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(Cite as: 2002 WL 1461970) Not Reported in F.Supp.2d
United States District Court,D. Kansas. Robert Booth ROE, a minor child by and through his adoptive parents Richard ROE and Janet Roe, and Jennifer Brunetti, conservator, Plaintiff, v. Mary KEADY and Wayne Sramek, Defendants. Civil Action No. 00-2232-CM. June 18, 2002.
Unsuccessful claim by minor Native-American child, by and through his adoptive parents, pursuant to §§ 1981 and 1983, alleging that state social worker and her supervisor failed to protect child from abuse by his natural parents, in violation of substantive due process, procedural due process, and equal protection, was neither frivolous, unreasonable, nor without merit, as required to warrant award of attorney fees to social worker and supervisor under § 1988. U.S.C.A. Const.Amend. 14 ; 42 U.S.C.A. §§ 1981 , 1983 , 1988.
MEMORANDUM AND ORDER CARLOS MURGUIA, District Judge. *1 Plaintiff brought this action against defendants Mary Keady and Wayne Sramek pursuant to 42 U.S.C. §§ 1981 and 1983, alleging violations of substantive due process, procedural due process, and equal protection. On March 1, 2001, the court granted summary judgment to defendants on plaintiff's substantive and due process claims (Doc. 34). On April 26, 2002, the court granted summary judgment to defendants on plaintiff's equal protection claim and on plaintiff's claim brought under § 1981. This matter is before the court on Defendant Keady's Motion to Tax Attorney Fees and Related Non Taxable Expenses as Costs (Doc. 144). Attorney's fees are available to a successful party in a claim brought under §§ 1983 and 1981. 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of sections 1981 ... 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs....”). Stringent standards must be met, however, before a court may award attorney's fees to a prevailing defendant. Figures v. Bd. of Pub. Utils. of Kan. City, Kan., 967 F.2d 357, 363 (10th Cir.1992). An award is not justified merely because the plaintiff ultimately lost his case. Indeed, the court is to “resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). A district court may award attorney's fees to a prevailing defendant upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. Id. The determination of frivolity or reasonableness focuses on whether the plaintiff's case was “ ‘seriously lacking in arguable merit.’ “ Peel v. Unified Sch. Dist. 501, No. 97-4131-SAC, 2000 WL 374931, at *2 (D.Kan. Mar.27, 2000) (citing Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1558 (11th Cir.1995)). On summary judgment, plaintiff set forth evidence that defendants may have incorrectly applied the Indian Child Welfare Act and may have handled reports of plaintiff's abuse outside their normal practice. The court, however, concluded that there was no evidence in the record that defendants refused to offer or provide family services because of an intent to discriminate. However, the court reasoned, “The evidence plaintiffs contend shows discriminatory intent is, rather, merely evidence demonstrating that defendants could have, and maybe should have, taken a different course of action with respect to providing family or protective services.” (Memorandum and Order, April 26, 2002, at 14). As evidenced by the court's lengthy memorandum and order, the court finds that plaintiff's claim that defendant acted with racial animus was not seriously lacking in arguable merit. To the contrary, plaintiff's claim rested on sound legal arguments that, while ultimately incorrect, were not so lacking in merit that the plaintiff should be required to pay attorney's fees to defendant. In these circumstances, the court finds that plaintiff's action was neither frivolous, unreasonable, nor without merit. *2 IT IS THEREFORE ORDERED that Defendant Keady's Motion to Tax Attorney Fees and Related Non Taxable Expenses as Costs (Doc. 144) is denied. D.Kan.,2002. Roe ex rel. Roe v. Keady Not Reported in F.Supp.2d, 2002 WL 1461970 Briefs and Other Related Documents (Back to top) • 2:00cv02232 (Docket) (May. 25, 2000)
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