UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

ROBERT PAUL THORPE; MARIA 

ELIZABETH THORPE, 

 Plaintiff - Appellant, 

v. 

STANLEY ANCELL; JULIA 

STOGSDILL; ROBERT RUSSELL; 

CRAIG TYER; LISSAH NORCROSS; 

DAVID WOOLEY, also known as Jesse 

David Wooley; RIECKE CLAUSSEN; 

JOHN C. JACKSON; ROBERT M. 

CULVER; MARTYN CURRIE; 

WILLIAM “BILL” GARDNER, 

 Defendants - Appellees. 

No. 06-1404 

(D. Colo.) 

(D.C. No. 03-cv-01181-LTB-BNB) 

ORDER AND JUDGMENT*

Before MURPHY, HOLLOWAY, and O’BRIEN, Circuit Judges.

Robert and Maria Thorpe (together “the Thorpes”) filed a 42 U.S.C. § 1983 

lawsuit claiming individuals from the Mesa County Sheriff’s Department and the Grand 

 *

 This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 26, 2010

Elisabeth A. Shumaker 

Clerk of Court
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Junction Police Department (collectively “Defendants”) violated their constitutional 

rights during an investigation and malicious prosecution. After granting summary 

judgment in favor of the Defendants, the court ordered the Thorpes to pay attorneys’ fees 

pursuant to 42 U.S.C. § 1988(b). The Thorpes appeal from the district court’s order 

awarding fees. We affirm. 

I. FACTUAL BACKGROUND 

The facts of this case are well-known to the parties and do not bear lengthy 

reiteration. In December 1998, a bank robbery investigation by Sheriff Deputies Lissah 

Norcross1

 and Craig Tyer led to information that a suspect may have paid for his bail 

bond with some of the robbery proceeds. A-1 Bail Bonds, a company owned and 

operated by the Thorpes, supplied the suspect’s bond. Several informants claimed 

Heather Fish, an A-1 employee, knowingly accepted the bank robbery proceeds with 

permission from the Thorpes. Because the alleged transaction occurred in the city rather 

than the county, Tyer passed the information to the Grand Junction Police Department.

On October 27, 1999, Grand Junction Police Department Officers Stanley Ancell 

and Robert Culver interviewed Fish and two other A-1 employees, Sherri and Joe Green.2

 

The three employees reported numerous criminal activities perpetrated by the Thorpes at 

 1

 In 1997, the Thorpes filed a separate § 1983 action against members of the 

Sheriff’s Department including Norcross. The case was eventually dismissed but was 

pending during the bank robbery investigation.

2

 Shortly after November 1, 1999, either the Thorpes terminated Fish’s 

employment with A-1 or Fish voluntarily resigned. Fish and Joe Green then started their 

own bail bond business which was operating at the time the Thorpes filed their complaint 

against Fish. 
- 3 - 

A-1, including forgery and the knowing receipt of a portion of the bank robbery money. 

While investigation of these allegations was proceeding, the Thorpes lodged a complaint 

against Fish for allegedly forging documents and stealing money from A-1. Police 

Officer Julie Stogsdill was assigned to conduct an investigation of these charges.3

 After 

interviewing the Thorpes and Fish, Stogsdill conducted a brief follow-up investigation 

and submitted her investigation report to the district attorney’s office. The district 

attorney’s office declined to prosecute Fish. However, the investigation of the Thorpes 

resulted in search and arrest warrants issued on June 7, 2000, and criminal charges filed 

on June 15, 2000.4

 A second set of search warrants issued on June 23, 2000.

In August 2000, the district attorney’s office asked Gilbert Stone, its lead 

investigator, to review and comment on the Thorpes’ investigation file to determine the 

likelihood of conviction. Stone issued a report (“the Stone Report”) criticizing the 

investigation. 

Special Prosecutor David Waite was assigned to the case in October 2000.5

 He 

was given the voluminous investigation file. In January 2001, Waite decided to dismiss 

 3

 Officers Ancell and Culver were not a part of Stogsdill’s investigation, although 

each knew of the other’s investigation. 

