Thorpe v. Ancell

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 26, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

ROBERT PAUL THORPE; MARIA
ELIZABETH THORPE,

Plaintiff - Appellant,

v. No. 06-1404
(D. Colo.)
STANLEY ANCELL; JULIA (D.C. No. 03-cv-01181-LTB-BNB)
STOGSDILL; ROBERT RUSSELL;
CRAIG TYER; LISSAH NORCROSS;
DAVID WOOLEY, also known as Jesse
David Wooley; RIECKE CLAUSSEN;
JOHN C. JACKSON; ROBERT M.
CULVER; MARTYN CURRIE;
WILLIAM “BILL” GARDNER,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before MURPHY, HOLLOWAY, and O’BRIEN, Circuit Judges.

Robert and Maria Thorpe (together “the Thorpes”) filed a 42 U.S.C. § 1983

lawsuit claiming individuals from the Mesa County Sheriff’s Department and the Grand

*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
Junction Police Department (collectively “Defendants”) violated their constitutional

rights during an investigation and malicious prosecution. After granting summary

judgment in favor of the Defendants, the court ordered the Thorpes to pay attorneys’ fees

pursuant to 42 U.S.C. § 1988(b). The Thorpes appeal from the district court’s order

awarding fees. We affirm.

I. FACTUAL BACKGROUND

The facts of this case are well-known to the parties and do not bear lengthy

reiteration. In December 1998, a bank robbery investigation by Sheriff Deputies Lissah

Norcross1 and Craig Tyer led to information that a suspect may have paid for his bail

bond with some of the robbery proceeds. A-1 Bail Bonds, a company owned and

operated by the Thorpes, supplied the suspect’s bond. Several informants claimed

Heather Fish, an A-1 employee, knowingly accepted the bank robbery proceeds with

permission from the Thorpes. Because the alleged transaction occurred in the city rather

than the county, Tyer passed the information to the Grand Junction Police Department.

On October 27, 1999, Grand Junction Police Department Officers Stanley Ancell

and Robert Culver interviewed Fish and two other A-1 employees, Sherri and Joe Green.2

The three employees reported numerous criminal activities perpetrated by the Thorpes at

1
In 1997, the Thorpes filed a separate § 1983 action against members of the
Sheriff’s Department including Norcross. The case was eventually dismissed but was
pending during the bank robbery investigation.
2
Shortly after November 1, 1999, either the Thorpes terminated Fish’s
employment with A-1 or Fish voluntarily resigned. Fish and Joe Green then started their
own bail bond business which was operating at the time the Thorpes filed their complaint
against Fish.

-2-
A-1, including forgery and the knowing receipt of a portion of the bank robbery money.

While investigation of these allegations was proceeding, the Thorpes lodged a complaint

against Fish for allegedly forging documents and stealing money from A-1. Police

Officer Julie Stogsdill was assigned to conduct an investigation of these charges.3 After

interviewing the Thorpes and Fish, Stogsdill conducted a brief follow-up investigation

and submitted her investigation report to the district attorney’s office. The district

attorney’s office declined to prosecute Fish. However, the investigation of the Thorpes

resulted in search and arrest warrants issued on June 7, 2000, and criminal charges filed

on June 15, 2000.4 A second set of search warrants issued on June 23, 2000.

In August 2000, the district attorney’s office asked Gilbert Stone, its lead

investigator, to review and comment on the Thorpes’ investigation file to determine the

likelihood of conviction. Stone issued a report (“the Stone Report”) criticizing the

investigation.

Special Prosecutor David Waite was assigned to the case in October 2000.5 He

was given the voluminous investigation file. In January 2001, Waite decided to dismiss

3
Officers Ancell and Culver were not a part of Stogsdill’s investigation, although
each knew of the other’s investigation.
4
The Thorpes were charged with, inter alia, motor vehicle theft, theft over
$15,000, attempt to influence a public servant, theft by receiving (the bank robbery
money) and conspiracy to commit these offenses. Maria Thorpe was also charged with
burglary.
5
The Thorpes had filed a motion to appoint a special prosecutor and to recuse the
Mesa County District Attorney’s Office because some of its employees were potential
witnesses.

