United States District Court, Northern District of Illinois, E. D
September 20, 1982
JAY LARSON, PLAINTIFF,
THOMAS WIND, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Jay Larson ("Larson")*fn1 originally sued a number of defendants
because of a December 20, 1980 shooting incident involving Villa Park and
Addison police officers. Larson later added Complaint Count VI, naming
Villa Park Police Chief William Kohnke ("Kohnke") because of an allegedly
misleading press release drafted by Kohnke the night of the shooting.
In the Opinion this Court granted Kohnke's motion for summary
judgment. Kohnke has now moved under 42 U.S.C. § 1988 ("Section
1988") for an award of attorneys' fees. His motion is granted.
Section 1988 entitles a prevailing defendant to an award of fees only
if the court determines plaintiff's 42 U.S.C. § 1983 ("Section 1983")
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 Reineman v. Valley View Community School District
# 365-U, 539 F. Supp. 876, 877 (N.D.Ill. 1982). That hurdle is a steep
one for Kohnke to overleap, but in the circumstances here he has done
As the Opinion made plain, Count VI could not ultimately survive under
existing law. Because the Opinion itself is the best reflection of this
Court's analysis, this opinion will merely reflect a shorthand (and
necessarily incomplete) summary.
First the Opinion pointed to the doctrine that for damage to reputation
inflicted by a public official to be actionable under the Due Process
Clause, the stigma had to be connected to the denial of a governmental
right, privilege or benefit.*fn2 Larson could not colorably allege any
such "stigma plus" in conjunction with Kohnke's press release.
Next the Opinion ruled Count VI could not be read to state the sort of
conspiracy claim adverted to in Landrigan v. City of Warwick, 628 F.2d 736,
742 (1st Cir. 1980). Landrigan, like our Court of Appeals' decision in
Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir. 1979), rev'd as to
another issue, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), held
a cover-up of illegal conduct was not actionable under Section 1983
unless the cover-up itself caused damage. Larson could suggest no actual
damage or deprivation flowing proximately from Kohnke's alleged
Thus neither a "stigma-plus" nor a conspiracy theory could carry the
day for Count VI. But that result did not necessarily render Count VI
"groundless." Being "wrong" in terms of existing case law is not of
itself a justification for awarding fees under Section 1988. Law advances
on its frontiers through counsel's successful efforts for change.
Indeed, counsel has the ethical right to contend for a client even in the
face of adverse authority, if good faith arguments for a change in
present law may be advanced. See ABA Code of Professional Responsibility
DR 7-102(A)(2) and EC 7-4.
But this is not simply a case of unsuccessful good faith advocacy of a
legally colorable claim. As the Opinion commented, this Court was
troubled by Larson's counsel's approach of "plead now and analyze later"
(a recurrent pattern in this litigation).*fn3 And in this instance Count
VI followed (not preceded, as is almost always the case) the substantial
completion of discovery, including the taking of Kohnke's deposition.
That being the case, the afterthought nature of Larson's legal assertions
(Count VI failed to identify, or hint at, any claimed constitutional
rights Kohnke allegedly schemed to deny Larson) must be coupled with the
poverty of Larson's factual contentions (Opinion at 3):
Each of those assertions is arrant nonsense in cause
of action terms, as the predicate for a Section 1983
claim. But even were that not the case, there is no
basis for the fanciful inferences Larson seeks to
draw. Kohnke's deposition has been taken and
offered as an exhibit in support of the motion for
summary judgment. Larson has responded with nothing
but conjecture to support even a hint of the claimed
motivations, and those purported motivations are not
reasonably inferrable from the facts and
 Counsel's Mem. 2 also shows a disregard of the
facts in charging that "Kohnke falsely denied that he
either authored or authorized the release...." Kohnke
acknowledged from the beginning (indeed on the very
deposition page cited by counsel) that he drafted and
issued the press release that night. Counsel has
entirely mischaracterized the confusion that resulted
from the form of the document tendered for Kohnke's
examination at the deposition.
This Court is ordinarily loath to impose fees liability on a civil
rights plaintiff, lest there be a chilling of advocacy in that socially
valuable area of litigation. It normally gives broad leeway to the
unsuccessful plaintiff in meeting the Christiansburg-Hughes standard. In
this case however there was the twofold combination of (1) settled
adverse legal doctrine and (2) known facts defeating any Section 1983
claim against Kohnke. That being true, the resemblance to Werch v. City
of Berlin, 673 F.2d 192
(7th Cir. 1982), where our Court of Appeals
upheld a Section 1988 fees award against a plaintiff, is compelling.
One added point should be dealt with: the amount of the award. Kohnke's
counsel has submitted an affidavit supporting a claim for $1,293.75,
based on straight time charges at a $75 hourly rate. On its face that
seems modest enough, given the work involved. Larson's responsive
memorandum does not address the issue. Although Larson is certainly
entitled to a hearing on the issue of amount, it would seem unduly
wasteful (and perhaps even semi-punitive in effect) to expand the
liability for fees by adding the time necessarily spent in verifying a
relatively small award. See Muscare v. Quinn, 680 F.2d 42, 44 (7th Cir.
1982); Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226, 1250 (7th
Cir. 1982). Accordingly this Court will await advice from Larson's
counsel whether such a hearing is desired or whether the award may
instead be confirmed in the amount requested.
Kohnke's motion under Section 1988 for allowance of attorneys' fees as
part of costs is granted. Unless on or before September 27, 1982 Larson
requests a hearing on the amount of the fees, the allowance shall be
$1,293.75 and shall be paid forthwith upon the presentation of a proper
bill of costs including attorneys' fees.