Daniel Mahoney v. Bryan Barlow

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 21 2011
MOLLY C. DWYER, CLERK
DANIEL MAHONEY, No. 09-35847 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 3:06-cv-00070-TMB
v.
MEMORANDUM*
BRYAN BARLOW, in his individual
capacity; ANDY DEVEAUX, in his
individual capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued May 5, 2011; Resubmitted September 9, 2011
Anchorage, Alaska
Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.
Plaintiff Daniel Mahoney appeals the district court’s grant of partial
summary judgment to Defendants, State Trooper Bryan Barlow and Officer Andy
DeVeaux, on his 42 U.S.C. § 1983 claims for violations of his Fourth Amendment
rights.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. We review de novo a grant of summary judgment. Alexander Mfg., Inc.
Emp. Stock Ownership Plan & Trust v. Ill. Union Ins. Co., 560 F.3d 984, 986 (9th
Cir. 2009). The district court properly granted summary judgment on Plaintiff’s
claims for false arrest and false imprisonment because, relying on the information
provided by Plaintiff’s wife during her 911 call, the officers had probable cause to
arrest Plaintiff for assault in the fourth degree when they first encountered him.
See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) ("Probable cause
to arrest exists when officers have knowledge or reasonably trustworthy
information sufficient to lead a person of reasonable caution to believe that an
offense has been or is being committed by the person being arrested.").
2. We review the formulation of jury instructions for abuse of discretion.
See Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th Cir. 1999)
(distinguishing between the usual standard of review for jury instructions and the
standard applicable when instructions are challenged for misstating the law). The
district court properly instructed the jury regarding its previous rulings on
summary judgment. The court clearly stated that the issue for the jury was whether
the officers had used excessive force. The court’s statement that it already had
determined that Defendants were entitled to use reasonable force did not mislead or
unduly prejudice the jury.
2
3. We also review for abuse of discretion a district court’s response to a
question from the jury. United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th
Cir. 2000). The district court did not abuse its discretion when responding to the
jury’s questions. Reiterating the original instructions properly refocused the jury’s
attention on the one relevant issue: whether Defendants had used excessive force.
4. The district court abused its discretion by awarding attorney fees to
Defendants under 42 U.S.C. § 1988, because Plaintiff’s excessive force claim was
not frivolous. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (per curiam) (noting
that, under the statute, a defendant may recover attorney fees from a § 1983
plaintiff only if the claim is frivolous, unreasonable, groundless, or prolonged after
becoming so). Defendants stipulated that the excessive force claim was not
suitable for summary judgment, and the court allowed the claim to proceed to trial.
There was an issue of fact as to when and how Plaintiff’s shoulder was dislocated;
Plaintiff had corrected an inconsistency in his statements before the court
considered, and rejected, Defendants’ summary judgment motion. Thus, Plaintiff
did not, as tacitly suggested by the district court and explicitly alleged by
Defendants, alter his testimony in response to the court’s summary judgment
ruling.
3
5. Alaska Rule of Civil Procedure 82(a) entitles the prevailing party in a
civil case to recover attorney fees. When, as here, the case goes to trial and the
prevailing party recovers no money damages, the prevailing party is entitled to
30% of reasonable fees that were necessarily incurred. Id. R. 82(b)(2). A court
may increase the award due to enumerated factors, including the reasonableness of
the claim and any vexatious conduct. Id. R. 82(b)(3).
The district court permissibly apportioned half the fees to the federal claim
and half to the state-law claim. But the court awarded each Defendant 50% of his
fees, rather than 30%, because the court found that the claim was vexatious or in
bad faith. The court clearly erred in making that finding, for the reasons discussed
above.
Award of attorney fees on the § 1983 claim VACATED; award of attorney
fees on the state-law claim VACATED AND REMANDED with instructions to
enter an award of 30% of reasonable fees incurred on that claim; otherwise
AFFIRMED. The parties shall bear their own costs on appeal.
4