Richard A. McMenamon II v. New Hampshire Department of Health and Human Services Commissioner Lori Shibinette, et al.

2023 DNH 044

• Court: District Court, D. New Hampshire
• Decided: April 26, 2023
• Docket: 21-cv-479-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard A. McMenamon II

v. Case No. 21-cv-479-PB Opinion No. 2023 DNH 044 New Hampshire Department of Health and Human Services Commissioner Lori Shibinette, et al.

MEMORANDUM AND ORDER

Plaintiff Richard McMenamon II, proceeding pro se and in forma

pauperis, brought suit under 42 U.S.C. § 1983 against three state actors

within the New Hampshire Department of Health and Human Services. See

Doc. 1 at 2, 4-5. McMenamon sought both monetary and injunctive relief,

alleging that the defendants failed to appropriately enforce federal and state

child protection laws, deprived him of certain federal benefits without due

process, and retaliated against him for reporting child abuse. Doc. 7 at 10-11.

Some of McMenamon’s claims were dismissed following preliminary review,

others were dismissed following a motion to dismiss, and the remainder were

dismissed on summary judgment. See McMenamon v. Shibinette, 2022 DNH

151 at 5-6, 14. McMenamon’s claims relating to the enforcement of child

protection laws were dismissed following preliminary review because the

relevant laws do not confer a private right enforceable under Section 1983.

1 Doc. 7 at 17. I later dismissed McMenamon’s remaining claims for damages

after concluding that he failed to demonstrate that the named defendants

injured him directly through their own actions, as required to obtain

monetary relief under Section 1983. McMenamon, 2022 DNH 151 at 5, 11-12.

Finally, I dismissed McMenamon’s claim for injunctive relief after finding

that he did not establish a real and immediate threat of future harm and

therefore lacked standing. Id. at 14.

The defendants now move for attorney’s fees pursuant to 42 U.S.C.

§ 1988(b), claiming that McMenamon’s suit was frivolous and brought in bad

faith. Doc. 51 at 1-2. In support of their motion, the defendants argue that

McMenamon lacked an evidentiary basis for his claims, as outlined in their

motion for summary judgment. Id. at 2. The defendants also note that

McMenamon was previously in a romantic relationship with one of the

named defendants and argue that McMenamon’s suit was an “attempt to

express dissatisfaction with the termination of the relationship and to harass

[his former partner].” Id. at 3.

Section 1988(b) authorizes courts to award attorney’s fees to prevailing

parties, including defendants, in actions brought under 42 U.S.C. § 1983. See

Tang v. R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998). A court

may award fees to a prevailing defendant if it “finds that [the plaintiff’s]

claim was frivolous, unreasonable, or groundless, or that the plaintiff

2 continued to litigate after it clearly became so.” Hughes v. Rowe, 449 U.S. 5,

15 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978)). “In determining whether this standard has been met, the court must

assess the claim at the time the complaint was filed, and must avoid the post-

hoc reasoning that, because the plaintiff did not ultimately prevail, the claim

must have been frivolous, unreasonable or without foundation.” Tang, 163

F.3d at 13. Where, as here, the complaint was brought by a pro se plaintiff,

the court should not assume that the plaintiff “ha[s] the same ability as a

plaintiff represented by counsel to recognize the objective merit (or lack of

merit) of a claim.” Miller v. L.A. Cnty. Bd. of Educ., 827 F.2d 617, 620 (9th

Cir. 1987). “An unrepresented litigant should not be punished for his failure

to recognize subtle factual or legal deficiencies in his claims . . . even if the

law or the facts are somewhat questionable or unfavorable at the outset of

litigation[.]” See Hughes, 449 U.S. at 15. Thus, “attorney’s fees should rarely

be awarded against [pro se] plaintiffs.” See id.

This is not such a rare case. At the time McMenamon brought suit,

there was at least a plausible basis for his claims. See Doc. 7 at 14, 17-18.

Indeed, the defendants do not dispute that McMenamon’s federal benefits

were discontinued for a period of time and concede that he offered at least

some evidence that he was threatened after reporting child abuse. See Doc.

51 at 2; Doc. 38-1 at 11; see also Doc. 46-8 at 185. That McMenamon’s

3 evidence was ultimately lacking is insufficient, particularly where, as here,

the fatal evidentiary deficiencies flowed from relatively esoteric legal

principles beyond the ken of most pro se litigants. See Hughes, 449 U.S. at

14-15.

Other than the lack of evidence, the only basis for the defendants’

assertion that McMenamon’s suit was frivolous is their allegation that it was

brought to harass his former partner. But that assertion is entirely

speculative, based solely on the fact that McMenamon and his former partner

have a contentious relationship. Cf. Colombrito v. Kelly, 764 F.2d 122, 133

(2d Cir. 1985) (noting that “[h]ostility between parties or their counsel” is an

insufficient basis upon which to conclude that litigation was brought in bad

faith).

For the foregoing reasons, I deny the defendants’ motion for attorney’s

fees (Doc. 51).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

April 26, 2023

cc: Richard A. McMenamon II, pro se Counsel of Record