Lolling v. Patterson

138 F.R.D. 109, 1991 U.S. Dist. LEXIS 10858, 1991 WL 147129
CourtDistrict Court, C.D. Illinois
DecidedJuly 29, 1991
DocketNo. 87-3296
StatusPublished
Cited by1 cases

This text of 138 F.R.D. 109 (Lolling v. Patterson) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lolling v. Patterson, 138 F.R.D. 109, 1991 U.S. Dist. LEXIS 10858, 1991 WL 147129 (C.D. Ill. 1991).

Opinion

OPINION

RICHARD MILLS, District Judge:

Attorney’s fees.

Civil Rights Act and Rule 11.

Since resolution of Defendants’ motion for fees depends in large measure upon the objective reasonableness of Plaintiff's position and the specific facts underlying this action, we must discuss the facts in some detail:

On August 5, 1987, Plaintiff, Kenneth M. Lolling, a Logan County Deputy Sheriff, filed this action against both Logan County Sheriff Robert L. Patterson and the County of Logan.

Count I of Plaintiff’s original complaint alleged that Sheriff Patterson commenced disciplinary proceedings against Plaintiff on April 6, 1987, before the Logan County Sheriff’s Merit Commission, in retaliation for Plaintiff’s exercise of his first amendment right to speak out on a matter of public concern. Specifically, Plaintiff discussed various Logan County Jail conditions with Illinois Department of Corrections inspector William Barham in connection with a routine inspection of the jail. In fact, the first charge filed by Sheriff Patterson with the Merit Commission alleged that Plaintiff “did furnish false and/or misleading information to Illinois Department of Corrections Inspector, Bill Barham regarding the capacity and/or pris[111]*111oner housing activities of the Logan County Jail.”

Count II of Plaintiffs original complaint was a Fourteenth Amendment procedural due process claim based upon his lengthy unpaid suspension during the pendency of the Merit Commission proceedings.

Count III of Plaintiffs original complaint was a pendent state law claim for wrongful discharge/suspension.

Count IV was a claim for defamation.

On August 3, 1988, Plaintiff filed a first amended complaint wherein he changed count III from a pendent state law claim for wrongful discharge/suspension to one denoted as breach of contract/wrongful suspension. The substantive allegations remained substantially the same.

On September 26, 1988, upon Defendants’ motion, this action was stayed pending resolution of the state court administrative review proceedings. Plaintiff’s motion to vacate the stay was denied. In denying Plaintiff’s motion this Court specifically noted in its order of November 23, 1988, that “Plaintiff ... could have raised his first amendment defense in the administrative proceeding.” Plaintiff’s subsequent appeal from the order allowing Defendants’ motion for abstention and denying Plaintiff’s motion to vacate the stay was voluntarily dismissed by the parties pursuant to Fed.R.App.P. 42(b) on February 10, 1989.

On June 21, 1990, this Court, upon Plaintiff’s motion, vacated the stay because the state circuit court had concluded the process of administrative review. On October I, 1990, Sheriff Patterson filed an answer and affirmative defenses to count I of Plaintiff’s first amended complaint and both Defendants moved to dismiss counts II, III and IV.

On November 5, 1990, Plaintiff filed a second amended complaint in which he added two additional counts against Logan County — count V alleging a Fourteenth Amendment procedural due process claim and count VI alleging a pendent claim for wrongful suspension. On January 3, 1991, Magistrate Judge Charles Evans recommended that Sheriff Patterson’s motion to dismiss counts II, III and IV of Plaintiff’s second amended complaint1 be allowed.

On February 8, 1991, we adopted the Magistrate Judge’s recommendation and allowed Sheriff Patterson’s motion to dismiss counts II, III and IV of Plaintiff’s second amended complaint. Four days later Logan County’s motion to dismiss counts V and VI of Plaintiff’s second amended complaint was also allowed.

On March 7, 1991, Sheriff Patterson moved for summary judgment on count I of Plaintiff’s second amended complaint which alleged that the charges brought by Sheriff Patterson before the Merit Commission were in retaliation for Plaintiff’s exercise of his first amendment rights. On April 15, 1991, this Court ruled that Plaintiff’s first amendment claim was barred by the doctrine of res judicata because he had failed to raise it in defense of the state court proceedings and thus we entered summary judgment in favor of Sheriff Patterson and closed the case.

On May 8,1991, Plaintiff filed a notice of appeal to the Seventh Circuit from our orders allowing Defendants’ motion to dismiss counts II, III and IV of Plaintiff’s second amended complaint and motion for summary judgment on count I of the second amended complaint.

Defendants now move for an award of their attorney’s fees pursuant to 42 U.S.C. § 1988 and Rule 11. Section 1988 provides that in an action pursuant to, inter alia, § 1983 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.” Rule 11 states that:

The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is [112]*112warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

In the case sub judice Defendants seek attorney’s fees from both Plaintiff and his counsel, Wayne Klocke. We turn first to § 1988.2

Under § 1988 prevailing Defendants are not entitled to their attorney’s fees on the same basis as prevailing plaintiffs. Hamilton v. Daley, 777 F.2d 1207, 1212 (7th Cir.1985). Specifically, a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (Title II). A prevailing defendant, on the other hand, can only recover his attorney’s fees if plaintiff’s claim was “frivolous, unreasonable, or groundless, or [if] the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978).

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Cite This Page — Counsel Stack

Bluebook (online)
138 F.R.D. 109, 1991 U.S. Dist. LEXIS 10858, 1991 WL 147129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lolling-v-patterson-ilcd-1991.