NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 20 2014

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

ROBERT P. SMITH, III, No. 12-17019

Plaintiff - Appellant, D.C. No. 3:10-cv-02959-CRB

v. MEMORANDUM* STATE OF CALIFORNIA,

Defendant,

And

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION and A. HEDGPETH,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, Senior District Judge, Presiding

Submitted November 17, 2014** San Francisco, California

* 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). Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.

In light of the Defendants’ concession that they were not “prevailing

part[ies]” within the meaning of Federal Rule of Civil Procedure 54(d)(1) and that

the award of costs should be reversed, we reverse the award of costs.

REVERSED.