Robinson v. Burgess

Full title: Allan L. ROBINSON, Plaintiff-Appellant, v. BURGESS, Fitzer, P.S.; Steven…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jan 25, 2001

2 F. App'x 856 (9th Cir. 2001)

Opinion

2 Fed.Appx. 856 (9th Cir. 2001) Allan L. ROBINSON, Plaintiff-Appellant, v. BURGESS, Fitzer, P.S.; Steven M. Fitzer; Jack J. Maichel; Rosemary K. Maichel; Tavares, Ladenburg, Reed & Bates; Pierce County Security, Inc.; Pierce County Superior Court; Andra Moytka, Superior Court Administrator; Glen L. Weller, President of Pierce County Security Inc.; Christine E. Tavares; Robyn Ann Lindsay; National Center for Missing & Exploited Children; Adam Walsh Children's Fund; Norma Jean Helms; Tacoma Police Department; Pierce County Sheriff's Department; Ann Higgins; John Robert Helms; Judy Whitmer; John Ladenburg, Jr. Defendants-Appellees. No. 00-35311. United States Court of Appeals, Ninth Circuit. January 25, 2001

Submitted Jan. 8, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Civil rights complaint was brought against various county and individual defendants. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., dismissed action and awarded attorney fees and costs to defendants. On appeal, the Court of Appeals held that award of attorney fees and costs was not abuse of discretion.

Affirmed. Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV 99-05646-FDB.

Before BEEZER, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Allan L. Robinson appeals the district court's amended judgment dismissing his action with prejudice and awarding attorney's fees and costs to appellees. Because Robinson failed to file a timely notice of appeal as to the judgment dismissing his action, we lack jurisdiction to consider the dismissal. We review the district court's award of attorney's fees for an abuse of discretion, see Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997), cert. denied, 525 U.S. 827, 119 S.Ct. 75, 142 L.Ed.2d 59 (1998), and we affirm.

A district court has discretion to award attorney's fees to a prevailing defendant

Page 858.

under 42 U.S.C. § 1988, "but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir.1988) (citations omitted). "A district court abuses its discretion if its fee award 'is based on an inaccurate view of the law or a clearly erroneous finding of fact.' " Barjon, 132 F.3d at 500 (citations omitted).

The district court found that Robinson's claims consist of "vague conclusions," and that his complaint "continues in ... rambling fashion through 29 causes of action against 29 defendants...." There is nothing in the record that demonstrates that these findings are clearly erroneous. Accordingly, we conclude that the district court did not abuse its discretion in determining that Robinson's action was frivolous or in awarding fees and costs under § 1988. We further conclude that the basis for the district court's award of $15,560.93 is clear from the record, and that the award is amply supported by uncontested evidence regarding appellees' costs to defend Robinson's frivolous action and to expunge the lis pendens filed by Robinson.

Because we conclude that Robinson's appeal was not entirely without merit, we reject appellees' request for attorney's fees and costs on appeal pursuant to 42 U.S.C. § 1988(b) and Fed. R.App. P. 38.

AFFIRMED.