The opinion of the court was delivered by: McAVOY, Senior United States District Judge
Plaintiff initially commenced an action against Defendant pursuant to 42 U.S.C. § 1983 asserting that Defendants violated his constitutional right to due process. See Hennellyv. Town of Middletown, 3:10-CV-966 (N.D.N.Y.)("Hennelly I"). Upon Defendants' motion, the Court dismissed the complaint because it was not ripe for adjudication. Shortly thereafter, Plaintiff commenced this second action ("Hennelly II") arising from the same circumstances and making the same claims. Upon Defendants' motion, the Court again dismissed the action as unripe. Familiarity with those prior decisions is presumed. Presently before the Court is Defendants' motion for attorneys' fees in connection with the costs they incurred in defending Hennelly II.
In Hennelly I, Defendants moved to dismiss on the grounds that the claim was not ripe. Plaintiff opposed, arguing that completing the process at the local level would have been futile because the applicable Town laws prohibited two residential dwellings on a single lot and, therefore, seeking a variance would have been a waste of time. In dismissing the action, the Court noted that Plaintiff bears a "'high burden of proving . . . a final, definitive position from a local authority. . . .'" Hennelly I, at 4 (quoting Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir. 2005)). The Court concluded that,
[a]lthough there is no dispute that the pertinent zoning regulations
are clear, Plaintiff has not alleged in his Complaint or in opposition
to the instant motion that any Town official indicated that Plaintiff
would be denied a variance if he had applied for one."*fn1
The Court, therefore, found the futility exception not
applicable. In so finding, the Court cited to (and quoted from) cases
holding that the futility exception is not met where town officials or
entities charged with implementing subdivision and zoning regulations
have not made it clear that the applications for relief would be
denied. Hennelly I, at p. 6 n. 2, 3. The Court then dismissed the
Complaint without prejudice. The matter was dismissed without
prejudice so Plaintiff would not be precluded from returning to Court,
if necessary, after attempting to seek a variance, subdivision
approval, or a final determination from the Zoning Board of
Rather than seek a variance, subdivision approval, or appeal to the Zoning Board of Appeals, on November 18, 2010, Plaintiff filed the instant action. The Complaint in this action was identical in all material aspects to the prior litigation with the exception that Plaintiff now alleged that Defendant Davis, the Code Enforcement Officer: told plaintiff that appealing the denial of his certificate of occupancy, applying for a variance, seeking subdivision approval, or seeking a waiver from the Town Planning Board would be futile, as there is no way the town would ever let plaintiff use both dwellings on his parcel as single family residences.
Defendants again moved to dismiss on futility grounds. In ruling on the motion, the Court noted that the "'without prejudice' dismissal [in Hennelly I] was not so Plaintiff could attempt to fill the gaps in his losing 'futility' argument and take a second bite at that apple." Hennelly II, at p. 4. The Court further held that "Plaintiff's argument on the futility defense is barred by the doctrine of collateral estoppel," id. at p. 5, because Plaintiff had a full and fair opportunity to litigate that very same issue in Hennelly I. Lastly, the Court held that, the new allegations notwithstanding, the action was still unripe because Davis did not and could not speak on behalf of the Town Planning Board or Zoning Board of Appeals and, therefore, his statements did not constitute "a final determination by either of these bodies . . . and . . . do not demonstrate that any of these avenues would have been futile." Id. at 5-6. Accordingly, the Court granted the motion to dismiss and dismissed the Complaint in its entirety.
Defendants now move for attorneys' fees on the ground that Plaintiff's claims in the instant action are frivolous in light of: (1) the Court's holding in Hennelly I; (2) because Plaintiff's attempt to "fill the gaps" of his first complaint were plainly insufficient and failed to remedy the deficiencies therein; and (3) the claims were clearly barred by issue preclusion. Plaintiff opposes the motion contending that, in light of the language in the Court's decision in Hennelly I, it was reasonable for him to believe that the new action remedied the pleading defect in the prior action and that his claims were not barred by collateral estoppel because courts routinely allow litigants to cure pleading defects.
Attorney's fees may be awarded to a successful defendant in a civil rights action pursuant to 42 U.S.C. § 1988 where the underlying claim is "frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so." Rounseville
v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994). "A claim is frivolous when it lacks an arguable basis either in law or in fact." Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004) (internal quotation marks omitted).
The determination as to whether a claim was frivolous, unreasonable, or groundless is not a purely factual inquiry. Questions as to what allegations were made and what evidence was presented are questions of fact; but the determination as to whether the claims were frivolous, unreasonable, or groundless requires an evaluation of the allegations and the proof in light of the controlling principles of substantive law.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 770 (2d Cir. 1998). "Whether to allow attorney's fees to a prevailing defendant is within this Court's discretion." Panetta ...