Opinion
Civil Action No. 95-11822-RBC.
With the parties' consent, this case was referred and reassigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c).
February 27, 2001.
Leonard H. Kesten, Brody, Hardoon, Perkins Kesten, Boston, MA, for defendant.
Douglas I. Louison, Merrick and Louison, Boston, MA, for defendent.
Kathryn S. Ragan, Dorchester, MA, for plaintiff.
I. Introduction
On August 15, 1995, plaintiff Joseph J. LaVita ("LaVita") filed his original complaint alleging injuries arising from events which transpired on or about August 18, 1992. Named as parties defendant were Richard Bloom ("Bloom"), Richard Smith ("Smith") and Scott Thompson ("Thompson"), police officers employed by the City of Melrose ("Melrose"), together with Melrose itself, as well as Stephen Hurley ("Hurley") and Stephen Dennis ("Dennis"), members of the police department of the Town of Saugus ("Saugus"), as well the municipality of Saugus itself. The complaint underwent several amendments, but the consistent theme of the allegations throughout was that LaVita suffered injuries "by reason of excessive police force, deliberate indifference by defendant municipalities to train, supervise and control their police, and deliberate indifference of defendant police to plaintiff's medical condition and need for treatment" in violation of his constitutional rights.
"Richard" Bloom was re-identified in the second amended complaint as Michael Bloom. (#31 ¶ 2)
In the first amended complaint Hurley was identified as a member of the Melrose rather than the Saugus police department. (#9 ¶ 2)
In the first amended complaint Dennis was identified as a member of the Melrose rather than the Saugus police department. (#9 ¶ 2)
Following a five day trial in November of 1997, the jury returned a verdict in favor of the defendants. Approximately two weeks after judgment entered, defendants Saugus, Neil Meehan ("Meehan"), and Dominic DiMello ("DiMello") filed a motion for attorneys' fees (#126) together with a supporting memorandum of law (#130) and two affidavits (##126, 127). LaVita countered with a response (#136) and a memorandum with an affidavit of counsel (#137). About three months later, a supplementary response (#149), memorandum (#150), and affidavit (#151) were filed by the plaintiff. At this juncture, the motion for attorneys' fees is in a posture for decision.
Neil Meehan and Dominic DiMello, members of the Saugus police department, were added as parties defendant in the first amended complaint. (#9 ¶ 5)
II. The Facts
According to the allegations of the second amended complaint, the viable pleading in this case, in August of 1992 defendants Bloom, Smith, and Thompson "invaded the LaVita home allegedly pursuant to an arrest warrant." (#31 ¶ 10) While trying to climb over a fence on his property, LaVita was tackled by Bloom, who then sat on the plaintiff's back and handcuffed him. (#31 ¶¶ 11, 12) Smith joined Bloom in sitting on LaVita's back after he had been handcuffed while Thompson pointed his gun at the plaintiff's head. (#31 ¶¶ 13, 14) The police officers remained in these positions until reinforcements arrived despite LaVita's protestations of pain and an inability to move his legs. (#31 ¶ 15)
These allegations were largely contested by the defendants.
With additional police on the scene, Bloom and Smith dragged the plaintiff across his front yard to an awaiting cruiser where Hurley and Dennis then alternately pushed and pulled him into the back seat. (#31 ¶¶ 16, 17) After transporting LaVita to the Melrose police station, they pulled him out of the cruiser and dragged him part way up the stairs. (#31 ¶ 18) An ambulance was ultimately called and the plaintiff was taken to the Melrose-Wakefield Hospital. (#31 ¶ 19)
At the hospital x-rays revealed that LaVita had a collapsed vertebra. (#31 ¶ 20) Although it was recommended by the doctor that he have an MRI to evaluate more fully his condition, Meehan and DiMello removed the plaintiff from the hospital before the test or any additional treatment could be administered and transported him to the Saugus police station. (#31 ¶¶ 21, 22) LaVita contends that while in the Saugus police station, Meehan and DiMello "denied him the medication that had been prescribed by the doctors" and "held him overnight on a wooden stretcher where he remained, paralyzed and in intense pain from his ordeal, without medication or medical treatment." (#31 ¶¶ 23, 24)
Based on these allegations, LaVita claimed in Count One that by executing an illegal and defective arrest warrant the defendants violated his constitutional and civil rights under the law. In Count Two the plaintiff asserted that the five Melrose police officers used excessive force in effecting his arrest and thus deprived him of his constitutional and civil rights. Next, in Count Three, it was contended that the defendants were deliberately indifferent to LaVita's serious medical needs and so, consequently, deprived him of his constitutional and civil rights. Finally, in Count Four, LaVita alleged that Melrose and Saugus had customs or policies of failing properly to supervise or train their respective police forces and, as a result of their deliberate indifference, the plaintiff suffered severe harm including deprivation of his constitutional and civil rights.
