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Peck v. Hinchey

United States District Court, D. Arizona

July 28, 2014

Steven Peck, et al., Plaintiffs,
Margaret Hinchey, et al., Defendants.


JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Defendants Paula Veach and the City of Phoenix's Motion for Attorneys' Fees ("Motion") pursuant to 42 U.S.C. § 1988(b). (Doc. 339). Plaintiffs filed an Opposition to Veach and the City of Phoenix's Motion (Doc. 344) and Veach and the City of Phoenix filed a Reply (Doc. 347). For the following reasons, the Court denies Veach and the City of Phoenix's Motion.


On December 7, 2006, the Phoenix Police Department ("PPD") received a citizen complaint that PPD officers, who were contracted to provide Cotton Center Townhomes Properties ("Townhomes") with uniformed off-duty PPD services, had been paid for services not actually performed. (Doc. 329 at 2-3). Among the off-dutyPPD officers were Plaintiffs Steven Peck, Aaron Lentz, and Benjamin Sywarungsymun. ( Id. at 2). In response to the complaint, PPD assigned two detectives from its Professional Standards Bureau to gather documentation related to the Townhomes job and organize this information into an Excel spreadsheet (the "PSB spreadsheet"). ( Id. ). PPD then transferred the matter to Sergeant Paula Veach to conduct an administrative investigation to determine if any PPD policies had been violated. ( Id. at 3). Veach received the PSB spreadsheet, requested additional materials, and added additional information to the PSB spreadsheet. ( Id. ). Veach also conducted Garrity -protected[2] officer interviews with Plaintiff Sywarungsymun and other non-plaintiff officers. ( Id. ). After two of the other interviewed officers admitted to leaving the Townhomes job early, Veach created a PowerPoint presentation to update her chain of command on the status of the ongoing administrative investigation. ( Id. at 3-4). Following the presentation, PPD ordered Veach to halt her administrative investigation and referred the matter to the Arizona Attorney General's Office ("AGO") to conduct a criminal investigation. ( Id. at 4). PPD ordered Veach to provide her records to the AGO and serve as PPD's liaison for the purposes of the AGO's criminal investigation. ( Id. ).

In November 2008, the AGO appointed Special Agent Margaret Hinchey to conduct the criminal investigation. ( Id. ). Veach met with Hinchey to discuss the PSB spreadsheet and its underlying data. ( Id. ). Veach informed Hinchey that the administrative investigation was incomplete and that the PSB spreadsheet was incomplete and inaccurate. ( Id. ). During the course of Hinchey's investigation, Veach, as the PPD liaison, answered Hinchey's questions related to PPD policies and procedures, and directed Hinchey to sources of data relevant to Hinchey's investigation. ( Id. ). In December 2009, Veach's role as PPD liaison to Hinchey ended. ( Id. ).

A grand jury indicted Plaintiffs on November 17, 2010. ( Id. at 5). During the course of criminal discovery, Plaintiffs' attorneys reviewed the AGO's investigation, discovered falsities, and moved for remand of Plaintiffs' indictment. ( Id. ). The Maricopa County Superior Court granted remand. ( Id. ). The AGO presented the remaining evidence to a second grand jury. ( Id. ). The second grand jury failed to return an indictment of Plaintiffs. ( Id. ). On November 23, 2011, the AGO dropped all criminal charges against Plaintiffs. ( Id. ).

In June 2012, Plaintiffs filed this 42 U.S.C. § 1983 action against Veach and the City of Phoenix, eventually alleging that Veach: (1) intentionally presented false evidence to support criminal charges; (2) presented false evidence to supportcriminal charges with a reckless disregard for the truth; (3) maliciously prosecuted Plaintiffs; (4) violated Plaintiffs' Garrity -protected rights; and (5) conspired to violate Plaintiffs' constitutional rights. (Doc. 180; see Doc. 1). During discovery, Plaintiffs twice amended their Complaint. ( See Docs. 171; 181). After filing the Second Amended Complaint ("SAC"), Plaintiffs deposed additional witnesses, including Hinchey and Veach ( see Docs. 211, 230-35), and received additional documents from the AGO's investigation case file ( see Docs. 186, 188, 190, 196, 200, 201).

On March 14, 2014, the Court granted summary judgment in favor of Veach on each of the five § 1983 claims (Counts I, II, III, V, and VI of the SAC) on qualified immunity grounds. (Doc. 329 at 29-43). Because Plaintiffs' claims against the City of Phoenix were predicated on Veach's conduct, the Court also dismissed all § 1983 claims against the City of Phoenix. ( Id. at 43).


"In any action or proceeding to enforce a provision of... [42 U.S.C. §] 1983... the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the cost." 42 U.S.C. § 1988. Under § 1988 jurisprudence, a prevailing defendant is treated differently than a prevailing plaintiff in that fees are not awarded simply because the defendant succeeds. See Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988). The Ninth Circuit has repeatedly recognized that attorneys' fees in civil rights cases "should only be awarded to a defendant in exceptional cases." Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990); see also Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 646 (9th Cir. 1999) (recognizing "the well-established rule that a [prevailing] defendant should only receive an award of attorneys' fees in extreme cases").

In determining whether to award attorneys' fees to a prevailing defendant of a § 1983 claim, a court must evaluate whether the action was "frivolous, unreasonable or without foundation" at the time the complaint was filed. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006). An action is frivolous "when the result appears obvious or the arguments are wholly without merit." Galen v. Cnty. of L.A., 477 F.3d 652, 666 (9th Cir. 2007). In determining an action's frivolity, a court should neither rely on hindsight logic nor focus on whether the claim was or was not ultimately successful. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978). Even if "evidence to support a [somewhat tenuous] theory failed to materialize, and summary judgment was properly granted in favor of the defendants, " a court may deny attorneys' fees where originating circumstances furnish some basis for the claim. Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003). "Under this standard, an unsuccessful plaintiff who acted in good faith is generally not at risk of having to pay the other side's attorney's fees." Akiak Native Cmty. v. U.S. EPA, 625 F.3d 1162, 1166 (9th Cir. 2010).

The Ninth Circuit recognizes that a district court has significant discretion in awarding attorneys' fees to a prevailing defendant. See Thomas v. City of Tacoma, 410 F.3d 644, 651 (9th Cir. 2005). "[A]lthough a finding of frivolity [is] a prerequisite to an award of attorney's fees, notwithstanding such a finding, the district court still retains discretion to deny or reduce fee requests after considering all the nuances of a particular case.'" Id. (quoting Tang v. R.I., Dep't of Elderly Affairs, 163 F.3d 7, 15 (1st Cir. 1998)). A court must exercise such discretion "expressly in order to avoid discouraging civil rights plaintiffs from bringing suits, and thus undercut[ting] the efforts of Congress to promote the vigorous enforcement of' the civil rights laws." Harris v. Maricopa Cnty. Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011) (quoting Christiansburg, 434 U.S. at 422) (alteration in original).


As prevailing defendants, Veach and the City of Phoenix claim that "Plaintiffs pursued 42 U.S.C. § 1983 claims against [Veach and the City of Phoenix] despite the absence of facts showing a constitutional violation, " and, therefore, that Veach and the City of Phoenix are "entitled to recoup their reasonable attorneys' ...

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