McClain v. Denver Health and Hospital Authority

          ORDER

          Philip A. Brimmer, Chief United States District Judge.

         This matter is before the Court on Defendant Denver Health and Hospital Authority's Motion for Attorney Fees [Docket No. 33] and Plaintiff's Motion for Reconsideration in Opposition to Defendant Being Awarded Costs [Docket No. 40].

         I. BACKGROUND

         This lawsuit arose out of plaintiff's alleged sexual assault while she was a patient in the intensive care unit at Denver Health Hospital. See Docket No. 13 at 1, ¶ 1. In her operative complaint, filed on November 13, 2017, plaintiff asserted five claims for relief: (1) a claim for municipal liability under 42 U.S.C. § 1983; (2) a Fourteenth Amendment substantive due process claim pursuant to the special relationship doctrine; (3) a Fourteenth Amendment substantive due process claim pursuant to the state-created danger doctrine; (4) a state-law negligence claim; and (5) a claim under Colorado's Premises Liability Act, Colo. Rev. Stat. § 13-21-115. Docket No. 13 at 8-12. On September 30, 2018, the Court granted defendant's motion to dismiss plaintiff's federal claims under Fed.R.Civ.P. 12(b)(6) and declined to exercise supplemental jurisdiction over plaintiff's remaining state-law claims, dismissing them without prejudice to plaintiff's ability to re-file the claims in state court. See Docket No. 31 at 15. Defendant was awarded its costs as the prevailing party under Fed.R.Civ.P. 54(d)(1). See Docket No. 32 at 2. On October 15, 2018, defendant filed a motion for attorney's fees under 42 U.S.C. § 1988. Docket No. 33. On October 30, 2018, the Clerk of Court awarded defendant its costs in the amount of $2, 955.38. Docket No. 38. On November 7, 2018, plaintiff moved for reconsideration of the costs award. Docket No. 40.

         II. MOTION FOR ATTORNEY'S FEES

         “‘Our basic point of reference' when considering the award of attorney's fees is the bedrock principle known as the ‘American Rule': Each litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-53 (2010) (internal quotation marks omitted). Defendant seeks attorney's fees under Fed.R.Civ.P. 54(d) and 42 U.S.C. § 1988. Docket No. 33 at 1-2.

         Section 1988(b) provides: “In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” Although “a prevailing plaintiff should ordinarily recover an attorney's fee” under this provision, “a prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424, 429 & 429 n.2 (1983). A frivolous suit is one “based on an indisputably meritless legal theory, or whose factual contentions are clearly baseless.” Thorpe v. Ancell, 367 Fed.Appx. 914, 919 (10th Cir. 2010) (unpublished) (internal quotation marks, bracket, and ellipsis omitted). “This is a high bar for a prevailing defendant to meet, ” Utah Animal Rights Coalition v. Salt Lake Cty., 566 F.3d 1236, 1245 (10th Cir. 2009), and “rarely will a case be sufficiently frivolous to justify imposing attorney fees on the plaintiff.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000).

         Defendant argues that it is entitled to attorney's fees under § 1988 because it is the prevailing party in this lawsuit and plaintiff's claims under § 1983 were based on meritless legal theories and unfounded allegations that plaintiff was raped while in the intensive care unit at Denver Health. Docket No. 33 at 3-8.