On July 1, 1997, a stipulation of dismissal with respect to the claims alleged by the plaintiff against Melrose and Saugus was submitted and approved. (#71) After an unsuccessful bid via a motion in limine to exclude his employment records from the evidence at trial, LaVita filed a motion to withdraw his claim for lost wages (#99) which was allowed on October 23, 1997. Ultimately only the claims of the second amended asserted in Count Two against the individual Melrose defendants and Count Three against all of the individual defendants went to trial in November of 1997. Defendant Meehan was directed out at the close of the evidence. As previously noted, the jury determined that LaVita had not proven his case and thus rendered a verdict in favor of defendants Bloom, Smith, Thompson, Hurley, Dennis and DiMello.
In seeking attorneys' fees, defendants Meehan, DiMello and Saugus argue that LaVita brought this lawsuit in bad faith in violation of 42 U.S.C. § 1988 and that the plaintiff's attorney, Kathryn Ragan, Esquire, ("Ragan") unreasonably and vexatiously multiplied the proceedings in violation of 28 U.S.C. § 1927. Prior to delineating the specific facts upon which these contentions are premised, the parameters of the applicable law shall be examined.
III. The Law A. Title 42 U.S.C. § 1988
In relevant part 42 U.S.C. § 1988 provides that "[i]n any action or proceeding to enforce a provision of section . . . 1983 . . . of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The Supreme Court established well-recognized standards for awarding attorneys' fees to prevailing parties in a duo of cases, Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
Under the Newman rule, a prevailing plaintiff generally is awarded fees unless "special circumstances would render an award unjust." Newman, 390 U.S. at 402. Prevailing defendants stand on a different footing in that they have not "vindicate[d] an important congressional policy" nor are attorneys fees being assessed "`against a violator of [federal] law'". Bercovitch v. Baldwin School, Inc., 191 F.3d 8, 10 (1 Cir., 1999) (citation omitted). Thus, prevailing defendants are entitled to fees only pursuant to the Christiansburg exception. In that Title VII case the Supreme Court found prevailing defendants eligible for fee awards in accordance with § 706(k) if they demonstrate that the plaintiff's action was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg, 434 U.S. at 422. It was explained that the requirement that the suit be vexatious "in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him." Christiansburg, 434 U.S. at 421.
"The Supreme Court has applied the same rule in actions brought under 42 U.S.C. § 1983, as to which fees are awarded under 42 U.S.C. § 1988. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct.173, 66 L.Ed.2d 163 (1980)." Bercovitch, 191 F.3d at 10.
The First Circuit has written that
The § 1988 standard is as follows:
In civil rights cases, fee-shifting in favor of a prevailing plaintiff is the rule, whereas fee-shifting in favor of a prevailing defendant is the exception. Thus, though a prevailing plaintiff is presumptively entitled to fee-shifting in such a case, a prevailing defendant is entitled to similar largesse only if she can establish that the plaintiffs' suit was totally unfounded, frivolous, or otherwise unreasonable.
Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994) (citations omitted).
Prevailing defendants, under this heightened standard, have a more difficult showing to make to obtain attorney's fees than do successful plaintiffs.Bercovitch, 191 F.3d at 10.
Underscoring the point, it was reiterated that "`decisions to grant defendants their fees are, and should be, rare." Bercovitch, 191 F.3d at 11 (citation omitted).