4

 The Thorpes were charged with, inter alia, motor vehicle theft, theft over 

$15,000, attempt to influence a public servant, theft by receiving (the bank robbery 

money) and conspiracy to commit these offenses. Maria Thorpe was also charged with 

burglary. 

5

 The Thorpes had filed a motion to appoint a special prosecutor and to recuse the 

Mesa County District Attorney’s Office because some of its employees were potential 

witnesses. 
- 4 - 

the Thorpes’ case without prejudice because he needed more time to review the police 

reports and conduct his own investigation. Waite refiled the charges in June 2001, but 

the charging document for Robert Thorpe, attested to by Culver, mistakenly included 

charges intended only for Maria Thorpe. Those charges were dropped as soon as the 

error was discovered. Shortly after the criminal charges were refiled, the state court 

ordered the charges be tried separately. Due to that decision and his concern over having 

to prove each of the charges beyond a reasonable doubt in separate trials (although he 

believed probable cause existed for the Thorpes’ arrests on each of the charges filed 

against them), Waite decided to dismiss the charges with prejudice. They were dismissed 

on June 27, 2002. 

II. PROCEDURAL BACKGROUND 

One year later, the Thorpes filed the current lawsuit pursuant to 42 U.S.C. § 1983 

against Mesa County Sheriff Riecke Claussen, Undersheriff David Wooley, and Deputies 

Tyer, Norcross and William Gardner (Sheriff Defendants) and the City of Grand 

Junction, the Grand Junction Police Department, Police Chief Martyn Currie and Officers 

Ancell, Culver, Stogsdill, Robert Russell and John Jackson (Police Defendants).6

 The 

Thorpes alleged Defendants denied them numerous constitutional rights and claimed 

several state law violations. The factual basis of their complaint covered miscellaneous 

events from 1999 through 2002, but was primarily based on the investigation and 

 6

 The complaint also named the Mesa County Sheriff’s Department and the Mesa 

County Board of Commissioners. Sheriff Defendants filed a motion to dismiss these 

defendants; the Thorpes did not object. The district court granted the motion. 
- 5 - 

prosecution of the criminal charges against them. 

Police Defendants filed a motion for a more definite statement. Attached to their 

motion were the Thorpes’ arrest and search warrants and supporting affidavits. Sheriff 

Defendants filed a motion to dismiss the state law claims for lack of subject matter 

jurisdiction based on the Thorpes’ failure to comply with the requirements of the 

Colorado Governmental Immunity Act. They attached the affidavits of Sheriff Claussen, 

Undersheriff Wooley and Deputies Gardner, Norcross and Tyer. Claussen, Wooley and 

Gardner stated they had no connection with the police investigation of the Thorpes or 

their prosecution; Deputies Norcross and Tyer testified they ended their involvement in 

the bank robbery investigation in 1999 or 2000 when they turned the case over to the 

Grand Junction Police Department. The Sheriff Defendants also filed a motion to dismiss 

the malicious prosecution claim for failure to state a claim or in the alternative for a more 

definite statement. The district court granted the motions for a more definite statement 

but denied, without prejudice, Sheriff Defendants’ motions to dismiss. 

The Thorpes filed their First Amended Complaint on March 29, 2004, alleging 

Defendants “unlawfully caused [them] to be wrongly investigated, charged, arrested and 

prosecuted based upon information known to be false . . . . Defendants failed to 

investigate the veracity of [the] allegations against [them], subjected [them] to illegal 

searches and seizures, harassed [them] and falsified evidence against them.” (R. Vol. I at 

34-35.) Some of the factual allegations were astounding. For example, the Thorpes 

alleged Fish was a known prostitute and known to have made false allegations in the past. 

