Opinion
Cause No. IP 02-985-C-T/K
January 7, 2003
Don Silas, Lee Burns Cossell LLP, Indianapolis, IN.
Michael R Morow, Stephenson Daly Morow Horn Semler, Indianapolis, IN.
Wayne E Uhl, Indiana State Attorney General, Indianapolis, IN.
Stephen Wheeler, Jennings Assoc, Carmel, IN.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SANCTIONS
I. Background
The complaint alleges that Plaintiffs Ryan Bates and Hillary Wilford are an unmarried, cohabiting, mixed-race couple. On January 9, 2002, the date Bates was released from the Rush County Jail, Defendant Rush County Prosecutor Paul Barada, and other county law enforcement officials, worked with an informant to set up a sale of marijuana in the Plaintiffs' apartment. [Compl. ¶¶ 10-11]. Later that day, on a signal from the informant, and claiming they had a warrant, police entered Plaintiffs' apartment and seized evidence. Barada then faxed the warrant request and the return indicating the seized items to Defendant Rush County Circuit Court Judge Barbara Harcourt, who granted the request. [Id. at ¶¶ 14-25]. Both Plaintiffs were subsequently charged with drug-related offenses. [Uhl Decl., Exs. 2-3].
Defendant Rush County Circuit Court Judge David Northam was assigned to preside in Plaintiffs' criminal cases. Judge Northam made several adverse evidentiary rulings in Plaintiffs' attempt to suppress evidence and quash a deposition. Despite Plaintiffs' pleas, Judge Northam refused to recuse himself from the criminal cases, and denied Plaintiffs' request for a change of venue. [Compl. ¶¶ 26-29].
In a letter to Prosecutor Barada dated May 14, 2002, Plaintiffs' attorney, Don E. Silas, accused Prosecutor Barada of engaging in obstructive discovery practices, fraudulently obtaining a search warrant, and engaging in a "scam." [Ex. 4]. The letter states:
The scam is exposed, Paul. Don't you get it? I'll give the information to a Federal judge, federal prosecutor, NAACP, grandjury, television reporter, newspaper or even a prosecutor from a different county but, I won't allow it to be swept under the rug. My first obligation is to my clients. I want them off the hook. We can then talk about resolving any subsequent issue of civil rights, malicious prosecution, entrapment, or intentional infliction of emotional distress quietly or with the whole world watching. Because of the apparent racial overtones, the public exposure will be akin to a nuclear explosion in the middle of Rushville. You have screwed up royally. I'm immune to your attempt to turn up the heat. You need to switch to damage control by doing the right thing with Hillary and Ryan then, we can talk about this whole thing go (sic away quietly. I'll see you in two weeks but, if I don't hear something encouraging from you by then, I'll b e forced into a position where I have to protect myself and my clients by making sure that what goes in (sic) in Rushville is scrutinized by the country.
Id. In a second letter dated May 24, 2002, Silas expressly threatened to file a civil suit in federal court, and to contact the Indiana Attorney General and United States Attorney:
I will not be quieted by an order from the state court. I will file a federal lawsuit where the state court has no jurisdiction . . . I'm not coming to the emergency "let's shut him up hearing" you arranged. Since I anticipate an adverse ruling, I'll be arranging meetings with Steve Carter and Timothy Morrison. It's time to put up or shut up-NOT.!
[Ex. 5].
On June 26, 2000, Plaintiffs filed the instant suit pursuant to 42 U.S.C. § 1983 and § 1985, alleging that several Defendants (including Prosecutor Barada and Judges Harcourt and Northam) conspired to violate Plaintiffs' civil rights because they are a cohabiting couple of different races. [Compl. ¶¶ 11-13]. Specifically, Plaintiffs allege that the probable cause affidavit used to justify the search warrant alleged events that occurred on January 9, 2002; however, the probable cause affidavit was attested to by law enforcement the day before, January 8. Therefore, the events alleged in the probable cause affidavit had not yet occurred. [Pls.' Br., p. 2; Ex. A]. In addition, Plaintiffs allege that the police did not have a search warrant when police conducted a search of Plaintiffs' apartment as evidenced by Judge Harcourt's signature and handwritten time that appears on the search warrant, and the "Return" document reflecting items seized in the search. [Pls.' Br., p. 3; Ex. B]. Essentially, Plaintiffs accuse Judge Harcourt of placing a false time on the warrant to "cover up the illegal entry." [Pls.' Br., p. 3].