-3-
the Thorpes’ case without prejudice because he needed more time to review the police

reports and conduct his own investigation. Waite refiled the charges in June 2001, but

the charging document for Robert Thorpe, attested to by Culver, mistakenly included

charges intended only for Maria Thorpe. Those charges were dropped as soon as the

error was discovered. Shortly after the criminal charges were refiled, the state court

ordered the charges be tried separately. Due to that decision and his concern over having

to prove each of the charges beyond a reasonable doubt in separate trials (although he

believed probable cause existed for the Thorpes’ arrests on each of the charges filed

against them), Waite decided to dismiss the charges with prejudice. They were dismissed

on June 27, 2002.

II. PROCEDURAL BACKGROUND

One year later, the Thorpes filed the current lawsuit pursuant to 42 U.S.C. § 1983

against Mesa County Sheriff Riecke Claussen, Undersheriff David Wooley, and Deputies

Tyer, Norcross and William Gardner (Sheriff Defendants) and the City of Grand

Junction, the Grand Junction Police Department, Police Chief Martyn Currie and Officers

Ancell, Culver, Stogsdill, Robert Russell and John Jackson (Police Defendants).6 The

Thorpes alleged Defendants denied them numerous constitutional rights and claimed

several state law violations. The factual basis of their complaint covered miscellaneous

events from 1999 through 2002, but was primarily based on the investigation and

6
The complaint also named the Mesa County Sheriff’s Department and the Mesa
County Board of Commissioners. Sheriff Defendants filed a motion to dismiss these
defendants; the Thorpes did not object. The district court granted the motion.

-4-
prosecution of the criminal charges against them.

Police Defendants filed a motion for a more definite statement. Attached to their

motion were the Thorpes’ arrest and search warrants and supporting affidavits. Sheriff

Defendants filed a motion to dismiss the state law claims for lack of subject matter

jurisdiction based on the Thorpes’ failure to comply with the requirements of the

Colorado Governmental Immunity Act. They attached the affidavits of Sheriff Claussen,

Undersheriff Wooley and Deputies Gardner, Norcross and Tyer. Claussen, Wooley and

Gardner stated they had no connection with the police investigation of the Thorpes or

their prosecution; Deputies Norcross and Tyer testified they ended their involvement in

the bank robbery investigation in 1999 or 2000 when they turned the case over to the

Grand Junction Police Department. The Sheriff Defendants also filed a motion to dismiss

the malicious prosecution claim for failure to state a claim or in the alternative for a more

definite statement. The district court granted the motions for a more definite statement

but denied, without prejudice, Sheriff Defendants’ motions to dismiss.

The Thorpes filed their First Amended Complaint on March 29, 2004, alleging

Defendants “unlawfully caused [them] to be wrongly investigated, charged, arrested and

prosecuted based upon information known to be false . . . . Defendants failed to

investigate the veracity of [the] allegations against [them], subjected [them] to illegal

searches and seizures, harassed [them] and falsified evidence against them.” (R. Vol. I at

34-35.) Some of the factual allegations were astounding. For example, the Thorpes

alleged Fish was a known prostitute and known to have made false allegations in the past.

The Thorpes claimed the Defendants enlisted Fish to seduce their sixteen–year-old son

-5-
for the purpose of obtaining A-1’s business records without a warrant. They also claimed

the actions of law enforcement caused their son’s suicide in May 2000. The Thorpes

alleged Defendants manufactured, altered and destroyed evidence, affirmatively sought

out parties to assert false complaints against them and continued to prosecute them

despite knowing the charges were false. They further alleged Defendants illegally

searched their home after their son’s death, communicated false information to state

agencies to destroy the Thorpes’ business and intentionally misstated facts to the media.

A second round of motions to dismiss ensued. On February 11, 2005, the district

court dismissed the state law claims against Defendants in their official capacities. It also

dismissed the claims against the City of Grand Junction and its police department.

Therefore, only the federal claims against Defendants in their individual capacities

remained.

A. Summary Judgment

After completing discovery, Defendants filed motions for summary judgment.