The Thorpes claimed the Defendants enlisted Fish to seduce their sixteen–year-old son 
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for the purpose of obtaining A-1’s business records without a warrant. They also claimed 

the actions of law enforcement caused their son’s suicide in May 2000. The Thorpes 

alleged Defendants manufactured, altered and destroyed evidence, affirmatively sought 

out parties to assert false complaints against them and continued to prosecute them 

despite knowing the charges were false. They further alleged Defendants illegally 

searched their home after their son’s death, communicated false information to state 

agencies to destroy the Thorpes’ business and intentionally misstated facts to the media. 

A second round of motions to dismiss ensued. On February 11, 2005, the district 

court dismissed the state law claims against Defendants in their official capacities. It also 

dismissed the claims against the City of Grand Junction and its police department. 

Therefore, only the federal claims against Defendants in their individual capacities 

remained. 

A. Summary Judgment

After completing discovery, Defendants filed motions for summary judgment. 

The court granted these motions on May 1, 2006. It noted the Thorpes were relentless in 

their “spurious assertions” which were supported only by “misrepresentations and 

exaggerations” of the record. (R. Vol. 5 at 725.) It determined the undisputed evidence 

revealed the Sheriff Defendants had no connection to the Thorpes’ prosecution and were 

involved only in the bank robbery investigation (as attested to in their affidavits). It also 

concluded the Thorpes had failed to present any evidence demonstrating the Police 

Defendants altered or falsified evidence during the investigation and prosecution. The 

court found the affidavits supporting the arrest and search warrants demonstrated 
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probable cause for the issuance of the warrants. There was no evidence Ancell or Culver 

included in the affidavits any false information or that any omissions were intentionally 

or recklessly made. While the court acknowledged the 2002 charging document against 

Robert Thorpe contained erroneous charges, the mistake was clearly inadvertent and 

immediately remedied upon its discovery. There was no factual support for the 

allegations that Fish was “a known prostitute” or that the investigation was connected in 

any way to the suicide of the Thorpes’ son. Nonetheless, the Thorpes had never 

withdrawn any of these sensational accusations even though there was no factual basis to 

support them. 

The district court sua sponte ordered the Thorpes’ counsel to show cause why it 

should not order him or the Thorpes to pay Defendants’ attorneys’ fees under 42 U.S.C. § 

1988(b). 

B. Motions for Attorneys’ Fees

The Thorpes’ attorney filed a motion to withdraw as counsel and a response to the 

order to show cause on his own behalf, alleging the Thorpes had assured him of the verity 

of their claims and he only intended to zealously represent his clients. The Thorpes 

retained different counsel, who filed a response to the order to show cause on their 

behalf. In their response to the order to show cause, the Thorpes asserted the summary 

judgment result was not due to the lack of evidence but solely to their attorney’s 

mishandling of the case. They averred their lawyer had not presented critical evidence in 

the summary judgment response but, had he done so, the result of Defendants’ motions 

for summary judgment would have been different. They argued they had not seen the 
- 8 - 

pleadings before the order to show cause but relied on their attorney to handle their 

claims. Nonetheless, the Thorpes did not disavow any of the allegations. 

Sheriff Defendants filed a motion seeking $65,060 in attorneys’ fees for their 

defense of the Thorpes’ federal claims commencing on August 11, 2003, the day after the 

Thorpes received the affidavits attached to the Sheriff Defendants’ first motion to 

dismiss. Police Defendants also moved for $88,392.50 in attorneys’ fees commencing on 

February 11, 2005, the day the district court dismissed the Thorpes’ state law claims. 

In response to the Defendants’ specific requests for attorneys’ fees, the Thorpes 

again blamed their former attorney for failing to present evidence. Attached to the 

response were more than one hundred pages of exhibits primarily attacking the veracity 

of the individual Defendants.7

 The Thorpes relied on the Stone Report to demonstrate 

their lawsuit was not frivolous. They also continued to insist deliberate fabrications and 

omissions in the affidavits supporting the arrest and search warrants vitiated probable 

cause. 