When considering whether the Christiansburg standard has been met
the court must assess the claim at the time the complaint was filed, and must avoid the post-hoc reasoning that, because the plaintiff did not ultimately prevail, the claim must have been frivolous, unreasonable or without foundation. See Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1192 (1st Cir. 1996) (citing Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694).Tang v. State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 13 (1 Cir., 1998). Moreover, when imposing an award of fees against a plaintiff, the court must consider a plaintiff's ability to pay. A penalty should not cause financial ruin, but at the same time should be sufficiently large in order effectively to deter future filings of frivolous claims. See Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1186 (1 Cir., 1996); Charves v. Western Union Telegraph Co., 711 F.2d 462, 464 (1 Cir., 1983).
Section 1988 is not a vehicle by which to assess fees against a plaintiff's attorney. The Supreme Court has observed that neither § 1988 nor § 2000e-5(k) mentions attorney liability. Roadway Express v. Piper, 447 U.S. 752, 761 (1980). Indeed, it was specifically noted that "[t]he Senate Report accompanying § 1988 stated that the bill authorizes `an award of attorney's fees against a party,'" not the party's attorney. Roadway Express, 447 U.S. at 761, n. 9 (citing S. Rep. No 94-1011 at p. 5 (1976)). The Third Circuit has reasoned that because the statute never mentions counsel, § 1988 on its face only applies to parties. Brown v. Borough of Chambersburg, 903 F.2d 274 (3 Cir., 1990). Referencing the Brown decision, the First Circuit has stated the § 1988 "does not authorize the award of fees against a plaintiff's attorneys." Foster v. Mydas Assocs., 943 F.2d 139, 142 (1 Cir., 1991).
B. Title 28 U.S.C. § 1927
Title 28 U.S.C. § 1927 provides that
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiples the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
This statutory provision allows for the imposition of costs, fees, or expenses only against "any attorney or other person admitted to conduct cases." Construing the plain language of the statute, the First Circuit has recognized that the client cannot be held liable for fees under § 1927. Bolivar v. Pocklington, 975 F.2d 28, 33 (1 Cir., 1992).
An objective standard must be applied when evaluating the attorney's conduct. Bobe-Muniz v. Caribbean Restaurants, Inc., 76 F. Supp.2d 171, 175 (D.P.R., 1999). It is enough that the attorney acts in disregard of whether his conduct constitutes harassment or vexation, thus displaying a "serious and studied disregard for the orderly process of justice." Cruz v. Savage, 896 F.2d 626, 632 (1 Cir., 1990). In other words,
Sanctions under section 1927 are appropriate when counsel's conduct has multiplied the proceedings and, in doing so, has been unreasonable and vexatious, in the sense of being harassing or annoying. While negligence, inadvertence or incompetence does not mandate sanctions, actions taken in disregard of whether the conduct is harassing or vexatious may result in sanctions under this section.U.S. v. Dubon-Otero, 98 F. Supp.2d 187, 192 (D.P.R., 2000) (citations omitted).
In Cruz, the district court concluded that consequent to behavior that was vexatious and frivolous and unreasonably multiplied the proceedings, plaintiff's attorney was required to pay three thousand dollars ($3,000.00) of the forty thousand six hundred twenty-five dollars ($40,625.00) sought as fees by defendant's attorney. The requested fee was reduced so that the sanctions would not "chill an attorney's enthusiasm, creativity or zealous advocacy." Cruz, 896 F.2d at 634.
Alternatively, the Supreme Court has recognized that it was within the inherent power of the court to assess attorney fees where the non-prevailing party or counsel has acted in bad faith. Roadway Express, 447 U.S. at 766. The bad faith exception is not limited to cases filed in bad faith, but is an extension of an attorney's liability for further and later abuse of procedure. Because the "court may tax counsel fees against a party who has litigated in bad faith, it may certainly assess those expenses against counsel who willfully abuse judicial process." Roadway Express, 447 U.S. at 766; see also, e.g., Dubon-Otero, 98 F. Supp.2d at 191.
