Summary Calendar DON VENABLE; ET AL Plaintiffs RICHARD EFINLAN v. William Keever

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11111
Summary Calendar
DON VENABLE; ET AL
Plaintiffs
RICHARD E FINLAN
Plaintiff - Appellant
v.
WILLIAM KEEVER, ET AL
Defendants
WILLIAM KEEVER; DENNIS J EICHELBAUM; LAWRENCE J FRIEDMAN;
ALAN B RICH
Defendants - Appellees
------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CV-580-L
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June 12, 2001
Before KING, Chief Judge and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Richard E. Finlan appeals the district court’s grant of
summary judgment for the defendants in his 42 U.S.C. § 1983
action. The district court held that Finlan’s allegations that
the defendants filed a retaliatory counterclaim in violation of

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No. 00-11111
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his First Amendment rights to access to the courts and to
petition the government did not allege the violation of a clearly
established constitutional right.
Finlan argues that he has a constitutional right to file
lawsuits free from retaliation by government officials. He
contends that it is a clearly established right that the
Government cannot take retaliatory action against an individual
designed to punish or chill the exercise of First Amendment
rights to free speech or to petition the Government. He contends
that Keever’s declaratory judgment counterclaim was intended to
punish him for his First Amendment activities.
Finlan cites Hale v. Townley, 45 F.3d 914, 920 (5th Cir.
1995) and Crowder v. Sinyard, 884 F.2d 804, 813 (5th Cir. 1989)
in support of his argument that the right to be free from
retaliation for exercising the right of access to the courts was
clearly established. However, the right the official is alleged
to have violated must have been clearly established in a
particularized and relevant sense, meaning that the “contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Hale, 45 F.3d at 920 (internal quotations and citation omitted).
The issue in this case is whether the contours of the right to be
free from retaliation for exercising the First Amendment rights
in question include the right to be free from a counterclaim.
We rejected an almost identical claim of an alleged
retaliatory counterclaim filed by the defendant in a Title VII
lawsuit in Scrivener v. Socorro Indep. School Dist., 169 F.3d

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No. 00-11111
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969, 972 (5th Cir. 1999). We stated that “[i]t is not obvious
that counterclaims or lawsuits filed against a Title VII
plaintiff ought to be cognizable as retaliatory conduct under
Title VII. After all, companies and citizens have a
constitutional right to file lawsuits, tempered by the
requirement that the suits have an arguable basis.” Id. There
is no clearly established right to be free from a counterclaim
filed by a government official. The district court addressed
Finlan’s retaliation claim adequately and properly granted
summary judgment for the defendants.
Finlan argues that the district court erred in assessing
costs against him because his suit was not frivolous. The
decision of the district court to award costs is reviewed for
abuse of discretion. Cypress-Fairbanks Indep. School Dist. v.
Michael F., 118 F.3d 245, 256 (5th Cir. 1997). Fed. R. Civ. P.
54(d)(1) provides that “costs other than attorneys’ fees shall be
allowed as of course to the prevailing party unless the court
otherwise directs.” Rule 54(d) creates a strong presumption that
the prevailing party will be awarded costs. Schwarz v. Folloder,
767 F.2d 125, 131 (5th Cir. 1985).
The defendants prevailed, and Finlan offers no argument as
to why the district court should not have awarded costs under the
standards of Rule 54(d). His argument that the defendants should
not have been awarded costs unless his lawsuit was determined to
be frivolous is not the correct standard for assessing costs.
We further find that Finlan’s appeal is without arguable
merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20

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No. 00-11111
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(5th Cir. 1983). Because the appeal is frivolous, it is
DISMISSED. See 5TH CIR. R. 42.2. Appellee William Keever’s
motion to accept his appendix as filed is GRANTED.
APPEAL DISMISSED AS FRIVOLOUS; MOTION GRANTED.

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