                                                         [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                FILED
                          ________________________      U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            JANUARY 7, 2010
                                 No. 09-12232
                                                              JOHN P. LEY
                             Non-Argument Calendar           ACTING CLERK
                           ________________________

                      D.C. Docket No. 04-00030-CV-WLS-1

MARY THOMAS, in her individual capacity
as spouse of FERNANDEZ THOMAS and
as next friend of FERNANDEZ THOMAS, JR., and
DEONTE' THOMAS,

                                                      Plaintiff-Appellee,

                                        versus

EARLY COUNTY, GA,
JIMMIE MURKERSON,
individually and in his official capacity
as Sheriff of Early County, Georgia,
TIMOTHY HARDRICK,
DONALD SKIPPER,
WILLIAM PRICE,
RONALD SUGGS,
TERREL COLLINS,
LYNN WEBB,
JACKIE LASH,
Individually and in their official capacity
as law enforcement officers,

                                                      Defendants-Appellants.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                         ________________________
                                (January 7, 2010)

Before BARKETT, HULL and COX, Circuit Judges.

PER CURIAM:

                               I. BACKGROUND

      Plaintiffs are the widow and children of Fernandez Thomas. Thomas died in

the Early County jail as a result of what the Georgia Bureau of Investigation

concluded was a suicide. Plaintiffs filed this 42 U.S.C. § 1983 action on March 10,

2004, two years after Thomas’s death. The original complaint named Early County

itself as a Defendant and named each of the other Defendants in their individual and

official capacities. That complaint and all subsequent complaints alleged that

Defendants caused Thomas to become emotionally distraught, then deliberately failed

to prevent Thomas’s suicide or, alternatively, that Defendants taunted Thomas and

“physically and brutally attacked” him in the jail causing his death, and that

Defendants conspired to lie and cover up the attack. (See, e.g., R.1-1 ¶ 17.)

      On September 10, 2004, Defendants moved to dismiss the complaint on

numerous grounds, including that, as a matter of law, Early County and the Sheriff

and deputies in their official capacities were immune from suit, were not “persons”
                                         2
under 42 U.S.C. § 1983, and were not subject to respondeat superior liability. (R.1-

13.) Rather than opposing Defendants’ motion to dismiss the original complaint,

Plaintiffs “acknowledg[ed] the validity of certain arguments which [were] raised by

Defendants’ Motion” and sought leave to amend their complaint. (R.1-23 at 2.) The

First Amended Complaint, filed October 14, 2004, alleged five counts. The First

Amended Complaint removed Early County from the style of the case and most of the

allegations, but named Early County in Count IV and the prayer for relief. The First

Amended Complaint specifically named the other Defendants in their individual

capacities only. (R.1-22.)

      Defendants moved to dismiss the First Amended Complaint and were partially

successful. The court dismissed Count IV, finding that Early County was not

intended to be a Defendant, and Count V which sought only attorney’s fees under 42

U.S.C. § 1988, finding that the claim was not ripe. (R.1-38 at 3.) Plaintiffs had

conceded both of these points in their response to Defendants’ motion to dismiss.

The court also ordered Plaintiffs to file a more definite statement as to Counts I, II,

and III within 20 days. (R.1-38 at 5.)

      Plaintiffs did not file a timely response to the order for a more definite

statement. Two months later, Defendants moved to dismiss or strike Counts I, II, and

III of the First Amended Complaint. Plaintiffs responded to that motion with a

                                          3
request for more time to produce the more definite statement, based on the ill health

of Plaintiffs’ attorney.

      On December 6, 2005, Plaintiffs filed a Second Amended Complaint. (R.1-45.)

