United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's motion for
attorney's fees. [DE 83]. The motion has been fully
briefed and is ripe for ruling. For the reasons discussed
below, defendant's motion is granted.
proceeding pro se, filed his original complaint in
the Southern District of New York; the matter was transferred
to this Court by order entered February 5, 2015. [DE 3].
Following transfer, defendant moved to dismiss the corrected
complaint pursuant to Rule 12(b)(6). [DE 19]. Subsequent to
defendant's motion to dismiss, plaintiff moved to amend
his corrected complaint in order to withdraw his original
claims and to assert claims pursuant to Title VIII of the
Civil Rights Act of 1968 (the "Fair Housing Act"),
42 U.S.C. § 1982 ("Section 1982") and for
violation of the Thirteenth Amendment. [DE 25, 25-1]. The
Court entered an order on October 6, 2015 granting plaintiff
leave to amend his complaint to assert a claim pursuant to 42
U.S.C. § 1982, but denying as futile plaintiffs motion
for leave to assert a claim for relief under the Thirteenth
Amendment. [DE 28]. Plaintiff thereafter filed his amended
complaint on November 9, 2015. [DE 29]. The amended complaint
listed George Winman as the sole defendant. On November 16,
2015, defendant filed an answer denying the substantive
allegations. [DE 31]. With leave of the court, defendant
filed an amended answer to plaintiffs amended complaint on
March 8, 2016, in which defendant withdrew his abatement
defense and set forth additional factual grounds in support
of his statute of limitations defense. [DE 47].
March 9, 2017, the Court granted summary judgment in
defendant's favor. [DE 80]. The Court ruled that the
undisputed facts of this case show that plaintiffs right to
acquire and use property had not been impaired by
defendant's actions, and that therefore Section 1982 did
not impose liability in this case. Id.
March 24, defendant filed the instant motion for
attorneys' fees pursuant to 42 U.S.C. § 1988,
arguing that plaintiffs Section 1982 claim against defendant
was frivolous, unreasonable, and groundless, and that
plaintiff continued to litigate the claim after it clearly
became so. [DE 83]. Defendant seeks $32, 594.50 in fees.
42, Section 1988 of the U.S. Code authorizes the prevailing
party in any civil rights action, including an action under
Section 1982, to recover reasonable attorneys' fees.
Defendants as well as plaintiffs are entitled to an award of
fees under the statute, Lotz Realty Co. v. U.S. Dept. of
Housing and Urban Dev., 717 F.2d 929, 931 (4th Cir.
1983), however, the standard for recovery of attorneys'
fees by a defendant differs from that by a plaintiff.
Id. For a defendant to recover, the defendant must
show that the plaintiffs claim was "frivolous,
unreasonable, or groundless, or that the plaintiff continued
to litigate after it clearly became so." Id.; see
also Christianburg Garment Co. v. EEOC, 434
U.S. 412, 422 (1978). The defendant need not demonstrate that
the plaintiff acted in bad faith, as a showing that the
plaintiffs action was meritless, groundless, or without
foundation will suffice. DeBauche v. Trani, 191 F.3d
499, 510 (4th Cir. 1999). As the Fourth Circuit has further
In order for a prevailing defendant to be entitled to recover
attorney's fees under § 1988, the plaintiffs claim
must have been either '"frivolous, unreasonable, or
groundless, '" or the plaintiff must have
'"continued to litigate after [the claim] clearly
became so."' Lotz Realty Co., Inc. v. U.S. Dept.
of Housing & Urban Dev., 717 F.2d 929, 931 (4th
Cir.1983) (quoting Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422 (1978)). Indeed, the mere fact
that a civil rights plaintiff lost her case does not render
her claim frivolous, unreasonable, or groundless. . . . The
purpose of distinguishing between a fee award being made to a
successful plaintiff, on the one hand, and such an award
being made to a prevailing defendant, on the other, arises
out of the legitimate concern for the "chilling
effect" that the latter type of award would have on
potential civil rights plaintiffs-and their lawyers-in
deciding whether to initiate lawsuits. See Lotz, 1Y1
F.2d at 932. We have explained, however, that "[w]hen a
court imposes fees on a plaintiff who has pressed a
'frivolous' claim, it chills nothing that is worth
encouraging." Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993).
Unus v. Kane, 565 F.3d 103, 127 (4th Cir. 2009).
in determining whether to award attorneys' fees to
defendant, the Court must decide whether plaintiffs claim was
frivolous, unreasonable, or groundless, or whether plaintiff
continued to litigate after it became clear that his claim
was frivolous, unreasonable, or groundless. As discussed in
the order granting summary judgment, in order for plaintiff
to have prevail on a claim under Section 1982, he had to show
that (1) he is a racial minority; (2) that the defendant
intended to discriminate on the basis of race; and (3) the
discrimination concerned activities listed in Section 1982,
namely the inheritance, purchasing, leasing, selling,
holding, and conveyance of real and personal property.
See, e.g., Lawrence v. Courtyards at Deerwood
Ass'n, Inc., 318 F.Supp.2d 1133, 1150 (N.D. 111.
2004). A key element in Section 1982 claims, therefore, is a
demonstration that the defendant denied the plaintiff rights
or benefits connected with ownership of property. See Zhu
v. Fisher, Cavanaugh, Smith & Lemon, P. A., 151
F.Supp.2d 1254, 1258 (D. Kan. 2001). Plaintiff initially
based his Section 1982 claim on an allegation that he owned
the driveway on defendant's property, while during
deposition he instead contended that he had an easement for
use of the driveway.
discovery, the evidence showed, and plaintiff admitted, that
he did not own outright the driveway in question or possess
an easement for use of the driveway. At summary judgment,
plaintiff instead based his Section 1982 action on his
allegations that he was granted use of the driveway by the
permission of defendant and that such permission was later
revoked because of plaintiffs race. Plaintiff argued
unsuccessfully that revocation of permission to use
defendant's private driveway interfered with his right to
hold and use his property.
Court ruled that defendant was entitled to summary judgment
because there was no evidence of conduct which was directed
at plaintiffs property or which demonstrated an intent by
defendant to drive plaintiff from his property. The record
and plaintiffs deposition testimony made clear that the
property at issue, to which plaintiff contended he was denied
access by defendant, was a driveway owned by defendant and
laying entirely within the boundary of defendant's
property. Even assuming defendant granted plaintiff
permission to use the driveway for the use of logging and for
day-to-day access, the Court noted that such permission would
be a license which is freely revocable and creates no
meaningful property interest for purposes of Section 1982.
Finally, the undisputed facts showed that defendant did not
interfere in any way with plaintiffs right to hold and use
his own real property by closing the driveway because the
disputed driveway crossed a third-party's land before
reaching plaintiffs property and because plaintiff had
another way of reaching his property without using
Court cannot conclude that, at the time plaintiff initiated
the lawsuit, the claim was frivolous, groundless, or
unreasonable. Plaintiff, representing himself, filed this
suit claiming that his right to use a driveway that he had
traveled upon for many years was interfered with. Plaintiff
testified that he had permission to use the driveway for
logging, and has stated that he, in good faith, understood
this to grant him some sort of easement or right to use the