Unconvinced, the district court ordered the Thorpes to pay the fees requested by 

Defendants pursuant to 42 U.S.C. § 1988(b).8

 

 7

 The exhibits included material from the personnel files of Tyer, Ancell, and 

Culver. They also included a letter from Currie to Waite inquiring whether Waite was 

going forward with the prosecution. 

8

 Pursuant to 28 U.S.C. § 1927, the court held the Thorpes’ original attorney 

jointly liable for the fees incurred after Defendants filed their motions for summary 

judgment. The attorney filed a separate appeal (No. 06-1405) but the appeal was 

withdrawn following an agreement with Defendants. 
- 9 - 

III. DISCUSSION 

“[T]he decision to award or deny attorney’s fees lies within the sound discretion of 

the court, and, on appeal, review is subject to an abuse of discretion standard.” 

Goichman v. City of Aspen, 859 F.2d 1466, 1471 (10th Cir. 1988). “This standard of 

review applies to both the court’s decision to award fees in the first place and the court’s 

determination of the amount of fees to be awarded.” Robinson v. City of Edmond, 160 

F.3d 1275, 1280 (10th Cir. 1998). An abuse of discretion standard “is appropriate in 

view of the district court’s superior understanding of the litigation and the desirability of 

avoiding frequent appellate review of what essentially are factual matters.” Hensley v. 

Eckerhart, 461 U.S. 424, 437 (1983). 

Under 42 U.S.C. § 1988(b), “the court, in its discretion, may allow the prevailing 

party, other than the United States, a reasonable attorney’s fee as part of the costs” in an 

action to enforce civil rights. While courts apply this provision liberally to prevailing 

plaintiffs, the Supreme Court has imposed a different standard for awarding attorneys’ 

fees to prevailing defendants in civil rights cases. See Christiansburg Garment Co. v. 

EEOC, 434 U.S. 412, 417, 421 (1978).9

 “[A] plaintiff should not be assessed his 

opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, 

or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at 

 9 Christiansburg addressed the standard applicable to the attorneys’ fee provision 

of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-5(k). However, that 

provision is virtually identical to § 1988(b) and the Supreme Court has applied the 

Christianburg standard to cases in which a defendant seeks fees under § 1988(b). See 

Hensley, 461 U.S. at 429 n.2; Hughes v. Rowe, 449 U.S. 5, 14-15 (1980). 
- 10 - 

422; see also Hensley, 461 U.S. at 429 n.2 (“A prevailing defendant may recover an 

attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or 

embarrass the defendant.”). A frivolous suit is one “based on an indisputably meritless 

legal theory, . . . [or] whose factual contentions are clearly baseless.” Neitzke v. Williams, 

490 U.S. 319, 327 (1989). However, the court need not find the lawsuit was “brought in 

subjective bad faith” to award fees to a prevailing defendant. Christianburg, 434 U.S. at 

421. “A defendant can recover if the plaintiff violates this standard at any point during 

the litigation, not just at its inception.” Galen v. County of Los Angeles, 477 F.3d 652, 

666 (9th Cir. 2007) (emphasis added); see also Munson v. Milwaukee Bd. of Sch. Dirs., 

969 F.2d 266, 271 (7th Cir. 1992) (“It is possible for an initially nonfrivolous action to 

become frivolous when, for example, the factual basis supporting the complaint is shown 

to be groundless during discovery.”). 

Rarely will a case be sufficiently frivolous to justify imposing attorneys’ fees on 

the plaintiff. See Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1581 (10th Cir. 1995) 

(only in “rare circumstances” will “a suit [be] truly frivolous so as to warrant an award of 

attorneys’ fees to the defendant”). In determining whether a claim is frivolous, 

unreasonable or groundless, a district court must avoid “post hoc reasoning by 

concluding that, because a plaintiff did not ultimately prevail, his action must have been 

unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22. Dismissal of 

claims at the motion to dismiss or summary judgment stage does not automatically 

warrant a fee award. See Jane L. v. Bangerter, 61 F.3d 1505, 1513-14 (10th Cir. 1995). 
- 11 - 

A. Statute of Limitations

Section 1983 provides a federal civil cause of action against state officials for the 

“deprivation of any rights, privileges, or immunities secured by the Constitution and 

laws.” 42 U.S.C. § 1983. State law governs statute of limitations issues in § 1983 

actions and “that limitation period is set by the personal injury statute in the state where 

the cause of action accrues.” See Roberts v. Barreras, 484 F.3d 1236, 1238, 1240 (10th 

Cir. 2007). The limitations period for a personal injury action in Colorado is two years. 

