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HERNAS v. CITY OF HICKORY HILLS

United States District Court, Northern District of Illinois, E. D


July 1, 1981

DIANE MARIE HERNAS, ET AL., PLAINTIFFS,
v.
CITY OF HICKORY HILLS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Diane, Frank and Jadwiga Hernas brought this action under 42 U.S.C. § 1983 and 1985(3) and various portions of the Bill of Rights (through the Fourteenth Amendment) against the City of Hickory Hills, its Mayor and various named and unnamed members of its Police Department and the Roberts Park Fire Protection District. This Court's December 1, 1980 Memorandum Opinion and Order dismissed all allegations against defendant Russ Lindemann ("Lindemann") under Fed.R.Civ.P. 12 (bX6). Lindemann, as a prevailing party, now moves for an award of attorney's fees under 42 U.S.C. § 1988 ("Section 1988"). For the reasons stated in this memorandum opinion and order that motion is granted.

Award of Fees

Section 1988 entitles a prevailing defendant to an award of fees if the court determines the plaintiff's claim was "meritless in the sense that it is groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980). Plaintiffs' allegations against Lindemann satisfy that stringent requirement. This Court dismissed Lindemann because plaintiffs failed to make any specific allegations against him:

  In another variation of the same theme, plaintiffs
  have identified Lindemann in Paragraph 2 of the
  Complaint as a Hickory Hills police officer but
  thereafter make no allegations of any kind as to any
  conduct by Lindemann in claimed violation of their
  rights. In a number of paragraphs the Complaint refers
  to actions allegedly committed by "unknown" officers,
  but it is a contradiction in terms to argue — as
  plaintiffs' counsel appear to do in their brief
  — that we are to assume that a named defendant
  has engaged in conduct ascribed only to unknown
  persons.

Moreover, we are not dealing with a pro se litigant. Plaintiffs were represented by counsel throughout the proceedings, including the briefing on Lindemann's motion. See, Hughes, 101 S.Ct. at 179. Lindemann is therefore entitled to an award of fees under Section 1988 because plaintiffs lacked a sufficient foundation for including him in their Complaint.*fn1

Amount of Fees

Lindemann's request for fees encompasses (1) all services attributable solely to his defense and (2) one-ninth of all other time spent by his counsel (who also represents eight other defendants). As to the second component, Lindemann's counsel would have had to spend that time even if plaintiffs had omitted Lindemann from their Complaint. Accordingly, this Court will award Lindemann $384*fn2 for counsel's services rendered solely on his behalf.

Conclusion

Plaintiffs are ordered to pay Lindemann $384 on or before July 15, 1981.


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