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Brown v. Winman

United States District Court, E.D. North Carolina, Western Division

August 9, 2017

DONALD BROWN, Plaintiff,
v.
GEORGE E. WINMAN, III, Defendant.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Plaintiff, 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].

         On 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.

         On 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. Id.

         DISCUSSION

         Title 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 explained:

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).

         Therefore, 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.

         After 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.

         The 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 defendant's driveway.

         The 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 land. ...


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