Gregory Garmong v. County of Lyon ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY GARMONG, No. 18-17282
Plaintiff-Appellant, D.C. No.
3:17-cv-00701-RCJ-CBC
v.
COUNTY OF LYON; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted March 26, 2020**
Las Vegas, Nevada
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Plaintiff Gregory Garmong filed this action in district court, challenging
defendant Lyon County’s approval of a special use permit for construction of a
cellular facility on land also used by the Smith Valley Fire Protection District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“SVFPD”). The district court dismissed Garmong’s complaint due to his failure
to establish Article III standing to bring his claims but granted him leave to amend.
Garmong filed a first amended complaint, and the district court again dismissed for
lack of Article III standing. Defendants SVFPD and its Board of Directors
President Michael Boudreau (together the “fee defendants”) subsequently moved
for attorney’s fees, which the district court granted in part. Garmong argues that
the district court’s dismissal was error, and that in any event the district court
abused its discretion in awarding attorney’s fees. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. We review de novo the district court’s dismissal of Garmong’s
complaint. See Lake Wash. Sch. Dist. No. 414 v. Office of Superintendent of Pub.
Instruction, 634 F.3d 1065, 1067 (9th Cir. 2011). While the district court
dismissed Garmong’s complaint for lack of Article III standing, we may affirm on
any basis fairly supported by the record. Id. We conclude that dismissal was
appropriate.
Garmong alleged violations of due process (both substantive and procedural)
and equal protection via 42 U.S.C. § 1983, as well as state-law claims. Garmong’s
substantive due process claim fails because he has not alleged an injury in fact.
See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868–69 (9th Cir. 2002)
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(articulating the Article III standing requirements). One of his alleged injuries—a
constitutionally protected property interest in the denial of the permit—is not
particularized. The others— future harm to his life and liberty and “stress and
anxiety”—rest on a “highly attenuated chain of possibilities,” including that
firefighting and emergency medical services would be impaired, and that Garmong
would ever need them. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013).
Even assuming that Garmong has Article III standing to bring his procedural due
process cause of action, he failed to state a claim because his amended complaint
does not plausibly allege that Lyon County’s notice-and-hearing procedures were
constitutionally inadequate. See Foss v. Nat’l Marine Fisheries Serv., 161 F.3d
584, 588 (9th Cir. 1998).
Again, even assuming Article III standing, Garmong’s equal protection
claim, premised on the idea that he was singled out by Lyon County, likewise fails
because he did not allege that he was treated differently from others who were
similarly situated. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th
Cir. 2008) (describing the “class of one” equal protection theory and its associated
elements). Garmong’s claim alleging a scheme to deny his civil rights therefore
fails for lack of any underlying constitutional violations. As there are no federal
claims remaining, we infer that the district court’s dismissal included a refusal to
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exercise supplemental jurisdiction over Garmong’s state-law claims. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[W]hen the
federal-law claims have dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice.” (footnote omitted)).
2. Garmong offers a smattering of arguments supporting his contention that
the district court’s award of attorney’s fees was error. None is persuasive. We
review for abuse of discretion an award of attorney’s fees under 42 U.S.C. § 1988.
See Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012).
Section 1988 permits a court to award the “prevailing party” in a § 1983 case
reasonable attorney’s fees as part of costs. 42 U.S.C. § 1988(b). But the statute
operates asymmetrically, and prevailing defendants may only receive attorney’s
fees when “the plaintiff’s civil rights claim is frivolous, unreasonable, or
groundless, or [if] the plaintiff continued to litigate after it clearly became so.”
Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005) (internal quotation
marks omitted).
Contrary to Garmong’s assertion, the district court had jurisdiction to award
attorney’s fees under this provision, even though it dismissed his case for lack of
subject-matter jurisdiction. See CRST Van Expedited, Inc. v. EEOC, 136 S. Ct.
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1642, 1646, 1652 (2016) (“It would make little sense if Congress’ policy of sparing
defendants from the costs of frivolous litigation depended on the distinction
between merits-based and non-merits-based frivolity.” (internal quotation marks
and citation omitted)); see also Alaska Right to Life Political Action Comm. v.
Feldman, 504 F.3d 840, 852 (9th Cir. 2007) (noting that “a court may award
attorney[’s] fees and costs even after dismissing for lack of jurisdiction”).
Moreover, the fee defendants can be prevailing parties under § 1988, even if their
favorable judgment was not based on the merits. See CRST, 136 S. Ct. at 1651;
Amphastar Pharm. Inc. v. Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017).
We further hold that the district court was not precluded from deciding that
Garmong’s claims were frivolous even though it had earlier given him leave to
amend his initial complaint. Cf. Pioneer Lumber Treating, Inc. v. Cox, 5 F.3d 539,
at *4 (9th Cir. 1993) (unpublished table decision) (upholding an imposition of
sanctions under Federal Rule of Civil Procedure 11 where the district court
ultimately concluded that the plaintiffs’ complaint was frivolous but had earlier
granted leave to amend).
We agree with the district court that Garmong’s claims are frivolous. “A
case may be deemed frivolous only when the result is obvious or the arguments of
error are wholly without merit.” Karam v. City of Burbank, 352 F.3d 1188, 1195
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(9th Cir. 2003) (internal quotation marks and ellipsis omitted). Here, the result
was just that. Garmong either alleged only generalized, speculative injuries, or,
even assuming he had Article III standing, failed to articulate or plausibly allege
necessary elements of his constitutional claims.
Garmong also lists a number of other mistakes he contends the district court
made in issuing its fee order. But the goal of fee-shifting “is to do rough justice,
not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). While
we ensure that the district court provided “some indication or explanation of how
[it] arrived at the amount of fees awarded,” Benton v. Or. Student Assistance
Comm’n, 421 F.3d 901, 904 (9th Cir. 2005) (alteration in original), we nonetheless
give “substantial deference” to the district court’s determinations, Fox, 563 U.S. at
838. The district court’s reduction of the fee defendants’ requested hours was
reasoned, and the record shows that Garmong’s allegations regarding the adequacy
of the fee motion and billing entries are baseless.
AFFIRMED. Costs are taxed against Garmong. See FED. R. APP. P.
39(a)(2).
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