[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
September 20, 2005
No. 05-10077 THOMAS K. KAHN
Non-Argument Calendar CLERK
____________________________
D.C. Docket No. 04-10033-CV-JLK
BRIAN EVANS,
Plaintiff-Appellant,
versus
MONROE COUNTY SHERIFF’S DEPARTMENT,
MARK KOHL, State Attorney,
RICHARD ROTH,
DOES 1-100,
MONROE COUNTY, FLORIDA.
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 20, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Brian Evans appeals pro se the district court’s award of
attorneys fees to Defendants under 42 U.S.C. § 1988. No reversible error has been
shown; we affirm.
Plaintiff, a resident of Las Vegas, Nevada, who previously lived in Key
West, Florida, filed a civil complaint under 42 U.S.C. § 1983 for harassment,
malicious prosecution, intentional infliction of emotional distress (“IIED”) and
malicious abuse of process against the Monroe County Sheriff’s Department,
Monroe County, and Sheriff Richard Roth (collectively “Defendants”).1 Plaintiff
claims that the Sheriff’s Department, without investigation, issued a warrant for
his arrest based on his former manager’s accusation that he “stole a boat” from
her. When Plaintiff learned of this from a friend, Plaintiff contacted the Sheriff’s
Department and claims he was advised to turn himself in to the Las Vegas police
department. Plaintiff sent Defendants proof that he had purchased the boat, and
the arrest warrant was withdrawn within an hour.
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Plaintiff initially indicated that federal jurisdiction rested on diversity of citizenship under 28
U.S.C. § 1332, and the Complaint was silent about whether the causes of action were rooted in state
or federal law. Plaintiff however clarified in his response to Defendants’ motions to dismiss that he
intended to bring claims under § 1983. The district court analyzed his claims as under § 1983.
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A Key West newspaper ran an article about the arrest warrant’s issuance and
recision. Plaintiff says he is a best-selling jazz artist, and the newspaper article
irreparably damaged his reputation. Plaintiff also claims the warrant was issued in
retaliation for Plaintiff’s earlier filing of another lawsuit against the same
Defendants.
Defendants each filed motions to dismiss Plaintiff’s complaint. On 4 June
2004, the district court set a hearing on the motions to dismiss for 14 June. On 10
June, Evans filed a motion for a forty-five day continuance, explaining that he had
just learned about the hearing date on 8 July and could not coordinate a trip to
Florida on such short notice. The district court denied the continuance. The
hearing went forward and Plaintiff failed to appear; he instead faxed the court a
Notice of Voluntary Dismissal on or around 12 June. The district court dismissed
all claims against Defendants without prejudice and retained jurisdiction to
determine fees, costs, and expenses incurred by Defendants.
Defendants moved for attorneys’ fees under 42 U.S.C. § 1988, which
permits a prevailing defendant to recover attorneys’ fees if “the plaintiff’s action
was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.” Baker v. Alderman, 158 F.3d 516, 524-25 (11th Cir. 1998)
(quoting Christianburg Garment Co. v. EEOC, 98 S.Ct. 694, 700 (1978)). A
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frivolous suit is one in which the case is “so lacking in arguable merit as to be
groundless or without foundation[.]” Sullivan v. School Board of Pinellas County,
773 F.2d 1182, 1189 (11th Cir. 1985). Sullivan emphasized that no “hard and
fast” rules exist for frivolity determinations, but identified general guidelines to
aid such an inquiry: 1) whether the plaintiff established a prima facie case; 2)
whether the defendant offered to settle; and 3) whether the trial court dismissed
the case before trial or held a trial on the merits. Id.
A Magistrate judge issued a report and recommendation, finding that
Defendants were the prevailing party and that Plaintiff’s lawsuit was frivolous. In
making the frivolity determination, the report said that, because Defendants never
offered to settle the case, the only Sullivan factor applicable was whether Plaintiff
established a prima facie case. Examining that factor, the report first found that
the malicious prosecution claim was meritless because Plaintiff was never
arrested. Next, it determined that Plaintiff did not state claims against any of the
Defendants. Plaintiff failed to allege that Sheriff Roth, acting in his official
capacity, violated Plaintiff’s Constitutional rights or that any of the alleged
Constitutional violations were related to a custom, policy or practice of the
Sheriff’s Department or Monroe County. In addition, the Sheriff’s Department
was not a legal entity subject to suit. Furthermore, although construing Plaintiff’s
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complaint liberally because he was pro se, the Magistrate found Plaintiff would
not have been able to prove facts to support his claim. After reviewing the record,
the district court adopted this recommendation and awarded attorneys’ fees to
Defendants.
We review the district court’s decision to award attorneys’ fees for an abuse
of discretion. Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995).
Plaintiff does not directly challenge the district court’s frivolity finding. He
argues that the district court should not have looked to the Sullivan factors
because his case was at such an early stage of litigation. Plaintiff’s brief may also
be construed to argue that the district court inappropriately applied the Sullivan
factors as a “hard and fast” rule rather than examining the particulars of Plaintiff’s
case.
The district court properly looked to Circuit law, Sullivan, in deciding
Plaintiff’s case. It did not apply Sullivan as a “hard and fast” rule, but instead
determined the first factor was applicable to this case, used that for guidance in
examining Plaintiff’s allegations, and determined the suit was groundless.
Therefore, the district court did not abuse its discretion in the award of attorneys’
fees to Defendants.
AFFIRMED.
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