For instance, Plaintiffs contend that police served the search warrant at 11:15 p.m. However, the fax stamp on the "Return" document indicates that the items were seized some time prior to 10:55 p.m. Plaintiffs urge the Court to draw an inference that police entered their residence prior to 10:55 p.m., and that Judge Harcourt covered up the alleged illegal entry by signing the warrant after the fact. [Pls.' Br., p. 3].
On June 27, the day after Plaintiffs filed this instant action, Judge Northam recused himself from Plaintiffs' pending criminal cases because he was named as a defendant in the lawsuit. [Uhl Decl. ¶¶ 8-9]. Judge Northam, along with Judge Harcourt and Prosecutor Barada, sought and were granted the representation of former Deputy Attorney General Wayne Uhl. [Id. at ¶¶ 7-9].
Uhl has since left the Attorney General's Office.
On July 10, 2002, Uhl entered his appearance in this case and sent Silas a "safe harbor" letter in compliance with Fed.R.Civ.P. 11(c)(1)(A), advising him that Plaintiffs' claims were "frivolous" due to sovereign, prosecutorial, and judicial immunity. [Ex. 1]. Defendants informed Silas that if Plaintiffs did not dismiss their suit by July 15, they would seek sanctions. [Id.]. When Defendants received no response, they filed a motion to dismiss raising their immunity defenses. Plaintiff never filed a response to this motion. [Docket # 13-14].
On August 19, 2002, Plaintiffs filed a motion to voluntary dismiss Defendants Barada, Harcourt, and Northam. [Docket # 20]. On August 29, 2002, the Court granted Plaintiffs' motion, dismissed the Defendants with prejudice, and entered final judgment. [Docket # 23].
Plaintiffs also named as Defendants in this suit the County of Rush, the City of Batesville, and Mark O. Field, Joe Jarman, John Doe, and Daniel Smith, all agents of either County of Rush or the City of Batesville. These named Defendants filed a concurrent motion to dismiss on the same day as Prosecutor Barada, and Judges Harcourt and Northam. Plaintiffs failed to respond to that motion, and on August 19, 2002, filed a motion to voluntarily dismiss those claims. [Docket # 19, 21]. On August 29, 2002, the Court dismissed these Defendants without prejudice. [Docket # 22]. The instant motion for sanctions does not allege that the claims brought against these Defendants were frivolous.
Upon entry of judgment, on September 10, 2002, pursuant to Fed.R.Civ.P. 11 and 42 U.S.C. § 1988, Defendants moved for sanctions alleging that Plaintiffs' claims were "legally frivolous" because of sovereign, prosecutorial, and judicial immunity. [Defs.' Br., pp. 1, 9-11]. Although Plaintiffs concede that their official capacity claims were without merit, they vigorously defend the individual capacity suits, claiming that immunity does not apply when a judicial officer or a prosecutor engage in an alleged conspiracy. [Pls.' Br. p. 10]. For the reasons set forth below, the Magistrate Judge recommends that Defendants' motion for sanctions be GRANTED, and that sanctions be imposed as set forth below.
II. Standard for Awarding of Sanctions A. Rule 11
Federal Rule of Civil Procedure 11(b) states that, "by presenting a motion to the court, an attorney certifies that the motion `is not being presented for any improper purpose,' that `the claims, defenses, and other legal contentions [contained in the motion] are warranted by existing law,' and that `the allegations and other factual contentions [contained in the motion] have evidentiary support.'"