IV. Discussion
A. The Deliberate Indifference ClaimFrom the Saugus defendants' perspective, LaVita's deliberate indifference claim against them was a sham from its nascence. The first prong of this claim was that the Saugus defendants allegedly were responsible for removing the plaintiff from the hospital before all the necessary tests and treatment were completed. Meehan, DiMello and Saugus contend that the medical records which have always been available to the plaintiff belie this contention. The Melrose-Wakefield hospital records reflect that LaVita was treated in the emergency room and released, and that the plaintiff himself signed the record entitled "Emergency Department Patient Instructions". (Medical Records, Exh. 2) The records of Life-Line Ambulance, the company that transported LaVita from the Melrose police station to the Melrose-Wakefield Hospital and then to the Saugus police station, reflect that "pt. treated then released back to Saugus p.d." (Medical Records, Exh. 1)
At his deposition LaVita testified as follows about certain of the events that occurred at the hospital on the evening of August 17, 1992:
A. . . . We went in for a back — an x-ray, I guess, and came back showing there was some damage to a vertebrae but it was very blurry, I believe, and they asked if I had any back trouble before and I said no. And I requested for a CAT scan, and I remember Officer Bloom or Officer Smith was going down the hall with the doctor to get the CAT scan, the doctor went out to get something.
Before the doctor could come back — when he came back, he said, we'll do the CAT scan, and Officer Smith said, he's not getting a CAT scan, he's going to jail. Then I was transferred from there to a different room or whatever it was until the arrival of the Saugus police.
*****
Q. And you heard that doctor say to who, let's get a CAT scan?
A. He said to the officers, let's get the CAT scan done, and he heard Officer Smith reply, he's not getting a CAT scan, he's going to jail.
Q. And that was Officer Smith who said that?
A. That's correct, Officer Smith.
Deposition of Joseph J. LaVita #121 at 60-1.
In answer to further questions, LaVita continued to explain the sequence of events. After the CAT scan conversation, the plaintiff related that he was wheeled into another room where he waited for a while and talked with his attorney who "walk[ed] into the room after [he] was denied a CAT scan." (#121 at 63) According to LaVita, he told Ragan, his lawyer, about the CAT scan conversation, "[t]hen [he] was waiting for the Saugus police officer to transfer [him]." (#121 at 64-5) Thus, the plaintiff's testimony was that it was the Melrose police officers who purportedly acted to deny him further recommended treatment and that the Saugus police officers did not even arrive at the hospital until after these events had taken place.
At trial LaVita identified DiMello as having been in the CAT scan room during the conversation along with Bloom and Smith (#147 at 33-6), but then later stated that he could not recall whether DiMello and Meehan had only arrived after the CAT scan conversation. (#148 at 77-8)
The second portion of the deliberate indifference claim against the Saugus defendants was the accusation that LaVita was denied his medication while he was held overnight at the Saugus police department. At his deposition the plaintiff testified that upon arriving at the Saugus police department he was placed in "a big open room." (#121 at 75)
Q. Did you request any medical attention from anyone at the Saugus police department?
A. Nobody checked in or asked how I was at all from the time I arrived there until the time I left.
Q. At any time that you had any contact with any Saugus police officer, did you ask for medical attention?
A. I never saw any Saugus police officers. They never came in and checked.
Deposition of Joseph J. LaVita #121 at 75-6.
In response to specific inquiry, the plaintiff stated that he did not request medical assistance from either the Saugus police officer who accompanied him in the ambulance from the Melrose-Wakefield Hospital to the Saugus police department, or the Saugus police officer who was there when he was taken into the Saugus police station. (#121 at 77) Moreover, he did not request any medical assistance from Ragan who visited him at the Saugus police station that evening. (#121 at 78)
At trial LaVita testified that he was "pretty certain" that DiMello was the officer who accompanied him in the ambulance to the Saugus police station and that DiMello "did poke his head in once or twice" to the room where the plaintiff was held. (#148 at 85) Further, LaVita stated that he believed Meehan was "one of the officers that came by looking and talking to another officer" while he was at the Saugus police station. (#148 at 86-7)
In light of the plaintiff's deposition testimony, the Saugus defendants assert that LaVita and Ragan knew that he had no cause of action for deliberate indifference against them, but yet persisted in prosecuting the claim, adjusting his testimony at trial in order to raise issues of fact. The inconsistencies in the plaintiff's testimony most surely are suspect.
Discrepancies between LaVita's deposition and trial testimony are rampant. A comparison of the two discloses at least twenty-six significant differences in testimony on a variety of topics.
