Unpublished Disposition, 911 F.2d 738 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 738 (9th Cir. 1987)

Warren L. SMITH, Plaintiff-Appellant,v.CONTRA COSTA COUNTY, Gary Yancey, individually and in hiscapacity as District Attorney for the County of ContraCosta, Dale Miller, individually and in his capacity asDeputy District Attorney for the County of Contra Costa,Defendants-Appellees.

No. 87-15160.

United States Court of Appeals, Ninth Circuit.

Submitted June 22, 1990.* Decided Aug. 14, 1990.

Before JAMES R. BROWNING, KILKENNY and RYMER, Circuit Judges.


MEMORANDUM** 

Warren L. Smith appeals pro se the dismissal of his Secs. 1983 and 1985 action, the denial of his motion to disqualify the district court judge, and the district court's award of attorney's fees to defendants pursuant to 42 U.S.C. § 1988. Smith's appeal from the district court's order dismissing his claim under Rule 12(b) (6) is untimely, and we dismiss for lack of jurisdiction. We affirm the district court's denial of Smith's motion to disqualify, and the award of $2,000 in attorney's fees to defendants under 42 U.S.C. § 1988.

* The district court's judgment dismissing Smith's action pursuant to Fed. R. Civ. P. 12(b) (6) was entered on May 1, 1987. Smith filed his notice of appeal on December 22, 1987. Because Smith did not file his appeal within 30 days of the court's final order, we lack jurisdiction to consider the court's dismissal of Smith's action. See Fed. R. App. P. 4; Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988) (Rule 4 is strictly construed, and the court makes no exception for pro se appellants); American Re-Ins. Co. v. Insurance Comm'r, 696 F.2d 1267, 1268 (9th Cir. 1983) (despite the defendants' pending request for attorney's fees, the court's order was final and appealable).

II

The court filed the order denying Smith's motion for disqualification on September 25, 1987. Appellees argue that, because Smith filed his appeal more than 30 days after entry of the order, we lack jurisdiction over this claim as well.

However, in contrast to the court's order dismissing Smith's action, the order denying disqualification was not an appealable final order. See Thomassen v. United States, 835 F.2d 727, 732 n. 3 (9th Cir. 1987). Under Fed. R. App. P. 3(b), the court may consolidate the appeal from the disqualification order with the appeal from another final order if (1) the disqualification order has a bearing on an appealable order, (2) disqualification has been properly argued as grounds for reversal, and (3) the proceedings relating to the disqualification are reflected in the record. See id. (citing United States v. Washington, 573 F.2d 1121, 1122 (9th Cir. 1978)).

Here, the order granting attorney's fees, filed Dec. 2, 1987, was a final and appealable order. See American Re-Ins. Co., 696 F.2d at 1268. Under Fed. R. App. P. 3 and Washington, 573 F.2d at 1123, the appeal from the disqualification order could be properly consolidated with the appeal from the order granting attorney's fees. First, the disqualification order had a bearing on the order granting attorney's fees. The judge referred the motion to another judge, so that if the motion had been granted, the defendants' motion for attorney's fees would have been decided by a different judge. Second, Smith's notice of appeal referred to the trial court's impartiality as grounds for reversal. And third, the proceedings on the disqualification motion are reflected in the record.

Thus, because Smith filed his notice of appeal on Dec. 22, 1987, within thirty days of the Dec. 2, 1987 order granting attorney's fees, and because the appeal from the disqualification motion was properly consolidated with the appeal from the order granting attorney's fees, this court has jurisdiction to consider the merits of Smith's claim that the district court should have been disqualified.

Nevertheless, Smith's claim has no merit. We will only reverse for abuse of discretion a district court's decision not to disqualify a judge. Thomassen, 835 F.2d at 732. To prevail on a motion to disqualify, a party must show extrajudicial bias or prejudice. Id. Smith's motion was founded on the judge's behavior during the hearing and the judge's denial of his motion. Neither of these assertions is sufficient to support a motion for disqualification. See United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); Botts v. United States, 413 F.2d 41, 44 (9th Cir. 1969). The district court therefore did not err in denying Smith's motion.

III

We review a district court's award of attorney's fees for abuse of discretion. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987). In doing so, we examine, first, the court's decision to award attorney's fees to defendants, and second, the amount of the fee award. See id.

* Looking to the standards the Supreme Court applied in Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 421 (1978), the district court found that Smith's action was "frivolous, unreasonable, or without foundation." See also Hughes v. Rowe, 449 U.S. 5, 14-16 (1980) (applying Christiansburg in a Sec. 1983 case); Miller, 827 F.2d at 619.

Courts must apply the Christiansburg standard with particular strictness in cases in which the plaintiff proceeds pro se. Miller, 827 F.2d at 620. The Miller court listed three factors relevant to the appropriateness of fee awards against pro se plaintiffs: (1) whether the court was able to conclude that the action should be dismissed prior to trial; (2) whether the plaintiff was able to recognize the merits of his claim; and (3) whether the plaintiff acted in bad faith. Id.

Here, the district court did not explicitly consider Smith's pro se status. However, it did consider the three relevant factors. The first factor weighed in Appellee's favor, as the district court dismissed Smith's action under Rule 12(b) (6). The court considered the second factor, the plaintiff's ability to recognize the merits of his claim, when it discussed Smith's repeated attempts to bring his claim, and stated, "If plaintiff initially was unaware of the insufficiency of his complaint, this Court's orders clearly informed him of the applicable law." The Miller court specified that "repeated attempts by a pro se plaintiff to bring a claim previously found to be frivolous militates in favor of awarding attorney's fees to a prevailing defendant." Id. The district court considered the third factor, Smith's bad faith, when it found, "This is not a well-intentioned but ultimately unsuccessful civil rights action, but a use of this Court's resources to vex and harass defendants." Furthermore, the district court specifically considered Smith's pro se status when it reduced the fee award to $2,000.

The district court did not abuse its discretion in applying Christiansburg and Miller to find that Smith's repeated attempts to bring a completely groundless claim supported an award of attorney's fees to defendants.

B

The district court did not, however, properly calculate the attorney's fees award. The Ninth Circuit has emphasized the importance of a clear explanation from the district court regarding the basis for its calculation of attorney's fees. Patton v. County of Kings, 857 F.2d 1379, 1382 (9th Cir. 1988) (citing Jordan v. Multnomah County, 815 F.2d 1258, 1261 (9th Cir. 1987)). "This explanation should begin with a calculation of the "lodestar" amount by determining, and then multiplying, the number of hours reasonably expended on the litigation by a reasonable hourly rate." Patton, 857 F.2d at 1382; see also Miller, 827 F.2d at 621. The court may then adjust this amount based on the twelve factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), and the plaintiff's financial resources. Miller, 827 F.2d at 621.

Although the district court properly took into account Smith's financial resources in reducing the fee award to $2,000, see id., it did not begin by calculating a lodestar amount. The failure to do so is an abuse of discretion. Patton, 857 F.2d at 1382.

However, after failing to calculate the lodestar amount, the district court subsequently reduced the fee award from $10,633.48 to $2,000. An examination of the record reveals that defendants' motion was, as the district court found, "well-documented by detailed records." Thus, the amount ultimately awarded was well below the "lodestar" figure which the district court, on remand, would probably calculate.

In the interests of judicial economy, and because the district court's decision to reduce the fee award was not an abuse of discretion, we therefore affirm the attorney's fee award of $2,000. See Martinez v. Idaho First Nat'l Bank, 755 F.2d 1376, 1379 (9th Cir. 1985).

Smith's appeal from the district court's order dismissing his claim is DISMISSED. The court's orders denying disqualification of the judge and awarding attorney's fees are AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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