The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
EDWARD LYONS, :
:
Plaintiff, : Case No. 3:23-cv-74
:
v. : Judge Thomas M. Rose
:
TECUMSEH LOCAL SCHOOL : Magistrate Judge Peter B. Silvain, Jr.
DISTRICT, et al. :
:
Defendants, :
______________________________________________________________________________
ENTRY AND ORDER DENYING DEFENDANTS’
MOTION FOR FEES (DOC. NO. 19)
______________________________________________________________________________
Presently before the Court is Defendants’ Motion for Fees (the “Motion”), filed by
Tecumseh Local School District (the “District”) and the District’s Superintendent Paula Crew
(“Crew”) (collectively “Defendants”). (Doc. No. 19.) Plaintiff Edward Lyons (“Lyons”) filed the
instant action against Defendants alleging First Amendment retaliation in violation of 42 U.S.C. §
1983.1 (Doc. No. 9.) The Court most recently granted Defendants’ Motion for Judgment on the
Pleadings (Doc. No. 12), finding Lyons failed to sufficiently plead a causal connection between
his protected speech and Defendants’ adverse employment action against him. (Doc. No. 15 at
PageID 129-32.) Now, Defendants seek an order awarding them their attorney’s fees pursuant to
42 U.S.C. § 1988 and 28 U.S.C. § 1927. (Doc. No. 19 at PageID 139.) Defendants contend that
Lyons’ First Amendment retaliation claim was wholly frivolous from the outset of this litigation.
(Id. at PageID 141-48.) Lyons—having since appealed the Court’s Entry and Order Granting
Defendants’ Motion for Judgment on the Pleadings (the “Order”) (Doc. No. 15)—disagrees. (See
1 Lyons additionally alleged a state law claim for violation of the Ohio Constitution, but subsequently consented to
the dismissal of this claim. (Doc. No. 13 at PageID 100.)
Doc. No. 20.) For the reasons set forth herein, the Court DENIES Defendants’ Motion.
I. BACKGROUND
Since 1995, Lyons has been employed by the District as a seventh-grade social studies
teacher at Tecumseh Middle School in New Carlisle, Ohio (“TMS”)). (Doc. No. 9 at PageID 54.)
For some time leading up to the calendar year 2020, Lyons began perceiving of issues with the
District’s handling of student misconduct. (Id.) Lyons was allegedly “troubled by the instances
of students acting out towards teachers and administrators without consequence.” (Id.) Sharing
his frustration, leadership in the local teachers’ union asked Lyons to speak on the issue of student
misconduct at the District’s board meeting on February 25, 2020 (the “Board Meeting”). (Id.) At
this meeting, several teachers complained to the board and Crew of the District’s failure to address
student misconduct. (Id.) Lyons was the last to speak and he allegedly only provided brief remarks
cosigning the statements made by his colleagues. (Id.) Following the Board Meeting, Lyons
continued teaching seventh-grade social studies at TMS. (Id.) Lyons taught through the remainder
of the 2019-2020 school year and for the entirety of the 2020-2021 school year without incident.
(Id.)
On November 5, 2021, Lyons had a physical confrontation with one of his seventh-grade
students when the student attempted to go to the restroom without first asking permission. (Id.)
Unbeknownst to Lyons, another student in his class made a video recording of the described
incident. (Id. at PageID 57.) That video was circulated among the student body, TMS
administration, Crew, and the local authorities.2 (Id. at PageID 57-60.) The District then placed
Lyons on administrative leave pending the District’s investigation of the incident. (Id. at PageID
2 WHIO Staff, Tecumseh middle school teacher on leave after ‘extended physical altercation’ in classroom, WHIOTv7
(Nov. 17, 2021, 10:37 AM), https://www.whio.com/news/local/tecumseh-middle-school-teacher-leave-amid-
investigation/KRJZP4JIT5A3VCTBXYZQLFBGU4/.
57.)