See Colo. Rev. Stat. § 13-80-102; Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994). 

Federal law governs when a civil rights claim accrues for purposes of the statute of 

limitations. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). “A civil rights action 

accrues when facts that would support a cause of action are or should be apparent.” Id.

(quotations omitted). 

The Thorpes filed their original complaint on June 26, 2003. Therefore, the statute 

of limitations would have run on all of their claims occurring prior to June 26, 2001. The 

only activity after June 26, 2001, was the final dismissal of criminal charges. Thus, the 

only claim not barred by the statute of limitations was based on allegations of malicious 

prosecution. See Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) (“[A] 

due process claim for malicious prosecution arises only once the original action, 

whatever form it has taken, has been terminated in favor of the plaintiff. Because the 

statute of limitations does not start running before the elements of a claim are satisfied, 

the statute of limitations for this due process claim cannot start until the plaintiff has 

achieved a favorable result in the original action.”) (citation and quotations omitted). 
- 12 - 

Even so, the Thorpes’ First Amended Complaint continued to claim Fourth, Eighth and 

Fourteenth Amendment violations for unreasonable search and seizure. These claims 

were obviously without merit and should have been withdrawn. 

B. Malicious Prosecution

A § 1983 malicious prosecution claim requires the following elements: “(1) the 

defendant caused the plaintiff’s continued confinement or prosecution; (2) the original 

action terminated in favor of the plaintiff; (3) there was no probable cause to support the 

original arrest, continued confinement, or prosecution; (4) the defendant acted with 

malice; and (5) the plaintiff sustained damages.” Novitsky v. City of Aurora, 491 F.3d 

1244, 1258 (10th Cir. 2007). The district court held that the affidavits attached to the 

Sheriff Defendants’ motion to dismiss the original complaint negated any factual basis to 

allege the Sheriff Defendants caused the Thorpes’ prosecution. Similarly, the affidavits 

in support of the requests for the search and arrest warrants established probable cause. 

As the district court noted, the Sheriff Defendants’ supporting affidavits to their 

first motion to dismiss refuted any involvement with the police department’s 

investigation of the Thorpes or the district attorney’s decision to pursue a criminal 

prosecution. The Thorpes disagree, relying on the following statement in Stone’s report 

to support their contention that the claims against the Sheriff’s Defendants were not 

frivolous: 

Might there not be some history between the Thorpes, the Mesa County 

Sheriff’s Department (who the Thorpes were suing for violations of their 

civil rights) and Heather Fish that might cause Robert Thorpe to distrust 

Fish (a former Sheriff’s Department’s “booking tech.” in the jail), Patton 

and Tyer?? In reality, Fish was a police snitch, Patton was a bank robber . . 
- 13 - 

. and [t]he Mesa County Sheriff’s Department was being sued by the 

Thorpes for two million dollars for an alleged bad search warrant on A-1. 

Would you trust these players?! Would a logical person not ask 

themselves, “Wait a minute! This stinks! Could the Sheriff’s Department 

be trying to set me up?” 

(R. Vol. IV at 507.) To be sure, Stone’s speculations provide support for the Thorpe’s 

original suspicions of wrongdoing. But the disclosure of these speculations did not 

motivate the Thorpes to depose any of the Sheriff Defendants in order to provide a 

factual basis for Stone’s flights of fancy. While Stone reiterated some of the same 

suspicions at his deposition, he did not testify he believed any of the Sheriff Defendants 

had violated the Thorpes’ rights nor did he refute the Sheriff Defendants’ sworn 

affidavits provided to the Thorpes in response to their original complaint. 

