Nahmod Law

Introduction

For background on attorney’s fees to prevailing plaintiffs in civil rights cases, please see my post of June 17, 2010.

I also address all aspects of attorney’s fees in Chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

This post deals with attorney’s fees to prevailing defendants.

Fox v. Vice: How to Compute Fees for Prevailing Defendants

On June 6, 2011, the Supreme Court handed down Fox v. Vice, 131 S. Ct. — (2011),  a unanimous decision dealing with the question of how to compute fees awarded to a prevailing defendant where “the plaintiff asserted both frivolous and non-frivolous claims.”

The plaintiff, a challenger to the defendant, the former police chief whom plaintiff beat in an election, originally filed his § 1983 and state law claims in state court. Alleging dirty election tricks, the plaintiff’s § 1983 claims included interfering with the right to seek office, and the state claims included defamation. The defendant removed to federal court, where the district court, on summary judgment, dismissed the federal claims as frivolous and remanded the state law claims to the state court.

However, before the state law claims were adjudicated in state court, the prevailing defendant filed a § 1988 fees petition in federal court that did not distinguish between time spent on the frivolous (and dismissed) federal claims and time spend on the non-frivolous state law claims. The district court went on to award fees to the defendant without separating out the time spent on the federal and state law claims, and without reflecting the surviving state law claims. Thereafter, the Fifth Circuit affirmed.

Granting certiorari to address a circuit split, Justice Kagan, writing for the Court, declared: “We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims.” It then reversed because the district court and Fifth Circuit had used a different and incorrect standard for awarding fees to the defendant. Read the rest of this entry »

Introduction

In recent Terms the Supreme Court has shown considerable interest in individual immunity doctrine involving qualified immunity–about which I blogged on January 25, 2011 and may 31, 2011–and absolute immunity–about which I blogged on August 21, 2009. See generally on individual immunities, my treatise CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chapters 7 & 8 (4th ed. 2010)(CIVLIBLIT on Westlaw).

The Court’s interest in immunity doctrine will continue into the 2011 Term because, on March 21, 2011, the Court granted certiorari in Rehberg v. Paulk, No. 10-788, to review 611 F. 3d 828 (11^th Cir. 2010), which conferred absolute witness immunity on a district attorney’s chief investigator who had testified as a complaining witness before a grand jury.

(In connection with understanding Rehberg, note that the Supreme Court has consistently used a functional approach to individual immunities, meaning that immunity does not depend on job title but rather on the nature of the challenged conduct. Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).

Rehberg v. Paulk and Witness Immunity

Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against, among others, a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.

It also ruled that the chief investigator, together with the prosecutor who presented to the grand jury, was absolutely immune from damages liability for allegedly conspiring, pre-indictment, to make up and present the chief investigator’s false testimony to the grand jury.

In this latter regard, though, the Eleventh Circuit was careful to note that there was no allegation here that either of these defendants fabricated or planted any evidence to create probable cause. If there had been, the defendants would not receive absolute immunity, according to the court, because such conduct—investigating and gathering evidence—fell outside the prosecutor’s role as advocate. Read the rest of this entry »

Introduction

I blogged on February 16, 2011, about the Supreme Court‘s grant of certiorari in Camreta v. Greene (PDF), a case from the Ninth Circuit raising not only Fourth Amendment issues but also questions related to the Supreme Court’s appellate jurisdiction over the petition for certiorari of individual defendants who had prevailed in the Ninth Circuit on qualified immunity but had lost on the Fourth Amendment merits.

In that post I also discussed the potential implications of Camreta for the appellate jurisdiction of Circuit Courts of Appeals asked to review district court decisions finding constitutional violations by individual defendants but conferring qualified immunity on them.

Readers should consult the prior post for background on the Supreme Court’s recent decision in Camreta v. Greene, 131 S. Ct. – (2011), vacating in part, Greene v. Camreta, 588 F.3d 1011 (9^th Cir. 2009), which is the subject of this post.

(Camreta is the second decision this Term dealing with qualified immunity appellate procedure; the first was Ortiz v. Jordan, 131 S. Ct. — (2011), which I blogged about on January 25, 2011).

Camreta v. Greene

On May 26, 2011, the Supreme Court handed down Camreta v. Greene, which involved the question whether the Fourth Amendment was violated in connection with the temporary seizure and interview in a public school of a child who authorities suspected was being sexually assaulted by her father. Here, the district court ruled that the individual defendants did not violate the child’s Fourth Amendment rights but, even if they did, they were protected by qualified immunity. On plaintiff’s appeal, the Ninth Circuit affirmed on qualified immunity but also found, contrary to the district court, that the individual defendants violated the plaintiff’s constitutional rights. In so doing, the Ninth Circuit made new Fourth Amendment law.

