Ooley v. Citrus Heights Police Department

FILED
NOT FOR PUBLICATION MAY 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARR OOLEY and JANIS STARKEY, No. 13-15893
Plaintiffs - Appellants, D.C. No. 2:12-cv-00095-JAM-
CKD
v.
CITRUS HEIGHTS POLICE MEMORANDUM*
DEPARTMENT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted May 14, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and COLLINS,*** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Garr Ooley and Janis Starkey appeal from the district court’s judgment
dismissing their 42 U.S.C. § 1983 action. Starkey also challenges the district
court’s partial award of attorney’s fees to Appellees. We review a dismissal for
failure to state a claim de novo, see Reid v. Johnson & Johnson, 780 F.3d 952, 958
(9th Cir. 2015), and an award of attorney’s fees for abuse of discretion, see Tutor-
Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059-60 (9th Cir. 2006). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Ooley and Starkey assert (1) an equal protection claim; (2) a
substantive due process claim; (3) a takings claim; (4) a First Amendment freedom
of religion claim; and (5) a First Amendment right to petition claim. Ooley alone
asserts (6) a malicious prosecution claim; and (7) a defamation claim. The district
court did not err in dismissing any of these claims.
Appellants’ substantive due process, takings, and First Amendment right to
petition claims are based exclusively on the alleged campaign of neighborhood
harassment. The same is true of Ooley’s defamation claim. Nevertheless, the
reactions of third parties to remarks made by the government do not constitute state
action. See Cooper v. Dupnik, 924 F.2d 1520, 1533-34 (9th Cir. 1991), aff’d in
relevant part, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992) (en banc); see also WMX
Techs., Inc. v. Miller, 80 F.3d 1315, 1320 (9th Cir. 1996) (holding that “defamation
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[must] be accompanied by an injury directly caused by the Government, rather
than an injury caused by the act of some third party”), vacated on other grounds,
104 F.3d 1133 (9th Cir. 1997) (en banc). As a result, these claims fail. See NCAA
v. Tarkanian, 488 U.S. 179, 191 (1988).
The only nonconclusory allegation supporting Appellants’ equal protection
and First Amendment religion claims is Officer Barron’s comment about the
Seventh-Day Adventist Church. See Moss v. U.S. Secret Serv., 572 F.3d 962, 970
(9th Cir. 2009) (holding that a “conclusory allegation” unsupported by factual
content is “not entitled to an assumption of truth”). This off-hand comment does
not show any official action was taken on the basis of religion. Such “stray
remarks are insufficient to establish discrimination.” Merrick v. Farmers Ins. Grp.,
892 F.2d 1434, 1438 (9th Cir. 1990) (internal quotation marks omitted). There is
no allegation that the comment burdened Appellants’ exercise of religion and the
comment was “not sufficiently imbued with the state’s authority to constitute state
endorsement of religion.” Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998).
Accordingly, these claims fail.
The final claim under review is Ooley’s malicious prosecution claim.
Among other things, “[a]n individual seeking to bring a malicious prosecution
claim must generally establish that the prior proceedings terminated in such a
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manner as to indicate his innocence.” Awabdy v. City of Adelanto, 368 F.3d 1062,
1068 (9th Cir. 2004). Ooley cannot make such a showing because his conviction
for vandalism does not indicate he was innocent of the two charges for which he
was prosecuted. This claim thus fails as well.
2. Starkey’s challenge to the partial award of attorney’s fees is limited to
an argument that the district court was wrong on the merits. “Because we affirm
the district court’s judgment, we likewise affirm the award of fees . . . .” Tatum v.
Moody, 768 F.3d 806, 822 (9th Cir. 2014). In the absence of any constitutional
injury or violation of federal law, we also affirm the rejection of Appellants’
municipal liability claims, see Yousefian v. City of Glendale, 779 F.3d 1010, 1016
(9th Cir. 2015), and request for Ex Parte Young relief, see In re Ellett, 254 F.3d
1135, 1138 (9th Cir. 2001). We further conclude that the district court did not
abuse its discretion in denying leave to amend. See Steckman v. Hart Brewing,
Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (“Although there is a general rule that
parties are allowed to amend their pleadings, it does not extend to cases in which
any amendment would be an exercise in futility or where the amended complaint
would also be subject to dismissal.” (citation omitted)).
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3. We deny Appellees’ request for attorney’s fees without prejudice to
Appellees properly requesting such an award in a separately filed motion. See
Gabor v. Frazer, 78 F.3d 459, 460 (9th Cir. 1996).
AFFIRMED.
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