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Nicholas v. City of Binghamton

United States District Court, Second Circuit

September 3, 2013



THOMAS J. MCAVOY, Senior District Judge.

Defendant City of Binghamton moves for costs and legal fees pursuant to 42 U.S.C. 1988(b) claiming that Plaintiff maintained her action in bad faith and her claims were frivolous.


Plaintiff initially filed numerous claims pursuant to 42 U.S.C. 1983 alleging false arrest, free speech retaliation, an illegal search, an illegal warrantless invasion of her private residence, and the use of excessive force. Plaintiff also filed state law claims for the intentional infliction of emotional distress; battery; abuse of process; trespass; defamation; violations of N.Y. Civil Rights Law Art. 2 § 8, N.Y. Civil Rights Law Ar. 4-B § 47-B, N.Y. Exec. Law Art. 15 § 296(14); and a claim under Title II of the American with Disabilities Act (ADA). With the exception of the claims for excessive force, battery, and a violation of N.Y. Civil Rights Law Art. 2 § 8 (all of which are similar in nature), Plaintiff's claims were dismissed on summary judgment. Dkt. No. 54. After a trial, the jury returned a verdict in favor of the Defendants on all remaining claims. Dkt. No. 131.

Defendant City of Binghamton now moves for attorney's fees pursuant to 42 U.S.C. § 1988(b) as a prevailing defendant in a civil rights action. The City claims that Plaintiff's action was in bad faith, or later became so, and that Plaintiff's claims were frivolous.


The longstanding "American Rule" is that parties are responsible for their own litigation costs, "including attorney's fees, regardless whether he wins or loses." Fox v. Vice , 131 S.Ct. 2205, 2213 (2011); see Alyeska Pipeline Service Co. v. Wilderness Society , 421 U.S. 240, 247. Pursuant to 42 U.S.C. § 1988, the Court may award attorney's fees to a prevailing defendant "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. EEOC , 434 U.S. 412 (1978); see also Fox v. Vice , 131 S.Ct. at 2213 (discussing Christiansburg). Attorney's fees can also be awarded if the plaintiff continued to litigate after it became clear her claim was frivolous, unreasonable, or groundless. See LeBlanc-Sternberg v. Fletcher , 143 F.3d 765, 770 (2d Cir. 1998). As the Court explained in Christiansburg, in enacting § 1988, Congress sought to "protect defendants from burdensome litigation having no legal or factual basis." Christiansburg , 434 U.S. at 420. Although attorney's fees are to be rarely awarded against pro se parties, see Haines v. Kerner , 92 S.Ct. 594, 595 (1972), here plaintiff is a lawyer and, therefore, she cannot claim the consideration usually afforded to pro se plaintiffs. See Harbulak v. County of Suffolk , 654 F.2d 194, 198 (2d Cir. 1981); Serbalik v. Gray, 199 F.3d 1323 (2d Cir. 1999).


a. Whether Defendants are Entitled to Attorney Fees Pursuant to 42 U.S.C. § 1988

1. False Arrest

Plaintiff's claim of False Arrest was without merit because the officers acted with probable cause or, at the very least, arguable probable cause. It was undisputed that the arresting officer observed Plaintiff laying on the hood of an idling vehicle. As the Court previously held, Plaintiff put herself in a position where the officer could have perceived a "probability or substantial chance of dangerous behavior" by climbing onto a hood of an idling vehicle. Dec. & Ord. pp. 8-10, August 8, 2012; see Burdick v. Johnson, 2009 WL 1707475, at *6 (N.D.N.Y. June 17, 2009). Probable cause also existed to arrest Plaintiff for disorderly conduct. Plaintiff obstructed a vehicle and created a hazardous condition by climbing onto the vehicle which served no legitimate purpose in violation of N.Y. Penal Law 240.20. Observing Plaintiff on the hood of a running vehicle, Officer Harder had probable cause to arrest. Dec. & Ord. p. 11; see Amore v. Novarro , 624 F.3d 522, 536 (2d Cir. 2010). The undisputed facts gave rise to probable cause, or at least arguable probable cause to arrest and, thus, Plaintiff's claim was baseless.

2. First Amendment

Plaintiff's free speech retaliation claim was dismissed for the same reason as her false arrest claim-the existence of probable cause. Dec. & Ord. pp. 12-3. As such, Plaintiff's claim of First ...

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