Divane v. Majestic Properties, Inc., 2002 WL 126106, *2 (N.D.Ill. 2002), quoting Fed.R.Civ.P. 11(b)(1)-(3). See also Brunt v. Service Employees Intern. Union, 284 F.3d 715, 721 (7th Cir. 2002) ("Rule 11 imposes a duty on attorneys to ensure that any papers filed with the court are well-grounded in fact, legally tenable, and not interposed for any improper purpose."); Hamil v. Mobex Managed Services Co., 208 F.R.D. 247, 249 (N.D.Ind. 2002) ( "Rule 11 requires that pleadings filed with the Court be reasonably based on the law and not meant to harass, cause unnecessary delay, or needlessly increase the costs of litigation.").
Rule 11 requires a reasonable investigation into both the facts asserted and the applicable law before filing a complaint, motion, or other paper with the Court. The attorney must make this certification "to the best of [the attorney's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances." Divane, 2002 WL 126106, at *2, citing Fed.R.Civ.P. 11(b).
In addition, "a litigant who is of pure heart and believes in good faith that her claims are valid, yet never objectively investigates the facts or the law before filing a complaint may very well be tempting fate under Rule 11." Noe v. Interstate Brands Corp., 188 F.R.D. 513, 515 (S.D.Ind. 1999), citing Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 931-32 (7th Cir. 1989). See also Retired Chicago Police Ass'n v. Firemen's Annuity And Benefit Fund, 145 F.3d 929, 934 (7th Cir. 1998), quoting Mars Steel v. Continental Bank, N.A., 880 F.2d 928, 932 (7th Cir. 1989) (attorney may not "drop papers into the hopper and insist that the court or opposing counsel undertake bothersome factual and legal investigation."); Apostol v. Landau, 1994 WL 110172, *1 (N.D.Ill. 1994), citing Stewart v. RCA Corp., 790 F.2d 624, 633 (7th Cir. 1986) ("The Rule imposes an affirmative duty to investigate the facts and law that support a pleading. In effect, it requires lawyers to think first and file later.").
The "central purpose" of Rule 11 is to deter baseless filings in district court. Slovinec v. DePaul University, 2002 WL 242516, *2 (N.D.Ill. 2002), quoting Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Other courts have described the rule's "primary objective" as "to give a litigant pause to stop, think, and investigate more carefully before filing papers, thereby streamlining the administration and procedure of the federal courts." Noe, 188 F.R.D. at 515, quoting Cooter, 496 U.S. at 393-94.
The Court may award sanctions even if an action later deemed frivolous is voluntarily withdrawn or dismissed. See Willy v. Coastal Corp., 503 U.S. 131, 134 (1992). In some instances, sanctions may be appropriate along with an award of attorney fees under 42 U.S.C. § 1988(b).
As the prevailing party in this action, Defendants have moved to recover their attorney fees under 42 U.S.C. § 1988. Under this section, "when a civil rights suit is lacking in any legal or factual basis . . ., an award of fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that the ability of the courts to remedy civil rights violations is not restricted by dockets crowded with baseless litigation." Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266, 269 (7th Cir. 1992). See also Christianburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978) (A prevailing defendant in a § 1983 or § 1985 case may be awarded attorney's fees under 42 U.S.C. § 1988(b) if the "plaintiff brought [its] action in subjective bad faith," or that "the plaintiff's action was frivolous, unreasonable, or (continued . . .) without foundation, even though not brought in subjective bad faith."); Gonzales v. Transfer Technologies, Inc., 301 F.3d 608, 609 (7th Cir. 2002), citing Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999) (under 42 U.S.C. § 1988, a prevailing plaintiff is entitled to fees "virtually as a matter of course"; however, a prevailing defendant is only entitled to fees if the suit is frivolous).
However, Section 1988(b) "only authorizes the Court to assess fees against parties, not their attorneys." Schmitt v. Schmitt, 2002 WL 109359, *6-7 (N.D.Ill. 2002), citing Hamer v. County of Lake, 819 F.2d 1362, 1370 (7th Cir. 1987). As set forth below, the Court does not need to utilize § 1988 since the conduct sanctioned by the Court is that of Plaintiffs' attorney, Silas.
