1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jabril Caldwell-Parker, No. CV-21-01088-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Terri Calabrese-Kopronica, et al.,
13 Defendants. 14 15 Pending before the Court is a motion for $28,274 in attorneys’ fees by Defendants 16 Calabrese-Kopronica, Knight, and Anderson (together, “Movants”). (Doc. 132.) For the 17 following reasons, the motion is granted in part and Movants are awarded $20,623.90. 18 RELEVANT BACKGROUND 19 Plaintiff Jabril Caldwell-Parker (“Plaintiff”) brought this pro se civil rights action 20 under 42 U.S.C. § 1983 against Movants, all of whom are affiliated with the Surprise Police 21 Department (“SPD”). (Doc. 13.)1 22 In January 2022, Plaintiff “made a mockery of his deposition by showing up late, 23 refusing to answer questions, and then abruptly leaving.” (Doc. 74 at 5.) Among other 24 things, Plaintiff “brought a Playstation and a 32-inch monitor to his deposition . . . [and] 25 was playing the game ‘passively’ during the deposition” and had to be admonished “to 26 comply with requests from the court reporter regarding not interrupting or talking over 27 1 Plaintiff also asserted state-law claims and sued two additional defendants (Trinitee 28 Sapp and the SPD), but those claims and defendants were subsequently dismissed. (Docs. 49, 77.) 1 Defendant’s counsel during the deposition.” (Doc. 73.) As a result, Movants and a co- 2 defendant sought and were granted $7,650.10 in sanctions. (Doc. 74.) This sum was 3 intended to provide reimbursement for various deposition-related time entries by defense 4 counsel (and the defense paralegal) between December 30, 2021 and February 28, 2022 5 and certain deposition-related court reporter fees. (Docs. 72, 72-1.) 6 During the months following the issuance of the sanction award, the Court issued a 7 series of orders that either struck or denied a stream of sometimes bizarre and often 8 inscrutable filings by Plaintiff. (Docs. 76, 84, 85, 97, 110, 117.) Plaintiff also attempted 9 to send improper ex parte communications to the Court and had to be advised not to do so. 10 (See, e.g., Doc. 125.) 11 Movants eventually filed both a motion for summary judgment (Doc. 87) and a 12 motion for sanctions (Doc. 90). 13 On December 2, 2022, the Court issued an order granting Movants’ motion for 14 summary judgment. (Doc. 129.) In the same order, the Court denied, as moot, Movants’ 15 request for sanctions because that request primarily “[sought] the dismissal of Plaintiff’s 16 lawsuit and only request[ed] fees and costs as an alternative remedy.” (Id.) That same 17 day, the Clerk entered judgment in Defendants’ favor. (Doc. 130.) 18 On December 16, 2022, Movants filed the pending motion for attorneys’ fees. (Doc. 19 132.) The time to respond has now expired and Plaintiff has not filed a response. 20 On December 22, 2022, Plaintiff filed a notice of appeal concerning the summary 21 judgment order and the judgment. (Doc. 133.) Because Plaintiff has not yet paid the filing 22 and docketing fees for the appeal, the Ninth Circuit recently issued an order warning 23 Plaintiff that his appeal is subject to dismissal. (Doc. 135.) 24 ANALYSIS 25 Under Local Rule of Civil Procedure 7.2(i), if a party does not file a response to a 26 motion within the required timeframe, “such non-compliance may be deemed a consent to 27 the . . . granting of the motion and the Court may dispose of the motion summarily.” Here, 28 the deadline for Plaintiff to respond to Movants’ motion for attorneys’ fees was December 1 30, 2022 (i.e., 14 days after the motion was filed). See LRCiv 7.2(c). That deadline has 2 now expired and Plaintiff has not responded. Accordingly, the motion is granted 3 summarily under Local Rule 7.2(i), subject to the modification to prevent double-counting 4 discussed below. 5 Even if summary treatment weren’t appropriate here, Movants would be entitled to 6 relief on the merits. “In any action or proceeding to enforce a provision of section[] . . . 7 1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party, other 8 than the United States, a reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C. 9 § 1988(b). “The Supreme Court has instructed that a prevailing defendant in a § 1983 10 action is entitled to an attorney’s fees award under § 1988 only when the plaintiff’s action 11 is ‘frivolous, unreasonable, or without foundation.’ In determining whether this standard 12 has been met, a district court must assess the claim at the time the complaint was filed, and 13 must avoid ‘post hoc reasoning by concluding that, because a plaintiff did not ultimately 14 prevail, his action must have been unreasonable or without foundation.’” Tutor–Saliba 15 Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006) (citations omitted). “Under 16 this standard, an unsuccessful plaintiff who acted in good faith is generally not at risk of 17 having to pay the other side’s attorney’s fees.” Akiak Native Cmty. v. U.S. EPA, 625 F.3d 18 1162, 1166 (9th Cir. 2010). These principles reflect “the well-established rule” that a 19 prevailing defendant in a civil rights action “should only receive an award of attorneys’ 20 fees in extreme cases.” Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 646 21 (9th Cir. 1999). 