The district court also held the affidavits in support of the Police Defendants’ 

requests for search and arrest warrants established probable cause, thus negating any 

claim for malicious prosecution. The law is well-settled: a constitutional violation exists 

only when an affidavit contains information that is deliberately false or in reckless 

disregard for the truth and the remaining material contains insufficient content to support 

a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978). 

The Thorpes’ steadfast refusal to accept the district court’s conclusion is notable in 

the absence of any appeal of the court’s grant of summary judgment. Instead, they argue 

attorneys’ fees are unwarranted because Ancell and Culver deliberately presented false 

statements when they averred the information in the affidavits was given by “reliable” 

citizens (Fish, the Greens and the bank robber). (R. Supp. Vol. I at 25, 40.) The Thorpes 

claim because Ancell and Culver knew these witnesses had a motivation to falsely accuse 
- 14 - 

the Thorpes, the officers did not rely on information from “reliable” citizens. Rather, 

they knowingly relied on material misrepresentations by unreliable witnesses. The 

Thorpes maintain a judicial officer would not find probable cause for their arrests had the 

officers revealed the known motivations of these witnesses to fabricate evidence. 

The district court correctly rejected this argument because the relationship of these 

witnesses to the Thorpes was set forth in the officers’ affidavits. Moreover, contrary to 

the Thorpes’ repeated assertions, the affidavits do not premise probable cause solely on 

these witnesses’ credibility.10 Allegations concerning the bank robbery money (i.e., the 

theft by receiving charges) were corroborated by another witness and the Thorpes’ own 

statements made while Fish was wearing a wire; the motor vehicle theft charges were 

corroborated by computer checks regarding property ownership, interviews with the 

victim and his girlfriend, and copies of the towing charges. The theft of over $15,000 

charges were instigated by a telephone call from the Colorado Department of Insurance 

followed by interviews with A-1’s insurance company and the victims; the attempt to 

influence a public servant charges were also initiated by the Colorado Department of 

Insurance and followed up by telephone calls to agencies the Thorpes listed as former 

employers on their resumes to obtain a license to instruct a bondsman class. Burglary 

charges against Maria Thorpe were corroborated by an interview with the homeowner 

 10 This is not to say their credibility would be unimportant to a finding of guilt 

beyond a reasonable doubt. But “[p]robable cause for an arrest warrant is established by 

demonstrating a substantial probability that a crime has been committed and that a 

specific individual committed the crime.” See Bruner v. Baker, 506 F.3d 1021, 1026 

(10th Cir. 2007) (quotations omitted). 
- 15 - 

and a witness, as well as the homeowner’s identification of the allegedly stolen 

documents. The Thorpes do not allege any of this supporting information was false; they 

merely claim the investigation was not thorough enough. Thus, even if all the statements 

by Fish and the Greens are eliminated, the Thorpes could not reasonably believe the 

remaining information in the affidavits failed to establish probable cause for their arrests. 

The Thorpes also complain Culver knowingly misrepresented or showed reckless 

disregard for the truth when he attested to the June 2001 charging document for Robert 

Thorpe which contained erroneous charges. Culver admitted he probably did not read the 

charges written by the prosecutor before he signed the document. However, there was no 

evidence inferring the oversight was deliberate. “Allegations of negligence or innocent 

mistake are insufficient” to sustain a claim for a constitutional violation; 

misrepresentations must be deliberate or in reckless disregard of the facts. Franks, 438 

U.S. at 171. 

