United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER GRANTING MOTION FOR ATTORNEY'S
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Defendants' Motion for
Attorney's Fees and Costs. ECF No. 25. Defendants argue
they should be awarded attorney's fees pursuant to 42
U.S.C. § 1988, because Plaintiff's action was
frivolous, unreasonable, and without foundation. Id.
Plaintiff Blanche Scott (“Plaintiff”) filed a
response in opposition (ECF No. 26), and Defendants filed a
reply (ECF No. 27). For the reasons below, Defendants'
motion is granted.
filed her Complaint in the Kershaw County Court of Common
Pleas, alleging a series of zoning citations were issued
against her in 2016 in retaliation for a successful lawsuit
she brought against the City of Camden in 1987. Compl.
¶¶ 8-13. Defendants removed to this court and
subsequently filed a motion for summary judgment. ECF Nos. 1,
17. After full briefing, the court granted Defendants'
motion for summary judgment. ECF No. 23.
was also prosecuted by the City of Camden for ordinance
violations in 2008. Following her conviction, she sued the
City of Camden, John Burns, and Charles Cushman, along with
one other Defendant not named in the instant suit, alleging
Constitutional violations. See Civil Action No.
3:08-1599-CMC. In that lawsuit, Plaintiff conceded Cushman
was entitled to prosecutorial immunity and that her claim for
retaliatory prosecution in violation of the First Amendment
was barred by her conviction on the citation (citing
Hartman v. Moore, 547 U.S. 250 (2006). Id.
She also abandoned her claim for outrage. The court granted
summary judgment on the merits regarding Plaintiff's
Sixth Amendment claim that Defendants violated her right to
counsel, her federal conspiracy claim, and her state law
claims. Civil Action No. 3:08-1599-CMC, ECF No. 60.
Defendants did not seek attorney's fees in that case.
instant case, Plaintiff alleged a Fourth Amendment claim for
malicious prosecution and a federal claim for
“prosecutorial misconduct, as well as state law claims
for outrage, trespass, negligent supervision, breach of
fiduciary duty, promissory estoppel, and abuse of process.
See ECF No. 1-1. Defendants' motion for summary judgment
argued some of the same grounds as in the 2008 case.
Plaintiff's response in opposition was a mere three pages
and cited no legal authority or factual support for her
positions. In addition, it failed to address many of
Defendants' arguments regarding Plaintiff's claims.
On November 16, 2017, the court granted summary judgment to
all Defendants - relying on many of the same grounds as in
the 2008 case. ECF No. 23. Defendants now seek an award of
attorney's fees and costs.
U.S.C. § 1988 provides the court with discretion to
award attorney's fees to the prevailing party in a case
brought pursuant to 42 U.S.C. § 1983. While §1988
does not make a distinction between prevailing plaintiffs or
defendants, Supreme Court precedent dictates a prevailing
defendant receive attorney's fees if the plaintiff's
claim was “frivolous, unreasonable, or groundless,
” or when the “plaintiff continued to litigate
after it clearly became so.” See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see
also Hutchinson v. Staton, 994 F.2d 1076, 1080 (4th Cir.
1993). However, there need not be any subjective bad faith on
the part of the plaintiff to award attorney's fees to the
defendant. DeBauche v. Trani, 191 F.3d 499, 510 (4th
Cir. 1999) (citing Hughes v. Rowe, 449 U.S 5
case, Plaintiff brought claims quite similar to the previous
unsuccessful claims, many based on the same type of fact
pattern. She was aware or should have been aware, based on
the previous summary judgment order, of certain defenses
raised by Defendants that would render her claims frivolous.
One of the parties sued was previously sued and dismissed as
immune; yet Plaintiff chose to sue him again in this action.
It is clear some of her claims were frivolous from the
outset. For instance, Plaintiff sued Charles Cushman, a
former City Attorney, who retired in 2012. While she agreed
to dismiss Cushman from the 2008 suit due to prosecutorial
immunity, she made no such concession in the instant case,
despite ongoing immunity, res judicata, and the statute of
limitations. Further, she also sued the current City Attorney
Michael Wright, despite learning in her previous suit the
City Attorney would be entitled to prosecutorial immunity.
She did not concede this immunity and dismiss Wright. Nor did
she concede her state law claim for outrage as she did in the
argues she was unaware of the outcome of her previous case,
and thus failed to notify her attorney of such. Therefore,
she argues, she had no intent to bring her claims
“frivolously.” However, Plaintiff was aware of
the existence of her prior case. Further, the
existence of the 2008 lawsuit (and its Civil Action number)
was noted by Defendants in their Responses to Local Civil
Rule 26.01 Interrogatories, filed on March 3, 2017.
See ECF No. 3. At that point, Plaintiff and her
counsel had the information necessary to research and review
the prior case and note the similar, sometimes identical, and
previously unsuccessful claims. Plaintiff was on notice at
least in March 2017 of the frivolity of some of her current
claims. See Hutchinson v. Staton, 994 F.2d 1076,
1080 (4th Cir. 1993) (awarding fees to the defendant when the
plaintiff “persisted in [the] lawsuit long after it had
plainly become groundless”). In addition, a copy of the
summary judgment order in the 2008 lawsuit was attached to
Defendants' motion for summary judgment. See ECF
No. 17-7. However, Plaintiff did not withdraw any plainly
frivolous claims at that point, instead continuing to argue
(albeit minimally) her federal claims and some state claims
against all Defendants.
addition, Plaintiff took no depositions and participated
minimally in discovery. Although requests for production and
interrogatories were prepared in June 2017 and sent to
Defendants in advance of the September 2017 discovery
deadline, these apparently only requested copies of
“pleadings and conclusions of cases they had in their
possession concerning the Plaintiff.” As noted above,
however, Plaintiff and her attorney had access to this
information as early as March. ECF No. 26 at 2. While the
court has no further information regarding discovery sent by
Plaintiff, neither party asserts any discovery was conducted
by Plaintiff concerning the facts of the present case. In her
response to Defendants' summary judgment motion,
Plaintiff put forth no factual or legal support for any of
her claims, even those that may not have been immediately
foreclosed by the previous lawsuit. Neither did she concede
or withdraw any of her claims, necessitating a response by
Defendants and a ruling by this court on all claims.
claims were based on mere conjecture and speculation.
Plaintiff should have acknowledged the duplicity and
frivolity of her claims before requiring Defendants to file a
summary judgment motion.
seek an award of attorney's fees in the amount of $7,
737.00 and costs related to Plaintiff's deposition in the
amount of $739.46. The motion is supported by an affidavit of
Defendants' counsel; an affidavit of the Claims Manager
for the South Carolina Municipal Insurance and Risk Financing
Fund, which sets the standard rate for defense counsel in
lawsuits against member municipalities; an itemized bill for
time spent on this case by defense counsel through ...