First regarding Meehan, like the First Circuit, the Court is
mindful that the granting of a motion for a directed verdict is not tantamount to a finding that a claim was frivolous under § 1988, see Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700-01 (cautioning district courts to resist "the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation").Andrade, 82 F.3d at 1193.
What is most notable, and the reason for the directed verdict, is the dearth of evidence against this defendant. He was not mentioned during LaVita's deposition and the references to him in the plaintiff's trial testimony were negligible. From all that appears, the deliberate indifference claim against Meehan was completely unfounded. Given this lack of foundation, naming Meehan are a defendant in this litigation was unreasonable on Ragan's part. This defendant is entitled to an award of attorneys' fees and costs related to the deliberate indifference claim alleged against him.
This of course includes any fees and cost associated with defending against the back injury claim, discussed infra, which represented a damage element of the deliberate indifference claim.
The same cannot be said with respect to defendant DiMello. True enough the evidence against him was razor thin, but the Court cannot act as a Monday morning quarterback. On the record, it cannot be found that the plaintiff's deliberate indifference claim against DiMello was frivolous or that it was unreasonable to pursue it.
B. The Lost Wages Claim
By letter dated August 15, 1994, Ragan gave notice of LaVita's claim for personal injuries arising out of the events of August 18, 1992, to Saugus as required by Massachusetts law. Specifically with regard to lost wages, Ragan wrote as follows:
At the time that he was injured, Mr. LaVita was employed as a Home Health Aid. That position required that he daily lift patients, some weighing as much as 150 pounds. Because of his injuries, he is unable to perform the usual tasks that his occupation requires. He has since returned to work with the limitations imposed by his condition. He estimates that he lost wages of over $10,000.00. He may never be able to return to full employment in his profession, and may require extensive retraining.
Memorandum In Support #130, Exh. A.
The plaintiff continued to pursue his claim for lost wages throughout the iterations of his complaint, but ultimately dismissed the claim on the eve of trial after seeking in vain to have his employment records excluded as evidence.
LaVita's testimony at his deposition and at trial regarding his employment history was at odds. At his deposition the plaintiff claimed that he voluntarily left his job performing stock work at Lechmere Corporation ("Lechmere") because his "back was bothering me too much." (#121 at 10) At trial LaVita acknowledged that he was fired by Lechmere in 1995 for improperly changing the hours on his work schedule. (#147 at 89) According to Lechmere's records, LaVita was going to be terminated on December 27, 1995, for violating company policy by changing his work schedule without management approval, but that he resigned that same day before being terminated. (#147 at 93) According to LaVita, he resigned because he could not do the job anymore because of back pain. (#147 at 93-4)
Prior to working at Lechmere, Lavita was employed by Caldor Corporation ("Caldor") as a stock person. (#121 at 11) He admittedly was fired from that position, although he also testified that he left because of problems with his back. (#121 at 12-4) Before Caldor, in 1993 or 1994, he was employed by Kimberly Quality Care, a home health care agency, but was terminated for stealing. (#121 at 15-7, 92)
In June of 1993 LaVita applied for a position with Favorite Nurses of Boston ("Favorite Nurses"). (Employment Records, Exh. 9) Ragan was listed in his application as his current employer and as a professional reference. (Employment Records, Exh. 9) Notes taken during a telephone reference interview indicate that Ragan believed LaVita's health at that time to be "above average". (Employment Records, Exh. 9) Addressing the same time period in her August 15, 1994 notice letter to Saugus, Ragan wrote, inter alia, as follows:
As a direct and proximate result of the violent, unconstitutional, and negligent acts of officers of the City of Melrose, Saugus and the Mass. Department of Corrections, the clamant [LaVita] sustained serious, permanent, and debilitating injury.
TREATMENT HISTORY
Upon his release from the Essex County House of Correction 18 days after his arrest, he [LaVita] immediately sought treatment at the New England Memorial Hospital. He was advised to follow up with orthopedic surgery. However, before he could do so, he was returned to the Essex County House of Correction in January 1993. There he continued to complain of and seek treatment for his injuries.
In June, 1993, he [LaVita] was released to house arrest, and was finally able to seek competent professional medical help. He was treated by Dr. Sbordonne, and was referred to an orthopaedic surgeon. (sic) He spent considerable time in an orthopaedic brace, and has again been referred for possible surgery.