The court granted these motions on May 1, 2006. It noted the Thorpes were relentless in

their “spurious assertions” which were supported only by “misrepresentations and

exaggerations” of the record. (R. Vol. 5 at 725.) It determined the undisputed evidence

revealed the Sheriff Defendants had no connection to the Thorpes’ prosecution and were

involved only in the bank robbery investigation (as attested to in their affidavits). It also

concluded the Thorpes had failed to present any evidence demonstrating the Police

Defendants altered or falsified evidence during the investigation and prosecution. The

court found the affidavits supporting the arrest and search warrants demonstrated

-6-
probable cause for the issuance of the warrants. There was no evidence Ancell or Culver

included in the affidavits any false information or that any omissions were intentionally

or recklessly made. While the court acknowledged the 2002 charging document against

Robert Thorpe contained erroneous charges, the mistake was clearly inadvertent and

immediately remedied upon its discovery. There was no factual support for the

allegations that Fish was “a known prostitute” or that the investigation was connected in

any way to the suicide of the Thorpes’ son. Nonetheless, the Thorpes had never

withdrawn any of these sensational accusations even though there was no factual basis to

support them.

The district court sua sponte ordered the Thorpes’ counsel to show cause why it

should not order him or the Thorpes to pay Defendants’ attorneys’ fees under 42 U.S.C. §

1988(b).

B. Motions for Attorneys’ Fees

The Thorpes’ attorney filed a motion to withdraw as counsel and a response to the

order to show cause on his own behalf, alleging the Thorpes had assured him of the verity

of their claims and he only intended to zealously represent his clients. The Thorpes

retained different counsel, who filed a response to the order to show cause on their

behalf. In their response to the order to show cause, the Thorpes asserted the summary

judgment result was not due to the lack of evidence but solely to their attorney’s

mishandling of the case. They averred their lawyer had not presented critical evidence in

the summary judgment response but, had he done so, the result of Defendants’ motions

for summary judgment would have been different. They argued they had not seen the

-7-
pleadings before the order to show cause but relied on their attorney to handle their

claims. Nonetheless, the Thorpes did not disavow any of the allegations.

Sheriff Defendants filed a motion seeking $65,060 in attorneys’ fees for their

defense of the Thorpes’ federal claims commencing on August 11, 2003, the day after the

Thorpes received the affidavits attached to the Sheriff Defendants’ first motion to

dismiss. Police Defendants also moved for $88,392.50 in attorneys’ fees commencing on

February 11, 2005, the day the district court dismissed the Thorpes’ state law claims.

In response to the Defendants’ specific requests for attorneys’ fees, the Thorpes

again blamed their former attorney for failing to present evidence. Attached to the

response were more than one hundred pages of exhibits primarily attacking the veracity

of the individual Defendants.7 The Thorpes relied on the Stone Report to demonstrate

their lawsuit was not frivolous. They also continued to insist deliberate fabrications and

omissions in the affidavits supporting the arrest and search warrants vitiated probable

cause.

Unconvinced, the district court ordered the Thorpes to pay the fees requested by

Defendants pursuant to 42 U.S.C. § 1988(b).8

7
The exhibits included material from the personnel files of Tyer, Ancell, and
Culver. They also included a letter from Currie to Waite inquiring whether Waite was
going forward with the prosecution.
8
Pursuant to 28 U.S.C. § 1927, the court held the Thorpes’ original attorney
jointly liable for the fees incurred after Defendants filed their motions for summary
judgment. The attorney filed a separate appeal (No. 06-1405) but the appeal was
withdrawn following an agreement with Defendants.

-8-
 III. DISCUSSION

“[T]he decision to award or deny attorney’s fees lies within the sound discretion of

the court, and, on appeal, review is subject to an abuse of discretion standard.”

Goichman v. City of Aspen, 859 F.2d 1466, 1471 (10th Cir. 1988). “This standard of

review applies to both the court’s decision to award fees in the first place and the court’s

determination of the amount of fees to be awarded.” Robinson v. City of Edmond, 160

F.3d 1275, 1280 (10th Cir. 1998). An abuse of discretion standard “is appropriate in

view of the district court’s superior understanding of the litigation and the desirability of

avoiding frequent appellate review of what essentially are factual matters.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983).

Under 42 U.S.C. § 1988(b), “the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee as part of the costs” in an

action to enforce civil rights. While courts apply this provision liberally to prevailing

plaintiffs, the Supreme Court has imposed a different standard for awarding attorneys’

fees to prevailing defendants in civil rights cases. See Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 417, 421 (1978).9 “[A] plaintiff should not be assessed his

opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable,

or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at

9
Christiansburg addressed the standard applicable to the attorneys’ fee provision
of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-5(k). However, that
provision is virtually identical to § 1988(b) and the Supreme Court has applied the
Christianburg standard to cases in which a defendant seeks fees under § 1988(b). See
Hensley, 461 U.S. at 429 n.2; Hughes v. Rowe, 449 U.S. 5, 14-15 (1980).

