Donald Moser v. D. McGinnis , 549 F. App'x 665 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD EUGENE MOSER, No. 12-15805
Plaintiff - Appellant, D.C. No. 3:09-cv-08208-NVW
v.
MEMORANDUM*
D. McGINNIS, Deputy Sheriff; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Arizona state prisoner Donald Eugene Moser appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging unreasonable search and
serizure in violation of the Fourth Amendment. We have jurisdiction under 28
U.S.C. § 1291. We review for clear error an award of actual damages, Jarvis v. K2
*
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).
Inc., 486 F.3d 526, 529 (9th Cir. 2007), and for an abuse of discretion an award of
punitive damages, Fair Housing of Marin v. Combs, 285 F.3d 899, 906-07 (9th
Cir. 2002). We affirm.
The district court did not commit clear error by awarding no actual damages
because Moser admitted that he did not have evidence of actual damages by failing
to respond to defendants’ requests for admission, and he did not bring a motion to
withdraw his admissions under Federal Rule of Civil Procedure 36(b). See Fed. R.
Civ. P. 36(b) (“A matter admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn or amended.”); Colon
v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (“Unanswered requests for
admissions may be relied on as the basis for granting summary judgment.”); see
also Hazle v. Crofoot, 727 F.3d 983, 992 & n.6 (9th Cir. 2013) (actual injury
required for compensatory damages award).
The district court did not abuse its discretion by denying Moser punitive
damages because he failed to proffer evidence showing that defendants acted with
malice, in reckless disregard, or in an oppressive manner. See Dang v. Cross, 422
F.3d 800, 807 (9th Cir. 2005) (discussing three predicates for punitive damages
under § 1983).
The district court properly dismissed Moser’s claim against defendant
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Waugh because Moser sued Waugh solely on the basis of his position as a
supervisor, and Moser alleged no facts showing supervisory liability. See Starr v.
Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (setting forth elements for
supervisory liability under § 1983); Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th
Cir. 2007) (standard of review).
The district court did not abuse its discretion by denying Moser’s “Motion
for Research and Preparation Costs” because Moser is pro se and, thus, not entitled
to attorney’s fees. See Kay v. Ehrler, 499 U.S. 432, 435 (1991) (“[A] pro se
litigant who is not a lawyer is not entitled to attorney’s fees.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We do not consider any documents that are not part of the district court
record. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988)
(“Papers not filed with the district court or admitted into evidence by that court are
not part of the clerk’s record and cannot be part of the record on appeal.”).
Moser’s contention concerning judicial bias is unsupported by the record.
AFFIRMED.
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