Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:01-cv-00384-JLK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-0384-JLK-CBS STEVEN H. GLAESER, Plaintiff, v. SIERRA MARCELLA PETERS, CAROL PETERS, and JEFF PETERS Defendants. DEFENDANT SIERRA PETERS, CAROL PETERS AND JEFF PETERS' MOTION FOR COSTS AND ATTORNEY FEES

Defendants Sierra, Carol and Jeff Peters, by and through counsel, Joseph F. Bennett of Cross & Bennett, L.L.C., pursuant to Fed. R. Civ. P. 54(d) and 42 U.S.C. § 1988(b), move the court to award them their costs, including reasonable attorney fees, as the prevailing parties with respect to all civil rights claims brought by plaintiff, and, in support of their motion, state the following: 1. Plaintiff filed suit against these defendants under 42 U.S.C. §§ 1983 and 1985 claiming that they conspired with employees of Academy School District 20 to violate his civil rights. In addition, plaintiff named Academy School District 20 and two of its employees, Heidi Pace and Kathleen Crume, as defendants. This court has dismissed all civil rights claims against all defendants. This court has also dismissed all state law claims against defendants Carol and Jeff Peters. The sole remaining claim in this case is a state law defamation claim against defendant Sierra Peters.

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2. Because this court has entered judgment against the plaintiff and in favor of Sierra, Jeff and Carol Peters on all federal civil rights claims, these defendants are entitled to an award of costs pursuant to Fed. R. Civ. P. 54 (d), including reasonable attorney fees pursuant to 42 U.S.C. § 1988(b). 3. Plaintiff Steven Glaeser is a former probationary school teacher employed on a contract basis during the 1998-99 school year by Academy School District #20. Defendant Sierra Peters was, during the spring semester, a 9th grade student in Glaeser's English and Drama classes. Defendants Jeff and Carol Peters are Sierra's parents. In April 1999, Ms. Peters was one of approximately 11 to 15 students who complained to school district administrators that Glaeser's classroom conduct was inappropriate. The specifics of these allegations are set forth in paragraphs 16 through 21 of the First Amended Complaint. As a result of the concerns addressed to administrators by Ms. Peters and the other students, Academy School District #20 conducted an administrative investigation and hearing, ultimately concluding that the allegations against Mr. Glaeser were well-founded. A letter of reprimand was issued and Mr. Glaeser was assigned to a non-teaching position for the 1999-2000 school year. In March 2000, Mr. Glaeser was informed that his contract would not be renewed for the next school year. 4. Plaintiff alleged various civil rights claims in his First Amended Complaint. Specifically, he claimed that Academy School District #20 and its employees, Ms. Pace and Ms. Crume, violated his First Amendment rights of speech and association by retaliating against him for reading from American literature in his Theater class and for his association with the teacher's union; that he was denied substantive and procedural due process; and that

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he was deprived of liberty interests when he was placed on administrative leave and when he was "terminated." These allegations were set forth in plaintiff's first through third claims for relief. In his fourth claim for relief, plaintiff alleged a conspiracy involving Sierra Peters, her parents, various John and Jane Does (other students), Ms. Crume, Ms. Pace and Academy School District #20 to deprive him of his constitutional rights. Plaintiff's fifth claim for relief alleged a cause of action for alleged similar violations of the Colorado Constitution.1 5. All of the named defendants filed motions to dismiss and/or for summary judgment on all of the federal civil rights claims. The Peters defendants initially filed a Motion to Dismiss on March 6, 2001, alleging, among other things, that the plaintiff's civil rights conspiracy claim should be dismissed for failure to state a claim in that these defendants, as private persons, were not acting "under color of state law" and that their conduct did not constitute "state action." On May 7, 2001, the court issued an Order directing the plaintiff to show cause why all of the federal claims asserted against all defendants should not be dismissed for failure to assert the denial of specific rights secured by the Constitution. In so doing, the court pointed out specific weaknesses in plaintiff's theory of liability against the Peters defendants. The court specifically stated that it "agree[d] with the Peters that Glaeser's conspiracy allegations fall short of imbuing their actions with the imprimatur of the state as required to impose § 1983 liability on private individuals." Order of May 7, 2001, p. 2. The court further stated that Glaeser's allegations against the Peters defendants

Plaintiff's sixth claim for relief was a state breach of contract claim against the School District. His seventh claim is the defamation claim against Sierra Peters and her parents, which was dismissed by the court as to the parents. The eight claim for relief requested injunctive and declaratory relief against the school district.

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"fail, as far as I can tell, to state any viable § 1983 or state law claim for defamation against them. This, however, is a bridge we will cross at a later date." Order of May 7, 2001, p. 7. The court denied the defendants' motion to dismiss without prejudice to refiling the motion if and when plaintiff was able to establish the existence of a federal constitutional deprivation. 6. As a result of the court's Order to Show Cause, additional briefs were filed by all parties, resulting in a second Order dated June 4, 2001 in which the court dismissed plaintiff's first claim based on his alleged union activities but otherwise held "under an exceedingly liberal standard" to discharge the Order to Show Cause. Once again, however, the court noted that the arguments raised by defendants in their briefs "appear largely meritorious and I suspect Plaintiff will have difficulty establishing the factual and legal predicates necessary for the constitutional and common law claims asserted against the State Defendants generally, and, derivatively, against the Peters." Order dated June 4, 2001, p. 3. The court stated that without establishing such factual and legal predicates, the State Defendants would be entitled to qualified immunity. The court specifically threatened to impose sanctions pursuant to Fed. R. Civ. P. 11 against plaintiff and/or his counsel in the event that the factual predicates did not exist and that no reasonable inquiry into their existence had been made. 7. On July 23, 2001, defendants Crume and Pace filed a motion for summary judgment claiming qualified immunity. Academy School District #20 filed a motion for summary judgment on the same date. This court granted the motion of defendants Crume and Pace on November 1, 2004, concluding that plaintiff's claims of First and Fourteenth

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Amendment deprivations were "so remote" that, even assuming that he stated a claim for relief, the rights asserted could not be said to have been "clearly established," entitling Crume and Pace to qualified immunity. The court applied a Rule 12(b)(6) standard in dismissing these claims. The court denied the District's motion for summary judgment as premature given that discovery had not been conducted. 8. After plaintiff had a full opportunity to conduct discovery, the Peters defendants then filed a renewed motion to dismiss, or, in the alternative, for summary judgment on July 13, 2005. Applying both a Rule 12(b) and a Rule 56 standard, this court granted the Peters' motion to dismiss and/or for summary judgment on all civil rights claims on October 13, 2005. The court held that the plaintiff had failed to establish that any of the Peters defendants had acted under color of state law, a "failure which has been more or less apparent since the beginning of the litigation . . ." Order dated October 13, 2005, p. 1. Further, the court held that the allegation of conspiracy and the evidence "fail to support a cause of action against private high school student Sierra Peters ­ much less her parents ­ as individuals who were acting `under color of [state law] when Sierra made her statements to school officials about Mr. Glaeser's alleged misconduct." Order of October 13, 2005, p. 3. The court also held that Mr. Glaeser could not state a claim under § 1985 because he had not alleged that he is a member of a protected class under the Equal Protection Clause. Order of October 13, 2005, p. 4. 9. District 20 renewed its motion for summary judgment on July 13, 2005. By Order dated January 24, 2006, the court granted the motion and dismissed the last remaining civil rights claims. The court noted that the constitutional claims were "questionable from the

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outset" and that "it is time to put these issues to rest." Order of January 24, 2006, p. 2. Regarding Glaeser's claim that he was denied procedural due process, the court specifically noted that Glaeser had taken his complaint that he was "innocent and the District did not believe him" through "two full grievance procedures, culminating in an executive session with the full School Board." Order of January 24, 2006, p. 4. 10. A prevailing party in a civil rights case is entitled to an award of costs, including reasonable attorney fees. Plaintiff filed his civil rights claims against Sierra Peters and her parents, alleging that they acted under color of state law when Sierra complained to school district administrators, along with at least 10 other students, that plaintiff's classroom conduct was inappropriate. Mr. Glaeser has admitted that many, if not all, of the incidents alleged by Sierra and the other students actually occurred, although he contends that his conduct or statements were taken "out of context." This court has repeatedly emphasized the tenuous nature of the civil rights claims asserted against all defendants, particularly these private individuals. It is worth noting that Mr. Glaeser initiated this case through counsel who withdrew from representation in February 2005 over issues of how to proceed with the case. 11. A prevailing defendant in a civil rights action may recover attorney fees "if the suit was vexatious, frivolous, or brought to harass or embarrass the defendant." Utah Women's Clinic, Inc. v. Leavitt, 136 F.3d 707, 709 (10th Cir.1998). Plaintiff has not cited a single case in which a student was found to be acting under color of state law by complaining to school administrators about the classroom conduct of a teacher. Moreover, defendant has not produced one iota of evidence that Sierra's parents engaged in any tortious

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or otherwise inappropriate conduct, let alone that they agreed to enter into a conspiracy with anyone to deprive Glaeser of his constitutional rights. 12. The result of these frivolous and groundless claims is that the Peters family has gone through six years of litigation regarding actions that occurred seven years ago and they have incurred nearly $30,000 in attorney fees and litigation costs. Despite having six years to establish a basis for his civil rights claim, plaintiff has done little more than file arguments with the court complaining that nobody believes him and that he has been victimized. He has conducted virtually no discovery. Each and every federal claim asserted by Glaeser, including each and every federal claim asserted against these defendants, was ultimately dismissed for failure to state a claim for relief, which is exactly what the court predicted was going to happen back in 2001. 13. Mr. Glaeser has a history of making himself out to be the victim when complaints are made regarding his classroom conduct. In the 1995-96 to 1997-98 school years, Mr. Glaeser was employed with the Antelope Valley Unified School District in Lancaster, California. Numerous complaints were made regarding his classroom activities during that time period and he was threatened with termination.2 Mr. Glaeser filed numerous grievances and requests for hearings, then ultimately took a leave of absence which became permanent when he asked for an extended leave and was denied that opportunity. Mr. Glaeser filed a complaint with the EEOC following his termination from that job based on alleged religious

The allegations against him in Lancaster were largely related to his failure to follow curriculum, grading irregularities, familiarity with students and a general lack of control in his classroom.

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discrimination. The complaint was ultimately dismissed. 14. Mr. Glaeser is using the courts to punish Sierra Peters because she was one of the students who stood up for herself and refused to allow him to continue to make her feel uncomfortable in and out of class. Most of the allegations made by Sierra to District administrators have either been found by the District to have merit or have been admitted by Mr. Glaeser, though he claims some of his statements and conduct were taken out of context."3 It must be emphasized that the more serious allegations against Mr. Glaeser in this case, e.g., that his classroom computer was used to access internet pornography sites and that he gave a student a floppy disk which contained links to pornographic web sites were made by other students, not Sierra Peters, and that these accusations were found to be valid by the District. Even Mr. Glaeser appeared to admit at his deposition that these incidents occurred. 15. While it is true that attorney fee awards are not generally made against civil rights plaintiffs with the same frequency as those made against civil rights defendants, this case is unique in that these civil rights defendants were private persons who were found by the court to be acting as private persons and not "under color of state law." These defendants are not governmental agencies or public officials entitled to a defense through their agency. In fact, the District and its employees are covered by an insurance policy which has paid for their entire defense, while the Peters family has had to retain private counsel at their own expense. The principles that argue against an award of attorney fees when a plaintiff unsuccessfully

The District obtained a copy of the list of "cannibal jokes" that the teacher's aide found on Mr. Glaeser's desk. The jokes are filthy and have no place in a public school classroom, particularly on a teacher's desk where students can find them.

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sues a government agency or governmental officials under the civil rights laws simply do not apply when the target of the lawsuit is a private individual. This is particularly so where, as here, the plaintiff has repeatedly ignored the court's warnings that his claims were tenuous, at best. 16. Attached hereto are the affidavit of Joseph F. Bennett regarding attorney fees incurred in this case and an itemization of attorney fees and costs. Submitted this 20th day of March, 2006.

/s/ Joseph F. Bennett Joseph F. Bennett Attorney for Sierra, Carol & Jeff Peters 108 E. St. Vrain St., Suite 20 Colorado Springs, CO 80903 Phone: (719) 633-1359 Fax: (719) 633-5788

CERTIFICATE OF SERVICE I certify that on the 20th day of March, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner indicated by the non-participant's name: Steven Glaser P.O. Box 63136 Colorado Springs, CO 80962

/s/ LisaJohn Shand

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