-9-
422; see also Hensley, 461 U.S. at 429 n.2 (“A prevailing defendant may recover an

attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or

embarrass the defendant.”). A frivolous suit is one “based on an indisputably meritless

legal theory, . . . [or] whose factual contentions are clearly baseless.” Neitzke v. Williams,

490 U.S. 319, 327 (1989). However, the court need not find the lawsuit was “brought in

subjective bad faith” to award fees to a prevailing defendant. Christianburg, 434 U.S. at

421. “A defendant can recover if the plaintiff violates this standard at any point during

the litigation, not just at its inception.” Galen v. County of Los Angeles, 477 F.3d 652,

666 (9th Cir. 2007) (emphasis added); see also Munson v. Milwaukee Bd. of Sch. Dirs.,

969 F.2d 266, 271 (7th Cir. 1992) (“It is possible for an initially nonfrivolous action to

become frivolous when, for example, the factual basis supporting the complaint is shown

to be groundless during discovery.”).

Rarely will a case be sufficiently frivolous to justify imposing attorneys’ fees on

the plaintiff. See Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1581 (10th Cir. 1995)

(only in “rare circumstances” will “a suit [be] truly frivolous so as to warrant an award of

attorneys’ fees to the defendant”). In determining whether a claim is frivolous,

unreasonable or groundless, a district court must avoid “post hoc reasoning by

concluding that, because a plaintiff did not ultimately prevail, his action must have been

unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22. Dismissal of

claims at the motion to dismiss or summary judgment stage does not automatically

warrant a fee award. See Jane L. v. Bangerter, 61 F.3d 1505, 1513-14 (10th Cir. 1995).

- 10 -
A. Statute of Limitations

Section 1983 provides a federal civil cause of action against state officials for the

“deprivation of any rights, privileges, or immunities secured by the Constitution and

laws.” 42 U.S.C. § 1983. State law governs statute of limitations issues in § 1983

actions and “that limitation period is set by the personal injury statute in the state where

the cause of action accrues.” See Roberts v. Barreras, 484 F.3d 1236, 1238, 1240 (10th

Cir. 2007). The limitations period for a personal injury action in Colorado is two years.

See Colo. Rev. Stat. § 13-80-102; Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994).

Federal law governs when a civil rights claim accrues for purposes of the statute of

limitations. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). “A civil rights action

accrues when facts that would support a cause of action are or should be apparent.” Id.

(quotations omitted).

The Thorpes filed their original complaint on June 26, 2003. Therefore, the statute

of limitations would have run on all of their claims occurring prior to June 26, 2001. The

only activity after June 26, 2001, was the final dismissal of criminal charges. Thus, the

only claim not barred by the statute of limitations was based on allegations of malicious

prosecution. See Mondragon v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) (“[A]

due process claim for malicious prosecution arises only once the original action,

whatever form it has taken, has been terminated in favor of the plaintiff. Because the

statute of limitations does not start running before the elements of a claim are satisfied,

the statute of limitations for this due process claim cannot start until the plaintiff has

achieved a favorable result in the original action.”) (citation and quotations omitted).

- 11 -
Even so, the Thorpes’ First Amended Complaint continued to claim Fourth, Eighth and

Fourteenth Amendment violations for unreasonable search and seizure. These claims

were obviously without merit and should have been withdrawn.

B. Malicious Prosecution

A § 1983 malicious prosecution claim requires the following elements: “(1) the

defendant caused the plaintiff’s continued confinement or prosecution; (2) the original

action terminated in favor of the plaintiff; (3) there was no probable cause to support the

original arrest, continued confinement, or prosecution; (4) the defendant acted with

malice; and (5) the plaintiff sustained damages.” Novitsky v. City of Aurora, 491 F.3d

1244, 1258 (10th Cir. 2007). The district court held that the affidavits attached to the

Sheriff Defendants’ motion to dismiss the original complaint negated any factual basis to

allege the Sheriff Defendants caused the Thorpes’ prosecution. Similarly, the affidavits

in support of the requests for the search and arrest warrants established probable cause.