Memorandum In Support #130, Exh. A.
The contradiction in the evidence is obvious.
The plaintiff was hired by Favorite Nurses on or about June 23, 1993. (Employment Records, Exh. 9) At one point in his deposition, he testified that he left Favorite Nurses in order to improve himself and work for a better paying agency. (#121 at 18) At a later point, LaVita claimed that he had to leave the job because of his back. (#121 at 94-5) The plaintiff's employment records reveal that he was dismissed for falsifying records in August, 1993. (Employment Records, Exh. 9)
subsequent employment records reflect that LaVita purportedly left the job with Favorite Nurses because he was not getting enough hours. (Employment Records, Exh. 11)
In September of 1993 LaVita applied to and was hired by Metropolitan Nursing Services, Inc. ("Metropolitan"). (Employment Records, Exh. 11) Ragan was again noted to be both an employer and a personal reference on LaVita's job application. (Employment Records, Exh. 11) The health information sheet supporting the plaintiff's application states that he is in "excellent health" and has no back problems. (Employment Records, Exh. 11) In September, 1993, Ragan completed and signed a reference form on behalf of LaVita supporting his application to Metropolitan wherein she described his health as "good". (Employment Records, Exh. 11)
While LaVita testified that he left Metropolitan "voluntarily" after about a month (#121 at 18), the records indicate that he was employed only for about two hours on September 29, 1993, at which time he was fired. (Employment Records, Exh. 11)
The plaintiff claims that he left the Metropolitan job because of his back. (#121 at 94-5).
The conclusion that this claim was groundless is unavoidable. Its frivolity is blatant. The employment records plainly show, and LaVita essentially admits, that he was discharged from these various jobs for assorted reasons, none of which were related to the events of August 17, 1992 or the actions of the Saugus defendants. If Ragan did not already know this given her personal involvement in LaVita's job application process, had she conducted an investigation prior to alleging the lost wages claim she would have readily discovered the truth. There is no question but that the Saugus defendants are entitled to an award of attorneys' fees and costs incurred in connection with the defense of this claim.
Not to mention that she was professing to potential employers that the plaintiff was in good health during the exact time period when she later asserted that he was suffering from a back injury.
C. The Back Injury Claim
The Saugus defendants allege that LaVita's back injury claim was also fraudulent and brought in bad faith. A lengthy exposition of the evidence is unnecessary because a brief review of the plaintiff's medical records highlights the conflict. The impression of the lumbar spine x-ray taken at Melrose-Wakefield Hospital on August 17, 1992 was "[s]ignificant compression fracture of the L2 lumbar vertebra." (Medical Records, Exh. 2) The notes for LaVita's November 23, 1992 visit to the East Boston Neighborhood Health Center read "Back inj. at work `collapsed vertebrae' several months ago. Repeat films were normal. No back pain." (Medical Records, Exh. 4) The notes from Sbordone Chiropractic and Somerville Orthopedics, Inc. for LaVita's visits during 1993 and 1994 disclose ongoing treatment for back complaints. (Medical Records, Exh. 5 and 6)
Considering all of the evidence and circumstances, it is not "obvious" to the Court as it apparently is to the Saugus defendants that "LaVita brought his claim of back injury in total bad faith". (#130 at 12) Moreover, the evidence and circumstances do not compel the conclusion that "LaVita's treatment with Dr. Sbordone and Dr. Jacques was obviously obtained not for legitimate medical reasons but for the purpose of this lawsuit and for filing the false disability claims." (#130 at 12) While perhaps questionable, in the face of this evidence, the Court cannot find that LaVita's back injury claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg, 434 U.S. at 422. Nor can it be said with conviction that in pursuing that claim, Ragan "unreasonably and vexatiously" multiplied the proceedings in the case. In short, no award of attorneys' fees or costs for work or expenses associated with the defense of this claim is warranted.
