Garth Maag v. Richard Wessler Mike Boyer Michael Sukut City of Glasgow, Montana Valley County, Montana

944 F.2d 654 Garth MAAG, Plaintiff-Appellee, v. Richard WESSLER; Mike Boyer; Michael Sukut; City of Glasgow, Montana; Valley County, Montana, Defendants-Appellants. No. 90-35453. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1991. Decided Sept. 23, 1991. Joseph M. Sullivan, Emmons & Sullivan, J. David Slovak and Mark F. Higgins, Ugrin, Alexander, Zadick & Slovak, Great Falls, Mont., for defendants-appellants. Donald W. Molloy, Anderson & Molloy, Rodney T. Hartman, Herndon, Hartman, Sweeney & Halverson, Billings, Mont., for plaintiff-appellee. Before J. WALLACE, Chief Judge, and O'SCANNLAIN and LEAVY, Circuit Judges. PER CURIAM: 1 This is an action filed by Garth Maag of Glasgow, Montana, under 42 U.S.C. § 1983 against three police officers and the City of Glasgow and Valley County, Montana, for taking him into custody for a medical evaluation. The officers, Richard Wessler, Mike Boyer, and Michael Sukut, appeal the denial of their motion for summary judgment in which they asserted a defense of qualified immunity. We have jurisdiction under 28 U.S.C. § 1291 . Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1375 (9th…

This is an action filed by Garth Maag of Glasgow, Montana, under 42 U.S.C. § 1983 against three police officers and the City of Glasgow and Valley County, Montana, for taking him into custody for a medical evaluation. The officers, Richard Wessler, Mike Boyer, and Michael Sukut, appeal the denial of their motion for summary judgment in which they asserted a defense of qualified immunity. We have jurisdiction under 28 U.S.C. § 1291 . Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1375 (9th Cir.1990); Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989).

We reverse. We hold that the officers are immune because there was probable cause to take Maag into custody.

FACTS

On the evening of July 9, 1987, Arnetta Braaten, who was Garth Maag’s wife; Kay Jackson, who is Braaten’s daughter; and Kay’s sister-in-law, Marlene Jackson, asked for police assistance when they could not locate Maag. Maag, who had been suffering for several weeks from the effects of mixing toxic pesticides, was very weak, lacked motor coordination, had slurred speech, and was irrational at times. That evening, Maag had insisted on driving to Glasgow for supplies even though he knew the supply store had closed.…

dissenting in part:

I dissent from the award of attorneys’ fees. I cannot characterize this action as frivolous, unreasonable, and without foundation. The Supreme Court has explained that attorneys’ fees are not normally awarded to prevailing defendants in § 1983 actions:

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 , 98 S.Ct. 694, 700-01 , 54 L.Ed.2d 648 (1978); see also Hughes v. Rowe, 449 U.S. 5, 14 , 101 S.Ct. 173, 178 , 66 L.Ed.2d 163 (1980) (“The fact that a plaintiff may ultimately lose his ease is not in itself a sufficient justification for the assessment of fees.”).

The district court denied the defendants’ motion for summary judgment. As our precedent demonstrates, a district court’s denial of a defendant’s motion for summary judgment suggests that a plaintiff’s claims are not without merit for purposes of attorneys’ fees. See Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir.1985); see also Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir.1987) (“A court should be particularly chary about awarding attorney’s fees where the court is unable to conclude that the action may be dismissed without proceeding to trial”); Soderbeck v. Burnett…