On November 12, 2021, Defendants provided Lyons with a Notice of Disciplinary Charges
and Pre-Disciplinary Hearing (the “Charges”) and placed a copy in his personnel file. (Doc. No.
9-1.) Lyons alleges that the Charges mischaracterized the subject event by stating that Lyons
“placed his arm around the student’s neck” and that Lyons’ purported reason for initiating and
continuing the altercation was the child’s failure to say “please” when asking permission to go to
the restroom. (Doc. Nos. 9 at PageID 57-58; 9-1 at PageID 65.) Following the pre-disciplinary
hearing, Defendants served Lyons with a Notice of Suspension, placing Lyons on a five-day
unpaid suspension. (Doc. Nos. 9 at PageID 59; 9-2.) This disciplinary action was ultimately
mitigated to a three-day paid suspension in union arbitration proceedings. (Doc. No. 9 at PageID
59.)
Lyons believed that Defendants’ disciplinary action against him for the November 5, 2021,
incident was taken in retaliation for his remarks at the February 2020 Board Meeting. (Id. at
PageID 62.) Lyons thus instituted the current action, alleging retaliation for the exercise of free
speech protected by the First and Fourteenth Amendment of the U.S. Constitution in violation of
42 U.S.C. § 1983. (Doc. No. 9 at PageID 62-63.) On July 31, 2023, Defendants filed Defendants’
Motion for Judgment on the Pleadings (Doc. No. 12), which the Court granted on October 3, 2023
(Doc. No. 15). Lyons has since appealed the Court’s Order. (Doc. No. 17.)
Defendants filed the present Motion seeking an award of attorney’s fees pursuant to 42
U.S.C. § 1988 and 28 U.S.C. § 1927 on November 14, 2023. (Doc. No. 19.) Lyons submitted his
Response to Defendants’ Motion on December 4, 2023 (Doc. No. 20), and Defendants did not file
a reply. The Motion is now ripe for review and decision.
II. LEGAL STANDARD
In keeping with the ubiquitous “American Rule,” litigants in the federal legal system are
generally required to bear their own litigation costs such as attorney’s fees. Fox v. Vice, 563 U.S.
826, 832 (2011) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y., 421 U.S. 240, 247 (1975)).
Nevertheless, Congress has enacted statutes that “authorize courts to deviate from this background
rule in certain types of cases by shifting fees from one party to another.” Fox, 563 U.S. at 832
(citing Burlington v. Dague, 505 U.S. 557, 562 (1992)). Two such statutes are 42 U.S.C. § 1988(b)
and 28 U.S.C. § 1927. See Fox, 563 U.S. at 832. (applying 42 U.S.C. § 1988(b)); see also Royal
Oak Ent., LLC v. City of Royal Oak, 316 Fed. App’x. 482, 487 (6th Cir. 2009) (applying 28 U.S.C.
§ 1927).
Regarding Section 1988, the statute permits an award of reasonable attorney’s fees to the
prevailing party in proceedings brought for the vindication of civil rights. 42 U.S.C. § 1988(b). It
states:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982,
1983, 1985, and 1986 of this title. . ., 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, 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.
Id. Courts are relatively unrestrained in their discretion to award attorney’s fees to prevailing
plaintiffs in civil rights litigation. See e.g., Christiansburg Garment Co. v. EEOC, 424 U.S. 412,
416-17 (1978) (“under [Section 1988] a prevailing plaintiff is to be awarded attorney’s fees in all
but special circumstances” (emphasis in original)). A prevailing civil rights plaintiff is thought to
serve “as a private attorney general, vindicating a policy that Congress considered of the highest
priority.” Fox, 563 U.S. at 833 (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402
(1968)) (internal quotation marks omitted). Accordingly, a prevailing civil rights plaintiff rightly
recovers “‘what it cos[t] [him] to vindicate [civil] rights.’” Fox, 563 U.S. at 833 (quoting Riverside
v. Rivera, 477 U.S. 561, 577-78 (1986)) (alterations in original).