Finally, the Thorpes argue the Stone Report justified the lawsuit against the Police 

Defendants because Stone concluded a logical person could believe the Thorpes were 

being “set . . . up” by law enforcement. (R. Vol. IV at 507.) They rely on our decision in 

Anthony v. Baker, 767 F.2d 657 (10th Cir. 1985), wherein Anthony was charged for 

insurance fraud following a fire at the motel where he was a manager. He was 

subsequently tried and found not guilty. Anthony then filed suit under 42 U.S.C. § 1983 

for malicious prosecution and deprivation of his constitutional rights. Anthony alleged, 

inter alia, that two investigators, Baker and Newton, “conspired to deprive him of his 

constitutional rights by making him the target of their investigation, giving false 
- 16 - 

information to the Grand Jury and covering up exculpatory information.” Id. at 660. The 

case against the investigators went to trial. After Baker had presented his case and rested, 

Baker and Newton moved for and were granted a directed verdict. The court 

subsequently awarded them their attorneys’ fees. We reversed, finding the court erred in 

granting a directed verdict based on the following evidence: 

Detective Green, a deputy in the Sheriff’s office and a personal friend of 

Baker, testified . . . Baker seized the wrong piano under [a] warrant . . . 

even after he was notified that it was the wrong piano [and] . . . that he did 

not care if it was the wrong piano . . .; Baker stated words to the effect that 

he was going to get Anthony whatever it took; . . . Baker reached a point 

of subjectivity where he could not tell the difference between Anthony’s 

guilt or innocence; Baker became almost frantic about the Anthony case 

and was frantically pursuing Anthony; and in his ten years as an 

investigator he had never seen anything like Baker’s investigation of 

Anthony. 

Arnold Miller, an expert in law enforcement investigation administration 

and a criminal justice specialist, testified . . . Baker’s investigation was a 

continual, blatant, unrelenting effort both to accuse Anthony and ultimately 

to have him found guilty of a crime or crimes that he could not have been 

involved in; and Baker’s efforts were made at virtually any cost. 

Robert Isham, a former sergeant in the Sheriff’s office, testified . . . Baker 

had submitted an interdepartmental report to the Sheriff and other officers 

about his investigation into the fire and theft at the Inn which contained a 

lot of falsehoods; and Baker’s report falsely stated that Isham and other 

officers conspired to have Anthony pass a polygraph examination. 

Id. at 665 (footnotes omitted). 

The testimony in Anthony is easily distinguished from Stone’s second-hand 

ruminations. Even assuming it was somehow admissible and recognizing that it is critical 

of Defendants’ investigations, the Stone report did not state anyone knowingly violated 

the law, misrepresented information or that the officers arrested the Thorpes without 
- 17 - 

probable cause. Where probable cause exists, the subjective intent of the officer in 

effectuating an arrest is irrelevant. Malley v. Briggs, 475 U.S. 335, 341 (1986). The fact 

Ancell and Culver conducted a vigorous investigation or that law enforcement hoped for 

a successful prosecution is not a constitutional violation. 

The Thorpes also argue they should not be punished for their attorney’s decisions 

and, in any event, they should not be sanctioned more severely. While the Thorpes may 

wish to blame their attorney for continuing the suit after it was proven to be without 

merit, “there is certainly nothing novel about holding clients responsible for the conduct 

of their attorneys, even conduct they did not know about.” Ecclesiastes 9:10-11-12, Inc. 

v. LMC Holding Co., 497 F.3d 1135, 1245 n.12 (10th Cir. 2007) (quotations omitted) 

(affirming dismissal under Rule 41(b) of the Federal Rules of Civil Procedure). 

Moreover, the Thorpes’ unsupported and sensational factual allegations were certainly 

not created out of whole cloth by their attorney. 

