                               NOT FOR PUBLICATION

                        UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE NINTH CIRCUIT                                 SEP 21 2011

                                                                              MOLLY C. DWYER, CLERK
DANIEL MAHONEY,                                     No. 09-35847                   U.S. COURT OF APPEALS



                 Plaintiff - Appellant,             D.C. No. 3:06-cv-00070-TMB

   v.
                                                    MEMORANDUM*
BRYAN BARLOW, in his individual
capacity; ANDY DEVEAUX, in his
individual capacity,

                 Defendants - Appellees.


                       Appeal from the United States District Court
                                for the District of Alaska
                      Timothy M. Burgess, District Judge, Presiding

                  Argued May 5, 2011; Resubmitted September 9, 2011
                                 Anchorage, Alaska

Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.

          Plaintiff Daniel Mahoney appeals the district court’s grant of partial

summary judgment to Defendants, State Trooper Bryan Barlow and Officer Andy

DeVeaux, on his 42 U.S.C. § 1983 claims for violations of his Fourth Amendment

rights.


           *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. We review de novo a grant of summary judgment. Alexander Mfg., Inc.

Emp. Stock Ownership Plan & Trust v. Ill. Union Ins. Co., 560 F.3d 984, 986 (9th

Cir. 2009). The district court properly granted summary judgment on Plaintiff’s

claims for false arrest and false imprisonment because, relying on the information

provided by Plaintiff’s wife during her 911 call, the officers had probable cause to

arrest Plaintiff for assault in the fourth degree when they first encountered him.

See United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) ("Probable cause

to arrest exists when officers have knowledge or reasonably trustworthy

information sufficient to lead a person of reasonable caution to believe that an

offense has been or is being committed by the person being arrested.").

      2. We review the formulation of jury instructions for abuse of discretion.

See Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th Cir. 1999)

(distinguishing between the usual standard of review for jury instructions and the

standard applicable when instructions are challenged for misstating the law). The

district court properly instructed the jury regarding its previous rulings on

summary judgment. The court clearly stated that the issue for the jury was whether

the officers had used excessive force. The court’s statement that it already had

determined that Defendants were entitled to use reasonable force did not mislead or

unduly prejudice the jury.


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      3. We also review for abuse of discretion a district court’s response to a

question from the jury. United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th

Cir. 2000). The district court did not abuse its discretion when responding to the

jury’s questions. Reiterating the original instructions properly refocused the jury’s

attention on the one relevant issue: whether Defendants had used excessive force.

      4. The district court abused its discretion by awarding attorney fees to

Defendants under 42 U.S.C. § 1988, because Plaintiff’s excessive force claim was

not frivolous. See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (per curiam) (noting

that, under the statute, a defendant may recover attorney fees from a § 1983

plaintiff only if the claim is frivolous, unreasonable, groundless, or prolonged after

becoming so). Defendants stipulated that the excessive force claim was not

suitable for summary judgment, and the court allowed the claim to proceed to trial.

There was an issue of fact as to when and how Plaintiff’s shoulder was dislocated;

Plaintiff had corrected an inconsistency in his statements before the court

considered, and rejected, Defendants’ summary judgment motion. Thus, Plaintiff

did not, as tacitly suggested by the district court and explicitly alleged by

Defendants, alter his testimony in response to the court’s summary judgment

ruling.




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      5. Alaska Rule of Civil Procedure 82(a) entitles the prevailing party in a

civil case to recover attorney fees. When, as here, the case goes to trial and the

prevailing party recovers no money damages, the prevailing party is entitled to

30% of reasonable fees that were necessarily incurred. Id. R. 82(b)(2). A court

may increase the award due to enumerated factors, including the reasonableness of

the claim and any vexatious conduct. Id. R. 82(b)(3).

      The district court permissibly apportioned half the fees to the federal claim

and half to the state-law claim. But the court awarded each Defendant 50% of his

fees, rather than 30%, because the court found that the claim was vexatious or in

bad faith. The court clearly erred in making that finding, for the reasons discussed

above.

      Award of attorney fees on the § 1983 claim VACATED; award of attorney

fees on the state-law claim VACATED AND REMANDED with instructions to

enter an award of 30% of reasonable fees incurred on that claim; otherwise

AFFIRMED. The parties shall bear their own costs on appeal.




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