III. Discussion A. Eleventh Amendment Immunity
The Eleventh Amendment generally bars federal jurisdiction over lawsuits against state officials for damages acting in their official capacities. See Sonnleitner v. York, 304 F.3d 704, 717 (7th Cir. 2002), citing MCI Telecomm. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 337 (7th Cir. 2000). See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). But see Nanda v. Board of Trustees of University of Illinois, 303 F.3d 817, 832 (7th Cir. 2002) (under doctrine of Ex Parte Young, "a suit against state officials in their official capacity limited to injunctive relief is not barred by the Eleventh Amendment.").
Whether a public official such as a judge or a county prosecutor is a state actor is a question of state law. Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994). Plaintiffs claim that Defendants represent either the County of Rush or the City of Rushville. [Pls.' Br., pp. 6-7]. This is clearly erroneous. A judicial defendant is immune from a suit seeking monetary damages for actions completed in the judge's official capacity. See, e.g., Terpening v. Brett, 222 F. Supp.2d 1135, 1139 (C.D.Ill. 2002), citing Nowicki v. Ullsvik, 69 F.3d 1320, 1324 (7th Cir. 1995) (judicial immunity and the Eleventh Amendment bar claims for monetary damages against a judge in personal and official capacities). See also Davis v. City of Chicago, 2001 WL 467932, *4 (N.D.Ill. 2001), citing Mireles v. Waco, 502 U.S. 9, 10 (1991) ("Judges are absolutely immune from suit for money damages.").
Similarly, although it appears that no Indiana state courts have ruled on the issue, courts in this district have held that county prosecutors are state officials when prosecuting criminal cases. See, e.g., Bibbs v. Newman, 997 F. Supp. 1174, 1178 (S.D.Ind. 1998); Study v. United States, 782 F. Supp. 1293, 1297 (S.D.Ind. 1991).
In this case, Plaintiffs filed suit against Prosecutor Barada and Judges Harcourt and Northam in both their individual and official capacities. Since the Defendants were acting on behalf of the state in the prosecution of Plaintiffs, the Eleventh Amendment precluded Plaintiffs' official capacity suit.
Essentially, Plaintiffs' official capacity suit was a suit against the state itself. Since 1989, it has been well settled that a state actor is not a "person" for purposes of a Section 1983 suit. See Nanda, 303 F.3d at 821, quoting Will, 491 U.S. at 71 ("a lawsuit under § 1983 against state officials constitutes a suit against the State itself, and that neither a State nor its officials acting in their official capacities are `persons' under § 1983 for purposes of damage awards.").
It should have been obvious to Silas before filing suit that these official capacity claims were barred. If Silas failed to scrutinize this issue before filing suit, he should have done so after receiving Defendants' Rule 11 safe harbor letter. Instead, Silas apparently did nothing. He certainly did not respond to the letter. As a result, Defendants were forced to file a motion to dismiss. Only then did Plaintiffs belatedly seek to dismiss Barada, Harcourt, and Northam. Under these circumstances, sanctions are warranted.
B. Prosecutorial Immunity
Prosecutors are entitled to absolute immunity when they act in a quasi-judicial capacity by determining what charges to bring against an individual, preparing for trial, or initiating a prosecution, all of which occur in the prosecutor's role as an advocate for the state. See Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000); Spiegel v. Rabinovitz, 121 F.3d 251, 256-57 (7th Cir. 1997). See also Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (state prosecutors are absolutely immune from liability for "initiating a prosecution" and "presenting the State's case" as long as their conduct is "intimately associated with the judicial phase of the criminal process."). This is true even if they initiate charges "maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence." Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986).
