                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 18 2015

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



                            FOR THE NINTH CIRCUIT


GARR OOLEY and JANIS STARKEY,                    No. 13-15893

              Plaintiffs - Appellants,           D.C. No. 2:12-cv-00095-JAM-
                                                 CKD
 v.

CITRUS HEIGHTS POLICE                            MEMORANDUM*
DEPARTMENT; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted May 14, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and COLLINS,*** Chief
District Judge.




        *
             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).
        ***
             The Honorable Raner C. Collins, Chief District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
      Garr Ooley and Janis Starkey appeal from the district court’s judgment

dismissing their 42 U.S.C. § 1983 action. Starkey also challenges the district

court’s partial award of attorney’s fees to Appellees. We review a dismissal for

failure to state a claim de novo, see Reid v. Johnson & Johnson, 780 F.3d 952, 958

(9th Cir. 2015), and an award of attorney’s fees for abuse of discretion, see Tutor-

Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059-60 (9th Cir. 2006). We have

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

      1.     Ooley and Starkey assert (1) an equal protection claim; (2) a

substantive due process claim; (3) a takings claim; (4) a First Amendment freedom

of religion claim; and (5) a First Amendment right to petition claim. Ooley alone

asserts (6) a malicious prosecution claim; and (7) a defamation claim. The district

court did not err in dismissing any of these claims.

      Appellants’ substantive due process, takings, and First Amendment right to

petition claims are based exclusively on the alleged campaign of neighborhood

harassment. The same is true of Ooley’s defamation claim. Nevertheless, the

reactions of third parties to remarks made by the government do not constitute state

action. See Cooper v. Dupnik, 924 F.2d 1520, 1533-34 (9th Cir. 1991), aff’d in

relevant part, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992) (en banc); see also WMX

Techs., Inc. v. Miller, 80 F.3d 1315, 1320 (9th Cir. 1996) (holding that “defamation


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[must] be accompanied by an injury directly caused by the Government, rather

than an injury caused by the act of some third party”), vacated on other grounds,

104 F.3d 1133 (9th Cir. 1997) (en banc). As a result, these claims fail. See NCAA

v. Tarkanian, 488 U.S. 179, 191 (1988).

      The only nonconclusory allegation supporting Appellants’ equal protection

and First Amendment religion claims is Officer Barron’s comment about the

Seventh-Day Adventist Church. See Moss v. U.S. Secret Serv., 572 F.3d 962, 970

(9th Cir. 2009) (holding that a “conclusory allegation” unsupported by factual

content is “not entitled to an assumption of truth”). This off-hand comment does

not show any official action was taken on the basis of religion. Such “stray

remarks are insufficient to establish discrimination.” Merrick v. Farmers Ins. Grp.,

892 F.2d 1434, 1438 (9th Cir. 1990) (internal quotation marks omitted). There is

no allegation that the comment burdened Appellants’ exercise of religion and the

comment was “not sufficiently imbued with the state’s authority to constitute state

endorsement of religion.” Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998).

Accordingly, these claims fail.

      The final claim under review is Ooley’s malicious prosecution claim.

Among other things, “[a]n individual seeking to bring a malicious prosecution

claim must generally establish that the prior proceedings terminated in such a


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manner as to indicate his innocence.” Awabdy v. City of Adelanto, 368 F.3d 1062,

1068 (9th Cir. 2004). Ooley cannot make such a showing because his conviction

for vandalism does not indicate he was innocent of the two charges for which he

was prosecuted. This claim thus fails as well.

      2.     Starkey’s challenge to the partial award of attorney’s fees is limited to

an argument that the district court was wrong on the merits. “Because we affirm

the district court’s judgment, we likewise affirm the award of fees . . . .” Tatum v.

Moody, 768 F.3d 806, 822 (9th Cir. 2014). In the absence of any constitutional

injury or violation of federal law, we also affirm the rejection of Appellants’

municipal liability claims, see Yousefian v. City of Glendale, 779 F.3d 1010, 1016

(9th Cir. 2015), and request for Ex Parte Young relief, see In re Ellett, 254 F.3d

1135, 1138 (9th Cir. 2001). We further conclude that the district court did not

abuse its discretion in denying leave to amend. See Steckman v. Hart Brewing,

Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (“Although there is a general rule that

parties are allowed to amend their pleadings, it does not extend to cases in which

any amendment would be an exercise in futility or where the amended complaint

would also be subject to dismissal.” (citation omitted)).




                                          4
      3.    We deny Appellees’ request for attorney’s fees without prejudice to

Appellees properly requesting such an award in a separately filed motion. See

Gabor v. Frazer, 78 F.3d 459, 460 (9th Cir. 1996).

      AFFIRMED.




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