As the district court noted, the Sheriff Defendants’ supporting affidavits to their

first motion to dismiss refuted any involvement with the police department’s

investigation of the Thorpes or the district attorney’s decision to pursue a criminal

prosecution. The Thorpes disagree, relying on the following statement in Stone’s report

to support their contention that the claims against the Sheriff’s Defendants were not

frivolous:

Might there not be some history between the Thorpes, the Mesa County
Sheriff’s Department (who the Thorpes were suing for violations of their
civil rights) and Heather Fish that might cause Robert Thorpe to distrust
Fish (a former Sheriff’s Department’s “booking tech.” in the jail), Patton
and Tyer?? In reality, Fish was a police snitch, Patton was a bank robber . .

- 12 -
 . and [t]he Mesa County Sheriff’s Department was being sued by the
Thorpes for two million dollars for an alleged bad search warrant on A-1.
Would you trust these players?! Would a logical person not ask
themselves, “Wait a minute! This stinks! Could the Sheriff’s Department
be trying to set me up?”

(R. Vol. IV at 507.) To be sure, Stone’s speculations provide support for the Thorpe’s

original suspicions of wrongdoing. But the disclosure of these speculations did not

motivate the Thorpes to depose any of the Sheriff Defendants in order to provide a

factual basis for Stone’s flights of fancy. While Stone reiterated some of the same

suspicions at his deposition, he did not testify he believed any of the Sheriff Defendants

had violated the Thorpes’ rights nor did he refute the Sheriff Defendants’ sworn

affidavits provided to the Thorpes in response to their original complaint.

The district court also held the affidavits in support of the Police Defendants’

requests for search and arrest warrants established probable cause, thus negating any

claim for malicious prosecution. The law is well-settled: a constitutional violation exists

only when an affidavit contains information that is deliberately false or in reckless

disregard for the truth and the remaining material contains insufficient content to support

a finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978).

The Thorpes’ steadfast refusal to accept the district court’s conclusion is notable in

the absence of any appeal of the court’s grant of summary judgment. Instead, they argue

attorneys’ fees are unwarranted because Ancell and Culver deliberately presented false

statements when they averred the information in the affidavits was given by “reliable”

citizens (Fish, the Greens and the bank robber). (R. Supp. Vol. I at 25, 40.) The Thorpes

claim because Ancell and Culver knew these witnesses had a motivation to falsely accuse

- 13 -
the Thorpes, the officers did not rely on information from “reliable” citizens. Rather,

they knowingly relied on material misrepresentations by unreliable witnesses. The

Thorpes maintain a judicial officer would not find probable cause for their arrests had the

officers revealed the known motivations of these witnesses to fabricate evidence.

The district court correctly rejected this argument because the relationship of these

witnesses to the Thorpes was set forth in the officers’ affidavits. Moreover, contrary to

the Thorpes’ repeated assertions, the affidavits do not premise probable cause solely on

these witnesses’ credibility.10 Allegations concerning the bank robbery money (i.e., the

theft by receiving charges) were corroborated by another witness and the Thorpes’ own

statements made while Fish was wearing a wire; the motor vehicle theft charges were

corroborated by computer checks regarding property ownership, interviews with the

victim and his girlfriend, and copies of the towing charges. The theft of over $15,000

charges were instigated by a telephone call from the Colorado Department of Insurance

followed by interviews with A-1’s insurance company and the victims; the attempt to

influence a public servant charges were also initiated by the Colorado Department of

Insurance and followed up by telephone calls to agencies the Thorpes listed as former

employers on their resumes to obtain a license to instruct a bondsman class. Burglary

charges against Maria Thorpe were corroborated by an interview with the homeowner

10
This is not to say their credibility would be unimportant to a finding of guilt
beyond a reasonable doubt. But “[p]robable cause for an arrest warrant is established by
demonstrating a substantial probability that a crime has been committed and that a
specific individual committed the crime.” See Bruner v. Baker, 506 F.3d 1021, 1026
(10th Cir. 2007) (quotations omitted).

- 14 -
and a witness, as well as the homeowner’s identification of the allegedly stolen

documents. The Thorpes do not allege any of this supporting information was false; they

merely claim the investigation was not thorough enough. Thus, even if all the statements

by Fish and the Greens are eliminated, the Thorpes could not reasonably believe the

remaining information in the affidavits failed to establish probable cause for their arrests.

