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Schlenvogt v. Marshall

September 15, 2008

O. PAUL SCHLENVOGT, PLAINTIFF,
v.
SCOTT MARSHALL, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is Defendants' Motion for Attorney's Fees.*fn1 Plaintiff did not file an opposition to this motion, but instead filed a "Motion to Strike Defendants' Motion for Attorney's Fees."*fn2 For the following reasons, Defendants' Motion is denied and Plaintiff's Motion to Strike is denied.

BACKGROUND

The Court has previously set forth a factual background for this action in its Order and Amended Findings and Recommendations entered March 14, 2008 and adopted March 31, 2008. Those Orders are incorporated by reference and need not be reproduced herein.

The Magistrate Judge assigned to this case found that all of Plaintiff's claims failed and that amendment would not cure the deficiencies in Plaintiff's complaint. Accordingly, the Magistrate Judge recommended that the case be dismissed with prejudice. This Court adopted those findings and recommendations in full and judgment was entered in favor of Defendants.

Defendants then moved for attorney's fees pursuant to 42 U.S.C. § 1988, as Plaintiff's complaint alleged violations of 42 U.S.C. § 1983. Plaintiff did not file an opposition to this motion, but instead filed a "Motion to Strike Defendants' Motion for Attorney's Fees."

ANALYSIS

1. Motion to Strike

At the outset, this Court notes that Plaintiff's Motion to Strike Defendants' Motion for Attorney's Fees is technically improper. Federal Rule of Civil Procedure 12(f) makes clear that a motion to strike applies only to pleadings. A motion for attorney's fees is not a pleading and, as such, not subject to a motion to strike. Accordingly, Plaintiff's Motion to Strike is denied.

However, because Plaintiff is a pro se litigant, the Court will consider any valid arguments raised in the Motion to Strike that relate to the Motion for Attorney's Fees.

2. Motion for Attorney's Fees

Defendants request attorneys' fees in the amount of $35,791.00 pursuant to 42 U.S.C. § 1988, which allows district courts to award such fees to parties that prevail in actions brought under 42 U.S.C. § 1983.*fn3 Section 1988 states in pertinent part, "In any action or proceeding to enforce a provision of ... section ... 1983 ... the court, in its discretion may allow the prevailing party ... a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988(b).

"42 U.S.C. § 1988's authorization of an award of attorneys' fees applies differently to prevailing defendants than to prevailing plaintiffs. Plaintiffs prevailing in a civil rights action should ordinarily recover an attorneys' fee unless special circumstances would render such an award unjust, but a defendant should be awarded fees not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious."

Mayer v. Wedgewood Neighborhood Coal., 707 F.2d 1020, 1021 (9th Cir. 1983) (internal citations and quotations omitted). Since Defendants bring this Motion for fees, the pressing issue is whether Plaintiff's claims rose to the ...


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