Unpublished Disposition, 876 F.2d 896 (9th Cir. 1985)

MEMORANDUM^** 

Daniel DeNardo appeals pro se from the district court's assessment of $13,854.60 in attorney's fees against him, pursuant to 42 U.S.C. § 1988 (1982).

Daniel DeNardo, a former tax auditor for the State of Alaska Petroleum Revenue Division, was fired in February 1979 because he improperly used his position to obtain a copy of a death certificate. He sued Thomas Williams as the Director of the Petroleum Revenue Division, the State of Alaska, and unnamed defendants "acting under state law" for damages pursuant to 42 U.S.C. § 1983 on the grounds that they had violated his rights under the Fourth and Fourteenth Amendments by searching his locked desk drawer and firing him, without hearing or notice, based on a death certificate they took from the drawer. He further claimed that defendants had violated his First Amendment rights because he needed the certificate to help persuade the people of Alaska that the State of Alaska and federal officials had allowed the Soviet Union to use Wrangell Island, the birthplace of the certificate's nameholder, as part of its prison gulag. He amended his complaint to add that the defendants had also violated his First Amendment rights by retaliating against him for having testified at a legislative hearing about wrongdoings of a supervisor and co-employee.

After issuing several partial summary judgments, the district court dismissed DeNardo's complaint with prejudice for failure to comply with its order that he file an amended complaint, and for failure to attend a pretrial conference. The defendants moved for attorneys' fees of $13,854.60 pursuant to 42 U.S.C. § 1988. We affirmed the district court's dismissal of the complaint. See DeNardo v. Williams, No. 83-3827 slip op. at 2 (9th Cir. Feb. 20, 1985), cert. denied, 472 U.S. 1025 (1985).

We review a district court's award of attorney's fees for abuse of discretion, and review de novo the legal standards the district court employed in awarding fees. Patton v. County of Kings, 857 F.2d 1379, 1380 (9th Cir. 1988).

Pursuant to 42 U.S.C. § 1988, a court has discretion to award attorney's fees to a prevailing defendant in certain civil rights lawsuits if the court finds that the plaintiff's action is " 'frivolous, unreasonable, or without foundation.' " Miller v. Los Angeles County Board of Ed., 827 F.2d 617, 619 (9th Cir. 1987) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). The Christiansburg standard is strict in order to avoid undercutting Congress's policy of promoting vigorous prosecution of civil rights cases, and is interpreted especially narrowly in cases involving pro se plaintiffs. Miller, 827 F.2d at 619-20. A court should award attorney's fees to defendants under section 1988 only in exceptional circumstances. Mitchell v. Los Angeles Comm. College Dist., 861 F.2d 198, 202 (9th Cir. 1988); see also Miller, 827 F.2d at 620. Allegations of a complaint, especially when the plaintiff proceeds pro se, that, "upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, 'groundless' or 'without foundation' as required by Christiansburg." Huges v. Rowe, 449 U.S. 5, 15-16 (1980) (per curiam); see also Jensen v. Stangel, 762 F.2d 815, 817 (9th Cir. 1985) (per curiam).

The district court granted the State of Alaska's motion for summary judgment on Eleventh Amendment grounds. DeNardo's Fourth and Fourteenth Amendment claims, however, survived the remaining defendants' initial motion for summary judgment. The claims eventually were dismissed but only because the remaining defendants were entitled to qualified immunity for discretionary acts that did not violate clearly established law. Although the claims ultimately were found to lack merit, we do not find that they were frivolous.

DeNardo's First Amendment claim for retaliation for his testimony at a legislative hearing survived the defendants' challenges and was dismissed only because DeNardo decided to invite a final judgment in order to expedite his appeal rather than pursue the claim.

The district court adopted the magistrate's conclusion that "The opinion of the Ninth Circuit supports a finding that plaintiff's causes of action were frivolous and without a foundation." That conclusion was erroneous. Our decision that most of DeNardo's claims lacked merit did not support a finding that his action was frivolous. See Christiansburg, 434 U.S. at 421-22 (" [I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.").

The district court adopted the magistrate's conclusion that DeNardo's "failure to abide by some of the court orders in this case is an indication that the action to some extent was vexatious." The court considered that DeNardo had violated its orders on three occasions: (1) after requesting oral argument on his motion to amend his complaint and on the defendants' motion for summary judgment, DeNardo failed to appear at the scheduled hearing and gave no notice or subsequent explanation; (2) after the court granted DeNardo leave to amend his complaint, he failed to do so and instead urged the court to expedite any further rulings so that he could pursue an appeal; and (3) for the same reason, he gave notice that he was not going to attend, and did not attend, a scheduled pretrial conference.

DeNardo's actions on the second and third of those occasions were reasonable measures to expedite the taking of his appeal. In response to those actions, the district court properly dismissed his action with prejudice. DeNardo's conduct on the first occasion indeed was unjustified. Sanctions might have been justified for this action or possibly for others taken by DeNardo during the course of the litigation. However, that is not the proper basis for awarding fees under section 1988. As we have noted, in order to justify an award of attorney's fees to a defendant under section 1988, the plaintiff's action must be found to be "frivolous, unreasonable, or without foundation." This Christiansburg standard must be applied with particular strictness in the case of a pro se plaintiff. Miller, 827 F.2d at 620. That standard was not met in this case.

Accordingly, we conclude that the district court abused its discretion by assessing attorney's fees against DeNardo.

REVERSED.