         The fact that the Court found the allegations insufficient to state a claim for relief under § 1983 does not automatically render plaintiff's claims legally groundless. Cf. Mitchell, 218 F.3d at 1203 (noting that “dismissal of claims at the summary judgment stage does not automatically” establish that suit was “vexatious, frivolous or brought to harass or embarrass the defendant”). Plaintiff asserted liability under the Fourteenth Amendment based on the special relationship and state-created danger doctrines. See Docket No. 31 at 2. Although the Court rejected both theories, finding that (1) defendant had not taken any affirmative action to restrain plaintiff's liberty or increase her vulnerability, and (2) the allegations did not establish that defendant had engaged in conscience-shocking behavior, the Court's analysis makes clear that the factual circumstances presented in this case were distinguishable from prior cases considering a state's liability for private violence under the Fourteenth Amendment. With respect to plaintiff's special relationship theory, for example, the Court acknowledged that the Tenth Circuit case most similar to the factual circumstances presented here - Gray v. University of Colorado Hospital Authority, 672 F.3d 909 (10th Cir. 2012) - was distinguishable on the basis that the plaintiff in Gray “voluntarily checked himself into Defendants' hospital for medical observation and testing.” Docket No. 31 at 6 (citing Gray, 672 F.3d at 924). By contrast, plaintiff was taken to the hospital while unconscious after being injured in an automobile accident. Similarly, the cases on which the Court relied in rejecting plaintiff's state-created danger theory, though sufficiently analogous to foreclose plaintiff's claims, were not so indistinguishable as to render this case legally frivolous. Courts have recognized that the contours of “affirmative action” and “conscience-shocking behavior” are not clear and must often be determined based on the circumstances presented in a specific case. See Ultegra LLC v. Mystic Fire Dist., 676 Fed.Appx. 33, 35-36 (2d Cir. 2017) (unpublished) (noting that courts applying the state-created danger doctrine “have sought to tread a fine line between conduct that is passive . . . and that which is affirmative”); Schwartz v. Booker, 702 F.3d 573, 586 (10th Cir. 2012) (recognizing that “[c]onscience-shocking behavior evades precise definition and evolves over time” (internal quotation marks and bracket omitted)). The mere fact that plaintiff asserted a claim outside the parameters established by existing precedent does not mean that her claim was “indisputably meritless.” Thorpe, 367 Fed.Appx. at 919.^[1]

         Defendant lastly implies that plaintiff brought this case in bad faith because the evidence obtained during the discovery process does not support a finding that plaintiff was raped at Denver Health. See Docket No. 33 at 7-9.^[2] Plaintiff responds that evidence of the rape - including a urine sample and surveillance footage - was improperly destroyed by defendant. Docket No. 39 at 5-7. Given that there appears to be a factual dispute as to whether plaintiff was sexually assaulted, see Docket No. 39 at 5-7; Docket No. 41 at 2-4, the Court cannot conclude that plaintiff's allegations were “clearly baseless.”^[3]

         For the foregoing reasons, defendant has failed to demonstrate its entitlement to attorney's fees under 42 U.S.C. § 1988.

         III. MOTION FOR RECONSIDERATION OF COSTS AWARD

         Plaintiff moves for reconsideration of the October 30, 2018 award of costs to defendant under Fed.R.Civ.P. 54(d)(1). Docket No. 40 at 2-3.^[4] She argues that defendant is not entitled to costs because: (1) defendant was only partially successful; (2) plaintiff asserted “meritorious claims that presented difficult legal issues”; and (3) “the costs incurred cannot be differentiated between the federal claims” and the tort claims re-filed in state court. Docket No. 40 at 3.

         Plaintiff's first argument is without merit. Plaintiff contends that defendant was only partially successful because the Court declined to exercise jurisdiction over two of plaintiff's claims, which plaintiff subsequently re-filed in state court. As defendant argues, however, Fed.R.Civ.P. 54 creates a presumption in favor of awarding costs to the prevailing party. See Mitchell, 218 F.3d at 1204. The Court's dismissal of plaintiff's claims in this case made defendant the prevailing party for purposes of Fed.R.Civ.P. 54. That status is not undermined merely because the Court declined to exercise supplemental jurisdiction over plaintiff's remaining state-law claims. See Allen v. Lang, 738 Fed.Appx. 934, 944 (10th Cir. 2018) (unpublished) (holding that the defendant was a prevailing party for purposes of Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920 where the court entered judgment in the defendant's favor on the federal claims, but declined to exercise supplemental jurisdiction over the remaining state-law claims). To the extent this Court has discretion to deny costs when a prevailing party is only partially successful, see Zeran v. Diamond Broad., Inc., 203 F.3d 714, 722 (10th Cir. 2000), the Court finds no reason to exercise that discretion in this case. See Allen, 738 Fed.Appx. at 945 (finding no support for the proposition that a court is required to deny costs when it dismisses only some of the claims on the merits and declines to exercise ...