V. Summary of Findings and Appropriate Sanction
I find that LaVita's claim against Meehan and the claim for lost wages were "frivolous, unreasonable, and groundless" from the outset, or, alternatively, that LaVita ". . . continued to litigate [these claims] after they clearly became so." Christiansburg, 434 U.S. at 422. He is liable for attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
I find that Ragan's conduct in pursuing the claim against Meehan and pursuing the lost wages claim until the eve of trial, "multiplie[d] the proceedings [in this case] unreasonably and vexatiously" to the point of "harassing" the Saugus defendants and their counsel. I find that in so doing, she displayed a "serious and studied disregard for the orderly process of justice." Cruz, 896 F.2d at 632. She is liable for "the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." Title 28 U.S.C. § 1927.
Defendants seek all of the costs and attorneys' fees incurred in defending all of LaVita's claims in the amount of forty-seven thousand one hundred eighty dollars and eighty-four cents ($47,180.84). Obviously, I shall not make an award in that amount. To the extent it can be discerned from the records supplied, I find that at a minimum, approximately one-sixth of this amount represents attorneys' fees and costs which would have been avoided had LaVita not instituted and prosecuted the claim against Meehan to the close of evidence at trial and the lost wages claim until the eve of trial. Thus, I find that the sum of seven thousand five hundred dollars ($7,500.00) is "an amount that the defendants' attorney's time at least would support." Cruz, 896 F.2d at 634. I further find that this amount is a sufficient sanction which will deter such conduct in the future without having the effect of preventing the institution of meritorious civil rights claims or "chill[ing] [the] attorney's enthusiasm, creativity or zealous advocacy." Id.
I find that as between LaVita and Ragan, Ragan should bear the lion's share of the sanction. Not only is LaVita unschooled in the law, he appears to be without any significant resources due to his very patchy work record and limited education. See Charves, 711 F.2d at 465. Ragan, on the other hand, is an attorney admitted to the bar who has the obligation to investigate claims before she prosecutes them and to cease from prosecuting claims which have no merit. The claim against Meehan and the claim for lost wages should never have been brought, and Ragan should have known that before she filed the initial complaint. At the very least, the lack of merit of these claims became crystal clear during discovery, and yet she proceeded to prosecute the claims, one to the eve of trial and the second to the close of the evidence.
Accordingly, I shall enter judgment directing that Ragan pay seven thousand dollars ($7,000.00) and LaVita pay five hundred dollars ($500.00) toward the attorneys' fees and costs incurred by the defendant Meehan in defending the claim against him and by the defendants Saugus and DiMello in defending against the claim of lost wages.
VI. Order
For all the reasons stated, it is ORDERED that the Motion of The Defendants, Neil Meehan, Dominic MiMello, And The Town of Saugus, For Attorney's Fees, Costs And Expenses Pursuant To 42 U.S.C. § 1988 and 42 U.S.C. § 1927 (sic) (#126) be, and the same hereby is, ALLOWED to the extent that judgment shall enter directing that Ragan pay the sum of seven thousand dollars ($7,000.00) to the Saugus defendants pursuant to 28 U.S.C. § 1927 and that LaVita pay the sum of five hundred dollars ($500.00) to the Saugus defendants pursuant to 42 U.S.C. § 1988. In all other respects, the motion shall be, and hereby is, DENIED.
Judgment to this effect shall enter.
VII. A Postscript
In its Memorandum, Etc., (#130), counsel for the Saugus defendants list a number of actions taken by Ragan which, if true, would constitute violations of the Code of Professional Responsibility. For instance, it is alleged that an August 15, 1994 claim letter was false and fraudulent in that it alleged that, after the incident, LaVita was "unable to perform the usual tasks" of a home health aide which required that he "lift patients, some weighing as much as 150 pounds." (#130, Exh. A) Yet on two occasions between the time of the incident and the claim letter, Ragan had given LaVita recommendations to nursing facilities or home health care agencies attesting that he had no health problems.
Other allegations are that (1) as a potential witness in the case, she should not have represented the plaintiff, (2) she participated in the presentation of perjured testimony by LaVita at trial when he denied that he had two Social Security numbers and denied that he had used cocaine when the officers came to arrest him, and (3) she misrepresented to the Court the unavailability of Dr. Jacques to testify at trial.
Accordingly, I shall direct the Clerk to send a copy of the within Memorandum and Order and a copy of Defendants' Memorandum, Etc. (#130) to the Board of Bar Overseers for whatever action, if any, they deem appropriate.