed on his adversary.” Fox, 131 S.Ct. at 2214. The assessment of attorney fees to a prevailing defendant in appropriate circumstances not only compensates the misused adversary, but also deters the filing of future meritless suits, both by the plaintiff in the case at hand and by future litigants who may be similarly situated or inclined. See Thorpe, 367 Fed.Appx. at 924.
This lawsuit arose out of events that allegedly transpired at St. Anthony’s Central Hospital in Denver, where plaintiff Dean Carbajal was transported following his arrest on several warrants on the night of August 28, 2010. Mr. Carbajal alleged that medical personnel at the hospital, at the direction of defendant Detective Larry Black, forcibly catheterized him while Detectives Black, Jay Lopez, and Michael O’Neill physically and violently restrained him.
Mr. Carbajal initially sued fourteen defendants on six separate theories, many of which were further divided into two or more subparts. The majority of these claims against the majority of defendants were dismissed either at the pleading stage or on motions for summary judgment. A single claim of excessive force against Detectives Black, Lopez, and O’Neill remained for trial. That claim was tried to a jury on August 10 to 18, 2015. The jury quickly returned a verdict in favor of all three defendants in all particulars. At the conclusion of the proceedings, and in connection with the entry of judgment, I invited defendants to file the instant motions seeking attorney fees related solely to the trial of this case. I took this extraordinary step in light of the extraordinary nature of the proceedings over which I had just presided, as will be detailed more thoroughly below. The instant motion was submitted in response to that invitation.
Even though I rejected defendants’ unexcused belated pretrial attempt to move for summary judgment on Mr. Carbajal’s claim of excessive force against them (see Order Overruling Objections to and Adopting Recommendation of United States Magistrate Judge at 2-4 & nn. 3 & 4 [#334], filed June 23, 2015), that claim would not have been appropriate for summary judgment in any event. Ultimately its resolution required a credibility determination – specifically, whether Mr. Carbajal’s version of the events which transpired at the hospital that evening was credible. Having now heard Mr. Carbajal’s testimony first-hand, I am unequivocally convinced that his testimony was not merely wholly incredible but bordered on perjurious.
It was clear to this court as Mr. Carbajal began recounting his story that he was attempting to manufacture factitiously a state of high emotion in order to improperly influence the jury, becoming increasingly (but disingenuously) distraught as he told the jury that defendants choked him to the point of unconsciousness and struck him in the testicles with such force that he wondered whether something had ruptured. As Mr. Carbajal’s histrionics reached a crescendo, to the extent he appeared to be sobbing and gasping for breath, I was forced to halt the proceedings for the day, ostensibly to allow Mr. Carbajal to “compose” himself and to prevent him from improperly influencing the jury. After excusing the jury, I committed to the record my observations that despite the fevered tenor of Mr. ...