131 F3d 148 Shevchynski v. City of Eugene F

131 F.3d 148

Nick SHEVCHYNSKI, Plaintiff-Appellant,
v.
CITY OF EUGENE, a municipal corporation, et al.; Henry F.
LeClaire, Individually and in his capacity as
agent for the City of Eugene,
Defendants-Appellees.

No. 95-36244.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 17, 1997.**
Decided Nov. 19, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Oregon, No. CV-94-06478-TMC; Michael R. Hogan, District Judge, Presiding.

Before: HUG, Chief Judge, PREGERSON, and BEEZER, Circuit Judges.


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1

MEMORANDUM*

2

Nick Shevchynski appeals pro se from the district court's post-judgment order granting defendant Henry F. LeClaire's motion for attorneys fees and costs following the district court's dismissal of Shevchynski's 42 U.S.C. § 1983 action for failure to state a claim.1 In his section 1983 action, Shevchynski alleged that his neighbor LeClaire conspired with the City of Eugene and others to violate his civil rights and that LeClaire also violated his civil rights when he threw coffee on his car windshield.

3

The district court granted attorneys fees and costs under 42 U.S.C. § 1988 to LeClaire as the prevailing party on the grounds that the claims against LeClaire were frivolous, unreasonable and without foundation. Specifically, the court noted that Shevchynski had failed to provide any information that would make LeClaire liable as a state actor under section 1983. The court also noted that the allegation of throwing coffee on one's windshield did not implicate the Constitution or federal law. Given the district court's findings, we find no abuse of discretion in the district court's decision to award attorneys fees to LeClaire. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (a district court may award attorneys' fees to a prevailing defendant in a civil case if the plaintiff's claims are "unreasonable, frivolous, mertiless, or vexatious."); Miller v. Los Angeles Bd. of Educ., 827 F.2d 617, 619 (9th Cir.1987) (this court reviews attorneys' fees determinations for abuse of discretion).2

4

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

1

Shevchynski also asks this court to clarify whether the dismissal of the defendants from the underlying action was without prejudice. Given that Shevchynski's notice of appeal from the attorneys' fee award was filed on December 1, 1995, we lack jurisdiction to review the underlying order of dismissal, entered on 4/28/95


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2

We deny Shevchynski's motions to clarify the evidence, for enlargement of time, and his motion to make more definite and certain the parties