Opinion
Case No. 2:10-CV-01163-KJD-GWF.
December 09, 2011.
ORDER
Before the Court is Defendant Elizabeth Acevedo's Motion for Attorney's Fees (#38). No opposition has been filed.
On July 26, 2011, the Court issued an Order (#37) granting Defendant's Motion to Dismiss. Defendant seeks attorney's fees of $8,690.00 pursuant to 42 U.S.C § 1988 which provides in relevant part, that the Court "in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs..."
Courts should be cautious in awarding fees against pro se litigants because they lack the ability to recognize when a claim has merit. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987). Further, Courts should consider the financial resources of a plaintiff before awarding fees under § 1988. Id.; see also Horn v. Carter, 360 Fed.Appx. 851, 852 (9th Cir. 2009) (reversing award of attorney's fees against pro se prisoner).
Defendant argues that she should be awarded attorney's fees, because the Court found that Plaintiff's claims had no merit. Plaintiff is a prisoner representing himself pro se. There is no indication that Plaintiff was capable of accurately evaluating his chances of success on his claim. Further, it is highly unlikely that Plaintiff would have the ability to pay the $8,690.00 fee award requested by Defendant. Defendant has not cited any cases where a court has awarded fees under facts like those present here. Accordingly, the Court declines to exercise its discretion to award Defendant fees.
IT IS HEREBY ORDERED that Defendant's Motion for Attorney's Fees (#38) is DENIED.