UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-31331
EDDIE WALKER; JONATHAN MINIX; DORIS PERRY; RAY ADAMS,
and all other persons similarly situated,
Plaintiffs - Appellants,
WALTER C DUMAS,
Appellant,
VERSUS
CITY OF BOGALUSA; ET AL,
Defendants,
CITY OF BOGALUSA,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
March 5, 1999
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
The Plaintiffs and the Plaintiffs’ counsel appeal the awards
of fees under 42 U.S.C. § 1988 (against the Plaintiffs) and under
28 U.S.C. § 1927 (against Plaintiffs’ counsel) on timeliness and
substantive grounds. We affirm.
I. Facts and Background
Plaintiffs, on behalf of a class of persons living in the City
of Bogalusa (“Bogalusa”), sued Bogalusa and various named officials
under 42 U.S.C. § 1983. The Plaintiffs alleged that Bogalusa
officials failed to evacuate members of the Black community in the
same manner as they evacuated members of the non-Black community
following an explosion at a nearby chemical plant. The district
court granted Bogalusa summary judgment on July 24, 1997. On
August 25, 1997, Bogalusa moved for costs and fees under 42 U.S.C.
§ 1988 (against the Plaintiffs) and under 28 U.S.C. § 1927 (against
Plaintiffs’ counsel Walter Dumas). The district court granted both
motions. This appeal followed. We affirm.
II. § 1988 Attorney’s Fees
Under § 1988, “[i]n any action or proceeding to enforce a
provision of . . . [§] 1983, . . . the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee as
part of the costs.” 42 U.S.C.A. § 1988(b) (1994). We review an
award of attorney’s fees under § 1988 for abuse of discretion.
See Associated Builders & Contractors of Louisiana, Inc. v. Orleans
Parish Sch. Bd., 919 F.2d 374, 379 (5th Cir. 1990). A district
court abuses its discretion if it awards sanctions based “on an
erroneous view of the law or a clearly erroneous assessment of the
evidence.” See Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1164
(5th Cir. 1994).
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A. Timeliness
The district court entered final judgment dismissing the
action on July 29, 1997. Bogalusa moved for attorney’s fees and
costs under § 1988 twenty-seven days later on August 25, 1997.
Under revised Federal Rule 54(d)(2)(B), “[u]nless otherwise
provided by statute or order of the court, the motion [for
attorneys’ fees] must be filed and served no later than 14 days
after entry of judgment . . . .” Fed. R. Civ. P. 54(d)(2)(B).
Local Rule 54.3 requires a party to move for fees “[w]ithin 30 days
after receiving notice of entry of judgment . . . .” Unif. Local
R. U.S. Dist. Cts. E., M., & W. Dists. La 54.3. This local rule is
a court order satisfying the “unless” clause of Federal Rule
54(d)(2)(B). See Jones v. Central Bank, 161 F.3d 311, 312-13 (5th
Cir. 1998). Since the motion was timely under the local rule, and
therefore under the “unless” clause of the Federal Rule, the
district court did not abuse its discretion in granting Bogalusa’s
motion for attorney’s fees.
B. Substantive Grounds
The district court should award the prevailing defendant
attorney’s fees only if the Plaintiffs’ action was “frivolous,
unreasonable, or without foundation.” White v. South Park Indep.
School Dist., 693 F.2d 1163, 1169-70 (1982) (citation omitted). A
suit is frivolous if it is “so lacking in arguable merit as to be
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groundless or without foundation . . . .” See Plemer v. Parsons-
Gilbane, 713 F.2d 1127, 1140-41 (5th Cir. 1983). In determining
whether a suit is frivolous, the district court should look to
factors such as whether the Plaintiffs established a prima facie
case, whether the defendant offered to settle, and whether the
court dismissed the case or held a full trial. See United States
v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991).
A constitutional violation is an essential element of a prima
facie § 1983 claim against a municipality. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690-91 (1978); Meadowbriar Home for
Children, Inc. v. G.B. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996)
(citation omitted). Supreme Court and Fifth Circuit case law have
long established that a constitutional claim for discrimination
requires proof of purposeful discrimination; disparate impact is
insufficient. See, e.g., Personnel Adm’r v. Feeney, 442 U.S.
256, 273-74 (1979); Arlington Heights v. Metro. Housing Dev. Corp.,
429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229,
238-39 (1976); United States v. Texas Educ. Agency, 600 F.2d 518,
528 (5th Cir. 1979). In granting summary judgment, the district
court held that not only had the Plaintiffs not pointed to or come
forward with any evidence of discriminatory purpose, they had also
failed to establish even disparate racial impact.1 The absence of
discriminatory purpose precludes a constitutional violation, which
1
The Plaintiffs appealed this grant of summary judgment but
subsequently voluntarily dismissed the appeal.
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in turn precludes a § 1983 violation. The district court did not
abuse its discretion in awarding costs and fees. Plaintiff’s claim
was patently frivolous.