However, prosecutors are not entitled to absolute immunity in every instance. For instance, prosecutors enjoy only qualified immunity when performing "administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings." Brokaw v. Mercer County, 235 F.3d 1000, 1015 (7th Cir. 2000), quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
In this case, it is unclear the specific role that Barada played in securing the search warrant. Viewing the facts and drawing all inferences in a light most favorable to Plaintiffs, the Court finds that Barada was functioning in an investigative role, and thus is entitled to only qualified immunity. See, e.g., Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000), citing Buckley, 509 U.S. at 273 ("Supreme Court found a prosecutor who traveled to the crime scene to determine if evidence taken from the crime scene was sufficiently reliable to constitute probable cause was not acting as an advocate, but as an investigator.")
Even qualified immunity is sufficient to shield Barada from suit. Plaintiffs presented no evidence that a conspiracy to deprive Plaintiffs of their civil rights occurred between the Defendants. Even if Barada pursued the warrant without probable cause, he is still entitled to immunity. See, e.g., Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986) (prosecutorial immunity "shields the prosecutor even if he initiates charges maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.").
Plaintiffs' claims against Barada would not have survived a motion for summary judgment.
However, because qualified immunity, rather than absolute immunity, would be appropriate in this instance, Plaintiffs' claims against Barada were not so frivolous as to warrant sanctions.
C. Judicial Immunity
Judges are absolutely immune from suit for money damages when they act in their judicial capacity, unless their actions are "taken in the complete absence of all jurisdiction."
Richman v. Sheahan, 270 F.3d 430, 434-35 (7th Cir. 2001), quoting Duty v. City of Springdale, Ark., 42 F.3d 460 (8th Cir. 1994). "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction." Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 524 (7th Cir. 2001), quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985).
Here, Plaintiffs contend that Judges Harcourt and Northam were performing judicial acts beyond their jurisdiction and were engaging in "non-judicial activity." [Pls.' Br., pp. 8-9]. This contention rings hollow. The record reflects the judges were performing pure judicial functions. Judge Harcourt approved the search warrant after reviewing a probable cause affidavit; Judge Northam made evidentiary rulings in Plaintiffs' criminal case. Bringing a subsequent Section 1983 action because Plaintiffs and their counsel were unhappy with the state courts' rulings is not the proper avenue to pursue review. Rather, Plaintiffs should have filed an appeal to the state appellate court for relief. See, e.g., Sangirardi v. Village of Stickney, 1999 WL 1045223, *3 (N.D.Ill. 1999), quoting Reed v. Village of Shorewood, 704 F.2d 943, 952 (7th Cir. 1983) ("Forcing judges to defend their judicial rulings by standing trial on the complaint of a disappointed litigant would make it difficult for them to carry out their judicial duties and for society to recruit competent judges.").
In addition, other than mere speculation and conjecture, Plaintiffs have not offered anything to suggest that either Judges Harcourt or Northam engaged in a conspiracy to deprive Plaintiffs of their civil rights because Plaintiffs were engaged in a mixed-race relationship. The dearth of any evidence in this regard is further reinforced by the fact that Plaintiffs did not file a response to Defendants' motion to dismiss. See, e.g., John v. Barron, 897 F.2d 1387, 1393 (7th Cir. 1990) (mere allegations of conspiracy insufficient to overcome judicial immunity); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (alleged conspiracy between judge and prosecutor to determine outcome of criminal proceeding does not pierce immunity extended to judges); Vargas v. Borg Warner Automotive Systems, 2002 WL 424968, *2 (S.D.Ind. 2002).
To support their position that judicial immunity does not apply, Plaintiffs cite Forrester v. White, 484 U.S. 219 (1988), where the Court held that a judge acted in an administrative rather than a judicial capacity in demoting or discharging an employee. However, Plaintiffs' situation is distinguishable from Forrester because the acts of issuing a search warrant and making evidentiary rulings in a criminal case are judicial in nature.
