Appeal from the United States District Court for the Central District of California. D.C. No. CV-88-1669-MRP. D.C. No. CV-88-1859-MRP. Mariana R. Pfaelzer, District Judge, Presiding
Before: Browning, Thompson and Kleinfeld, Circuit Judges.
We affirm the denial of attorney's fees and sanctions, affirm the grant of summary judgment to defendants Turner and Waters, but reverse the grant of summary judgment to defendant Mallon.*fn1
The district court granted summary judgment on the diverse state claim in No. 91-55556 because "plaintiff has failed to demonstrate that there is a genuine issue of material fact with respect to the element of causation, i.e., that any of the defendants caused the death of Catherine Braley."
The sworn declarations of defendants Turner and Waters that they left Mallon alone with Braley outside the bar are uncontradicted, and there are no inconsistencies in their testimony to impeach their credibility. Nor is there any evidence they should have been aware Braley was in any danger from Mallon or any other person. The only possible evidence against Turner or Waters is Harold Robson's recollection that he may have heard a second male voice outside his window and a reference to the name "Louis," but we conclude that no fair-minded jury could return a verdict against them based solely on Hobson's recollection.
We reverse the grant of summary judgment to defendant Mallon because we conclude a fair-minded jury could decide, under a preponderance of the evidence standard, that Mallon caused Braley's death. The record establishes that Mallon had been drinking steadily for at least ten hours, that he may have exposed himself at the bar, and that he became involved in a dispute with another patron to whom he had made derogatory remarks. From this evidence, a jury could conclude Mallon lacked self-control and was in a violent mood. Mallon left the bar with Braley (who was also drunk) between 11:30 p.m. and midnight. Plaintiff's medical expert stated "it would be reasonable to assert that Ms. Braley died at midnight." The jury could conclude from this evidence that Mallon was with Braley at the approximate time of her death. Noel Warnick stated he thought Waters was at the bar with another officer from the narcotics unit named "Louis." Although none of the defendants actually had the name "Louis" and each denied using that name, a jury could infer one of the defendants was using "Louis" as an assumed name. Both Hobson and Pearl Kelly stated they may have heard the woman outside their windows use either the name "Louis" or another name redacted from the police report. Kelly also testified the couple quarrelled in a manner indicating they knew each other. Braley's body was found about one block from the place Mallon testified Braley left Mallon's parked car. Braley was choked in a manner plaintiff's expert testified was "consistent with . . . application of a chokehold." Moreover, Mallon's account of the evening's events developed and changed in a manner that would allow a jury to doubt his credibility. When he spoke with Turner on the day following Braley's death he denied having sex with Braley, claimed he had slept alone in his car for an hour and a half, and stated he arrived home at 3:00 a.m. The next day, when interviewed by investigators, he admitted he was very drunk, claimed Braley exposed her breasts at the bar, admitted engaging in oral sex with her in the car, and claimed she got upset and left the car at about 1:00 a.m. after refusing his offer of a ride. He did not mention his earlier claim that he slept in his car, and stated he arrived home, not at 3:00 a.m., but between 1:30 and 2:00 a.m., and "closer to 2:00." In a second statement to investigators, Mallon admitted engaging in intercourse with Braley after she performed oral sex on him. He claimed they then drove to another location and attempted again to engage in oral sex, but he was unable to achieve an erection and Braley declared she had to leave and staggered away. Mallon also stated he arrived home, not at 3:00 or 2:00 a.m., but at 1:00 a.m. He denied telling Turner anything about what he and Braley had done. In his later deposition, Mallon claimed Braley left his car "somewhere about 11:50 to midnight."
A jury could conclude that inconsistencies in Mallon's statements reflected an effort to adjust his account to the emerging evidence. The time he last saw Braley and the time he arrived home were relevant to whether he was with Braley at the time of her death. Whether he engaged in intercourse with her was relevant to the chemical analysis of his body fluids and those found on Braley's person, as well as to whether Braley was raped as well as murdered. His later claim that Braley exposed her breasts could have been an attempt to paint Braley as reckless or as seeking sexual relations. Mallon appears to have backed away from his initial statement that Braley was upset with him, instead expressing puzzlement over her behavior in later statements, perhaps to avoid an inference they had engaged in a dispute that escalated into drunken violence.
In sum, a jury could find that Mallon was in a violent state of mind, that he had the motive to kill Braley based on her reaction to his inability to perform sexually, that he had the opportunity to kill her because he was alone with her at the approximate time of her death, and that he was capable of causing her death. Combined with the inconsistencies in Mallon's various accounts of the evening, a fair-minded jury could find that Mallon killed Braley -- not beyond a reasonable doubt but by the greater weight of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A district court may award fees to a prevailing civil rights defendant under 42 U.S.C. § 1988 if the action is "meritless in the sense that it is groundless or without foundation," Hughes v. Rowe, 449 U.S. 5, 14 (1980), or "the plaintiff continued to litigate after it clearly became [groundless]," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). "The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees." Hughes, 449 U.S. at 14.
The district court found the complaint was
neither "frivolous" nor filed for an "improper purpose" . . . . Given the difficulty of acquiring sufficient information with respect to claims of this kind, the Court cannot conclude that the allegations of the complaint were "frivolous" . . . . Moreover, the Court does not find that plaintiff continued to ...