McMenamon v. NH Department of Health and Human Services, Commissioner et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. McMenamon II
v. 	Case No. 21-cv-479-PB
Opinion No. 2023 DNH 044
New Hampshire Department of
Health and Human Services
Commissioner Lori Shibinette, et al.
MEMORANDUM AND ORDER
Plaintiff Richard McMenamon II, proceeding pro se and in forma
pauperis, brought suit under 42 U.S.C. § 1983 against three state actors
within the New Hampshire Department of Health and Human Services. See
Doc. 1 at 2, 4-5. McMenamon sought both monetary and injunctive relief,
alleging that the defendants failed to appropriately enforce federal and state
child protection laws, deprived him of certain federal benefits without due
process, and retaliated against him for reporting child abuse. Doc. 7 at 10-11.
Some of McMenamon’s claims were dismissed following preliminary review,
others were dismissed following a motion to dismiss, and the remainder were
dismissed on summary judgment. See McMenamon v. Shibinette, 2022 DNH
151 at 5-6, 14. McMenamon’s claims relating to the enforcement of child
protection laws were dismissed following preliminary review because the
relevant laws do not confer a private right enforceable under Section 1983.
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Doc. 7 at 17. I later dismissed McMenamon’s remaining claims for damages
after concluding that he failed to demonstrate that the named defendants
injured him directly through their own actions, as required to obtain
monetary relief under Section 1983. McMenamon, 2022 DNH 151 at 5, 11-12.
Finally, I dismissed McMenamon’s claim for injunctive relief after finding
that he did not establish a real and immediate threat of future harm and
therefore lacked standing. Id. at 14.
The defendants now move for attorney’s fees pursuant to 42 U.S.C.
§ 1988(b), claiming that McMenamon’s suit was frivolous and brought in bad
faith. Doc. 51 at 1-2. In support of their motion, the defendants argue that
McMenamon lacked an evidentiary basis for his claims, as outlined in their
motion for summary judgment. Id. at 2. The defendants also note that
McMenamon was previously in a romantic relationship with one of the
named defendants and argue that McMenamon’s suit was an “attempt to
express dissatisfaction with the termination of the relationship and to harass
[his former partner].” Id. at 3.
Section 1988(b) authorizes courts to award attorney’s fees to prevailing
parties, including defendants, in actions brought under 42 U.S.C. § 1983. See
Tang v. R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 13 (1st Cir. 1998). A court
may award fees to a prevailing defendant if it “finds that [the plaintiff’s]
claim was frivolous, unreasonable, or groundless, or that the plaintiff
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continued to litigate after it clearly became so.” Hughes v. Rowe, 449 U.S. 5,
15 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978)). “In determining whether this standard has been met, the court must
assess the claim at the time the complaint was filed, and must avoid the post-
hoc reasoning that, because the plaintiff did not ultimately prevail, the claim
must have been frivolous, unreasonable or without foundation.” Tang, 163
F.3d at 13. Where, as here, the complaint was brought by a pro se plaintiff,
the court should not assume that the plaintiff “ha[s] the same ability as a
plaintiff represented by counsel to recognize the objective merit (or lack of
merit) of a claim.” Miller v. L.A. Cnty. Bd. of Educ., 827 F.2d 617, 620 (9th
Cir. 1987). “An unrepresented litigant should not be punished for his failure
to recognize subtle factual or legal deficiencies in his claims . . . even if the
law or the facts are somewhat questionable or unfavorable at the outset of
litigation[.]” See Hughes, 449 U.S. at 15. Thus, “attorney’s fees should rarely
be awarded against [pro se] plaintiffs.” See id.
This is not such a rare case. At the time McMenamon brought suit,
there was at least a plausible basis for his claims. See Doc. 7 at 14, 17-18.
Indeed, the defendants do not dispute that McMenamon’s federal benefits
were discontinued for a period of time and concede that he offered at least
some evidence that he was threatened after reporting child abuse. See Doc.
51 at 2; Doc. 38-1 at 11; see also Doc. 46-8 at 185. That McMenamon’s
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evidence was ultimately lacking is insufficient, particularly where, as here,
the fatal evidentiary deficiencies flowed from relatively esoteric legal
principles beyond the ken of most pro se litigants. See Hughes, 449 U.S. at
14-15.
Other than the lack of evidence, the only basis for the defendants’
assertion that McMenamon’s suit was frivolous is their allegation that it was
brought to harass his former partner. But that assertion is entirely
speculative, based solely on the fact that McMenamon and his former partner
have a contentious relationship. Cf. Colombrito v. Kelly, 764 F.2d 122, 133
(2d Cir. 1985) (noting that “[h]ostility between parties or their counsel” is an
insufficient basis upon which to conclude that litigation was brought in bad
faith).
For the foregoing reasons, I deny the defendants’ motion for attorney’s
fees (Doc. 51).
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
April 26, 2023
cc: 	Richard A. McMenamon II, pro se
Counsel of Record
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