United States District Court, D. Colorado
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
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