The concept of judicial immunity has existed for well over a century. See Bradley v. Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872). Simple research and further investigation into Plaintiffs' case would have revealed that Plaintiffs' lawsuit against the Defendant judges was fatally flawed, and frivolous on its face. Perhaps most telling, after Defendants cited case law in a letter that demonstrated Plaintiffs' suit against the Defendant judges was frivolous, Silas continued to pursue the action. As a result, the Court finds that a sanction is appropriate. See Independent Lift Truck Builders Union v. NACCO Materials Handling Group, Inc., 202 F.3d 965, 969 (7th Cir. 2000) (a motion is frivolous if it is baseless, foreclosed by well-established legal principles and authoritative precedent); Katz v. Household Intern., Inc., 91 F.3d 1036, 1040 (7th Cir. 1996) (courts may award sanctions upon a finding that pleadings are not grounded in law or fact).
D. Conduct of Counsel
Citing Silas' conduct pre-suit and throughout this litigation, Defendants state "aggravating circumstances" exist that warrant an award of sanctions. In addition to pursuing frivolous claims after receiving a well-supported safe harbor letter, Defendants state that "the federal lawsuit was an attempt by plaintiffs to manipulate the state court proceedings and intimidate the prosecutor." [Defs.' Br., p. 10]. As to Silas' contacts with Defendant Barada, the Court finds that Silas' letters of May 14 and May 24 were unwarranted and inappropriate. For instance, in the May 14 letter, Silas made threats of exposing the "scam" by making veiled threats to file a civil suit. Silas told Barada that they could resolve an impending civil suit "quietly or with the whole world watching," and that if he went public with Plaintiffs' allegations, it would "be akin to a nuclear explosion in the middle of Rushville," and would be "scrutinized by the [entire] country." [Ex. 4]. In Silas' May 24 letter, Silas expressly threatened a civil suit, stated he would "not be quieted by an order from the state court," and added that he would be contacting Indiana Attorney General Steve Carter and the United States Attorney for the Southern District of Indiana Timothy Morrison. [Ex. 5].
Silas' letters to Barada are nothing short of harassment. These letters also serve as a telling window into the state of mind Silas adopted in approaching this litigation. Silas' approach is yet another unfortunate example of the lack of civility that has crept into the legal profession. See, e.g., Miller v. Bittner, 985 F.2d 935, 941 (8th Cir. 1993) ("This case serves as an example of the unfortunate lack of civility in the practice of law which is receiving considerable attention at this time . . .
The adversary process in the judicial arena does not require attorneys to be clothed in a suit of armor and fight to the bitter end. The parties, the profession, and the public all lose when the attorneys fail to treat each other with common courtesy."); Philadelphia Gear Corp. v. Swath Intern., Ltd., 200 F. Supp.2d 493, 497 (E.D.Pa. 2002) ("Civility is courtesy, dignity, decency and kindness," "is not inconsistent with zealous advocacy," and "is the trademark of a winner.") (internal citations and quotations omitted).
Perhaps more troubling is Silas' attempts to manipulate and improperly influence the state court proceedings. After Judge Northam issued adverse rulings in Plaintiffs' criminal case, Silas moved for a continuance in the criminal case and filed suit in federal court apparently hoping that Judge Northam would recuse himself from the state court criminal case since he was named a defendant. In response to the lawsuit, Judge Northam in fact did recuse himself from Plaintiffs' criminal case. [Defs.' Br., pp. 4, 10; Exs. 6, 8-9]. Further, on August 13, 2002, Silas filed a "Verified Motion For Appointment of Special Prosecutor" attempting to disqualify Barada as the prosecuting attorney. [Ex. 10]. Silas made this motion after Defendants filed their motion to dismiss, and after Plaintiffs failed to timely respond to this dispositive motion.