The Thorpes also complain Culver knowingly misrepresented or showed reckless

disregard for the truth when he attested to the June 2001 charging document for Robert

Thorpe which contained erroneous charges. Culver admitted he probably did not read the

charges written by the prosecutor before he signed the document. However, there was no

evidence inferring the oversight was deliberate. “Allegations of negligence or innocent

mistake are insufficient” to sustain a claim for a constitutional violation;

misrepresentations must be deliberate or in reckless disregard of the facts. Franks, 438

U.S. at 171.

Finally, the Thorpes argue the Stone Report justified the lawsuit against the Police

Defendants because Stone concluded a logical person could believe the Thorpes were

being “set . . . up” by law enforcement. (R. Vol. IV at 507.) They rely on our decision in

Anthony v. Baker, 767 F.2d 657 (10th Cir. 1985), wherein Anthony was charged for

insurance fraud following a fire at the motel where he was a manager. He was

subsequently tried and found not guilty. Anthony then filed suit under 42 U.S.C. § 1983

for malicious prosecution and deprivation of his constitutional rights. Anthony alleged,

inter alia, that two investigators, Baker and Newton, “conspired to deprive him of his

constitutional rights by making him the target of their investigation, giving false

- 15 -
information to the Grand Jury and covering up exculpatory information.” Id. at 660. The

case against the investigators went to trial. After Baker had presented his case and rested,

Baker and Newton moved for and were granted a directed verdict. The court

subsequently awarded them their attorneys’ fees. We reversed, finding the court erred in

granting a directed verdict based on the following evidence:

Detective Green, a deputy in the Sheriff’s office and a personal friend of
Baker, testified . . . Baker seized the wrong piano under [a] warrant . . .
even after he was notified that it was the wrong piano [and] . . . that he did
not care if it was the wrong piano . . .; Baker stated words to the effect that
he was going to get Anthony whatever it took; . . . Baker reached a point
of subjectivity where he could not tell the difference between Anthony’s
guilt or innocence; Baker became almost frantic about the Anthony case
and was frantically pursuing Anthony; and in his ten years as an
investigator he had never seen anything like Baker’s investigation of
Anthony.

Arnold Miller, an expert in law enforcement investigation administration
and a criminal justice specialist, testified . . . Baker’s investigation was a
continual, blatant, unrelenting effort both to accuse Anthony and ultimately
to have him found guilty of a crime or crimes that he could not have been
involved in; and Baker’s efforts were made at virtually any cost.

Robert Isham, a former sergeant in the Sheriff’s office, testified . . . Baker
had submitted an interdepartmental report to the Sheriff and other officers
about his investigation into the fire and theft at the Inn which contained a
lot of falsehoods; and Baker’s report falsely stated that Isham and other
officers conspired to have Anthony pass a polygraph examination.

Id. at 665 (footnotes omitted).

The testimony in Anthony is easily distinguished from Stone’s second-hand

ruminations. Even assuming it was somehow admissible and recognizing that it is critical

of Defendants’ investigations, the Stone report did not state anyone knowingly violated

the law, misrepresented information or that the officers arrested the Thorpes without

- 16 -
probable cause. Where probable cause exists, the subjective intent of the officer in

effectuating an arrest is irrelevant. Malley v. Briggs, 475 U.S. 335, 341 (1986). The fact

Ancell and Culver conducted a vigorous investigation or that law enforcement hoped for

a successful prosecution is not a constitutional violation.

The Thorpes also argue they should not be punished for their attorney’s decisions

and, in any event, they should not be sanctioned more severely. While the Thorpes may

wish to blame their attorney for continuing the suit after it was proven to be without

merit, “there is certainly nothing novel about holding clients responsible for the conduct

of their attorneys, even conduct they did not know about.” Ecclesiastes 9:10-11-12, Inc.

v. LMC Holding Co., 497 F.3d 1135, 1245 n.12 (10th Cir. 2007) (quotations omitted)

(affirming dismissal under Rule 41(b) of the Federal Rules of Civil Procedure).

Moreover, the Thorpes’ unsupported and sensational factual allegations were certainly

not created out of whole cloth by their attorney.

