Opinion
3:21-cv-00685-JR 3:21-cv-00582-JR 3:21- cv-00871-JR [1]
04-25-2023
LARRY JOHNSON, Plaintiff, v. THOMAS BRENNEKE; GARRETT LAMAR MILES; GUARDIAN MANAGEMENT, LLC; GUARDIAN REAL ESTATE SERVICES; UPTOWN TOWER APARTMENTS; LISA SIMONSON; KELLY PAINE; and SUNSHINE SALES, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pro se plaintiff Larry Johnson filed this Fair Housing Act (“FHA”) action against defendants Thomas Brenneke, Lisa Simonson, Kelly Paine, Guardian Management, LLC, Guardian Real Estate Services, and Uptown Tower Apartments (collectively “Guardian defendants”), as well as Garrett Lamar Miles and Sunshine Sales. All claims have been dismissed with prejudice and a judgment has been entered in favor of defendants. On August 8, 2022, defendants moved for an award of attorney fees and costs.
On August 19, 2022, plaintiff responded to the motion asserting that a medical issue prevented him from proceeding. (ECF 124). The Court required a statement from plaintiff's physician indicating how much time was needed for treatment before plaintiff could file a response. Plaintiff did not respond. In another group of cases filed by plaintiff bringing similar claims against defendants, plaintiff submitted a statement from his physician assistant indicating “episodic flare-ups” resulting in “incapacity” which will “last through November 2023.” See Order dated November 14, 2023 (ECF 128). Accordingly, the Court, on its own motion, allowed plaintiff until February 8, 2023, to respond. To date, plaintiff has not responded to the motion.
DISCUSSION
Defendants seek fees pursuant to 42 U.S.C. § 3613(c)(2) and 28 U.S.C. § 1927. Under 42 U.S.C. § 3613(c)(2), the Court may “in its discretion” award the prevailing defendant a reasonable attorney's fee. However, “because the FHAA is a civil rights statute, prevailing defendants are to be treated differently from prevailing plaintiffs.” Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997). In civil rights actions, attorneys' fees are ordinarily awarded to a prevailing plaintiff who is seeking protection of his/her civil rights, while a prevailing defendant may receive fees only upon a finding that the plaintiff's “claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 424 U.S. 412, 422 (1978).
Pursuant to 28 U.S.C. § 1927, an award of fees against any attorney or other person admitted to conduct cases in any court of the United States who so multiplies the proceedings unreasonably and vexatiously may be required by the Court to satisfy the excess costs and fees reasonably incurred because of such conduct. In addition, a showing of bad faith is required for an award under this statute. See Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir. 1990) (Section 1927 sanctions require a bad faith showing). Section 1927 may be applied to non-lawyer pro se litigants. Id. at 1235-36.
To justify a fee award to defendants, plaintiff's “action must be meritless in the sense that it is groundless or without foundation” and a failure to win the case “is not in itself a sufficient justification for the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14 (1980). While there is no question plaintiff presented claims that were meritless such as his claims for discrimination over assigned parking that had been resolved prior to this litigation or an alleged denial of the use of bulletin boards, the cases at bar presented the somewhat novel theory of a landlord's liability for a tenant's disability-related harassment of another tenant. Plaintiff ultimately failed to present evidence showing the harassment he suffered from another tenet was based on his disability or request for accommodation and failed to show the harassment was sufficiently severe or pervasive to alter his living conditions and create an abusive environment. Nonetheless, given the evidence of harassment by another tenant and plaintiff's complaints about that harassment, as well as the unsettled law surrounding this type of claim, the Court cannot say plaintiff's claim sufficiently lacked merit such that it was groundless or frivolous. Accordingly, the Court should, in its discretion decline to award fees under section 3213(c)(2). Cf. Howard v. HMK Holdings, LLC, 2018 WL 5905868, at *2 (C.D. Cal. Sept. 13, 2018) (because prevailing party status could not be determined until the facts were fleshed out by way of a summary judgment motion, it could not be determined that the claims were frivolous).
In addition, the Court should consider the financial resources of the plaintiff in determining the amount of attorney's fees to award to a prevailing defendant in these types of actions. See Patton v. Cnty. of Kings, 857 F.2d 1379, 1382 (9th Cir. 1988). The award should not subject the plaintiff to financial ruin, but a district court may not refuse to award attorney's fees to a prevailing defendant based solely on plaintiff's financial situation. Id. Although, plaintiff has not responded to the motion, filings in similar cases suggest that he lives on a fixed income relying on social security payments and lives paycheck to paycheck. Although some claims were frivolous, the tenant-on-tenant harassment claim had some grounding and when combined with plaintiff's apparent financial condition, suggests the Court should decline to award attorney fees to defendants.
See, e.g., Findings and Recommendation (ECF 49 in Case No. 3:21-947-JR) dated July 21, 2022.
To be sure, plaintiff proved to be an extremely cantankerous litigant not only with respect to his filings presented to the Court, but in his dealings with defense counsel. Should plaintiff continue to file cases against these defendants and litigate in a similar manner in the future, it may be necessary to sanction plaintiff including an award of attorney fees and costs. However, at this time the Court should decline an award of fees under 28 U.S.C. § 1927.
COSTS
Defendants also seek $936.96 in costs consisting of $921.90 for computerized research and $15.06 for postage and photocopies necessarily incurred in this case. (ECF 120 at Ex. K).
Costs are recoverable under 28 U.S.C. §§ 1920 and 1923. Charges for computerized legal research do not fall within scope of costs recoverable under 28 U.S.C. § 1920. Kraft v. Arden, 2009 WL 73869, at *9 (D. Or. Jan. 8, 2009). Accordingly, the Court should award $15.06 in costs to defendants.
RECOMMENDATION
For the reasons stated above, defendants' motion for attorney fees and costs (ECF 119) should be granted in that defendants should be awarded $15.06 in costs and denied in all other respects.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.