By contrast, where a prevailing civil rights defendant seeks to recover attorney’s fees under
Section 1988 courts are faced with “‘quite different equitable considerations.’” Fox, 563 U.S. at
833 (quoting Christiansburg, 424 U.S. at 419). Namely, district courts must bear in mind that
awarding attorney’s fees to a prevailing defendant under Section 1988 may chill future efforts to
enforce civil rights statutes. Michigan Flyer LLC v. Wayne Cnty. Airport Auth., 860 F.3d 425, 433
(6th Cir. 2017) (quoting Riddle v. Egensperger, 266 F.3d 542, 551 (6th Cir. 2001)). To this end,
“[p]revailing § 1983 defendants face a higher bar than their prevailing plaintiff counterparts.”
Kidis v. Reid, 976 F.3d 708, 722 (6th Cir. 2020) (internal citations omitted). Generally, a
prevailing civil rights defendant may not recover fees under Section 1988 unless “the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not brought in subjective
bad faith.” Id. at 722-23 (quoting Michigan Flyer, 860 F.3d at 433) (internal citations and
quotation marks omitted). Importantly, courts must take care to “resist the understandable
temptation to engage in post hac reasoning by concluding that, because a plaintiff did not
ultimately prevail,” the plaintiff’s action was groundless to begin with. Christiansburg, 434 U.S.
at 421-22. Ultimately, “awarding fees against a losing civil rights plaintiff is an extreme sanction”
reserved for “truly egregious cases of misconduct.” Kidis, 976 F.3d at 723 (quoting Sagan v.
Sumner Cnty. Bd. of Educ., 501 Fed. App’x. 537, 541 (6th Cir. 2012)) (internal citations and
quotation marks omitted).
Barring a simple fee shifting between parties, Section 1927 authorizes courts to hold a
party’s counsel liable for excessive costs. 28 U.S.C. § 1927. This statute briefly provides:
Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.
Id. In short, Section 1927 constitutes a sanction that may imposed upon an attorney who
“objectively ‘falls short of the obligations owed by a member of the bar to the court.’” Kidis, 976
F.3d at 723 (quoting Carter v. Hickory Healthcare Inc., 905 F.3d 963, 968 (6th Cir. 2018)).
The attorney in question need not display subjective bad faith to impose sanctions under
Section 1927. Id. However, the attorney’s conduct must go beyond mere negligence. Id. In other
words, “the mere finding that an attorney failed to undertake a reasonable inquiry into the basis
for a claim does not automatically imply that the proceedings were unreasonably multiplied.”
Riddle, 266 F.3d at 553 (quoting Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997))
(internal quotation marks omitted). Moreover, “[a] sanction [under Section 1927] is generally
improper where a successful motion could have avoided any additional legal expenses by
defendants.” Id. (quoting In re Ruben, 825 F.2d 977, 988 (6th Cir. 1987)) (internal quotation
marks omitted).
III. ANALYSIS
Defendants have requested that the Court hold Lyons and his attorney jointly and severally
liable for Defendants’ attorney’s fees pursuant to both Section 1988 and Section 1927. (Doc. No.
19 at PageID 148.) The Court thus addresses Defendants’ requests regarding Section 1988 and
Section 1927 in turn.
A. 42 U.S.C. § 1988
Turning first to Section 1988, Defendants argue that Lyons frivolously filed the current
action as a “retributive lawsuit.” (Id. at PageID 142.) To support this assertion, Defendants claim
that Lyons’ failure to sufficiently plead a causal connection between his speech and Defendants’
adverse employment action against him rendered Lyons’ claims groundless from the start. (Id. at
PageID 146.) In response, Lyons stands by the allegations in his complaint—now before the Sixth
Circuit—and submits that an award of fees for Defendants under Section 1988 would be an
extreme sanction. (Doc. No. 20 at PageID 174.) Lyons further argues that Defendants’ Motion
calls upon the Court to engage in improper post hac reasoning. (Id. at PageID 177.)
