[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 15, 2007
No. 06-14668 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00500-CV-FTM-29-SPC
BRIAN BEVAN,
Plaintiff-Appellant,
versus
LEE COUNTY SO,
KENNETH ERNE, individually,
MARK DURLING, individually,
HARVEY HUDNALL, individually,
FRED BOND, individually, et al.,
Defendants-Appellees,
ROD SHOAP, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 15, 2007)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Brian Bevan, proceeding pro se, appeals the district court’s order granting
defendants Claudia and Jackie Cowart’s motion for attorney’s fees, and its order
denying Bevan’s motion for reconsideration and motion to rescind the order for
attorney’s fees. Bevan argues that the Magistrate Judge erred in the award by
refusing to recuse herself, because the Cowarts’ attorney committed a fraud on the
court, and by finding Bevan’s suit against Claudia and Jackie Cowart frivolous.
Bevan filed a 42 U.S.C. § 1983 complaint, asserting that Claudia and Jackie
Cowart, among other defendants, had deprived him of his property without just
compensation in violation of his Fourth, Fifth, and Fourteenth Amendment rights.
Claudia and Jackie Cowart were granted summary judgment, and the suit
proceeded to trial against another defendant. Claudia and Jackie Cowart moved for
costs, attorney’s fees, and attorney sanctions which was granted in part by the
district court. The district court awarded (1) $1,563 in attorney’s fees to Jackie
Cowart, (2) $48,042 in attorney’s fees to Claudia Cowart, and (3) taxable costs in
the amount of $402 to prevailing parties– Jackie, Claudia, and Richard Cowart.
We review an award of attorney’s fees and costs for an abuse of discretion.
Villano v. City of Boynton Beach, 254 F.3d 1302, 1304 (11th Cir. 2001). Section
1988(b) of Title 42 authorizes the district court, in its discretion, to award
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attorney’s fees to the prevailing party in a civil rights action under 42 U.S.C. §
1983. Moreover, costs other than attorney’s fees “shall be allowed as of course to
the prevailing party unless the court otherwise directs.” Fed. R. Civ. P. 54(d)(1).
First, Bevan argues that there was error in the magistrate judge’s refusal to
recuse herself. Bevan previously made a motion for recusal of the magistrate
judge, which he appealed to this court, and we are bound by our previous decision
in this case. See Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86
(11th Cir. 2004). Specifically we held that the magistrate judge did not abuse her
discretion in failing to recuse herself. See Bevan v. Lee County SO, No. 06-12067,
slip op. at 3-4 (11th Cir. Jan 15, 2007) (per curiam). Further, Bevan does not
indicate how the magistrate’s alleged bias affected the district court’s awarding of
attorney’s fees to Claudia and Jackie Cowart where the magistrate was not
involved in the determination of attorney’s fees.
Second, Bevan’s claim that the Cowarts’ attorney committed a fraud on the
court is without merit. A federal court can vacate its own judgment upon proof
that a fraud has been perpetrated on the court. Chambers v. NASCO, Inc., 501 U.S.
32, 44, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991). Generally, “only the most
egregious misconduct, such as bribery of a judge or members of a jury, or the
fabrication of evidence by a party in which an attorney is implicated, will
constitute a fraud on the court.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1338
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(5th Cir. 1978). To obtain relief of judgment for fraud on the court, “the fraud
must be established by clear and convincing evidence.” Booker v. Dugger, 825
F.2d 281, 283 (11th Cir. 1987). Bevan has not established that the attorney
engaged in egregious misconduct by clear and convincing evidence.
Finally, the district court did not abuse its discretion in deciding that
Bevan’s claim against Claudia and Jackie Cowart was frivolous. Under § 1988, a
prevailing defendant is entitled to recover attorney's fees if "the plaintiff's action
was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98
S. Ct. 694, 700, 54 L. Ed. 2d 648 (1978). In determining whether a suit is
frivolous, the following factors should be considered: "(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 prior to trial or held a full-blown trial on
the merits." Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.
1985) (applying these factors to a Title VII discrimination claim and § 1983 due
process claim). Typically, cases that are frivolous have been dismissed before
trial, on summary judgment or on a motion to dismiss. Id.
Under the first prong of the Sullivan test, Bevan did not establish a prima
facie case against Jackie and Claudia Cowart as to any of the claims in his
amended complaint, including (1) destruction of property; (2) unlawful seizure; (3)
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negligence; (4) violation of 42 U.S.C. § 1983; or (5) destruction of evidence.
Neither Jackie nor Claudia Cowart were present when Bevan alleges that he was
assaulted and his property was illegally seized. Bevan was unable to show the
required causal connection between Claudia and Jackie Cowart’s actions and the
alleged constitutional deprivation. See Zatler v. Wainwright, 802 F.2d 397, 401
(11th Cir. 1986) (holding that a § 1983 claim requires proof of an affirmative
causal connection between the defendant's act and the alleged constitutional
deprivation). Under the second prong, the Cowarts made no offer to settle. If the
Cowarts had believed that Bevan's claims had merit, they might have tried to reach
a settlement. Finally, under the third prong, the cases against both Claudia and
Jackie Cowart were dismissed at the summary judgment stage. Accordingly, the
district court did not abuse its discretion in finding that Bevan brought a frivolous
case against Claudia and Jackie Cowart.
Accordingly, after reviewing parties’ arguments and the record on appeal,
we discern no reversible error, and we affirm the district court’s award of
attorney’s fees to Claudia and Jackie Cowart.
AFFIRMED.
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