                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 10 2011

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

ABHINAV BHATNAGAR,                               No. 09-15296

              Plaintiff - Appellant,             D.C. No. 3:07-cv-02669-CRB

  v.
                                                 MEMORANDUM*
JASON INGRASSIA, individually and in
his official capacity; COUNTY OF
CONTRA COSTA; CITY OF SAN
RAMON,

              Defendants - Appellees.



ABHINAV BHATNAGAR,                               No. 09-16925

              Plaintiff - Appellant,             D.C. No. 3:07-cv-02669-CRB

  v.

JASON INGRASSIA, individually and in
his official capacity; COUNTY OF
CONTRA COSTA; CITY OF SAN
RAMON,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted May 9, 2011
                            San Francisco, California

Before:        D.W. NELSON and W. FLETCHER, Circuit Judges, and DUFFY,
               District Judge.**

      Abhinav Bhatnagar appeals the district court’s grant of judgment as a matter

of law in favor of Jason Ingrassia on Bhatnagar’s § 1983 claim for unlawful

detention. Bhatnagar also appeals the district court’s award of attorney’s fees

incurred by Ingrassia, the City of San Ramon, and the County of Contra Costa in

defense of the allegation that Ingrassia made harassing phone calls to Bhatnagar.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      We agree with Bhatnagar that the district court should have considered all of

the evidence, not just Bhatnagar’s account, in deciding the motion for judgment as

a matter of law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-51 (2000). We nonetheless affirm because Bhatnagar waived the argument for

unlawful detention that he now advances by presenting a substantially different

version of the facts in the district court. See Janes v. Wal-Mart Stores, Inc., 279



          **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for Southern New York, New York, sitting by designation.
                                           2
F.3d 883, 887-88 & n.4 (9th Cir. 2002); cf. Carmen v. San Francisco Unified Sch.

Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). We would reach the same conclusion

were we to consider the merits. A “reasonable” factfinder could not have

interpreted the evidence in the selective manner that Bhatnagar urges by selectively

crediting and discrediting his and Ingrassia’s testimony to construct the single

hybrid narrative that would have permitted Bhatnagar to survive the motion for

judgment as a matter of law. See Fed. R. Civ. P. 50(a).

      We also agree with Bhatnagar that 42 U.S.C. § 1988(b) does not support a

fees award for a claim that was submitted to the jury. See Harris v. Maricopa Cnty.

Super. Ct., 631 F.3d 963, 979 (9th Cir. 2011); Brooks v. Cook, 938 F.2d 1048,

1055 (9th Cir. 1991). But § 1988 does not affect a district court’s inherent

authority to award fees as a sanction against a plaintiff who litigates in bad faith.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 & n.9 (1978). Bhatnagar

concealed relevant evidence and gave misleading, if not perjured, testimony in

order to enhance his litigating position. That suffices for an award of fees. See Fink

v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001); see also Primus Auto. Fin. Servs. v.

Batarse, 115 F.3d 644, 648 (9th Cir. 1997). We may affirm on any ground

supported by the record, O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th




                                           3
Cir. 2007), and the record provides an adequate basis for an award of fees to

sanction this bad faith litigation conduct.

      AFFIRMED.




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