Count I of that complaint alleged that Defendants Skipper and Price caused Thomas

to become emotionally distraught and suicidal and that Defendants Suggs, Hardrick,

Collins, Webb, and Lash knew Thomas was suicidal and deliberately failed to prevent

his suicide. (R.1-45 ¶¶13-17.) Count II alleged that all the individual Defendants

“physically and brutally attacked” Thomas. (R.1-45 ¶¶23, 24.) And, Count III

alleged that all the individual Defendants “physically and brutally attacked” Thomas

and caused his wrongful death. (R.1-45 ¶¶30-31.) The Second Amended Complaint

sought $2.5 million against all of the individual Defendants, jointly and severally, on

each claim and $2.0 million against all of the individual Defendants, jointly and

severally, as punitive damages on Counts II and III. (R.1-45 at 11-12.)

      The individual Defendants answered the Second Amended Complaint.

Eighteen months later, they moved for summary judgment. In addition to asserting

legal defenses to the claims, Defendants presented the undisputed facts that all but

two of the Defendants were not in the jail when Thomas died and that there was no

evidence that any Defendant taunted or physically assaulted Thomas. Defendants

also pointed to the lack of evidence that any of them were on notice that Thomas was

                                          4
suicidal. In support of their motion, Defendants presented affidavits of each of the

individual Defendants and cited the Georgia Bureau of Investigation autopsy and

investigation report that concluded Thomas committed suicide. Plaintiffs did not

oppose the motion for summary judgment. Instead, they moved for voluntary

dismissal of the Second Amended Complaint without prejudice.               Defendants

stipulated to the dismissal.

      After the case was dismissed and judgment entered, Defendants moved for an

award of attorney’s fees and expenses. That motion incorporated by reference

Defendants’ earlier-served motion for sanctions pursuant to Federal Rule of Civil

Procedure Rule 11 and also argued for the award on the bases that Defendants were

entitled to an award of fees and expenses as prevailing parties pursuant to 42 U.S.C.

§ 1988 and pursuant to the court’s inherent powers.

      The district court denied Defendants’ motion. The court found that Plaintiffs

had sued Early County and the sheriff and his deputies in their official capacities and

that those parties, as a matter of law, were immune from suit. But, the court excused

any error because the Eleventh Circuit en banc opinion that partially established the

immunity had been issued less than nine months before Plaintiffs filed their original

complaint. The court also found that Plaintiffs’ counsel “demonstrated efforts he

undertook to investigate claims and showed that he conducted depositions.” (R.3-89

                                          5
at 4.) For those reasons, the court denied Rule 11 sanctions. Denying Defendants’

request pursuant to 42 U.S.C. § 1988, the court noted that Defendants had succeeded

in having two of the five claims in the First Amended Complaint dismissed with

prejudice but that the remaining three claims, restated in the Second Amended

Complaint, were dismissed voluntarily and without prejudice. (R.3-89 at 4.) The

court did not discuss Defendants’ request for sanctions pursuant to the court’s

inherent powers. Defendants appeal the denial of the motion.1

                              II. STANDARD OF REVIEW

       “‘[A]n appellate court should apply an abuse-of-discretion standard in

reviewing all aspects of a district court’s Rule 11 determination. A district court

would necessarily abuse its discretion if it based its ruling on an erroneous view of

the law or on a clearly erroneous assessment of the evidence.’” McGregor v. Bd. of

Com’rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir. 1992) (quoting Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S. Ct. 2447, 2461 (1990)).

“Likewise an award of attorney’s fees under 42 U.S.C. § 1988 may be overturned on

appeal only for an abuse of discretion.” Id. (citing Fernandes v. Limmer, 663 F.2d

619, 637 (5th Cir. Unit A 1981)).

                       III. CONTENTIONS OF THE PARTIES


       1
         This appeal concerns only the question of attorney’s fees and costs. It does not present for
review any rulings in the underlying case.
                                                 6
      Defendants argue that the court abused its discretion in denying the fees and

sanctions because Defendants were prevailing parties under 42 U.S.C. § 1988, the

case was brought in bad faith and without a colorable basis in law or fact, and the

claims were frivolous, unreasonable, and without foundation. Plaintiffs argue that the

district court had no jurisdiction to award sanctions or attorney’s fees because, at the

time the court considered the question, Plaintiffs had already voluntarily dismissed

their complaint and did not stipulate to continued jurisdiction of the district court for

resolution of the fees and costs question. In the alternative, Plaintiffs argue that the

district court did not abuse its discretion in denying Defendants’ motion.

                                 IV. DISCUSSION

      Plaintiffs’ jurisdictional argument is meritless. The Supreme Court has said:

      It is well established that a federal court may consider collateral issues
      after an action is no longer pending. For example, district courts may
      award costs after an action is dismissed for want of jurisdiction. See 28
      U.S.C. § 1919. This Court has indicated that motions for costs or
      attorney’s fees are “independent proceeding[s] supplemental to the
      original proceeding and not a request for a modification of the original
      decree.” Sprague v. Ticonic National Bank, 307 U.S. 161, 170, 59 S. Ct.
      777, 781, 83 L. Ed. 1184 (1939). Thus, even “years after the entry of a
      judgment on the merits” a federal court could consider an award of
      counsel fees. White v. New Hampshire Dept. of Employment Security,
      455 U.S. 445, 451 n.13, 102 S. Ct. 1162, 1166 n.13, 71 L. Ed. 2d 325
      (1982).

Cooter & Gell, 496 U.S. at 395-96, 110 S. Ct. at 2455-56. In Cooter & Gell, the court

concluded that a voluntary dismissal does not divest the district court of jurisdiction
                                           7
to consider a Rule 11 motion. Id. at 398, 110 S. Ct. at 2457. For the same reasons,

motions seeking attorney’s fees and costs pursuant to statute or the court’s inherent

powers may be considered by the district court after dismissal. Id. at 396, 110 S. Ct.

at 2456.

         We consider Defendants’ arguments under Rule 11 first. Rule 11 prohibits

three types of conduct: filing a pleading that has no reasonable factual basis; filing

a pleading based on a legal theory that has no reasonable chance of success and that

cannot be advanced as a reasonable argument to change the law; and filing a pleading

in bad faith or for an improper purpose. Pelletier v. Zweifel, 921 F.2d 1465, 1514

(11th Cir. 1991) (citing United States v. Milam, 855 F.2d 739, 742 (11th Cir. 1988);

Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en banc)); Fed. R. Civ. P.

11(b).

         In this circuit, a court confronted with a motion for Rule 11 sanctions
         first determines whether the party’s claims are objectively frivolous–in
         view of the facts or law–and then, if they are, whether the person who
         signed the pleadings should have been aware that they were frivolous;
         that is, whether he would have been aware had he made a reasonable
         inquiry. If the attorney failed to make a reasonable inquiry, then the
         court must impose sanctions despite the attorney’s good faith belief that
         the claims were sound.

Jones v. Int’l Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995) (citing McGuire

Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1563 (11th Cir.1992)).



                                            8
       We conclude that the district court abused its discretion in denying Defendants

attorney’s fees and expenses pursuant to Rule 11 because Plaintiffs’ complaints had

no colorable basis in law or fact and Plaintiffs’ attorney should have known that.

       As the district court recognized, the claims brought against Early County and

the other Defendants in their official capacities were not legally cognizable at the

time the original complaint was filed. (See R.3-89 at 3 (citing Manders v. Lee, 338

F.3d 1304, 1319-20 (11th Cir. 2003))).                 While Plaintiffs conceded error and

responded to Defendants’ first motion to dismiss by removing some of the legally

unsupportable allegations, their First Amended Complaint continued to present a

claim against Early County, based solely upon an allegation that the individual

Defendants were “acting under the direction and control” of the county. (R.1-22

¶28.) These allegations of vicarious liability fail as a matter of long-established law.

See City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989).

Defendant Early County was dismissed with prejudice from the entire lawsuit as a

result of Defendants’ motion to dismiss the First Amended Complaint. Thus,

Defendants incurred attorney’s fees and costs in bringing two motions to dismiss

these claims that were futile when pleaded.2

        2
          Count V of the First Amended Complaint–which sought only attorney’s fees pursuant to 42
U.S.C. § 1988 against all Defendants except Early County–was also dismissed with prejudice as a
result of Defendants’ second motion to dismiss. While the court found that the claim was not ripe
as a matter of law, we do not suggest that a request for attorney’s fees is frivolous because it is not
ripe.
                                                 9
       Additionally, Defendants incurred fees and costs in continuing to litigate,

through three complaints, almost four years, and the filing of a summary judgment

motion, claims that Plaintiffs have not supported with any evidence. Plaintiffs should

have known at the time they filed the first complaint that there was no support for

many of the factual allegations upon which their claims rested.3 From the outset of

the litigation and through the Second Amended Complaint, Count I alleged that the

individual Defendants knew that Thomas was likely to kill himself but deliberately

did nothing to stop him. Count II of that complaint alleged that the individual

Defendants used excessive force against Thomas. And, Count III alleged that the

individual Defendants caused Thomas’s death through their use of excessive force.

At the summary judgment stage, Defendants presented evidence that: (1) Defendants

Murkerson, Lash, Hardrick, and Suggs were not on duty and not at the jail on the day

of Thomas’s death, had no interaction with him, and thus could not have known his

state of mind or used any force against him; (2) Defendants Skipper and Price (the

patrol officers who arrested Thomas) turned Thomas over to jail officials, were not

involved in any way in Thomas’s stay at the jail, and had no knowledge that Thomas


        3
          The district court’s finding that Plaintiffs’ attorney investigated and conducted depositions
during the pendency of the litigation is irrelevant. The investigation produced no facts to support
Plaintiffs’ claims. What is important is what the attorney knew or should have known at the time
he filed the complaint. “[T]he court’s inquiry focuses only on the merits of the pleading gleaned
from facts and law known or available to the attorney at the time of filing.” Jones, 49 F.3d at 695
(citing Souran v. Travelers Ins. Co., 982 F.2d 1497, 1508 (11th Cir. 1993)).
                                                     10
had any intention of hurting himself; (3) Defendant Webb arrived at the jail just

minutes before Thomas’s body was discovered and never saw him alive and thus

could not have known his state of mind or used any force against him; and (4)

Defendant Collins (the jailer and the only Defendant who interacted with Thomas and

was in the jail at the time of Thomas’s death) did not mishandle Thomas, was not

aware that Thomas intended to commit suicide, and, upon finding Thomas hanging

from his own shirt in his cell, cut the shirt and obtained help to attempt to revive

Thomas. (R.2-52 at 12-15 and exhibits.) Most of this information was in the Georgia

Bureau of Investigation report that was available to the public as of May 8, 2002, less

than two months after Thomas died. (R.2-52, Affidavit of Stacy Carson and

attachments.) And, information not explicitly included in that report–for example,

the fact that all but two of the Defendants were either not on duty or not in the jail at

the time of the alleged use of excessive force–could have been obtained by Plaintiffs’

attorney during the two years between Thomas’s death and the filing of the lawsuit.

Instead, Plaintiffs filed three complaints alleging facts without support and waited for

Defendants to move for summary judgment. Then, in the face of the evidence

presented in support of Defendants’ motion, Plaintiffs voluntarily dismissed all of

their claims without ever presenting any facts to support their allegations.




                                           11
      We hold that Defendants are entitled to recover attorney’s fees and costs

pursuant to Rule 11. Therefore, we do not address Defendants arguments seeking the

same recovery pursuant to 42 U.S.C. § 1988 and the district court’s inherent powers.

                                 V. CONCLUSION

      We vacate the district court’s March 31, 2009 order (R.3-89) and remand the

case to the district court for its determination of the amount of attorney’s fees and

expenses to be awarded Defendants as sanctions under Rule 11. We leave to the

district court a determination whether the fees and costs should be assessed against

Plaintiffs, Plaintiffs’ lawyer, or both.

      VACATED AND REMANDED.




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