In sum, there was no evidence supporting the Thorpes’ claims that Defendants 

fabricated evidence; no evidence they “use[d] as their agents, persons of questionable 

veracity” and “known moral t[u]rpitude” to “ seduce or solicit[] minor children to violate 

the constitutional rights of others” causing the suicide of a minor child; no evidence of 

the knowing falsification of any document; no evidence any Defendant “cultivat[ed] false 

testimony” in exchange for a reduction of sentence; no evidence of threats; no evidence 

any Defendant supplied false information to a state agency; no evidence of 

“conspiratorial meetings”; and no evidence any Defendant “placed anonymous false 

entries . . . into the [Thorpes’] criminal file[s]” to be viewed by the press. (R. Vol. I at 
- 18 - 

36, 46-47, 49.) Despite the fact that the statute of limitations had run on their claims for 

false arrest, unconstitutional searches, unconstitutional seizures, defamation, intentional 

interference with business and intentional infliction of emotional distress, none of these 

claims were omitted from the amended complaint nor were these allegations voluntarily 

removed or withdrawn prior to the time summary judgment issued. The Thorpes failed to 

take any depositions of the Sheriff Defendants after receiving their sworn affidavits 

stating they did not participate in the investigation leading to the Thorpes’ arrests. Rather 

than seeking the facts, the Thorpes obviously intended to rely on Stone’s speculations to 

support their own view of events. Similarly, despite the fact the affidavits in support of 

the search and arrest warrants contained sufficient statements of probable cause 

supported and corroborated by several avenues of evidence, the Thorpes do not budge 

from their conviction that Ancell and Culver somehow did something to violate their 

rights. 

The district court noted that throughout the proceedings the Thorpes played fast 

and loose with the record in supporting their arguments to the point some assertions were 

flatly contradicted by the undisputed facts. At the time of the Thorpes’ response to the 

order to show cause, they still did not concede their claims were frivolous but, instead, 

submitted pages of documents irrelevant to this case in an attempt to challenge the 

credibility of opposing parties. 

Christiansburg did not provide precise guidance on the amount of evidence the 

plaintiff must produce to avoid an adverse award of fees. However, the district court 

found not only that the Thorpes’ claims were frivolous but that “courts are not proper 
- 19 - 

fora for publication of fantastic allegations of the sort that the Thorpes concocted in their 

complaint.” (R. Vol. IX at 1146.) These findings are more than sufficient to justify the 

award of fees to Defendants. 

The Thorpes argue the district court abused its discretion because it awarded 

attorney’s fees to compensate Defendants rather than award the least amount necessary to 

deter the filing of frivolous lawsuits. They claim because their “reasonable belief they 

were treated unlawfully by Defendants . . . justified . . .their complaint” and, in any event, 

“a much smaller amount . . .would suffice as a deterrent.” (Appellants’ Br. at 44-45.) 

While Christiansburg makes clear the award of attorney’s fees to a defendant are not 

routine, this is not a case where the Thorpes are being “punished for [their] failure to 

recognize subtle factual or legal deficiencies in [their] claims.” Hughes, 449 U.S. at 15. 

“[T]he same judge who presided over all proceedings also determined the fee award. 

Thus, that judge was particularly well qualified to make the partially subjective findings 

necessary for an award of attorney’s fees.” Quiroga v. Hasbro, Inc., 934 F.2d 497, 503 

(3d Cir. 1991) (quotations and alterations omitted). 

The award of fees in a § 1983 case does not merely provide some compensation to 

the defendants for costs incurred in defending a suit but also deters a plaintiff from filing 

patently frivolous and groundless suits. The court “consider[ed] the . . . plaintiff[s’] 

ability to recognize the objective merit” of their allegations and “provide[d] a concise 

[and] clear explanation of its reasons for the fee award.” Houston v. Norton, 215 F.3d 

1172, 1175 (10th Cir. 2000) (quotations omitted). The district court concluded the 

Thorpes’ claims were not only frivolous but the “fantastic” factual allegations contained 
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in the complaint were improperly “concocted” to be publicized in judicial proceedings. 

Indeed, the Thorpes have yet to retract the allegations or even address this transgression. 

What will deter any particular plaintiff is uniquely within the trial court’s expertise after 

becoming familiar with the parties through the course of the proceedings. Because the 

district court offered sound reasons to conclude the Thorpes’ action was frivolous and to 

substantiate its decision on fees, we will affirm. 

AFFIRMED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge