Lucibella v. Town of Ocean Ridge et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 20-CV-82156-DSL
RICHARD LUCIBELLA,
Plaintiff,
v.
TOWN OF OCEAN RIDGE,
OFFICER RICHARD ERMANI, and
OFFICER NUBIA PLESNIK,
Defendants.
/
REPORT AND RECOMMENDATION ON DEFENDANT’S
MOTION FOR ATTORNEYS’ FEES (ECF No. 300)
Defendant, the Town of Ocean Ridge asks this Court to award it prevailing
party attorneys’ fees pursuant to 42 U.S.C. § 1983 and § 1988, and Southern District
of Florida Local Rule 7.3(a). ECF No. 300. Plaintiff, Richard Lucibella, filed a
Response, ECF No. 301, and the Town filed a Reply. ECF No. 302. For the reasons
stated below, it is RECOMMENDED that the Motion be DENIED.
BACKGROUND
Mr. Lucibella sued the Town and two of its police officers relating to an
altercation at his home that resulted in his arrest and subsequent prosecution. ECF
Nos. 21, 89. The Amended Complaint alleged that Officer Richard Ermeri responded
to a report of gunshots around Mr. Lucibella’s street, and spoke with individuals who
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 1 of 11

2
indicated the gunshots could have come from several properties, one of which
belonged to Mr. Lucibella. ECF No. 21 ¶¶9–10. Officer Ermani approached the gate
to Mr. Lucibella’s residence and called out to Mr. Lucibella, asking if anyone there
had heard the shots. Id. ¶¶11–14. Mr. Lucibella was sitting with a friend, Lieutenant
Wohlfiel, who was an off-duty police officer and who told Officer Ermani to leave. Id.
¶14. Officer Ermani then entered Mr. Lucibella’s property and asked Mr. Lucibella if
he shot a firearm, which Mr. Lucibella denied.1 Id. ¶17–18. Officer Ermani asked Mr.
Lucibella if he had any firearms, and Mr. Lucibella handed over the pistol he was
carrying without incident. Id. ¶21. Then, when Mr. Lucibella got up to go back inside
his house, a physical altercation broke out between Mr. Lucibella and Officer Ermani.
Id. ¶¶24–25. Officer Ermani pushed Mr. Lucibella backward with two hands, and he
responded by poking Officer Ermani with his finger. Id. ¶¶24–25. This action was
“the only physical contact Lucibella made.” Id. ¶25. The altercation then escalated to
Officer Ermani grabbing Mr. Lucibella by the wrist and using a “botched and reckless
version of a leg sweep” “to forcefully and violently throw[] Lucibella down to the stone
patio deck, face first,” which knocked him unconscious and caused several other
injuries. Id. Then, Officer Nubia Plesnik ground her knee into Mr. Lucibella’s back
while he was unconscious and broke three of his ribs. Id. ¶26.
Mr. Lucibella was arrested for discharging a firearm in public, using a firearm
while under the influence of alcohol, and resisting an officer with violence. Id. ¶47.
Ultimately, Mr. Lucibella was charged with battery on a law enforcement officer,
1 It was later determined that Lieutenant Wohlfiel had discharged a firearm.
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 2 of 11

3
resisting an officer with violence, and using a firearm while under the influence of
alcohol. Id. ¶54. The firearm charge was dropped, and a jury found Mr. Lucibella not
guilty of the felonies but guilty of misdemeanor simple battery. Id.
The Amended Complaint asserted nine counts, seven against the individual
officers and two against the Town. Against the Town, Mr. Lucibella brought claims
for Monell liability under 42 U.S.C. § 1983, alleging malicious prosecution, continuing
seizure, and excessive force. Id. ¶¶62–67. All defendants moved to dismiss the
Amended Complaint, and the Court granted the motion in part and denied it in part.
ECF No. 89. Mr. Lucibella’s claims for battery, excessive force, and unreasonable
search against the individual officers proceeded, while other claims, including the
claims against the Town, were dismissed. Id. The case proceeded to trial on several
counts against the individual officers. ECF Nos. 276–285.
LEGAL PRINCIPLES
Generally speaking, in American litigation each party in a lawsuit bears its
own attorney’s fees. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 602 (2001) (citing Alyeska Pipeline Serv. Co.
v. Wilderness Soc’y, 421 U.S. 240, 247 (1975)). Title 42, United States Code, Section
1988 is an exception to that general rule. It states:
In any action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law
92– 318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration
Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and
Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title
VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section
12361 of title 34, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 3 of 11

4
part of the costs, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity
such officer shall not be held liable for any costs, including attorney’s
fees, 	unless 	such 	action 	was 	clearly 	in 	excess 	of 	such 	officer’s
jurisdiction.
42 U.S.C. § 1988(b). Under Section 1988, “the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs.” 42 U.S.C. § 1988(b). The party seeking fees bears the burden of
proving entitlement and amount. Am. Civil Liberties Union of Georgia v. Barnes,
168 F.3d 423, 427 (11th Cir. 1999).
A district court has the discretion to award attorneys’ fees to a prevailing
defendant in a civil rights action only after finding that the plaintiff's lawsuit was
“frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.” Christiansburg Garment Co. v. Equal Emp’t Opportunity
Comm’n, 434 U.S. 412, 421 (1978); Hughes v. Rowe, 449 U.S. 5, 14 (1980); see also
Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1188 (11th Cir. 1985).
Nevertheless, “[c]are must be taken to remain sensitive to the policy considerations
militating against imposing fees on unsuccessful plaintiffs in discrimination claims
which might ‘discourage all but the most airtight claims’ and ‘undercut the efforts
of Congress to promote the vigorous enforcement provisions of Title VII.’” Evans v.
St. Lucie Cty. Sch. Dist., No. 2:17-CV-14450, 2019 WL 3997126, at *4 (S.D. Fla.
Aug. 23, 2019) (quoting Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303, 1305
(11th Cir. 2001)). This inquiry does not rest on “whether the claim was ultimately
successful.” Sullivan, 773 F.2d at 1189 (11th Cir. 1985) (quoting Jones v. Texas
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 4 of 11

5
Tech University, 656 F.2d 1137, 1145 (5th Cir. 1981)). Rather, “[t]he plaintiff's
action 	must 	be 	meritless 	in 	the 	sense 	that 	it 	is 	groundless 	or 	without
foundation.” Hughes, 449 U.S. at 14. “That stringent standard is not regularly
satisfied and thus the accepted general rule is that prevailing defendants in section
1983 cases do not recover their attorneys’ fees even when they prevail.” Chabad
Chayil, Inc. v. Sch. Bd. of Miami-Dade Cnty. Fla., No. 20-CV-21084, 2021 WL
6932163, at *1 (S.D. Fla. Aug. 18, 2021).
“A legal claim is frivolous if no reasonably competent attorney could conclude
that it has any reasonable chance of success or is a reasonable argument to change
existing law.” In re BankAtlantic Bancorp, Inc. Sec. Litig., 851 F. Supp. 2d 1299,
1308 (S.D. Fla. 2011), aff’d sub nom. Hubbard v. BankAtlantic Bancorp, Inc., 503
Fed. Appx. 677 (11th Cir. 2012) (citing Worldwide Primates, Inc. v. McGreal, 87
F.3d 1252, 1254 (11th Cir. 1996)).
“In determining whether a suit is frivolous, ‘a district court must focus
on the question whether the case is so lacking in arguable merit as to
be groundless or without foundation rather than whether the claim
was ultimately successful.’” Sullivan, 773 F.2d at 1189 (quoting Jones
v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981)). The
Eleventh Circuit explained in Sullivan that “[c]ases where findings of
‘frivolity’ have been sustained typically have been decided in the
defendant's favor on a motion for summary judgment or a Fed. R. Civ.
P. 41(b) motion for involuntary dismissal.” Id. (explaining that “[i]n
these cases, the plaintiffs did not introduce any evidence to support
their claims” (citing Beard v. Annis, 730 F.2d 741 (11th Cir. 1984);
Jones v. Dealers Tractor & Equip. Co., 634 F.2d 180 (5th Cir. 1981);
Church of Scientology of California v. Cazares, 638 F.2d 1272 (5th Cir.
1981); Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir. 1980))). In
contrast, “[i]n cases where the plaintiffs introduced evidence sufficient
to support their claims, findings of frivolity typically do not stand.” Id.
(citing White v. So. Park Indep. Sch. Dist., 693 F.2d 1163 (5th Cir.
1982); Plemer v. Parsons- Gilbane, 713 F.2d 1127 (5th Cir. 1983)).
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 5 of 11

6
In determining whether a claim is frivolous, the court may consider
the following three factors: “(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 prior to trial or held a full-
blown trial on the merits.” Id. (citing E.E.O.C. v. Kimbrough Inv. Co.,
703 F.2d 98, 103 (5th Cir. 1983); Jones, 634 F.2d at 1146). Ultimately,
“[d]eterminations regarding frivolity are to be made on a case-by-case
basis.” Id.
Schere v. Sch. Bd. of Miami-Dade County, Florida, No. 06-22653-CIV, 2007 WL
9705866, at *7 (S.D. Fla. Aug. 30, 2007). The Eleventh Circuit also considers the
attention given to the claim by the Court. Busby v. City of Orlando, 931 F.2d 764,
787 (11th Cir. 1991). “[A] claim is not frivolous when it is ‘meritorious enough to
receive careful attention and review.’” Cohen v. World Omni Fin. Corp., 457 Fed.
Appx. 822, 828 (11th Cir. 2012) (quoting Busby, 931 F.2d at 787).
As Judge Louis explained, “No one factor is dispositive, and the Court must
consider the case as a whole and determine whether the claim was entirely without
foundation. In determining whether a claim was frivolous, courts view the evidence
in the light most favorable to the non-prevailing plaintiff.” Guevara v. Fla. E. Coast
Ry., LLC., No. 18-CV-24726, 2020 WL 5578960, at *3 (S.D. Fla. Aug. 7, 2020)
(internal citations omitted), report and recommendation adopted, 2020 WL 5572100
(S.D. Fla. Sept. 17, 2020).
DISCUSSION
A. 	Sullivan Factors
The Sullivan factors are not favorable to Mr. Lucibella. First, the Court
determined that the Amended Complaint failed to state claims against the Town
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 6 of 11

7
and dismissed those claim with prejudice. As to the second factor, no settlement offer
was made. “In the absence of evidence of an offer of a substantial amount in
settlement, this factor does not support either party.” Quintana v. Jenne, 414 F.3d
1306, 1310 (11th Cir. 2005). The third Sullivan factor weighs against Mr. Lucibella
because his claims were dismissed prior to trial. See Evans, 2019 WL 3997126, at *2
(citing Sullivan, 773 F.2d at 1189). The fourth factor considered by the Eleventh
Circuit is somewhat neutral because the Court did give the two counts against the
Town some careful attention and review. “[A] claim is not frivolous when it is
‘meritorious enough to receive careful attention and review.’” See Cohen, 457 Fed.
App’x. at 828 (quoting Busby, 931 F.2d at 787). Neither party addressed the fourth
factor in its briefing. While these factors are not helpful to Mr. Lucibella, they are
not dispositive in determining frivolity.
B. 	Other Indicia of Frivolity
Mr. Lucibella spends the bulk of his response arguing that his claims against
the Town were not frivolous. ECF No. 301 at 5–16. First, he asserts that he had an
arguable basis for pursuing his claim for malicious prosecution and continuing
seizure because there are cases that have characterized the requirement to appear in
court as an ongoing seizure, and the Supreme Court has not reached that question.
Id. at 6–9.
Second, he argues that he alleged a non-frivolous Monell claim regarding
excessive force against the Town. Mr. Lucibella contends that his claim is based on
the chain of command, the Police Chief’s role as policymaker when it comes to police
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 7 of 11

8
training on excessive force, the need for training for “dangerous leg sweeps,” and the
failure to discipline officers. Id. at 9–10. He also argues that while this Court ruled
that one incident is insufficient for the Town to incur Monell liability for failure to
train, other courts have imposed such liability based on a single occurrence. Id. at
11–12. In addition, he contends that Officer Plesnik admitted that the Town “has a
custom and policy of using any force necessary, including leg sweeps, to take suspects
down.” Id. at 13. He cites Burge v. St. Tammany Parish, 336 F.3d 363, 373 (5th Cir.
2003) and other cases for the proposition that a municipality may incur Monell
liability for failure to train based on a single incident “with proof of the possibility of
recurring situations that present an obvious potential for violation of constitutional
rights,” 	such 	that 	“it 	should 	have 	been 	apparent 	to 	the 	policymaker 	that 	a
constitutional violation was the highly predictable consequence of a particular policy
or failure to train.” ECF No. 301 at 11. Relatedly, Mr. Lucibella contends that the
Police Chief’s involvement in the search and seizure by telephone and his failure to
discipline the officers supports a Monell claim even if this Court did not agree,
because “a single incident of excessive force can establish the existence of an
inadequate training program if there is some other evidence of the program’s
inadequacy.” Id. at 14 (quoting Brown v. Gray, 227 F.3d 1278, 1286 (10th Cir. 2000)).
The Town responds that because the Court concluded Mr. Lucibella failed to
allege a prima facie case, his claims were frivolous. ECF No. 304 at 2. The Town
argues that the Court ruled that Mr. Lucibella did not allege (1) pretrial detention
and thus failed to plead a viable constitutional violation, (2) a policy or custom that
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 8 of 11

9
caused a constitutional injury, or (3) facts to support a failure-to-train theory. Id. at
3.
While Mr. Lucibella’s claims against the Town were not strong and were
dismissed at the pleading stage, I do not find that the claims were so groundless or
meritless as to rise to the level of frivolousness. There are instances in which courts
have found a viable Monell claim based on a municipality’s failure to act even when
there is no pattern. See J.K.J. v. Polk Cnty., 960 F.3d 367, 380–81 (7th Cir. 2020);
Glisson v. Ind. Dep’t of Corrections, 849 F.3d 372, 382 (7th Cir. 2017) (explaining that
other circuits had not determined “that institutional liability was possible only if the
record reflected numerous examples of the constitutional violation in question”);
Vineyard v. Cnty. of Murray, Ga., 990 F.2d 1207, 1212 (11th Cir. 1993); Swofford v.
Eslinger, 686 F. Supp. 2d 1277, 1284–85 (M.D. Fla. 2009) (“In certain cases, there
need not be a pattern of similar conduct equating to notice for Monell liability to
stand.”). However, courts allowing Monell cases to proceed in the absence of a pattern
have generally found that the violation was an obvious constitutional violation. See
id. (finding an “abject failure to train in an area singled out by the Supreme Court as
being fundamental to the protection of constitutional rights.”). Still, Mr. Lucibella
alleged that he was knocked unconscious and sustained multiple injuries including
broken ribs at the hands of the Town’s officers, and that the Town had failed to train
its officers on the dangerous “leg sweeps” performed that could cause serious injury.
ECF No. 21. While it may be challenging to establish Monell liability on those facts,
and while Mr. Lucibella may not have presented a robust case, the Court cannot say
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 9 of 11

10
that his claim was so groundless and meritless as to be frivolous, or that no
reasonably competent attorney could conclude that it has any reasonable chance of
success. In addition, given the circumstances of the case and the fact that some of Mr.
Lucibella’s claims survived summary judgment and went to trial indicates that his
overall case was not frivolous even if he did not prevail.
Finally, considering that the Court must view the evidence in the light most
favorable to the non-moving plaintiff, and that the general rule is that § 1983
defendants 	do 	not 	recover 	attorneys’ 	fees 	even 	if 	they 	prevail, 	the 	Court
RECOMMENDS that the Motion for Attorneys’ Fees and Non-Taxable Costs be
DENIED.
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable David S. Leibowitz, United States District
Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being
served with a copy of this Report and Recommendation. Failure to timely file
objections shall constitute a waiver of a party's “right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions.” 11th
Cir. R. 3-1 (2016).
If counsel do not intend to file objections, they shall file a notice
advising 	the 	District 	Court 	within 	FIVE 	DAYS 	of 	this 	Report 	and
Recommendation.
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 10 of 11

11
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 16th day of March, 2026.
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
Case 9:20-cv-82156-DSL Document 311 Entered on FLSD Docket 03/16/2026 Page 11 of 11