                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAR 24 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KIM SPANGLER, Individually, and as the           No.   18-55954
Personal Representative for Dennis
Howard Brewer, Deceased,                         D.C. No.
                                                 2:16-cv-09174-ODW-GJS
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

COUNTY OF VENTURA; WILLIAM
SCHNEEKLOTH, Ventura County
Deputy Sheriff, Serial No. 4218,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                      Argued and Submitted January 21, 2020
                               Pasadena, California

Before: RAWLINSON, CLIFTON, and BRESS, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       Plaintiff-Appellant Kim Spangler (Spangler) appeals the district court’s

grant of summary judgment in favor of Defendants-Appellees (Appellees), and the

award of attorneys’ fees to Appellees.

       This appeal arises from a police chase involving Ventura County Deputy

Sheriff Schneekloth and Spangler’s son, Dennis Howard Brewer (Brewer). After

observing Brewer commit multiple traffic violations while riding a motorcycle,

including driving at excessive speed and cross a double-yellow line, Deputy

Schneekloth activated his emergency lights in an attempt to conduct a traffic stop

of Brewer. But Brewer did not stop, and attempted to evade Deputy Schneekloth

at a high speed. Deputy Schneekloth continued to pursue Brewer as he drove off

the roadway and up a hill. Tragically, Brewer fell off a cliff on the other side of

the hill, resulting in his death.

       We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district

court’s summary judgment order. See Universal Cable Prods., LLC v. Atlantic

Specialty Ins. Co., 929 F.3d 1143, 1151 (9th Cir. 2019). The award of attorneys’

fees is reviewed for abuse of discretion. See Johnson v. MGM Holdings, Inc., 943

F.3d 1239, 1241 (9th Cir. 2019). Factual findings made by the district court to

support its fee award are reviewed for clear error. See Tutor-Saliba Corp. v. City

of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006).


                                           2
      1.     The district court correctly applied the purpose-to-harm standard in

evaluating Spangler’s Fourteenth Amendment claims. When considering which

standard to apply, the district court must consider the circumstances the law

enforcement officer faced. See Moreland v. Las Vegas Metro. Police Dep’t, 159

F.3d 365, 373 (9th Cir. 1998), as amended. The “critical question . . . is whether

the circumstances allowed the state actors time to fully consider the potential

consequences of their conduct.” Id. (citations omitted). Considering the pursuit of

decedent, decedent’s failure to respond to the emergency lights, decedent’s evasive

driving tactics, and Deputy Schneekloth’s legitimate law enforcement objectives in

pursuing a motorist committing traffic violations, we agree with the district court

that Spangler failed to raise a material issue of fact that Deputy Schneekloth acted

with a purpose to harm the decedent. See Porter v. Osborn, 546 F.3d 1131, 1137-

39 (9th Cir. 2008). The district court also correctly determined that there was no

evidence that Deputy Schneekloth collided with Brewer’s motorcycle, as

Spangler’s expert acknowledged.

      2.     The district court did not abuse its discretion in awarding attorneys’

fees to Appellees. The district court may award attorneys’ fees to a prevailing

defendant under 42 U.S.C. § 1988, “upon a finding that the plaintiff’s action was

frivolous, unreasonable, or without foundation.” Fox v. Vice, 563 U.S. 826, 833


                                          3
(2011) (citations omitted). The district court did not clearly err when it concluded

that Spangler’s claims became frivolous once she continued to litigate her claims

despite producing no evidence to support her theory of liability. Spangler’s

forensic expert declined to refute Appellees’ evidence that there was no contact

between the decedent’s motorcycle and Deputy Schneekloth’s vehicle. Eyewitness

testimony and accident reconstruction testimony corroborated the fact that no

collision occurred. The district court adequately explained the basis for the fee

amount and the amount was reasonable. No abuse of discretion occurred. See

Tutor-Saliba Corp., 452 F.3d at 1064-65.

      AFFIRMED.




                                           4