The individual defendants thereafter petitioned for certiorari on the Fourth Amendment issue, which was granted by the Supreme Court. The plaintiff’s brief to the Court addressed the important Fourth Amendment merits, as did the individual defendants’ brief and a number of amici briefs. But the plaintiff also argued that the Court did not have appellate jurisdiction because (1) the defendants had prevailed in the Ninth Circuit; (2) the determination by the Ninth Circuit that the individual defendants violated the Fourth Amendment was not part of its judgment; and (3) the case between the plaintiff and the individual defendants was moot.

In an opinion by Justice Kagan, the Supreme Court vacated the Ninth Circuit’s decision in part and remanded. The Court first determined that it could review the Ninth Circuit’s decision under the relevant federal statute, 28 U.S.C. § 1254(1), which conferred power on it to grant certiorari “upon the petition of any party,” which included petitions brought by prevailing litigants in the court below, not only losing litigants. Next, the Court rejected the plaintiff’s argument that the petition submitted by the prevailing defendants did not present an Article III case or controversy. The defendants had a personal stake in the case because the Ninth Circuit had ruled that the defendants violated the plaintiff’s Fourth Amendment rights and this judgment had a prospective effect on the parties: these defendants, and other defendants in this situation, either have to change the way they perform their jobs or risk future damages liability. Similarly, in most such cases plaintiffs will ordinarily retain a stake in the outcome (although, as it turned out here, the plaintiff did not retain a personal stake). Read the rest of this entry »

Introduction

As is well known by now, several years ago the Supreme Court announced what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)(Bivens action vs. federal officials). Precisely what this means in real-world terms is not entirely clear, and federal courts and litigants have  since struggled with the plausibility standard and its relation to notice pleading in federal courts.

As I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010; West Group)(CIVLIBLIT on WESTLAW), I came across three important post-Iqbal circuit court decisions from the Seventh, Tenth and Eleventh Circuits. I want to share them with you in advance of publication this fall of the 2011 Update.

The Seventh Circuit: Cooney v. Rossiter, 583 F.3d 967, 971 (7^th Cir. 2009)(§ 1983 conspiracy complaint)

The Seventh Circuit, in a thoughtful opinion by Judge Posner, addressed the effect of the plausibility standard of Twombly and Iqbal on § 1983 conspiracy claims against an attorney and therapist accused of conspiring with state actors in connection with the plaintiff mother’s loss of custody of her two children after she was diagnosed with “Munchausen syndrom by proxy.”  After analyzing these two Supreme Court decisions, Judge Posner summarized:

In other words, the height of the pleading requirement is relative to the circumstances. We have noted the circumstances (complexity [Twombly] and immunity [Iqbal]) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendants do not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.

Judge Posner went on to point out that even before this new plausibility requirement, conspiracy allegations were held to a higher standard and that “mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her were not enough.” Here, the plaintiff’s allegations of a conspiracy between government officials and the two private defendants were not sufficient to survive a motion to dismiss, even before Twombly and Iqbal, because they were bare of specifics and vague. Read the rest of this entry »

Introduction

I blogged some time ago about anti-SLAPP statutes in state courts. Readers will want to consult my post of July 23, 2010, for that discussion and relevant background.

As set out in that post, a SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances by obtaining a financial advantage over the defendant in litigation.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition.

Anti-SLAPP statutes in federal courts

An interesting question is whether and to what extent federal courts may or even must enforce anti-SLAPP statutes in federal proceedings. Consider in this regard the First Circuit’s decision in Godin v. Schencks, 629 F.3d 79, 86 (1^st Cir. 2010), a case involving a section 1983 procedural due process claim against various defendants as well as pendent state law claims against three school system employees who had separately said in meetings with school officials that the plaintiff, a former principal, had acted abusively toward students.

In Godin, the First Circuit extensively analyzed the relationship between the Federal Rules of Civil Procedure and a Maine anti-SLAPP statute (Section 556) “that governs both procedure and substance in the state courts. The issue [as to the pendent state law claims] is whether Federal Rules of Civil Procedure 12(b)(6) and 56 preclude application of Section 556 in federal court.”

Confronting this issue of first impression in its circuit, the First Circuit held that Maine’s anti-SLAPP statute must be applied to the plaintiff’s state law claims against these three individual defendants.

In the court’s view, neither of these two Federal Rules was meant to control the issues under Section 556 in federal courts. In addition, the dual purposes of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)—discouraging forum shopping and avoiding inequitable administration of the laws—were best served by enforcement of Section 556. The defendants could therefore defend against the pendent state law claims under the anti-SLAPP statute.

The First Circuit observed that it was joining the Fifth and Ninth Circuits in reaching this conclusion. It cited as support Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5^th Cir. 2009), and United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9^th Cir. 1999).

Note that a state’s anti-SLAPP statute should not be a defense to a section 1983 claim in federal court by virtue of the Supremacy Clause.

Introduction

The Supreme Court finally handed down its decision (PDF) in the important case of Connick v. Thompson, No. 09-571, on March 29, 2011, almost a year after I blogged about Connick in light of the Court’s grant of certiorari.  Readers should consult my post of April 6, 2010, for relevant doctrinal and other background information.

