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28 * This matter was determined to be suitable for decision

without oral argument. L.R. 78-230(h).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BARBARA DIANE WARD )

a.k.a. DIANE WARD, ) 2:04-cv-0448-GEB-GGH

)

Plaintiff, )

) ORDER RE ATTORNEY’S FEES*

v. )

) 

SUTTER UNION HIGH SCHOOL DISTRICT, )

RYAN ROBISON, Individually and in )

His Official Capacity, LORI )

TEXEIRA, Individually and in Her )

Official Capacity; and SUTTER )

COUNTY, DAVID MCFARLAND, )

Individually and in His Official )

capacity; and JOHN DOE, )

Individually and in His Official )

Capacity, )

)

Defendants. )

)

Defendants Sutter County and David McFarland (collectively

the “Defendants”) move for an $86,589.50 attorney’s fees award under

42 U.S.C. § 1988, based on their prevailing-party status, since

summary judgment was granted against Plaintiff Barbara Ward (“Ward”). 

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Defendants contend that an award of attorney’s fees is proper because

Ward’s claim was “groundless from the start” and she “continued to

litigate” even after being informed by Defendants that her claims

lacked “legal and factual bases.” (Defs.’ Mem. Supp. Mot. 4.) For

the reasons stated below Defendants’ motion is denied.

BACKGROUND

 Ward’s Second Amended Complaint (the “Complaint”) alleged

that Defendants were liable for invasion of privacy, false arrest,

false imprisonment, and malicious prosecution under 42 U.S.C. § 1983. 

State claims for defamation, intentional infliction of emotional

distress, and negligence were also included in the Complaint. The

claims all stemmed from Ward’s assertion that Defendant David

McFarland arrested her without probable cause. Defendants’ summary

judgment motion was granted on Ward’s federal claims and her state law

claims were dismissed under 28 U.S.C. § 1367(c).

DISCUSSION

A defendant may recover attorney's fees under 42 U.S.C.

§ 1988 if "'the plaintiff's action was frivolous, unreasonable, or

without foundation, even though not brought in subjective bad faith.'" 

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (quoting Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 421 (1978)). This is intended to be a

"stringent standard." Id. Therefore, the Ninth Circuit repeatedly

"has recognized [that] '[attorney's] fees in civil rights cases should

only be awarded to a defendant in exceptional circumstances.'" Saman

v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999) (quoting Barry v.

Fowler, 902 F.2d 770, 773 (9th Cir. 1990)). And the Supreme Court has

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cautioned that in determining whether a plaintiff’s case was frivolous

or unreasonable, district courts must “resist the understandable

temptation to engage in post hoc reasoning by concluding that, because

plaintiff did not ultimately prevail, his action must have been

unreasonable or without foundation.” Christiansburg, 434 U.S. at 421;

see also Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th

Cir. 1990) (en banc). 

Defendants contend that attorneys fees should be awarded

because Ward’s claims were “unreasonable and groundless from the

start.” (Defs.’ Mem. Supp. Mot. at 4.) In support of this claim,

Defendants argue that “[t]he order on defendants’ motion for summary

judgment confirms the lack of merit and the settled state of law, as

applied to the facts, on all the section 1983 issues.” (Id.) But the

issue is whether Ward’s claims were “groundless at the outset,” not

whether Defendants prevailed on summary judgment. Karam v. City of

Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003) (holding that

Plaintiff’s “inability to present evidence to defeat summary judgment

does not mean that her claims were groundless at the outset”); and see

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (“The fact that the plaintiff

may ultimately lose his case is not in itself a sufficient

justification for the assessment of [attorney’s] fees.”)

Ward’s lawsuit was not so factually or legally groundless

from the outset to constitute a frivolous lawsuit. When Ward filed

suit, she had been arrested by Defendant McFarland for multiple theft

felonies. Ward alleged that the only piece of evidence Defendant

McFarland reviewed prior to arresting her, was a video surveillance 

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tape from which “even Sheriff Denney . . . could not form an opinion

as to whether or not a theft [] had occurred . . . .” (Pl.’s Mem.

Opp’n Mot. at 4.) “These circumstances furnish some basis, albeit

somewhat tenuous, for [Ward] to theorize” that Defendant David

McFarland willfully deprived her of her Fourth Amendment rights by

arresting her without probable cause.

Defendants also argue that because “the lack of merit of the

claims was clearly pointed out to the plaintiff on May 17, 2004, and

again on June 21, 2004 . . . but [plaintiff] continued to litigate,”

an award of attorney’s fees is proper. (Defs.’ Mem. Supp. Mot. at 4.) 

Attorney's fees may be proper where a plaintiff continues to litigate

after it becomes clear the action lacks foundation. Herb Hallman

Chevrolet, Inc. v. Nash-Holmes, 169 F.3d. 636, 645 (9th Cir. 1999). 

However, awarding a defendant attorney’s fees simply because a § 1983

plaintiff was apprised by her adversary in a letter that her claims

lacked merit would have a “chilling effect upon civil rights

plaintiffs [and be] disproportionate to any protection defendants

might receive against the prosecution of meritless claims.” Mitchell

v. Office of the Los Angeles Superintendent of Sch., 805 F.2d 844, 848

(9th Cir. 1986); and see EEOC v. Bruno’s Rest., 13 F.3d 285, 287 (9th

Cir. 1993) (noting that a district court must exercise caution in

awarding fees to a prevailing defendant in order to avoid discouraging

legitimate suits that may not be “airtight”).

For the stated reasons, Ward’s § 1983 claim for false arrest

was not “groundless, without foundation, frivolous, or unreasonable.”

Karam, 352 F.3d at 1195 (internal quotation marks omitted). Further, 

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since Defendants “made no effort to allocate the hours claimed between

[false arrest and Ward’s various other] claims,” the merits of the

remainder of Ward’s claims need not be reached. Pontarelli v. Stone,

781 F.Supp. 114, 127 (D. R.I. 1992). Therefore, the motion for

attorney's fees is denied. 

IT IS SO ORDERED.

Dated: September 23, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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