As a result, the Court finds that Silas filed this lawsuit for an improper purpose, and his subsequent conduct in attempting to manipulate the legal process provides further support for an award of sanctions to Defendants. See, e.g., Fries v. Helsper, 146 F.3d 452, 459 (7th Cir. 1998) (abuse of process is grounds for Rule 11 sanctions); Brunt v. Service Employees Intern. Union, 284 F.3d 715, 721 (7th Cir. 2002) ("Sanctions will be imposed if counsel files a complaint with improper motives or without adequate investigation."); Divane v. Majestic Properties, Inc., 2002 WL 126106, *2 (N.D.Ill. 2002) ("Improper purpose means something other than the mere assertion of frivolous or unfounded legal arguments or contentions.") (internal quotations omitted); Vollmer v. Publishers Clearing House, 248 F.3d 698, 709 (7th Cir. 2001) ("Rule 11 provides that if an attorney presents a motion to a court for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, monetary sanctions may be imposed.").
In sum, the Magistrate Judge concludes that Silas' conduct in pursuing frivolous claims merits an award of sanctions to Defendants.
E. Appropriate Sanction
The district court has broad discretion in imposing Rule 11 sanctions. Brunt v. Service Employees Intern. Union, 284 F.3d 715, 721 (7th Cir. 2002). A sanction may be monetary or nonmonetary, such as a court issuing an on-the-record public reprimand. Day v. Northern Indiana Public Service Corp., 164 F.3d 382, 385 (7th Cir. 1999). In the event the court awards a monetary sanction, the sanction should be limited to the amount "sufficient to deter repetition of [the sanctionable] conduct or comparable conduct by others similarly situated." Drewicz v. Dachis, 2002 WL 849810, *4 (N.D.Ill. 2002), quoting Fed.R.Civ.P. 11(c)(2). See also Vollmer v. Publishers Clearing House, 248 F.3d 698, 710-11 n. 11 (7th Cir. 2001). However, Rule 11 allows courts to order a sanctioned party to pay the prevailing party its reasonable expenses and attorney's fees incurred as a direct result of the violation, if an order to that effect is warranted for deterrence. Noe v. Interstate Brands Corp., 188 F.R.D. 513, 515 (S.D.Ind. 1999), citing Anderson v. County of Montgomery, 111 F.3d 494, 501 (7th Cir. 1997). See also Brandt v. Schal Assoc., Inc., 960 F.2d 640, 645 (7th Cir. 1992) (imposing costs on careless or reckless lawyers is one goal of Rule 11).
In light of the conduct chronicled above, the Court finds that a monetary sanction is appropriate, and that the proper monetary sanction would be to require Silas to pay a portion of Defendants' attorney's fees associated with them responding to frivolous claims. Wayne Uhl, the former Deputy Attorney General assigned to represent the Defendants, states in an affidavit submitted to the Court that he spent 22.3 hours of time at a rate of $200 per hour in defending this suit, for a total of $4640.00. [Uhl Decl. ¶¶ 15-19; Uhl Supp. Dec. ¶¶ 3-6]. The Court recognizes Uhl as an experienced litigator, and finds that an hourly rate of $200 is appropriate. In regard to Defendants' fee petition and related matters, Uhl spent 14.3 hours. However, the Court finds that ten hours at the rate of $200/hour ($2000) is reasonable and appropriate to deter any future inappropriate conduct by Silas when balanced with the fact that the Magistrate Judge concluded that Plaintiffs' claim against Barada was not frivolous. See, e.g., Batt v. Micro Warehouse, Inc., 241 F.3d 891, 895 (7th Cir. 2001) ("fee awards and fees charged by practitioners of comparable skill and experience are probative of an attorney's market rate"; $350 hourly rate found reasonable here); American Knights of Ku Klux Klan v. City of Auburn, Ind., 179 F.R.D. 228, 235 (N.D.Ind. 1997) (court found $200 per hour a reasonable hourly rate for attorney from the Indiana Civil Liberties Union).
IV. Conclusion
Accordingly, the Magistrate Judge recommends that Defendants' motion for sanctions be GRANTED. The Magistrate Judge further recommends that within 30 days of the adoption of this report and recommendation, Attorney Don Silas should be required to pay the Office of the Indiana Attorney General $2000 as an appropriate sanction, and file a notice with this Court that such sanction has been paid.