FILED
NOT FOR PUBLICATION
OCT 11 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLAS AQUINO, No. 16-16815
Plaintiff-Appellee, D.C. No. 5:14-CV-03387-EJD
v. MEMORANDUM*
COUNTY OF MONTEREY SHERIFF’S
DEPARTMENT; IVAN RODRIGUEZ,
an individual,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Court Judge, Presiding
Argued and Submitted September 12, 2017
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT, ** District
Judge.
Summary judgment was denied on defendant-appellant Ivan Rodriguez’s
claims of qualified immunity because the district court found genuine issues of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
material fact remained unresolved concerning each claim. We agree and thus
affirm.
Plaintiff-appellee Nicolas Aquino moved this court to impose sanctions
against Rodriguez for filing a frivolous appeal. See FED. R. APP. P. 38 (“[I]f a
court of appeals determines that an appeal is frivolous, it may, after a separately
filed motion or notice from the court and reasonable opportunity to respond, award
just damages and single or double costs to the appellee.”). “‘An appeal is
considered frivolous if the result is obvious or the appellant’s arguments are
wholly without merit.’” Ingle v. Circuit City, 408 F.3d 592, 595 (9th Cir. 2005)
(quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1417 (9th Cir. 1990)).
The request for sanctions in Aquino’s answering brief does not provide
Rodriguez sufficient notice. See Higgins v. Vortex Fishing Sys., Inc., 379 F.3d
701, 709 (9th Cir. 2004) (“A request made in an appellate brief does not satisfy
Rule 38 . . . .” (quoting State of Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission
Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996))). However, we may, sua sponte, impose
sanctions for filing a frivolous appeal under Rule 38 “after . . . notice from the
court and reasonable opportunity to respond.” FED. R. APP. P. 38. We order
Rodriguez to show cause in writing, within 14 days after this memorandum
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disposition is filed, why we should not award attorneys’ fees and double costs to
Aquino under Rule 38—including addressing the questions raised at oral argument
about Rodriguez’s potentially frivolous positions. Aquino may file a reply within
14 days after service of Rodriguez’s response.
AFFIRMED.
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