In sum, there was no evidence supporting the Thorpes’ claims that Defendants

fabricated evidence; no evidence they “use[d] as their agents, persons of questionable

veracity” and “known moral t[u]rpitude” to “ seduce or solicit[] minor children to violate

the constitutional rights of others” causing the suicide of a minor child; no evidence of

the knowing falsification of any document; no evidence any Defendant “cultivat[ed] false

testimony” in exchange for a reduction of sentence; no evidence of threats; no evidence

any Defendant supplied false information to a state agency; no evidence of

“conspiratorial meetings”; and no evidence any Defendant “placed anonymous false

entries . . . into the [Thorpes’] criminal file[s]” to be viewed by the press. (R. Vol. I at

- 17 -
36, 46-47, 49.) Despite the fact that the statute of limitations had run on their claims for

false arrest, unconstitutional searches, unconstitutional seizures, defamation, intentional

interference with business and intentional infliction of emotional distress, none of these

claims were omitted from the amended complaint nor were these allegations voluntarily

removed or withdrawn prior to the time summary judgment issued. The Thorpes failed to

take any depositions of the Sheriff Defendants after receiving their sworn affidavits

stating they did not participate in the investigation leading to the Thorpes’ arrests. Rather

than seeking the facts, the Thorpes obviously intended to rely on Stone’s speculations to

support their own view of events. Similarly, despite the fact the affidavits in support of

the search and arrest warrants contained sufficient statements of probable cause

supported and corroborated by several avenues of evidence, the Thorpes do not budge

from their conviction that Ancell and Culver somehow did something to violate their

rights.

The district court noted that throughout the proceedings the Thorpes played fast

and loose with the record in supporting their arguments to the point some assertions were

flatly contradicted by the undisputed facts. At the time of the Thorpes’ response to the

order to show cause, they still did not concede their claims were frivolous but, instead,

submitted pages of documents irrelevant to this case in an attempt to challenge the

credibility of opposing parties.

Christiansburg did not provide precise guidance on the amount of evidence the

plaintiff must produce to avoid an adverse award of fees. However, the district court

found not only that the Thorpes’ claims were frivolous but that “courts are not proper

- 18 -
fora for publication of fantastic allegations of the sort that the Thorpes concocted in their

complaint.” (R. Vol. IX at 1146.) These findings are more than sufficient to justify the

award of fees to Defendants.

The Thorpes argue the district court abused its discretion because it awarded

attorney’s fees to compensate Defendants rather than award the least amount necessary to

deter the filing of frivolous lawsuits. They claim because their “reasonable belief they

were treated unlawfully by Defendants . . . justified . . .their complaint” and, in any event,

“a much smaller amount . . .would suffice as a deterrent.” (Appellants’ Br. at 44-45.)

While Christiansburg makes clear the award of attorney’s fees to a defendant are not

routine, this is not a case where the Thorpes are being “punished for [their] failure to

recognize subtle factual or legal deficiencies in [their] claims.” Hughes, 449 U.S. at 15.

“[T]he same judge who presided over all proceedings also determined the fee award.

Thus, that judge was particularly well qualified to make the partially subjective findings

necessary for an award of attorney’s fees.” Quiroga v. Hasbro, Inc., 934 F.2d 497, 503

(3d Cir. 1991) (quotations and alterations omitted).

The award of fees in a § 1983 case does not merely provide some compensation to

the defendants for costs incurred in defending a suit but also deters a plaintiff from filing

patently frivolous and groundless suits. The court “consider[ed] the . . . plaintiff[s’]

ability to recognize the objective merit” of their allegations and “provide[d] a concise

[and] clear explanation of its reasons for the fee award.” Houston v. Norton, 215 F.3d

1172, 1175 (10th Cir. 2000) (quotations omitted). The district court concluded the

Thorpes’ claims were not only frivolous but the “fantastic” factual allegations contained

- 19 -
in the complaint were improperly “concocted” to be publicized in judicial proceedings.

Indeed, the Thorpes have yet to retract the allegations or even address this transgression.

What will deter any particular plaintiff is uniquely within the trial court’s expertise after

becoming familiar with the parties through the course of the proceedings. Because the

district court offered sound reasons to conclude the Thorpes’ action was frivolous and to

substantiate its decision on fees, we will affirm.

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

- 20 -