In Connick, a 5-4 decision with an opinion by Justice Thomas, the Court effectively held that local government liability for failure to train cannot be based on a single incident, even in the face of an otherwise persuasive claim of deliberate indifference because the need for training is “obvious.” Instead, the plaintiff must also show a pattern of similar constitutional violations. Justice Scalia, joined by Justice Alito, concurred. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan.

The Facts and Issue

The § 1983 plaintiff, Thompson, was convicted of murder and spent fourteen years on death row for a crime that he did not commit because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady v. Maryland, 373 U.S. 83 (1963), and the due process requirement to turn over exculpatory evidence to criminal defendants. A jury awarded him $14 million, which was upheld by the district court. On appeal, a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, Connick, the district attorney, was a policymaker (thus representing the prosecutor’s office) who was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]?” As noted, the Court answered YES. Read the rest of this entry »

Introduction

I blogged on June 24, 2010, about the Supreme Court’s grant of certiorari in Skinner v. Switzer (PDF), No. 09-9000, a case from the Fifth Circuit addressing the relationship between section 1983, habeas corpus and Heck v. Humphrey, 512 U.S. 477 (1994). That post should be consulted for background by those unfamiliar with this case.

On March 7, 2011, the Supreme Court, in an opinion by Justice Ginsburg, handed down its decision in Skinner, with Justice Thomas, joined by Justices Kennedy and Alito, dissenting.

The Opinion

This was the question in Skinner:

“May a convicted state prisoner seeking DNA testing of crime-scene evidence assert that claim in a civil rights action under [section 1983], or is such a claim cognizable in federal court only when asserted in a petition for a writ of habeas corpus?”

The Court’s answer in Skinner is that section 1983 may be used. Read the rest of this entry »

The Problem

Suppose a section 1983 plaintiff sues individual police officer defendants and a local government, alleging that they violated his constitutional rights and are liable in damages to him.  The individual defendants move for summary judgment based on qualified immunity, as they are entitled to do under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny.  According to the Supreme Court in Pearson v. Callahan, 129 S. Ct. 808 (2009), modifying the “order of battle” approach of Saucier v. Katz, 533 U.S. 194 (2001)–see post of 9-17-09— the qualified immunity inquiry may, in the discretion of the district court, include both (1) whether the defendants violated the plaintiff’s constitutional rights (that is, whether the plaintiff asserted a constitutional violation) and (2) if they did, whether the defendants nevertheless are not liable because they did not violate clearly settled law as of the time of the challenged conduct.

Suppose now that the district court rules that the individual defendants did violate the plaintiff’s constitutional rights but that they did not violate clearly settled law and are thus entitled to qualified immunity.  May the defendants interlocutorily appeal the district court’s determination that the defendants did in fact violate the plaintiff’s constitutional rights where the plaintiff does not appeal the grant to the defendants of qualified immunity?

Consider that the defendants prevailed at the district court level; that technically speaking the ruling that the individual defendants violated the plaintiff’s constitutional rights is really not part of the district court’s judgment; and that the dispute between the plaintiff and the individual defendants may now be moot. The plaintiff would prefer a determination that the Circuit Court of Appeals does not have jurisdiction so that the plaintiff’s case against the local government can go forward without any further delay (recall that local governments are not protected by qualified immunity. Owen v. City of Independence, 445 U.S. 622 (1980)).

For the same reason, though, the local government defendant has an interest in a decision by the Court of Appeals on the constitutional merits as soon as possible. Moreover, an argument can be made that the district court’s statement of the applicable constitutional law affects not only the defendants but all other police officers similarly situated in the jurisdiction who would perhaps be governed by the district court’s announced constitutional standard unless and until it is overturned by a Court of Appeals. Read the rest of this entry »

Qualified Immunity Fundamentals

Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct. To put it somewhat differently: a government official is not liable for damages for violating a person’s constitutional rights where a reasonable official, confronting the circumstances as they appeared to the official at the time of the challenged conduct and in light of then-established law, could have believed his or her conduct was constitutional. If the challenged conduct violated clearly settled law as of the time of the conduct, the official acted unreasonably and loses on qualified immunity. The qualified immunity standard is thus objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987). See generally chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

However, qualified immunity amounts to even more than this. Over the years it has increasingly begun to function more like absolute immunity: qualified immunity provides significant protection not only from damages liability but from the costs of defending as well. Thus, qualified immunity summary judgment motions should ordinarily be decided before any significant discovery is undertaken. Harlow v. Fitzgerald. In addition, denials of qualified immunity summary judgment motions are immediately appealable on issues of law, although not for evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).

The Decision in Ortiz v. Jordan

Suppose that defendants in a section 1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50 (b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place.

May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz v. Jordan (PDF), No. 09-737 (1-25-11), resolved a conflict in the circuits and unanimously answered NO. Read the rest of this entry »