Sherry B. Callahan; Jonathan E. Hughes, Plaintiffs-appellants, v. Anthony P. Bellante; Beverly Westphal; Stephen E. Jensen,et al Defendants-appellees, 972 F.2d 1337 (9th Cir. 1992)

MEMORANDUM^** 

The district court carefully noted in its June 12, 1991, "Order Granting Motion to Dismiss" that, "Plaintiffs, perhaps justifiably, feel aggrieved at the treatment of Callahan in the underlying action. But anger, resentment and frustration are not alone adequate grounds for a lawsuit in federal court, particularly an untimely lawsuit." We agree, and conclude that Plaintiffs' § 1983 action was properly dismissed.

With respect to the county's intention to seek attorney's fees on this appeal, we have said that, " [a] prevailing civil rights defendant should be awarded attorney's fees 'not routinely, not simply because he succeeds, 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) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).

Defendants concede that Plaintiffs might have had a valid malicious prosecution action had the statute of limitations not barred their complaint. The court dismissed the action because it was filed after the statute of limitations had run, and made no specific finding that the complaint was frivolous. Attorney's fees are denied.

AFFIRMED.