III. § 1927 Sanctions
Under § 1927, “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such
conduct.” 28 U.S.C.A. § 1927 (1994). We review imposition of
sanctions under § 1927 for abuse of discretion. See Esmark
Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994). A
district court abuses its discretion if it awards sanctions based
“on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Id. at 1164.
A district court may sanction an attorney who engages in “the
persistent prosecution of a meritless claim,” Pease v. Pakhoed
Corp., 980 F.2d 995, 1001 (5th Cir. 1993) (citing Thomas v. Capital
Sec. Serv., Inc., 836 F.2d 866, 875 (5th Cir. 1988) (en banc)). In
order to recover all costs associated with an action, the moving
party must show with “‘convincing clarity’ that every facet of
th[e] litigation was patently meritless.” Browning v. Kramer, 931
F.2d 340, 345 (5th Cir. 1991) (emphasis in the original). The
district court is in the best position to assess the propriety of
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a party’s conduct. See Esmark Apparel, Inc., 10 F.3d at 1164.
As discussed above, the Plaintiffs neither alleged nor proved
discriminatory purpose, an essential prima facie element of a §
1983 violation. Given the Plaintiffs’ attorney’s persistent
prosecution of a clearly meritless § 1983 claim, the district court
did not abuse its discretion in granting sanctions under § 1927.
IV. Motions on Appeal
Bogalusa and the Plaintiffs both moved for sanctions in this
Court under Federal Rule of Appellate Procedure 38. Bogalusa
claimed that the Plaintiffs’ appeal was frivolous, and the
Plaintiffs claimed that Bogalusa’s Rule 38 motion was frivolous.
Under Rule 38, “[i]f a court of appeals shall determine that an
appeal is frivolous, it may . . . award just damages and single or
double costs to the appellee.” Fed. R. App. P. 38 (emphasis added).
An appeal is frivolous if it “relies on legal points that are not
arguable on their merits.” See Lyons v. Sheetz, 834 F.2d 493, 496
(5th Cir. 1987); Sturgeon v. Airborne Freight Corp., 778 F.2d 1154,
1161 (5th Cir. 1985).
We deny the City of Bogalusa’s motion for sanctions under Rule
38. The Plaintiffs’ argument concerning the timeliness of the
Bogalusa’s § 1988 motion was not frivolous, since this Circuit had
not yet addressed the interaction between Local Rule 54.3 and
Federal Rule of Civil Procedure 54(d)(2)(B). See Estiverne v. Sak’s
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Fifth Avenue, 9 F.3d 1171, 1174 (5th Cir. 1993) (noting that
sanctions are inappropriate if the issue is one of first
impression); see also Jones v. Central Bank, 161 F.3d 311 (5th
Cir. 1998) (resolving the interplay between Local Rule 54.3 and
Federal Rule 54 (d)(2)(B) as a matter of first impression).
Further, we decline to award sanctions to Bogalusa based on the
Plaintiffs’ substantive arguments concerning § 1988 and § 1927
costs and fees.
We deny the Plaintiffs’ (Appellants’) motion for sanctions
under Rule 38, because, by its very language, the rule applies only
to appellees and only to frivolous appeals. See Fed. R. App. P. 38
(emphasis added).
Plaintiffs also moved for sanctions under Federal Rule of
Civil Procedure 11, claiming that Bogalusa’s Rule 38 motion was
“scandalous, harassing, and based purely on speculation.” Bogalusa
moved (apparently under Rule 11) to strike “Plaintiff/Appellant’s
Cross Motion For Sanctions Pursuant to FRAP 38 and FRCP 11" and
“Plaintiff/Appellant’s Memorandum In Support of Cross Motion For
Sanctions Pursuant to FRAP Rule 38 and FRCP 11 And In Opposition To
Motion Filed By Appellee City of Bogalusa For Damages Under FRAP
Rule 38.” A signatory violates Rule 11 if he fails to conduct a
reasonable inquiry into the law and facts underlying his motion, or
if he makes a motion to delay, harass or increase the costs of
litigation. See Thomas v. Capital Sec. Servs., Inc., 812 F.2d 984,
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988 (5th Cir. 1987). Although Rule 11 does not directly apply to
appellate proceedings, see Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 406 (1990), we look to Rule 11 for guidance in imposing
Rule 38 sanctions, see Lyddon v. Geothermal Properties, Inc., 996
F.2d 212, 214 (9th Cir. 1993); Mortell v. Mortell Co., 887 F.2d
1322, 1328 (7th Cir. 1989). We deny both parties’ motions for
sanctions, because both parties contributed to the “disharmony in
the proceedings,” see Oglala Sioux Tribe of Pine Ridge Indian
Reservation v. United States, 15 Cl. Ct. 615 (1988), and “utter[ly]
disregard[ed] . . . the time constraints every court faces,” see
Kassner v. Ashley Plaza Mall Assocs., 758 F.Supp. 939, 941
(S.D.N.Y. 1991). Briefs in this Court were long on hyperbole and
personal attacks and short on thoughtful analysis.
Motions DENIED; judgment AFFIRMED.
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