The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Ralph C. and Anna L. Reineman ("Reinemans") originally sued
individually and as parents and next friend of their son William
Reineman ("William") in a multi-count Complaint against Valley
View School District # 365-U (the "School District"), the Village
of Bolingbrook, Illinois (the "Village") and officials of each.
Reinemans' claims against the Village and one of its employees,
police officer Richard Ellingsworth ("Ellingsworth"), were stated
in Complaint Counts I and IV and stemmed from two separate
arrests of William by Ellingsworth.
On November 4, 1981 this Court granted motions by Ellingsworth
and the Village to dismiss Count I but denied their motions as to
Count IV. Then on December 31, 1981 their motions for summary
judgment as to Count IV (which had been in the briefing stage on
November 4) were granted. Ellingsworth and the Village have now
moved for an award of attorneys' fees under 42 U.S.C. § 1988
("Section 1988") (Reinemans' unsuccessful claims having been
grounded in 42 U.S.C. § 1983). For reasons stated in this
memorandum opinion and order, that motion is denied.
This Court will not repeat the allegations of Reinemans' claims
or the facts that led to summary judgment against them. See,
Reineman v. Valley View Community School District # 365-U,
527 F. Supp. 661, 663-64 (N.D.Ill. 1981) and this Court's December 31,
1981 memorandum opinion and order. Instead this opinion turns
directly to the legal principles involved.
Section 1988 entitles a prevailing defendant to an award of
fees only if the court determines plaintiff's claim was
"meritless in the sense that it is groundless or without
foundation." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173,
178, 66 L.Ed.2d 163 (1980); see Hernas v. City of Hickory
Hills, 517 F. Supp. 592 (N.D.Ill. 1981). Satisfaction of that
strict standard has not been demonstrated here.
Complaint Count I contended William's Fourth Amendment rights
had been violated by a November 21, 1980 search and a seizure of
the knife he was carrying. Ellingsworth and Bolingbrook High
School's Dean of Students William Kappmeyer had carried out the
search and seizure. This Court granted defendants' motion to
dismiss because in the state court criminal case arising out of
the November 21 incident, William had unsuccessfully sought to
suppress the knife on the same Fourth Amendment grounds advanced
in this action. Collateral estoppel therefore barred Count I
against Ellingsworth — and by necessity against the Village —
under Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d
308 (1980), which held that a prior state court decision on a
Fourth Amendment motion to suppress prevented relitigation of the
issue in a later Section 1983 action.
Count I was thus rejected by definitive controlling authority
on all fours. Had Reinemans asserted their claim in the face of
well-established adverse precedent, a Section 1988 fee award
would plainly have been justified. Werch v. City of Berlin,
673 F.2d 192, 195-196 (7th Cir. 1982). But Allen was newly-decided
when Reinemans sued — and it was a 6-3 decision reversing a Court
of Appeals ruling rejecting collateral estoppel.
Those facts counsel leniency here in applying the "groundless
and without foundation" test. It should be remembered that
Section 1988 awards fees against plaintiffs personally and not
(like 28 U.S.C. § 1927) against their attorney. It is reasonable
to treat factually meritless claims, or claims legally meritless
under long-established doctrines, differently from those a change
in the law — or even a recent culmination of a prior trend in the
case law — has made meritless. No award will be made in
Ellingsworth's favor based on Count I.
Count IV stands in a somewhat different posture. There
Reinemans claimed William's January 28, 1981 arrest by
Ellingsworth violated the Fourth Amendment because it was
supported neither by probable cause nor by a valid arrest
warrant. Summary judgment was granted for Ellingsworth and the
Village after they tendered a warrant for the arrest, whose
validity Reinemans did not dispute.
Again such facts without more might support a Section 1988
award. But William has stated by affidavit that he had no
knowledge of the arrest warrant's existence until it was produced
in this litigation. Defendants have offered nothing to call that
assertion into doubt.*fn1 Perhaps Reinemans and their attorney
should have investigated the factual basis for their Count IV
claim more thoroughly, but on the other side of the coin
defendants themselves did not serve William or the Reinemans with
the warrant contemporaneously with the arrest or provide it to
them soon afterwards. Under the circumstances here Section 1988
should not apply to impose added costs on a good faith — though
negligent — oversight in the claim against Ellingsworth.
What of the Village? Monell v. Department of Social Services,
436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)
limits its Section 1983 liability by requiring a "custom or
policy" of the sort that injured plaintiff — here, an alleged
custom of making false arrests. This Court's earlier opinion
warned, 527 F. Supp. at 665 (emphasis in original):
Reinemans . . . bear a responsibility for the
validity — or at least the colorability — of their
allegation that the Village actually does have a
custom of making false arrests.
It cautioned that if the "custom or policy" claim were not
colorable, a Section 1988 award of fees might be appropriate.
Reinemans may well have been saved by the bell of
Ellingsworth's summary judgment motion. Because the Village (like
Ellingsworth) successfully relied on the valid arrest warrant to
defeat Count IV, this Court was never called on to decide the
colorability of Reinemans' "custom or policy" claim. Mere (albeit
strong) suspicion that Reinemans would have been unsuccessful on
that score is not enough to support Section 1988 liability,
reserved as it is to mulct a plaintiff proved to have ...