                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                  FILED
                                                     U.S. COURT OF APPEALS
                   ____________________________        ELEVENTH CIRCUIT
                                                          September 20, 2005
                           No. 05-10077                 THOMAS K. KAHN
                       Non-Argument Calendar                   CLERK
                   ____________________________

                   D.C. Docket No. 04-10033-CV-JLK

BRIAN EVANS,

                                              Plaintiff-Appellant,

                                 versus

MONROE COUNTY SHERIFF’S DEPARTMENT,
MARK KOHL, State Attorney,
RICHARD ROTH,
DOES 1-100,
MONROE COUNTY, FLORIDA.

                                              Defendants-Appellees.

                      _______________________

               Appeal from the United States District Court
                  for the Southern District of Florida
                     ________________________

                         (September 20, 2005)

Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:

       Plaintiff-Appellant Brian Evans appeals pro se the district court’s award of

attorneys fees to Defendants under 42 U.S.C. § 1988. No reversible error has been

shown; we affirm.

       Plaintiff, a resident of Las Vegas, Nevada, who previously lived in Key

West, Florida, filed a civil complaint under 42 U.S.C. § 1983 for harassment,

malicious prosecution, intentional infliction of emotional distress (“IIED”) and

malicious abuse of process against the Monroe County Sheriff’s Department,

Monroe County, and Sheriff Richard Roth (collectively “Defendants”).1 Plaintiff

claims that the Sheriff’s Department, without investigation, issued a warrant for

his arrest based on his former manager’s accusation that he “stole a boat” from

her. When Plaintiff learned of this from a friend, Plaintiff contacted the Sheriff’s

Department and claims he was advised to turn himself in to the Las Vegas police

department. Plaintiff sent Defendants proof that he had purchased the boat, and

the arrest warrant was withdrawn within an hour.




   1
     Plaintiff initially indicated that federal jurisdiction rested on diversity of citizenship under 28
U.S.C. § 1332, and the Complaint was silent about whether the causes of action were rooted in state
or federal law. Plaintiff however clarified in his response to Defendants’ motions to dismiss that he
intended to bring claims under § 1983. The district court analyzed his claims as under § 1983.

                                                   2
      A Key West newspaper ran an article about the arrest warrant’s issuance and

recision. Plaintiff says he is a best-selling jazz artist, and the newspaper article

irreparably damaged his reputation. Plaintiff also claims the warrant was issued in

retaliation for Plaintiff’s earlier filing of another lawsuit against the same

Defendants.

      Defendants each filed motions to dismiss Plaintiff’s complaint. On 4 June

2004, the district court set a hearing on the motions to dismiss for 14 June. On 10

June, Evans filed a motion for a forty-five day continuance, explaining that he had

just learned about the hearing date on 8 July and could not coordinate a trip to

Florida on such short notice. The district court denied the continuance. The

hearing went forward and Plaintiff failed to appear; he instead faxed the court a

Notice of Voluntary Dismissal on or around 12 June. The district court dismissed

all claims against Defendants without prejudice and retained jurisdiction to

determine fees, costs, and expenses incurred by Defendants.

      Defendants moved for attorneys’ fees under 42 U.S.C. § 1988, which

permits a prevailing defendant to recover attorneys’ fees if “the plaintiff’s action

was frivolous, unreasonable, or without foundation, even though not brought in

subjective bad faith.” Baker v. Alderman, 158 F.3d 516, 524-25 (11th Cir. 1998)

(quoting Christianburg Garment Co. v. EEOC, 98 S.Ct. 694, 700 (1978)). A

                                           3
frivolous suit is one in which the case is “so lacking in arguable merit as to be

groundless or without foundation[.]” Sullivan v. School Board of Pinellas County,

773 F.2d 1182, 1189 (11th Cir. 1985). Sullivan emphasized that no “hard and

fast” rules exist for frivolity determinations, but identified general guidelines to

aid such an inquiry: 1) whether the plaintiff established a prima facie case; 2)

whether the defendant offered to settle; and 3) whether the trial court dismissed

the case before trial or held a trial on the merits. Id.

      A Magistrate judge issued a report and recommendation, finding that

Defendants were the prevailing party and that Plaintiff’s lawsuit was frivolous. In

making the frivolity determination, the report said that, because Defendants never

offered to settle the case, the only Sullivan factor applicable was whether Plaintiff

established a prima facie case. Examining that factor, the report first found that

the malicious prosecution claim was meritless because Plaintiff was never

arrested. Next, it determined that Plaintiff did not state claims against any of the

Defendants. Plaintiff failed to allege that Sheriff Roth, acting in his official

capacity, violated Plaintiff’s Constitutional rights or that any of the alleged

Constitutional violations were related to a custom, policy or practice of the

Sheriff’s Department or Monroe County. In addition, the Sheriff’s Department

was not a legal entity subject to suit. Furthermore, although construing Plaintiff’s

                                            4
complaint liberally because he was pro se, the Magistrate found Plaintiff would

not have been able to prove facts to support his claim. After reviewing the record,

the district court adopted this recommendation and awarded attorneys’ fees to

Defendants.

        We review the district court’s decision to award attorneys’ fees for an abuse

of discretion. Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995).

        Plaintiff does not directly challenge the district court’s frivolity finding. He

argues that the district court should not have looked to the Sullivan factors

because his case was at such an early stage of litigation. Plaintiff’s brief may also

be construed to argue that the district court inappropriately applied the Sullivan

factors as a “hard and fast” rule rather than examining the particulars of Plaintiff’s

case.

        The district court properly looked to Circuit law, Sullivan, in deciding

Plaintiff’s case. It did not apply Sullivan as a “hard and fast” rule, but instead

determined the first factor was applicable to this case, used that for guidance in

examining Plaintiff’s allegations, and determined the suit was groundless.

Therefore, the district court did not abuse its discretion in the award of attorneys’

fees to Defendants.

AFFIRMED.

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