United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
March 13, 2017, pro se Plaintiff Eddie Murphy, then
an inmate at North Branch Correctional Institution, filed
this action against various correctional and medical
defendants, including Kristi Cortez, R.N. and Greg Flury,
P.A., alleging deliberate indifference to his medical needs
in the aftermath of a pepper spray exposure. ECF No. 1. This
action follows Murphy's voluntary dismissal of a similar
action against Cortez filed in 2013. See Murphy v.
Wilt, No. 13-cv-2975 (D. Md. filed Oct. 9, 2013).
Defendants Cortez and Flury have moved for an award of
attorneys' fees and costs pursuant to Fed.R.Civ.P. 41(d).
ECF No. 54. No. hearing is necessary. See Loc. R.
105.6. (D. Md. 2016). Defendants' Motion is denied.
October 9, 2013, Plaintiff Eddie Murphy, then incarcerated at
North Branch Correctional Institution, filed a lawsuit
against Defendant Cortez, alleging deliberate indifference to
his medical needs in the aftermath of a pepper spray exposure
on September 25, 2013. See Murphy v. Wilt, No.
13-cv-2975 (D. Md. filed Oct. 9, 2013). In that case, Cortez
filed a Motion to Dismiss, ECF No. 13, to which Plaintiff
filed a response, ECF No. 20. However, just eight days later,
Plaintiff moved to withdraw his complaint. ECF No. 21. In its
order dismissing the Complaint, the Court warned that if
Plaintiff commenced an action based upon or including the
same claim against Defendant Cortez, it “may”
order payment of the costs of the previously dismissed action
pursuant to Fed.R.Civ.P. 41(d). ECF No. 22.
September 2, 2016, Plaintiff filed this lawsuit, in which
Cortez was again named as a defendant, alongside Flury and
various other correctional officers; Plaintiff once more
alleged deliberate indifference to his medical needs in the
aftermath of the pepper spray exposure on September 25, 2013.
ECF No. 1 ¶ 7. Defendants Cortez and Flury filed a
Motion to Dismiss and a Motion for Attorneys' Fees and
Costs, ECF No. 20. The Court granted the Motion to Dismiss,
but denied the Motion for Attorneys' Fees pending the
disposition of the remaining claims. ECF No. 50. The Court
granted the remaining Defendants' Motion for Summary
Judgment, ECF No. 52, and Defendants Cortez and Flury have
renewed their Motion for Attorneys' Fees and Costs, ECF
41(d) of the Federal Rules of Civil Procedure states that:
[i]f a plaintiff who previously dismissed an action in any
court files an action based on or including the same claim
against the same defendant, the court:
(1) may order the plaintiff to pay all or part of the
costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied
Defendants seek attorneys' fees, as well as costs.
Although not explicit from the text of the Rule, a court may
also award attorneys' fees from a prior action under Rule
41(d) when either (1.) the underlying statute at issue
provides for attorneys' fees, or (2.) the court finds
“that the plaintiff has acted ‘in bad faith,
vexatiously, wantonly, or for oppressive reasons.'”
Andrews v. America's Living Centers, LLC, 827
F.3d 306, 311 (4th Cir. 2016) (quoting Alyeska Pipeline
Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 28-59
(1975)). “The decision whether and in what amount to
award attorney fees is one committed to the award court's
discretion.” United Food & Commercial Workers,
Local 400 v. Marval Poultry Co., 876 F.2d 346, 350-51
(4th Cir. 1989). This exception to the American Rule, in
which each party remains responsible for its own
attorneys' fees, requires “extraordinary
circumstances.” Hensley v. Alcon Labs., 277
F.3d 535, 543 (4th Cir. 2002).
do not suggest that the underlying statute provides for a
victorious defendant to be awarded attorneys' fees.
Instead, Defendants contend that, while incarcerated,
Plaintiff acted in a generally manipulative manner and often
threatened staff at the correctional facility with
litigation. See ECF No. 20-3 at 3-8. Defendants
primarily rely on the Court's prior warning that the
Court “may” order the payment of costs
of the previously dismissed action. ECF No. 20-4 at 1
(emphasis added). But Defendants have not made a showing that
Plaintiff acted in bad faith, vexatiously, wantonly, for
oppressive reasons, or of any other
“extraordinary” circumstances that would warrant
imposition of attorneys' fees. Nor have Defendants
explained how the interests of justice would be served by
requiring a formerly incarcerated, pro se plaintiff
to reimburse defense counsel for their costs incurred in
securing the dismissal of this action. Therefore, the Court
will not award attorneys' fees or costs in this action.