The Court finds the Sixth Circuit’s binding precedent in Tahfs v. Proctor, 316 F.3d 584
(6th Cir. 2003) to be particularly instructive in this case. In Tahfs, the Sixth Circuit held that the
plaintiff’s complaint was properly dismissed pursuant to Fed. R. Civ. P. 12(b)(6) “because the
plaintiff’s complaint [did] not plead facts, which, if proved, would show the [defendants] to be
state actors for purposes of § 1983.” Id. at 593. However, the Sixth Circuit reversed the district
court’s award of attorney’s fees to the defendants, holding that a complaint “lacking in sufficient
factual detail and specificity, is not, perforce. . . frivolous.” Id. at 595. In essence, a plaintiff’s
failure to plead sufficient facts does not itself amount to the sort of egregious misconduct required
to justify an award of attorney’s fees to a prevailing civil rights defendant under Section 1988. Id.
at 596.
With this understanding, an award of attorney’s fees under Section 1988 in the instant case
is unwarranted. The Court previously found that Lyons failed to sufficiently plead facts
establishing a causal connection between his speech and the adverse employment action
Defendants took against him. (Doc. No. 15 at PageID 131-32.) In short, Defendants filed a Rule
12(c) motion testing the sufficiency of Lyons’ complaint and the complaint fell. The Court took
no issue with the legal basis for Lyons’ complaint. Rather, the fatal flaw in Lyons’ complaint is
the lack of sufficiently pleaded facts from which to draw a reasonable inference of liability under
the law. (Id. at PageID 132.) This cannot be characterized as the sort of egregious misconduct by
Lyons that would justify awarding fees pursuant to Section 1988. Indeed, even though Lyons
“should have realized that his suit was unlikely to survive a [Rule 12(c)] motion . . . that alone
[does] not warrant the imposition of sanctions.” Tahfs, 316 F.3d at 595. To find otherwise would
require the type of post hac analysis that district courts have been instructed to avoid. See
Christiansburg 434 U.S. at 421-22.
Therefore, Defendants’ request for an award of attorney’s fees under Section 1988 is
DENIED.
B. 28 U.S.C. § 1927
The Court must now determine whether to sanction Lyons’ attorney, Stephen A. Simon
(“Mr. Simon”), pursuant to Section 1927. For purposes of Section 1927, Defendants largely apply
their arguments for fees under Section 1988 to Mr. Simon. (Doc. No. 19 at PageID 146-48.)
Specifically, Defendants argue Mr. Simon was aware that Lyons’ claims were frivolous and,
therefore, Mr. Simon objectively fell short of his ethical obligations to the Court by continuing to
litigate this case. (Id. at PageID 148.) In response, Mr. Simon contends that Defendants’ request
for Section 1927 sanctions is wholly without merit. (Doc. No. 20 at PageID 179.) More
specifically, Mr. Simon argues that his actions in no way unreasonably and vexatiously multiplied
these proceedings. (Id.)
The Court finds no basis to warrant sanctioning Mr. Simon pursuant to Section 1927 here.
Because Defendants rely on the assertion that Lyons’ complaint was demonstrably frivolous, much
of the Court’s analysis on this point is duplicative of the analysis provided above respecting
Section 1988. As discussed above, Lyons’ complaint cannot be considered frivolous simply
because it was insufficiently pled. Moreover, the Court cannot identify any actions by Mr. Simon
which otherwise unreasonably or vexatiously multiplied this litigation. Finally, Defendants
properly avoided incurring additional unnecessary legal expenses by filing a successful motion at
the pleading stage. Throughout, Mr. Simon has certainly represented his client, but he has not
objectively fallen short of his obligations to the Court in doing so. Therefore, Defendants’ request
for sanctions under Section 1927 is DENIED.
IV. CONCLUSION
Based on the foregoing, the Court DENIES Defendants’ Motion for Fees (Doc. No. 19).
DONE and ORDERED in Dayton, Ohio, this Friday, January 5, 2024.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE