On May 21, 2009, a Michigan federal court denied a motion by defendants for attorney fees and costs in an unsuccessful lawsuit brought by an exoneree.

During a custody dispute with his ex-girlfriend in 1987, Mark Norman Cleary's seven-year-old daughter accused him of child molestation. He was arrested, tried, convicted and sentenced. More than ten years later, the daughter recanted. In December 2004, Cleary was granted a new trial and the charges were dismissed. By then, he had spent more than 16 years in prison.

Cleary filed a 42 U.S.C. § 1983 lawsuit in federal district court against Macomb County and an investigator, alleging they violated his civil rights during the criminal investigation and prosecution. Defendants filed a motion for summary judgment asserting qualified immunity. The court allowed limited discovery on the issue of qualified immunity. Ultimately, the court granted defendants' motion. Defendants moved for $210,313.50 in attorney fees and $3,952.24 in costs.

The court noted that "awarding attorney fees against a nonprevailing plaintiff is an extreme sanction and must be limited to truly egregious cases of misconduct.”
However, plaintiff's claims were not frivolous, unreasonable or groundless. “Furthermore, the Court's conclusion that defendants did not commit a constitutional violation is not tantamount to a finding that defendants conducted a flawless investigation in Plaintiff's criminal case." Therefore, the court denied attorney fees.

The court also denied costs, noting that the case presented close and difficult issues. The plaintiff was deprived of sixteen years of earnings and awarding costs would be a heavy financial burden on him. Furthermore, the claims were brought in good faith and he believed they were beneficial to public and private interests. Therefore, it would be unfair to and unjust to award costs against him.

See: Cleary v. County of Macomb, U.S.D.C.-S.D.Mich., No. 06-15505.

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