22 The stringent standard for a prevailing-defendant fee award is satisfied here. As 23 Movants cogently summarize in their motion: 24 It was clear at the time Plaintiff filed the Complaint that the alleged actions amounted to nothing more than ordinary police action when confronted with 25 an uncooperative person [Plaintiff] who had undoubtedly committed a crime 26 against Trinitee Sapp (assault, also under circumstances amounting to disorderly conduct) and then resisted the lawful arrest that followed. The 27 frivolous nature of the action is revealed in the Sapp video of the assault 28 itself, the body worn camera of the law enforcement personnel on scene, and this Court’s Orders. This Court easily accepted that the Surprise Police 1 Department was a non-jural entity and could not be sued, and that Plaintiff filed his lawsuit without providing any Defendant the 60-day statutory period 2 to consider the Notice of Claim. Plaintiff should have recognized from the 3 beginning that all state law claims were not supported by adherence to the mandatory notice of claim requirements. Additionally, the state law claims 4 were groundless from the beginning for the same reasons explained in this 5 Court’s Order on the Rule 56 Motion. In its December 2, 2022 Order, this Court was clear that the undisputed evidence was that Plaintiff had 6 committed several crimes, and then actively resisted a lawful arrest. The 7 Court’s Order was clear that Plaintiff’s Fifth, Sixth, and Eighth Amendment claims had no application at all under the facts of the case. Ultimately, 8 Plaintiff was convicted on criminal charges of disorderly conduct and 9 resisting arrest, which he did not appeal. Plaintiff, nonetheless, continued with the instant lawsuit even though he had no factual or legal argument 10 against the application of the doctrine in Heck v. Humphrey. This Court’s 11 description of the indisputable evidence shows the claim to be frivolous, unreasonable and without foundation. 12 (Doc. 132 at 7, citations omitted.) Additionally, as mentioned above and discussed at more 13 length in earlier orders, Plaintiff repeatedly made a mockery of these proceedings and 14 showed disrespect for his adversaries, the proceedings, and the Court.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jabril Caldwell-Parker, No. CV-21-01088-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Terri Calabrese-Kopronica, et al.,
13 Defendants. 14 15 Pending before the Court is a motion for $28,274 in attorneys’ fees by Defendants 16 Calabrese-Kopronica, Knight, and Anderson (together, “Movants”). (Doc. 132.) For the 17 following reasons, the motion is granted in part and Movants are awarded $20,623.90. 18 RELEVANT BACKGROUND 19 Plaintiff Jabril Caldwell-Parker (“Plaintiff”) brought this pro se civil rights action 20 under 42 U.S.C. § 1983 against Movants, all of whom are affiliated with the Surprise Police 21 Department (“SPD”). (Doc. 13.)1 22 In January 2022, Plaintiff “made a mockery of his deposition by showing up late, 23 refusing to answer questions, and then abruptly leaving.” (Doc. 74 at 5.) Among other 24 things, Plaintiff “brought a Playstation and a 32-inch monitor to his deposition . . . [and] 25 was playing the game ‘passively’ during the deposition” and had to be admonished “to 26 comply with requests from the court reporter regarding not interrupting or talking over 27 1 Plaintiff also asserted state-law claims and sued two additional defendants (Trinitee 28 Sapp and the SPD), but those claims and defendants were subsequently dismissed. (Docs. 49, 77.) 1 Defendant’s counsel during the deposition.” (Doc. 73.) As a result, Movants and a co- 2 defendant sought and were granted $7,650.10 in sanctions. (Doc. 74.) This sum was 3 intended to provide reimbursement for various deposition-related time entries by defense 4 counsel (and the defense paralegal) between December 30, 2021 and February 28, 2022 5 and certain deposition-related court reporter fees. (Docs. 72, 72-1.) 6 During the months following the issuance of the sanction award, the Court issued a 7 series of orders that either struck or denied a stream of sometimes bizarre and often 8 inscrutable filings by Plaintiff. (Docs. 76, 84, 85, 97, 110, 117.) Plaintiff also attempted 9 to send improper ex parte communications to the Court and had to be advised not to do so. 10 (See, e.g., Doc. 125.) 11 Movants eventually filed both a motion for summary judgment (Doc. 87) and a 12 motion for sanctions (Doc. 90). 13 On December 2, 2022, the Court issued an order granting Movants’ motion for 14 summary judgment. (Doc. 129.) In the same order, the Court denied, as moot, Movants’ 15 request for sanctions because that request primarily “[sought] the dismissal of Plaintiff’s 16 lawsuit and only request[ed] fees and costs as an alternative remedy.” (Id.) That same 17 day, the Clerk entered judgment in Defendants’ favor. (Doc. 130.) 18 On December 16, 2022, Movants filed the pending motion for attorneys’ fees. (Doc. 19 132.) The time to respond has now expired and Plaintiff has not filed a response. 20 On December 22, 2022, Plaintiff filed a notice of appeal concerning the summary 21 judgment order and the judgment. (Doc. 133.) Because Plaintiff has not yet paid the filing 22 and docketing fees for the appeal, the Ninth Circuit recently issued an order warning 23 Plaintiff that his appeal is subject to dismissal. (Doc. 135.) 24 ANALYSIS 25 Under Local Rule of Civil Procedure 7.2(i), if a party does not file a response to a 26 motion within the required timeframe, “such non-compliance may be deemed a consent to 27 the . . . granting of the motion and the Court may dispose of the motion summarily.” Here, 28 the deadline for Plaintiff to respond to Movants’ motion for attorneys’ fees was December 1 30, 2022 (i.e., 14 days after the motion was filed). See LRCiv 7.2(c). That deadline has 2 now expired and Plaintiff has not responded. Accordingly, the motion is granted 3 summarily under Local Rule 7.2(i), subject to the modification to prevent double-counting 4 discussed below. 5 Even if summary treatment weren’t appropriate here, Movants would be entitled to 6 relief on the merits. “In any action or proceeding to enforce a provision of section[] . . . 7 1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party, other 8 than the United States, a reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C. 9 § 1988(b). “The Supreme Court has instructed that a prevailing defendant in a § 1983 10 action is entitled to an attorney’s fees award under § 1988 only when the plaintiff’s action 11 is ‘frivolous, unreasonable, or without foundation.’ In determining whether this standard 12 has been met, a district court must assess the claim at the time the complaint was filed, and 13 must avoid ‘post hoc reasoning by concluding that, because a plaintiff did not ultimately 14 prevail, his action must have been unreasonable or without foundation.’” Tutor–Saliba 15 Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006) (citations omitted). “Under 16 this standard, an unsuccessful plaintiff who acted in good faith is generally not at risk of 17 having to pay the other side’s attorney’s fees.” Akiak Native Cmty. v. U.S. EPA, 625 F.3d 18 1162, 1166 (9th Cir. 2010). These principles reflect “the well-established rule” that a 19 prevailing defendant in a civil rights action “should only receive an award of attorneys’ 20 fees in extreme cases.” Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 646 21 (9th Cir. 1999). 22 The stringent standard for a prevailing-defendant fee award is satisfied here. As 23 Movants cogently summarize in their motion: 24 It was clear at the time Plaintiff filed the Complaint that the alleged actions amounted to nothing more than ordinary police action when confronted with 25 an uncooperative person [Plaintiff] who had undoubtedly committed a crime 26 against Trinitee Sapp (assault, also under circumstances amounting to disorderly conduct) and then resisted the lawful arrest that followed. The 27 frivolous nature of the action is revealed in the Sapp video of the assault 28 itself, the body worn camera of the law enforcement personnel on scene, and this Court’s Orders. This Court easily accepted that the Surprise Police 1 Department was a non-jural entity and could not be sued, and that Plaintiff filed his lawsuit without providing any Defendant the 60-day statutory period 2 to consider the Notice of Claim. Plaintiff should have recognized from the 3 beginning that all state law claims were not supported by adherence to the mandatory notice of claim requirements. Additionally, the state law claims 4 were groundless from the beginning for the same reasons explained in this 5 Court’s Order on the Rule 56 Motion. In its December 2, 2022 Order, this Court was clear that the undisputed evidence was that Plaintiff had 6 committed several crimes, and then actively resisted a lawful arrest. The 7 Court’s Order was clear that Plaintiff’s Fifth, Sixth, and Eighth Amendment claims had no application at all under the facts of the case. Ultimately, 8 Plaintiff was convicted on criminal charges of disorderly conduct and 9 resisting arrest, which he did not appeal. Plaintiff, nonetheless, continued with the instant lawsuit even though he had no factual or legal argument 10 against the application of the doctrine in Heck v. Humphrey. This Court’s 11 description of the indisputable evidence shows the claim to be frivolous, unreasonable and without foundation. 12 (Doc. 132 at 7, citations omitted.) Additionally, as mentioned above and discussed at more 13 length in earlier orders, Plaintiff repeatedly made a mockery of these proceedings and 14 showed disrespect for his adversaries, the proceedings, and the Court. To be clear, the 15 Court is not imposing fees against Plaintiff based on that conduct. Rather, to the extent 16 that conduct is relevant at all here, it is simply serves as further proof, albeit indirect, of the 17 baseless nature of Plaintiff’s claims and the frivolousness of this entire lawsuit. 18 Finally, the Court notes that it has independently reviewed the time entries and 19 hourly rates of Movants’ counsel and concludes they are reasonable, with one exception. 20 The exception is that Movants appear to be seeking reimbursement for the same deposition- 21 related activities and expenses that gave rise to the earlier $7,650.10 sanction award. 22 (Compare Doc. 72-1 with Doc. 132-3.) To enter another order requiring Plaintiff to provide 23 reimbursement for those activities and expenses would amount to impermissible double- 24 counting. If the $7,650.10 sanction has not yet been paid, that sum is overdue and must be 25 paid immediately. 26 … 27 … 28 1 Accordingly, 2 IT IS ORDERED that Movants’ motion for attorneys’ fees (Doc. 132) is granted 3|| in part. Payment to Movants in the amount of $20,623.90 is due within 14 days of the 4|| issuance of this order. 5 Dated this 10th day of January, 2023. 6 7 Lm ee” g f t _o——— Dominic W, Lanza 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
_5-