                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 20 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JONATHAN B. BUCKHEIT,                            No. 12-16061

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05000-JCS

  v.
                                                 MEMORANDUM*
TONY DENNIS; DEAN DEVLUGT;
TOWN OF ATHERTON; COUNTY OF
SAN MATEO; ANTHONY KOCKLER;
JERRY CARLSON,

              Defendants - Appellees.



JONATHAN B. BUCKHEIT,                            No. 13-15214

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05000-JCS

  v.

TONY DENNIS; DEAN DEVLUGT;
TOWN OF ATHERTON; COUNTY OF
SAN MATEO; ANTHONY KOCKLER;
JERRY CARLSON,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                       for the Northern District of California
                    Joseph C. Spero, Magistrate Judge, Presiding

                        Argued and Submitted May 14, 2014
                             San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.**

      In No. 12-16061, Plaintiff-Appellant Jonathan Buckheit appeals the district

court’s grant of summary judgment to the County of San Mateo (“the County”) on

his 42 U.S.C. § 1983 claim that the County conspired with the Town of Atherton to

violate Buckheit’s First Amendment rights by withholding a copy of the police

report filed after his arrest on suspicion of domestic violence in retaliation for his

petition for a declaration of factual innocence. In No. 13-15214, Buckheit appeals

(1) the district court’s award of $145,434 in attorneys’ fees to the County under 42

U.S.C. § 1988, and (2) its evidentiary ruling on one of the County’s declarations in

support of its fees motion. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm the district court’s grant of summary judgment to the County but reverse its

award of attorneys’ fees.

      Addressing appeal No. 12-16061, we observe that there is no evidence that

the County’s district attorney had a copy of the police report when Buckheit


        **
             The Honorable Ivan L.R. Lemelle, District Judge for the United States
District Court for the Eastern District of Louisiana, sitting by designation.
requested it from him.1 Nor is there evidence that the County’s actions were

motivated by retaliatory intent. Indeed, there is evidence to the contrary—that the

County tried to help Buckheit get a copy of his police report but could not persuade

the Town of Atherton to produce it. Further, Buckheit’s allegations of a

conspiracy between the County and the Town of Atherton are speculative and lack

evidentiary support. See United States ex rel. Cafasso v. Gen. Dynamics C4 Sys.,

Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a

plaintiff must set forth non-speculative evidence of specific facts, not sweeping

conclusory allegations.”). Because we conclude that there is no genuine dispute as

to any material fact, we hold that the district court properly granted summary

judgment to the County. See Cameron v. Craig, 713 F.3d 1012, 1018 (9th Cir.

2013); see also Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 771 (9th Cir.

2006).

      We next address appeal No. 13-15214. Courts may award attorneys’ fees to

prevailing defendants in suits brought under 42 U.S.C. § 1983 only in “exceptional

circumstances.” Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1187 (9th

Cir. 2012) (internal quotation marks omitted); see also 42 U.S.C. § 1988(b). Put

      1
        Buckheit did not broadly request a copy of the police report in the custody
of any County entity. Whether the County’s child protective services agency had a
copy, then, is irrelevant.

                                          3
another way, a prevailing civil rights defendant is entitled to a fee award “only

where the action brought is found to be unreasonable, frivolous, meritless or

vexatious.” Edgerly v. City & Cnty. of S.F., 599 F.3d 946, 962 (9th Cir. 2010)

(internal quotation marks omitted).

      We agree with the district court that Buckheit’s claims against the County

are “extremely weak.” And yet, we do not agree that there is “no legal or factual

basis” for them, which is required to grant fees to a prevailing civil rights

defendant. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420 (1978).

The County acknowledged at oral argument that it had a role in the formation of

the domestic violence policy followed by the officers who arrested Buckheit. A

challenge to that policy’s provisions, as interpreted by the arresting officers,

impelled Buckheit’s suit. We conclude that the connection between Buckheit’s

claims and the County is “tenuous, but not frivolous.” See Traver v. Meshriy, 627

F.2d 934, 939 (9th Cir. 1980).

      Perhaps more importantly, where a defendant prevails in a 42 U.S.C. § 1983

suit, our practice requires us “to avoid discouraging civil rights plaintiffs from

bringing suits”—even on claims that are creative—“and thus ‘undercut[ting] the

efforts of Congress to promote the vigorous enforcement of’ the civil rights laws.”

Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 971 (9th Cir. 2011)


                                           4
(alteration in original) (quoting Christiansburg Garment Co., 434 U.S. at 422). By

tolerating creative lawyering, the law adapts and meets society’s needs. We

conclude that in this case an award of attorneys’ fees to the County—a prevailing

civil rights defendant—was not warranted, and we reverse the district court on that

issue.2 See, e.g., Braunstein, 683 F.3d at 1184, 1189; Thomas v. Bible, 983 F.2d

152, 153, 155 (9th Cir. 1993) (reversing district courts’ awards of attorneys’ fees to

prevailing defendants in 42 U.S.C. § 1983 cases).3

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part.




      2
        While our decision affirms the district court in part and reverses in part, we
appreciate and acknowledge the work of that court in setting forth the facts and the
law in a thorough fashion.
      3
        Because we reverse the district court’s award of attorneys’ fees to the
County, we need not reach Buckheit’s claim that the district court abused its
discretion when it considered Brian Wong’s declaration in deciding the County’s
motion for fees.

                                          5
