                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 20 2014

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

ROBERT P. SMITH, III,                            No. 12-17019

              Plaintiff - Appellant,             D.C. No. 3:10-cv-02959-CRB

  v.
                                                 MEMORANDUM*
STATE OF CALIFORNIA,

              Defendant,

  And

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION and A. HEDGPETH,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                           Submitted November 17, 2014**
                              San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.

      In light of the Defendants’ concession that they were not “prevailing

part[ies]” within the meaning of Federal Rule of Civil Procedure 54(d)(1) and that

the award of costs should be reversed, we reverse the award of costs.

      REVERSED.
